Samms v. Fischer et al

Filing 92

MEMORANDUM-DECISION AND ORDER: ORDERED, that the magistrate judge's Report-Recommendation (Dkt. No. 84 ) is ACCEPTED in part and REJECTED in part. ORDERED, that Defendants' motion for summary Judgment (Dkt. No. 76 ) is GRANTED in part and DENIED in part as stated herein. ORDERED, that the Clerk of the Court shall terminate Defendants Fischer, Duncan, Racette and Bezio from this action. ORDERED, that the Clerk of the Court shall terminate the four Defendants listed in footnote 2 of the Report-Recommendation (i.e., Defendants Ferro, Reinhold, Hogan, and Porcelli). ORDERED, that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone u nless a motion for appointment of counsel for an appeal is granted. ORDERED, that upon assignment of Pro Bono Counsel, a final pretrial conference with counsel will be scheduled in this action with the undersigned, at which time the Court will sch edule a jury trial for Plaintiff's procedural due process claims as described above against Defendants LeClaire, Estate of Drown and Artus. Counsel are directed to appear at the final pretrial conference with settlement authority from the parties. Signed by Judge Glenn T. Suddaby on 9/20/13. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
MICHAEL SAMMS,
Plaintiff,
v.

9:10-CV-0349
(GTS)

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;
ESTATE OF CURTIS DROWN, a/k/a Drown;
DALE ARTUS, Superintendent of Clinton
Corrr. Facility; and S.E. RACETTE, Deputy
Superintendent of Sec. and Comm. Chairman,
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

GLENN T. SUDDABY, United States District Judge

MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Michael
Samms (“Plaintiff”) against the seven above-named New York State correctional employees
(“Defendants”), are Defendants’ motion for summary judgment (Dkt. No. 76), a United States
magistrate judge’s Report-Recommendation recommending that Defendants’ motion be granted
in part and denied in part (Dkt. No. 84), Defendants’ Objection to the Report-Recommendation
(Dkt. No. 88), and Plaintiff’s Objection to the Report-Recommendation (Dkt. No. 89). For the
reasons set forth below, the Report-Recommendation is accepted in part and rejected in part, and
Defendants’ motion is granted in part and denied in part.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

Plaintiff filed his Complaint in this action on March 25, 2010. (Dkt. No. 1.) Generally,
construed with the utmost of liberality, Plaintiff's Complaint alleges that, immediately after he
was transferred to Clinton Correctional Facility(“Clinton C.F.”) on January 11, 2008, Defendants
placed him in an especially hot and unsanitary cell in a special housing unit (“SHU”) without
cause, where he remained for a period of approximately twenty-two months, despite his appeals.
(Id.) Based on these factual allegations, Plaintiff asserts the following claims: (1) a claim that
Defendants violated his procedural due process rights under the Fourteenth Amendment by, inter
alia, causing him to be placed in administrative segregation, failing to timely schedule an initial
administrative segregation hearing, conducting a biased administrative segregation hearing, and
failing to remedy the violation after learning of it through a report or appeal; and (2) a claim that
Defendants violated his right to be free from inadequate conditions of confinement under the

2

Eighth Amendment by being aware of, but failing to remedy, the hot and unsanitary conditions
in his cell in SHU. (Id.)
Familiarity with these claims and the factual allegations supporting them is assumed in
this Decision and Order, which is intended primarily for the review of the parties. (Id. at Parts
IV-VI.)
B.

Parties’ Briefing on Defendants’ Motion for Summary Judgment

Generally, in their motion for summary judgment, Defendants assert the following three
arguments: (1) Plaintiff’s Fourteenth Amendment claim should be dismissed because (a) based
on the admissible record evidence it is clear that a proper administrative segregation hearing was
conducted on January 22, 2008, four days before the expiration of the 14-day deadline imposed
by the governing regulations, and (b) in any event, Plaintiff has failed to establish the personal
involvement of any of Defendant (other than Defendant Drown, the administrative hearing
officer) in the due process violation alleged; (2) Plaintiff’s Eighth Amendment claim should be
dismissed because (a) there is no admissible record evidence establishing that Plaintiff has
experienced objectively actionable conditions of confinement, (b) in any event, there is no
admissible record evidence establishing that any Defendant has engaged in subjective deliberate
indifference to Plaintiff’s conditions of confinement, and (c) in any event, Plaintiff has failed to
establish the personal involvement of any of Defendants in the unsanitary conditions of
confinement alleged; and (3) in any event, Defendants are protected from liability as a matter of
law by the doctrine of qualified immunity. (Dkt. No. 76, at Parts I-III.)
Generally, in his opposition to Defendants’ motion, Plaintiff asserts the following three
arguments: (1) Defendants are not entitled to summary judgment on Plaintiff’s Fourteenth

3

Amendment claim because (a) they failed to timely administer an initial placement hearing
within the seven-day deadline imposed by the regulations that govern cases, such as this one, in
which the inmate is not confined to an administrative segregation unit, and (b) all Defendants
(not just Defendant Drown) were personally involved in the alleged due process violations by
assigning Drown to Plaintiff’s case, affirming Drown’s determination, and/or failing to remedy
his due process violation after learning of it; (2) Defendants are not entitled to summary
judgment on Plaintiff’s Eighth Amendment claim because they deliberately turned a blind eye to
his complaints of unsanitary conditions in SHU; and (3) based on the current record, Defendants
are not entitled to qualified immunity as a matter of law. (Dkt. No. 80, at Points I-III.)
Generally, in their reply, Defendants argue that the deadline for Plaintiff’s administrative
hearing was not the seven-day deadline imposed by 7 N.Y.C.R.R. § 251-5.1 (which controls the
timeliness of a disciplinary hearing or superintendent’s hearing following confinement on a new
misbehavior report) but the 14-day deadline imposed by 7 N.Y.C.R.R. § 301.4(a). (Dkt. No. 81.)
C.

Magistrate Judge’s Report-Recommendation

Generally, in the Report-Recommendation, the magistrate judge recommends that
Defendants’ motion be granted as to all of Plaintiff’s claims against Defendant Fisher and
Plaintiff’s conditions-of-confinement claim against all Defendants, but that Defendants’ motion
be denied as to Plaintiff’s remaining claim (the procedural due process claim against Defendants
LeClaire, Duncan, Bezio, Drown, Artus and Racette). (Dkt. No. 84.)
More specifically, with regard to Plaintiff’s claims against Defendant Fisher, the
magistrate judge concludes that a supervisor’s referral of a complaint to a subordinate for
investigation (which is the sole personal involvement that Fischer had in this case) does not
constitute personal involvement. (Id.)

4

With regard to Plaintiff’s conditions-of-confinement claim, the magistrate judge
concludes that Plaintiff has failed to adduce admissible record evidence establishing that (1) that
the special SHU cell in which he was originally placed was so hot, stuffy and dry as to deny him
the minimal civilized measure of life’s necessities, and (2) that any Defendant was personally
involved in the unsanitary conditions in the cell in which Plaintiff was placed after the
administrative segregation hearing. (Id.)
Finally, with regard to Plaintiff’s procedural due process claim, the magistrate judge
concludes that Plaintiff has presented admissible record evidence establishing both his
procedural due process claim and the personal involvement of all Defendants (except Defendant
Fischer) in the underlying procedural due process violation. (Id. at Part III.A.) At the crux of
this conclusion is her finding that, while Defendant Drown conducted Plaintiff’s administrative
segregation hearing in a timely fashion, it appears (based on the only admissible evidence on the
subject in the record) that he wrongfully denied Plaintiff an opportunity to present his views at
the hearing by persuading Plaintiff not to call any witnesses or make too many objections
because he was under a “strict order” to find Plaintiff guilty. (Id.) Also at the crux of this
conclusion are (1) her finding that Defendants Artus, Duncan and Racette were personally
involved in this violation by essentially causing Plaintiff to be issued an unjustified
administrative segregation recommendation and confined pending a decision on that
recommendation, and (2) her finding that Defendants Bezio and LeClaire were personally
involved by essentially denying his appeals and letters of complaint despite being placed on
notice of the wrongdoing of Defendant Drown. (Id.)
Familiarity with the remaining grounds of the magistrate judge’s ReportRecommendation is assumed in this Decision and Order, which (again) is intended primarily for
the review of the parties.
5

D.

Parties’ Objections to the Report-Recommendation
1.

Defendants’ Objection

Generally, in their Objection to the Report-Recommendation, Defendants argue that the
Plaintiff’s procedural due process claim should be dismissed against Defendants Artus, Bezio,
Duncan, LeClaire, Racette and Drown for four reasons. (Dkt. No. 88.)
First, argue Defendants, Plaintiff has not presented admissible record evidence
establishing that Defendants Artus, Bezio, Duncan, LeClaire, and Racette were personally
involved in an “ongoing” due process violation against Plaintiff following January 22, 2008,
because (a) Defendant Drown’s administrative-segregation determination lasted only sixty days,
after which time Plaintiff’s administrative segregation was reviewed, and continued, every sixty
days by a committee of three other officials (conduct giving rise to claims that have already been
dismissed in this action), and (b) in any event, to the extent Defendants LeClaire and Bezio
responded to Plaintiff’s correspondence, they did so based on less information than that
possessed by the aforementioned committee, and in merely a routine fashion, which is presumed
to be regular and not proof of wrongdoing. (Id.)
Second, argue Defendants, Plaintiff has not presented admissible record evidence
establishing that a procedural due process claim against Defendant Drown because (a) the
magistrate judge has already concluded that Plaintiff’s confinement in administrative segregation
cannot support an Eighth Amendment claim, thus narrowing the “significant and atypical
hardship” inquiry to one dependent on the duration of Plaintiff’s confinement, (b) at the time he
rendered his determination, Defendant Drown knew only that Plaintiff would be confined for a
duration of sixty days, after which time the confinement would depend on the independent
determination of a three-member committee, and (c) a duration of sixty days (without proof of
6

conditions that were atypical as compared to those in other types of prison confinement) will not
give rise to a cognizable liberty interest. (Id.)
Third, argue Defendants, even if Defendants LeClaire and Bezio could fairly be deemed
to have been “personally involved” in ratifying Defendant Drown’s initial placement decision,
there is no basis on which to find that the placement itself was constitutionally infirm, because
state action taken on the basis of both valid and invalid motivations is not constitutionally tainted
by the invalid motive if the action would in any event have been taken on a constitutionally valid
basis, which (here) it would have been, due to the other evidence that was relied on (or could
have been relied on) by Defendant Drown. (Id.)
Fourth, argue Defendants, at the very least, qualified immunity protects them from
liability because (a) a qualified immunity analysis rests on the reasonableness of a defendant’s
conduct based on the information known to him when the challenged conduct occurred, and not
based on an unpredictable series of subsequent events, and (b) here, Defendants could not have
known that Plaintiff’s administrative segregation would have been repeatedly renewed by a
committee of three officials. (Id.)
2.

Plaintiff’s Objection

Generally, in his Objection to the Report-Recommendation, Plaintiff argues that his
conditions-of-confinement claim should not be dismissed for the following four reasons. (Dkt.
No. 89.)
First, argues Plaintiff, as stated on pages 8 and 9 of Plaintiff’s opposition memorandum
of law, and demonstrated in affidavits of witnesses, Defendants (except Duncan, Drown and
Bezio) were personally involved in the ongoing Eighth Amendment violation because they failed
to remedy it despite having been made aware of it through oral and written complaints. (Id.)
7

Second, argues Plaintiff, the seriousness of the conditions of confinement in
administrative segregation was not based merely on the atrociousness of those conditions and the
duration of that confinement but on the psychological effects of that confinement (specifically,
the diagnosis of post-traumatic stress disorder resulting in a prescription of two different
psychotropic medications). (Id.)
Third, argues Plaintiff, he should be afforded the opportunity to have the medical record
“produced at trial,” and to call his prison psychologist as a witness, because he believes that
Defendants “scared [him] off,” preventing him from treating Plaintiff and intervening in
Plaintiff’s administrative segregation. (Id.)
Fourth, argues Plaintiff, the fact that insufficient evidence existed upon which to place
Plaintiff in administrative segregation is further supported by the fact that, after being released
from administrative segregation, he has had no disciplinary infractions, he has participated in
various classes and certificate programs, and he was recommended and recently admitted to the
“Honor Block” Committee. (Id.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard Governing the Review of a Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations,
or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R.

8

72.1(c).1 When performing such a de novo review, “[t]he judge may . . . receive further
evidence. . . .” 28 U.S.C. § 636(b)(1). 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.2
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.3 Similarly, when an objection merely reiterates the same arguments made

1

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
2

See 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 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”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
3

See also 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).
9

by the objecting party in its original papers submitted to the magistrate judge, the Court subjects
that portion of the report-recommendation challenged by those arguments to only a clear error
review.4 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.5
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 a Motion for Summary Judgment

The magistrate judge correctly recited the legal standard governing motions for summary
judgment. (Dkt. No. 84, at Part II.A.) As a result, this standard is incorporated by reference in
this Decision and Order.

4

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. 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.).
5

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
10

C.

Standards Governing Plaintiff’s Claims and Defendants’ Defenses

Because the parties (in their memoranda of law) have demonstrated an accurate
understanding of the legal standards governing a procedural due process claim, a
conditions-of-confinement claim, a lack-of-personal-involvement defense, and the qualifiedimmunity defense (Dkt. Nos. 76, 80), and because the magistrate judge correctly recited those
legal standards in the Report-Recommendation (Dkt. No. 84), the Court will not repeat those
standards in this Decision and Order (which, again, is intended primarily for the review of the
parties), other than to discuss the most-relevant portions of those standards below in Part III of
this Decision and Order.
III.

ANALYSIS
A.

The Magistrate Judge’s Recommendation that Both of Plaintiff’s Claims
Against Defendant Fisher Be Dismissed

Even when construed with the utmost of special liberality, the only specific challenge that
Plaintiff’s Objection levels at the magistrate judge’s recommendation that both of Plaintiff’s
claims against Defendant Fisher be dismissed for lack of personal involvement is that Fisher
failed to remedy the asserted Eighth Amendment violation despite learning of it through one or
more letters mailed to him. (See generally Dkt. No. 89 [referencing pages 8 and 9 of his Opp’n
Memo. of Law].) As a result, to the extent that the magistrate judge’s recommendation also
addresses Plaintiff’s Fourteenth Amendment claim against Defendant Fisher, the Court need
subject that portion of the recommendation to only a clear-error review, which it survives. See,
supra, Part II.A. of this Decision and Order.
Moreover, even if the Court were to submit both portions of the recommendation to a de
novo review, the Court would reach the same conclusion: that recommendation is free of error.

11

The magistrate judge employed the proper standards, accurately recited the facts, and reasonably
applied the law to those facts. (Dkt. No. 152.) As a result, the Court adopts the entire
recommendation for the reasons stated therein.
The Court would add only that the Second Circuit’s recent decision in Grullon v. City of
New Haven, 720 F.3d 133 (2d Cir. 2013), does not warrant a rejection of this recommendation.
In Grullon, the Second Circuit indicated that a prisoner’s sending of a letter of complaint to a
prison warden–“at an appropriate address and by appropriate means”–would suffice to
personally involve the warden in the underlying violation (assuming that either the warden did
not subsequently take appropriate action or an administrative procedure was not in place by
which the warden would not have received letter). Grullon, 720 F.3d at 141.6 However, the
decision turned on the fact that the issue arose in the context of Fed. R. Civ. P. 12(b)(6), rather
than Fed. R. Civ. P. 56 (despite the fact that both legal standards involve a finding of
reasonableness).7 In addition, here, Defendant Fischer did take appropriate action, i.e., by
referring the matter to a subordinate, on whom he was entitled to rely to conduct an appropriate
investigation and response.8 Finally, Grullon (which appears to constitute a departure from a

6

It bears noting that the original complaint in Grullon (which the Second Circuit
agreed was insufficient to allege personal involvement) did not in fact allege the address to
which he sent his letter to the warden–even when construed in conjunction with the copy of the
letter that the prisoner sent to the warden. See Grullon v. Warden, 10-CV-0076, Ex. A to Plf.’s
Response to Defs.’ Motion to Dismiss (D. Conn. filed March 7, 2011) (attaching copy of letter).
7

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.") (emphasis added).
8

Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Brown v. Goord, 04-CV-0785,
2007 WL 607396, at *6 (N.D.N.Y. Feb. 20, 2007) (McAvoy, J., adopting ReportRecommendation by Lowe, M.J., on de novo review); Swindell v. Supple, 02-CV-3182, 2005
WL 267725, at *10 (S.D.N.Y. Feb. 3, 2005); Garvin v. Goord, 212 F. Supp.2d 123, 126
(W.D.N.Y. (2002).
12

settled legal standard)9 arose after the spring of 2008, rendering Defendant Fischer protected by
qualified immunity.
For all of these reasons, this recommendation is adopted.
B.

The Magistrate Judge’s Recommendation that Plaintiff’s Conditions-ofConfinement Claim Against All Defendants Be Dismissed

When construed with the utmost of special liberality, Plaintiff’s Objection contains only
a few specific challenges to that portion of the Report-Recommendation recommending that
Plaintiff’s conditions-of-confinement claim against all Defendants be dismissed. (See generally
Dkt. No. 89.) In particular, Plaintiff challenges (1) the magistrate judge’s finding that no
admissible record evidence exists establishing that Defendants Racette, Artus and LeClaire were
personally involved in the unsanitary conditions in Plaintiff’s post-hearing cell, and (2) the
magistrate judge’s finding that no admissible record evidence exists establishing that Plaintiff’s
pre-hearing cell denied him the minimal civilized measure of life’s necessities. (Id.)
Plaintiff expressly does not challenge the magistrate judge’s finding that no admissible
record evidence exists establishing that Defendants Drown, Duncan and Bezio were personally
involved in the unsanitary conditions in his post-hearing cell. (Id.) Moreover, Plaintiff’s
Objections cannot be meaningfully interpreted as challenging any finding that no admissible

9

See, e.g., Smith v. Goord, 375 F. App’x 73, 73-74 (2d Cir. 2010), aff’g in
pertinent part, Smith v. Goord, 06-CV-0401, 2008 WL 902184, at *5 (N.D.N.Y. March 31,
2008) (“[T]he fact that plaintiff sent a letter to Commissioner Goord [at his address at Harriman
State Campus #2, 1220 Washington Ave., Albany New York 12226, as reflected in Dkt. No. 20],
and another to a Deputy DOCS Commissioner [at the same address], absent additional facts not
now presented, is insufficient to establish defendant’s personal involvement in the constitutional
violations alleged.”) (Peebles, M.J., adopted by Scullin, J.). It is worth noting that, if courts
found personal involvement every time prisoner mailed a properly addressed letter to a
supervisor, “the requirement [of personal involvement] would lose all meaning.” Mateo v.
Fischer, 682 F. Supp.2d 423, 430 (S.D.N.Y.2010).

13

record evidence exists establishing that Plaintiff’s post-hearing cell denied him the minimal
civilized measure of life’s necessities, because the magistrate judge renders no such finding.
(Dkt. No. 84.) As a result, both the magistrate judge’s finding regarding Plaintiff’s Eighth
Amendment claim against Defendants Drown, Duncan and Bezio, and the finding regarding the
measure of life’s necessities afforded by his post-hearing cell need only survive a clear-error
review, which they do. See, supra, Part II.A. of this Decision and Order.
Moreover, again, even if the Court were to submit the entirety of the recommendation
regarding Plaintiff’s Eighth Amendment claim to a de novo review, the Court would reach the
same conclusion: that recommendation is free of error. The magistrate judge employed the
proper standards, accurately recited the facts, and reasonably applied the law to those facts.
(Dkt. No. 152.) As a result, the Court adopts the entire recommendation for the reasons stated
therein.
The Court would add only three points. First, Plaintiff has failed to point to admissible
record evidence establishing that (1) during the time in question, he specifically notified
Defendants Racette, Artus and LeClaire of the unsanitary conditions in Plaintiff’s post-hearing
cell, (2) those three Defendants had the authority to remedy those conditions, and (3) those
conditions were not promptly and sufficiently remedied by other officers after discovery.
Second, in assessing the seriousness of the conditions of confinement in Plaintiff’s prehearing cell, the Court examines the objective nature of those conditions. Farmer v. Brennan,
511 U.S. 825, 832 (1994) (“[T]he deprivation alleged must be, objectively, sufficiently serious.”)
(internal quotation marks omitted). Plaintiff’s subjective feelings about his cell are not relevant

14

during that inquiry.10 Even if the Court were able to consider Plaintiff’s subjective feelings, it
would not do so here, given the late-blossoming and conclusory nature of the assertion made by
Plaintiff.
Third, his third and fourth objections (described above in Part I.D.2. of this Decision and
Order) are too late-blossoming and conclusory to justify the rejection of the magistrate judge’s
recommendation regarding Plaintiff’s Eighth Amendment claim. Moreover, his fourth objection
has nothing to do with his Eighth Amendment claim.
For all of these reasons, this recommendation is adopted.
C.

The Magistrate Judge’s Recommendation that Plaintiff’s Procedural Due
Process Claim Against Defendants Artus, Duncan, Racette, Drown, Bezio
and LeClaire Survive

Because Defendants’ Objection contains specific challenges to the magistrate judge’s
recommendation regarding Plaintiff's procedural due process claim against Defendants Artus,
Duncan, Racette, Drown, Bezio and LeClaire, the Court must review that recommendation de
novo. See, supra, Part II.A. of this Decision and Order.

10

See, e.g., Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“Snipes also claims
prison authorities were deliberately indifferent to a prison condition posing a substantial risk of
serious harm, namely, an inch or two of standing water in the shower. Snipes believes the fear
and emotional distress he suffered from contemplating the risk of contracting AIDS or some
other communicable disease constitutes a cruel and unusual punishment for which even the
prison plumber should pay. . . . Assuming Snipes' story is true, the fact remains that an inch or
two of water in the shower, even where one has a sore toe, is not ‘an excessive risk to inmate
health or safety’ . . , nor the ‘denial of the minimal civilized measure of life's necessities.’ . . .
The shower condition he describes may require extra care on his part to keep the toe clean, but
such needed precautions do not ignite a constitutional claim”); cf. Calhoun v. Hargrove, 312
F.3d 730, 734 (10th Cir. 2002) (“[T]o establish an Eighth Amendment claim, Calhoun must
demonstrate, inter alia, an objective component of conditions so serious as to deprive him of the
minimal measure of life's necessities. . . . Therefore, Calhoun's claims of verbal abuse are not
actionable under § 1983, . . . and neither are his claims that he was forced to once beg for food
that he eventually received.”).
15

1.

Defendant Drown

After carefully considering the matter, the Court accepts the magistrate judge’s
recommendation regarding Defendant Drown.
As an initial matter, the Court rejects Defendants’ argument that, based on the current
record, it is undisputed that Plaintiff did not have a protected liberty interest during his
administrative segregation hearing. It is possible that 60 days in an unsanitary cell in SHU could
(when compared with other cells and sentences) constitute an atypical and significant hardship in
relation to the ordinary incidents of prison life sufficient to convey on a prisoner a protected
liberty interest under the due process clause. See Scott v. Coughlin,78 F. Supp.2d 299, 306-12
(S.D.N.Y. 2000). Defendants’ argument that the conditions of Plaintiff’s cell are no longer an
issue in the atypical-and-significant-hardship analysis because the magistrate judge found that
those conditions did not justify a conditions-of-confinement claim is unpersuasive: while the two
inquiries are somewhat factually analogous, they are legally independent.11
Turning to the issue of when Defendant Drown allegedly violated that protected liberty
interest, Defendants are correct that “state action taken on the basis of both valid and invalid
motivations is not constitutionally tainted by the invalid motive if the action would in any event
have been taken on the constitutionally valid basis.” Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir.

11

See Proctor v. Kelly, 05-CV-0692, 2008 WL 5243925, at *11, n.2 (N.D.N.Y. Dec.
16, 2008) (Report-Recommendation by DiBianco, M.J., adopted by Suddaby, J.) (“Plaintiff is
confusing the ‘atypical and significant hardship’ used to determine whether a liberty interest
exists for due process purposes, with cruel and unusual punishment for Eighth Amendment
purposes.”); cf. Hamer v. Arnone,11-CV-0279, 2011 WL 2680836, at *3, n.1 (D. Conn. July 7,
2011) (“Hamer includes the description of his conditions of confinement in administrative
segregation in an apparent attempt to demonstrate an atypical and significant hardship to support
his due process claim under Sandin. . . . The court does not consider the complaint to raise a
separate Eighth Amendment challenge to the conditions of confinement.”).

16

1984). However, “[n]ormally, determination of that issue of hypothetical causation requires
fact-finding.” Sher, 739 F.2d at 82. Summary judgment on the issue is appropriate only where
“the undisputed facts may demonstrate that the challenged action would have been taken on the
valid basis alone.” Id. [emphasis added]. That is not the case here.
Granted, there appears to have been sufficient evidence to administratively segregate
Plaintiff on January 22, 2008, even without receiving a “strict order” to do so (or relying on a
New York Daily News article describing Plaintiff as a “violence-prone criminal[] who need[s]
extra attention”). (See, e.g., Dkt. No. 76, Attach. 5, at 10 [attaching Drown’s written Hearing
Determination]; Dkt. No. 76, Attach. 5, at 56 [attaching Duncan’s Admin. Segregation
Recommendation]; Dkt. No. 76, Attach. 5, at 61 [attaching record of disciplinary conviction for
smuggling dated Jan. 17, 2008]; Dkt. No. 76, Attach. 7, at 1 [attaching Plaintiff’s Disciplinary
History].)12 However, it is unclear whether in fact Defendant Drown would have
administratively segregated Plaintiff based on that evidence, or whether Drown used that
evidence merely as a pretext (or partial pretext) for that segregation, and was really acting
pursuant to that “strict order.”
For example, Plaintiff has adduced admissible record evidence that Defendant Drown
stated that he was under a “strict order” to find Plaintiff guilty. (Dkt. No. 1, at ¶ 39.) The
assertion that there had been an “order” was partially corroborated by evidence that the “Area
Supervisor” and corrections officers stated to Plaintiff, upon his arrival at Clinton C.F., that they
were under “orders” to place him to administrative segregation. (Id. at ¶ 30.) Moreover, the
assertion that the order given to Defendant Drown supplanted the proper procedure was partially

12

The Court notes that it finds nothing inappropriate about considering the New
York Daily News article about Plaintiff’s crime–together with other evidence–in rendering a
decision in the administrative segregation hearing.
17

corroborated by evidence that the “Area Supervisor” and officers stated to Plaintiff, upon his
arrival at Clinton C.F., they did not know why his placement was occurring, and that they
“haven’t seen a case like this before.” (Id. at ¶ 30.) A final reason that the current record is not
sufficient for summary judgment is that it does not contain the transcript of the hearing on
January 22, 2008, which Defendants have recently discovered and provided to Plaintiff. (Dkt.
No. 90; Text Order filed Apr. 29, 2013.)
Moreover, setting aside the issue of why Defendant Drown found Plaintiff guilty, a
genuine dispute of material fact exists regarding whether he wrongfully deprived Plaintiff of an
opportunity to present his views at the hearing, by persuading Plaintiff “not to bother calling any
witnesses or making too many objections, because it will just drag out the hearing . . . and it
wouldn’t matter anyway because he had a strict order to find Plaintiff guilty.” (Id. at ¶¶ 39, 41.)
For these reasons, Plaintiff’s procedural due process claim against Defendant Drown
survives Defendants’ motion for summary judgment.
2.

Defendant Artus

After carefully considering the matter, the Court accepts in part, and rejects in part, the
magistrate judge’s recommendation regarding Defendant Artus.
Even if Defendant Artus directed corrections officers to place Plaintiff in a cell in SHU
upon his arrival at Clinton C.F. on January 11, 2008 (and/or directed Defendant Duncan to
recommend Plaintiff’s administrative segregation on that date), such a directive does not give
rise to a Fourteenth Amendment procedural due process claim. A prisoner enjoys no
constitutional right to be free from being issued an administrative segregation recommendation
that is unjustified (or placed in administrative segregation for 14 days pending a hearing on the

18

recommendation).13 Such a prisoner is afforded all the process that he is due through the fact
that the recommendation results in an administrative segregation hearing, at which the prisoner
has the opportunity to rebut the allegedly unjustified charges against him.14 This is so, regardless
of whether the administrative segregation hearing officer decides not to afford the prisoner that
due process (e.g., through prejudging the prisoner’s case and persuading him not to call
witnesses and make objections).15

13

See Cabassa v. Gummerson, 01-CV-1039, 2008 WL 4416411, at *6 (N.D.N.Y.
Sept. 24, 2008) (Report-Recommendation by Lowe, M.J., adopted by Hurd, J.) (“A prisoner
enjoys no constitutional right against being issued an administrative segregation
recommendation that turns out to be false.”).
14

See Phillips v. Roy, 08-CV-0878, 2011 WL 3847265, at *3 (N.D.N.Y. Aug. 29,
2011) (Scullin, J.) (“Plaintiff merely alleged that Defendant Seyfert filed an administrative
segregation recommendation based upon false and misleading statements. However, since the
preparation of an administrative segregation recommendation cannot serve as the basis of a §
1983 claim, and since Plaintiff had the opportunity to rebut these allegedly false charges at a
hearing, the Court adopts Magistrate Judge Peebles' Report and Recommendation, finds that
Plaintiff has not stated a viable claim, and grants Defendants' motion to dismiss Plaintiff's fifth
cause of action.”) (emphasis added); Abdur-Raheem v. Selsky, 806 F. Supp.2d 628, 634
(W.D.N.Y. 2011) (“The first and second causes of action allege that the actions of Defendants
Whitmore and Powers, in falsely preparing an Administrative Segregation Recommendation
which resulted in Plaintiff's placement in SHU, denied Plaintiff due process of law . . . . It is
well settled that an inmate has no constitutionally protected right against being falsely accused of
conduct which may result in the deprivation of a protected liberty interest, as long as the
prisoner is provided with procedural due process. . . . [T]he only way that false accusations
contained in a misbehavior report can rise to the level of a constitutional violation is when there
has been more such as 'retaliation against the prisoner for exercising a constitutional right.”)
(internal quotation marks omitted; emphasis added); Edmonson v. Coughlin, 21 F. Supp.2d 242,
254-55 (W.D.N.Y. 1998) (“James avers that his only involvement was preparation of the initial
recommendation that Edmonson be placed in [Administrative Segregation]. . . . Preparation of
an [Administrative Segregation] recommendation is not a basis for a § 1983 claim. . . . [D]ue
process is satisfied so long as an inmate is afforded an opportunity, at a hearing, to rebut false
charges lodged against him. . . . Edmonson had an opportunity, at his hearing, to contest the
allegations in the recommendation.”) (citations omitted).
15

See Phillips v. Fischer, 08-CV-0878, 2010 WL 7375637, at *6 (N.D.N.Y. Sept.
27, 2010) (Peebles, M.J.) (“Plaintiff's only allegations against Seyfert are that he filed the
December 22, 2006 administrative segregation recommendation based upon hearsay and false
and misleading statements. Preparation of an administration segregation recommendation is not
19

Whether a warden has caused a hearing officer to deny the prisoner his due process at
that administrative segregation hearing is another issue, giving rise to a separate claim against
the warden, based on the denial of due process at the hearing. Here, based on the current record,
a genuine dispute of material fact exists as to whether it was Defendant Artus (as opposed to
some other superior of Defendant Drown) who (1) issued a “strict order” to Defendant Drown to
predetermine a finding of guilt at Plaintiff’s administrative segregation hearing, and/or (2)
caused Drown to persuade Plaintiff to not call any witnesses or make too many objections, so as
to deprive Plaintiff of an opportunity to present his views at the hearing. (Dkt. No. 1, at ¶¶ 30,
39 [Plf.’s Verified Compl.].)
For these reasons, Plaintiff’s procedural due process claim against Defendant Artus
survives Defendants’ motion for summary judgment only in so far as it is based on the
allegations contained in the preceding paragraph; otherwise that claim is dismissed.
3.

Defendant Duncan

After carefully considering the matter, the Court rejects the magistrate judge’s
recommendation regarding Defendant Duncan.
As explained above in Part III.B. of this Decision and Order, a prisoner enjoys no
constitutional right to be free from being issued an administrative segregation recommendation
that is unjustified (or placed in administrative segregation for 14 days pending a hearing on the
recommendation); such a prisoner is afforded all the process that he is due through the fact that
the recommendation results in an administrative segregation hearing, at which the prisoner has

a basis for § 1983 claim. . . . Due process is satisfied as long as the inmate is afforded a hearing
to rebut the allegedly false charges [even if he his hearing officer decides not to afford him that
due process, by prejudging the case].” ) (internal quotation marks and citations omitted), adopted
in pertinent part by Phiilips v. Roy, 08-CV-0878, 2011 WL 3847265, at *3 (N.D.N.Y. Aug. 29,
2011) (Scullin, J.).
20

the opportunity to rebut the allegedly unjustified charges against him; this is so, regardless of
whether the administrative segregation hearing officer decides not to afford the prisoner that due
process.
In the alternative, the Court finds that Duncan is protected from liability as a matter of
law by the doctrine of qualified immunity (with regard to Plaintiff’s claim arising from the
issuance of an administrative segregation recommendation), because officers of reasonable
competence could disagree on the legality of recommending a prisoner for administrative
segregation based on the nine grounds listed on page 4 of the magistrate judge’s ReportRecommendation (summarizing the grounds of Defendant Duncan’s administrative segregation
recommendation). (Dkt. No. 84, at 4.)
As for any reasonable possibility (based on the current record) that Defendant Duncan
was the one who gave a “strict order” to Defendant Drown to find Plaintiff guilty at the
administrative segregation hearing, the Court rejects that possibility: admissible record evidence
on the subject clearly establishes that the “strict order” in question came from a superior, not
Duncan, who was merely a “senior investigator” capable of issuing only “recommendation[s],”
and whom Hearing Officer Drown referred to as his “colleague.” (Dkt. No. 1, Attach. 1, at 5
[attaching Administrative Segregation Recommendation signed by “Sr. Inv.” Duncan]; Dkt. No.
76, Attach. 5, at 19 [attaching letter from Plf. to Fisher dated Dec. 1, 2008, stating, in pertinent
part, that “[t]he reason [Drown] he stated he was [finding Plaintiff guilty] was because he didn’t
want to go against his own colleague (which is Mr. Duncan)”] [emphasis in original].)
Finally, as for any suggestion that Defendant Duncan received any written appeals or
letters of complaint from Plaintiff or was even in a position to remedy any violations by Artus or
Drown, the Court rejects that suggestion: out of special solicitude to Plaintiff, the Court has sua

21

sponte reviewed the record and can find no admissible evidence of that fact. (See generally Dkt.
No. 1 [attaching Plf.'s Verified Compl.]; Dkt. No. 1, Attach. 1 & 2 [attaching exhibits to Plf.'s
Verified Compl.]; Dkt. No. 76, Attach. 3-7 [attaching exhibits to Defs.' motion for summary
judgment]; Dkt. No. 80 [attaching Plf.'s opposition to Defs.' motion].)
For all of these reasons, Plaintiff’s procedural due process claim against Defendant
Duncan is dismissed.
4.

Defendant Racette

After carefully considering the matter, the Court rejects the magistrate judge’s
recommendation regarding Defendant Racette.
Based on the current record, the following facts are undisputed. Upon the
recommendations of subordinates, Defendant Racette issued four weekly “shield orders”
directing that, between January 11, 2008, and February 10, 2008, Plaintiff be placed in a special
cell in the SHU, the front of which was covered by a “thick fiber glass shield.” (Dkt. No. 1, at ¶¶
31-32, 34 [Plf.’s Verified Compl.] Dkt. No. 1, Attach. 1, at 1-4 [attaching Exs. A1-A4 to Plf.’s
Verified Compl.].) The orders stated that the reason for the orders was to conduct an
“evaluation.” (Dkt. No. 1, Attach. 1, at 1-4 [attaching Exs. A1-A4 to Plf.’s Verified Compl.].)
The governing regulations provide, in pertinent part, as follows:
(b) Cell shields may be ordered for good cause, including but not limited
to the reasons listed below:
...
(2) The inmate . . . attempts to assault or harass staff [through the
cell door].
(3) The inmate is so disruptive as to adversely affect the proper
operation of the unit.
(d) . . . The order and any renewal thereafter shall briefly state the reason
for the order or renewal . . . .
7 N.Y.C.R.R. 305.6.

22

As an initial matter, Plaintiff’s confinement in the shield-covered SHU cell in question
for 30 days was not such an atypical and significant hardship in relation to the ordinary incidents
of prison life to give rise to a protected liberty interest under the Fourteenth Amendment. See
DeMaio v. Mann, 877 F. Supp. 89, 93 (N.D.N.Y.) (Kaplan, J.) (“Plaintiff . . . had no protected
liberty interest in confinement in an unshielded cell.”), aff’d, 122 F.3d 1055 (2d Cir. 1995).16
In any event, the fact that the shield order was reviewed on a weekly basis (and could
have been grieved or appealed from) itself provided Plaintiff with sufficient due process. See
Dawes v. Coughlin, 964 F. Supp. 652, 658 (N.D.N.Y.1997) (McAvoy, C.J.) (“[I]t has been held
that the daily review of deprivation orders, the availability of the inmate grievance program, and
the fact that the inmate has a judicial remedy to challenge deprivation orders, and restraining
orders, under CPLR article 78 clearly provide due process of law.”), aff’d, 159 F.3d 1346 (2d
Cir. 1998). In this sense, the argument that Plaintiff possessed a due process rights against being
issued unjustified shield orders is legally flawed for the same reason that Plaintiff possessed a
due process right against being issued an unjustified segregation recommendation. See, supra,
Parts III.B. and III.C. of this Decision and Order.
Indeed, the very notion that the shield orders were unjustified at all appears devoid of
factual support in the current record, given Plaintiff’s criminal and disciplinary history during
time in question, which were filled with acts of violence. (Dkt. No. 76, Attach. 5, at 56

16

See also Breazil v. Bartlett, 998 F. Supp. 236, 243 (W.D.N.Y. 1997) (“[C]ourts in
this Circuit have found that a prison inmate in New York has no protected liberty interest in
confinement in an unshielded cell.”), accord, Figueroa v. Storm, 07-CV-0018, 2011 WL
1598922, at *6 (W.D.N.Y. Apr. 28, 2011); Kemp v. LeClaire, 03-CV-0844, 2007 WL 776416, at
*8 (W.D.N.Y. March 12, 2007); cf. Young v. Scully, 91-CV-4332, 1993 WL 88144, at *3
(S.D.N.Y. March 22, 1993) (finding that, even under prior legal standard set forth in Hewitt v.
Helms, 459 U.S. 460 [1983], Section 305.6 did not contain the mandatory language necessary to
create a protected liberty interest).
23

[attaching Duncan’s Admin. Segregation Recommendation]; Dkt. No. 76, Attach. 5, at 61
[attaching record of disciplinary conviction for smuggling contraband dated Jan. 17, 2008]; Dkt.
No. 76, Attach. 7, at 1 [attaching Plaintiff’s Disciplinary History].) An egregious disciplinary
history itself has been found to constitute sufficient ground for the issuance of a shield order.
See Kemp v. LeClaire, 03-CV-844, 2007 WL 776416, at *7-8 (W.D.N.Y. March 12, 2007)
(finding that corrections officer was authorized to issue shield order against prisoner based on “
his disciplinary history, including 44 previous Misbehavior Reports,” despite the fact that the
prisoner believed that he was not a threat to security).
In the alternative, the Court finds that Defendant Racette is protected from liability as a
matter of law by the doctrine of qualified immunity (with regard to Plaintiff’s claim arising from
Racette’s issuance of the shield orders), because officers of reasonable competence could
disagree on the legality of Defendant Racette’s issuance of shield orders under the
circumstances.
Finally, the Court can find, in the record, no admissible evidence from which a rational
fact-finder could conclude that (1) Defendant Racette was the one who gave a “strict order” to
Defendant Drown to find Plaintiff guilty at the administrative segregation hearing, (2) Defendant
Racette received from Plaintiff any written appeals or letters of complaint that specifically
informed Racette of the violation(s) allegedly committed by Defendants Artus or Drown,17 or (3)
that Defendant Racette was even in a position to remedy any violation by Artus.18

17

(See Dkt. No. 1, Attach. 2, at 3-4 [attaching letter from Plaintiff to Racette dated
Feb. 2, 2009, not mentioning above-described violations].)
18

(See Dkt. No. 1, Attach. 2, at 2 [attaching letter from T. LaValley, First Deputy
Superintendent of Clinton C.F., to Plaintiff, dated Feb. 4, 2009, stating, in pertinent part, “I do
not have the authority to release you from Administrative Segregation”].)
24

For all of these reasons, Plaintiff’s procedural due process claim against Defendant
Racette is dismissed.
5.

Defendant Bezio

After carefully considering the matter, the Court rejects the magistrate judge’s
recommendation regarding Defendant Bezio.
Granted, a genuine dispute of fact appears to exist as to (1) the extent to which Defendant
Bezio’s reversal of Defendant Drown’s decision would have changed the results of the 60-day
reviews of the three-member committees (or the extent to which Bezio could have directly
impacted those committees’ decisions), and (2) the extent to which any failures by Bezio were
cured by the results of the subsequent 60-day reviews of the three-member committees.
However, such disputes of fact are simply not material if no admissible record evidence
exists that Defendant Bezio knew of the alleged violations. Here, no admissible record evidence
exists that Plaintiff’s appeals and complaints to Defendant Bezio (the sole avenue through which
Bezio could have been personally involved in the violations alleged) mentioned (1) any
allegation that Defendant Drown rendered his determination of guilt upon a “direct order” from a
superior and after persuading Plaintiff not to call any witnesses or make too many objections,
and (2) any allegation that Defendant Artus issued that “direct order.”
For example, Plaintiff’s sworn allegation that he appealed Defendant Drown’s
disposition to Defendant Bezio is silent of any allegation that he revealed Drown’s abovedescribed remarks in that appeal (which omission is conspicuous, given that the Complaint is
otherwise detailed, consisting of more than 100 paragraphs of factual allegations, and more than
70 pages of attachments). (Dkt. No. 1, at ¶ 45.) Also devoid of such details is Plaintiff’s sworn
allegation regarding his March 23, 2008, request for reconsideration to Defendant Bezio. (Dkt.
No. 1, at ¶ 47.)
25

Moreover, there is no mention of Defendant Drown’s above-described remarks in either
(1) the Prisoners’ Legal Services of New York’s letter (on Plaintiff’s behalf) to Defendant Bezio
dated April 18, 2008 (Dkt. No. 1, Attach. 1, at 11-12), or (2) the Legal Aid Society’s letter (on
Plaintiff’s behalf) to Bezio dated January 13, 2009 (Dkt. No. 1, Attach. 1, at 34).
This is not surprising given that, with only a few exceptions, none of Plaintiff’s many
letters of complaints to other individuals mentioned either of the above-described remarks of
Defendant Drown. (See generally Dkt. No. 1, Attach. 1 & 2 [attaching exhibits to Plf.'s Verified
Compl.]; Dkt. No. 76, Attach. 3-7 [attaching exhibits to Defs.' motion for summary judgment];
Dkt. No. 80 [attaching Plf.'s opposition to Defs.' motion].)19
It is well established that, where a prisoner’s letter to a prison supervisor does not
mention an alleged constitutional violation, then the letter cannot fairly be said to have informed
the supervisor of that alleged violation. See, e.g., Reid v. Bezio, 10-CV-0609, 2011 WL
1577761, at *7 (N.D.N.Y. March 30, 2011) (Homer, M.J.) (“Reid . . . relies on the second and
fifth Colon categories. . . . [A] close review of Reid's complaint fails to reveal any allegation that
his correspondence put Graham on notice of ongoing retaliation. Reid claims that his appeal
raised four grounds on which to reverse the administrative determination related to the third
disciplinary report. . . . However, he does not specify what these grounds actually were.
Similarly, Reid does not describe of what he specifically complained in the grievance Graham
denied . . . . Without further facts, it cannot simply be assumed that the appeal and grievance
made Graham aware of ongoing constitutional violations.”), adopted by 2011 WL 1585067
19

As for the possibility that the recently produced hearing transcript may reveal the
above-described remarks, the Court concludes it will not. Even assuming for the sake of
argument that Defendant Bezio reviewed either the transcript or audio recording when deciding
Plaintiff’s appeal in the spring of 2008, Plaintiff swears that Defendant Drown made his
statements to Plaintiff "[b]efore starting the hearing." (Dkt. No. 1, at ¶ 39.)
26

(N.D.N.Y. Apr. 26, 2011) (Mordue, C.J.); Cunningham v. Dep’t of Corr. Servs., 04-CV-5566,
2009 WL 1404107, at *1 & n.2 (S.D.N.Y. May 20, 2009) (“[Plaintiff’s] communications with
Koenigsmann make no mention of the failure to provide the second and third Bicillin injections.
Therefore, Koenigsmann was never put on actual or constructive notice of the violation. . . .
Likewise, the communications with Phillips do not refer to the injections. . . . Even a letter to
Phillips, dated March 25, 2004, from a lawyer acting on Plaintiff's behalf did not mention the
Bicillin injections and instead referred only to laser surgery for cataracts and an MRI for back
pain.”) (internal quotation marks and citation omitted); Richards v. Goord, 04-CV-1433, 2007
WL 201109, at *14 (N.D.N.Y. Jan. 23, 2007) (Report-Recommendation of Lowe, M.J., adopted
by Kahn, J.) (“Of course, the main problem with this letter as a form of notice to Defendant
Goord is it did not mention or allude to a denial of medical care (or even that Plaintiff suffered
from Hepatitis C).”).
For all of these reasons, Plaintiff’s procedural due process claim against Defendant
Racette is dismissed.
6.

Defendant LeClaire

After carefully considering the matter, the Court accepts the magistrate judge’s
recommendation regarding Defendant LeClaire.
Unlike the record with regard to Plaintiff’s appeal and letters of complaint to Defendant
Bezio, the record with regard to Plaintiff’s letters of complaint read by Defendant LeClaire does
contain admissible evidence from which a fact-finder could conclude that LeClaire was aware of
at least one of the two above-described remarks of Defendant Drown, described above in Part
III.E. of this Decision and Order. Specifically, in Plaintiff’s letter to Defendant Fisher dated
December 1, 2008–to which Defendant LeClaire responded–Plaintiff stated that Defendant
27

Down persuaded Plaintiff "not to call any witnesses or make any objections." (Dkt. No. 76,
Attach. 5, at 19.) This fact, when combined with the fact that the letter also stated that Drown
stated that he “didn’t want to go against his own colleague,” is sufficient to reach a jury. (Id.
[emphasis removed].)
For these reasons, Plaintiff’s procedural due process claim against Defendant LeClaire
survives Defendants’ motion for summary judgment.
ACCORDINGLY, it is
ORDERED that the magistrate judge’s Report-Recommendation (Dkt. No. 84) is
ACCEPTED in part and REJECTED in part; and it is further
ORDERED that Defendants’ motion for summary Judgment (Dkt. No. 76) is
GRANTED as to (a) Plaintiff’s Eighth Amendment conditions-of-confinement claim against all
Defendants, (b) Plaintiff’s procedural due process claim against Defendants Fischer, Duncan,
Racette and Bezio, and (c) Plaintiff’s procedural due process claim against Defendant Artus to
the extent that the claim arises from a directive to corrections officers to place Plaintiff in a cell
in SHU upon his arrival at Clinton C.F. on January 11, 2008 (and/or a directive to Defendant
Duncan to recommend Plaintiff’s administrative segregation on that date); and it is further
ORDERED that the Clerk of the Court shall terminate Defendants Fischer, Duncan,
Racette and Bezio from this action; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 76) is DENIED
as to (a) Plaintiff’s procedural due process claim against Defendants LeClaire and the Estate of
Drown, and (b) Plaintiff’s procedural due process claim against Defendant Artus to the extent
that the claim arises from a “strict order” to Defendant Drown to predetermine a finding of guilt
at Plaintiff’s administrative segregation hearing, and/or actions causing Drown to persuade
28

Plaintiff to not call any witnesses or make too many objections, so as to deprive Plaintiff of an
opportunity to present his views at the hearing, which claims shall proceed to trial; and it is
further
ORDERED that the Clerk of the Court shall terminate the four Defendants listed in
footnote 2 of the Report-Recommendation (i.e., Defendants Ferro, Reinhold, Hogan, and
Porcelli); and it is further
ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial
only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for
appointment of counsel for an appeal is granted; and it is further
ORDERED that upon assignment of Pro Bono Counsel, a final pretrial conference with
counsel will be scheduled in this action with the undersigned, at which time the Court will
schedule a jury trial for Plaintiff's procedural due process claims as described above against
Defendants LeClaire, Estate of Drown and Artus. Counsel are directed to appear at the final
pretrial conference with settlement authority from the parties.
Dated: September 20, 2013
Syracuse, New York

29