Richard v. Department of Correctional Services et al

Filing 67

MEMORANDUM-DECISION AND ORDER: ORDERED that the Report and Recommendation (Dkt. No. 61 ) is ADOPTED in its entirety for the reasons stated therein. ORDERED that Defendants' motion to dismiss for failure to state a claim (Dkt. No. 46 ) purs uant to Rule 12(b)(6) is GRANTED in part and DENIED in part. ORDERED that the motion to dismiss is granted as to and that the following claims are DISMISSED WITH PREJUDICE: (1) Fourteenth Amendment procedural due process claims against Defendants B rown and Jordan; (2) First Amendment retaliation claim against Defendants Gibson, Volpe, Woodard, McCarthy, and Brown; (3) Fourteenth Amendment equal protection claim against Defendants Gibson, Volpe, Woodard, McCarthy, Brown, and McGaw; (4) conspira cy claim against Defendants Gibson, Volpe, Woodard, McCarthy, Oleksiw, and Brown under §§ 1983, 1985(3), and 1986; and (5) conspiracy claim against Defendants Jordan, Mace, Daddezio, and Sipple brought under §§ 1983, 1985(3), and 1986. ORDERED that the motion to dismiss is DENIED as to the Fourteenth Amendment due process vagueness claim against Defendant Leclaire. ORDERED that Defendants Brown, Gibson, Volpe, Woodard, McCarthy, McGaw, Oleksiw be DISMISSED from this action. Signed by Judge Brenda K. Sannes on 9/29/17. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
JOHN WILLIS RICHARD,
Plaintiff,
9:15-CV-00006
v.
(BKS/TWD)
LUCIEN J. LECLAIRE, et al.,
Defendants.
___________________________________________
APPEARANCES:
John Willis Richard
Plaintiff pro se
91-A-0169
Eastern NY Correctional Facility
Box 338
Napanoch, New York 12458
Hon. Eric T. Schneiderman
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

Ryan W. Hickey, Esq.
Assistant Attorney General

Hon. Brenda K. Sannes, United States District Court Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se John Willis Richard brought this action under 42 U.S.C. §§ 1983,
1985(3), and 1986 against Defendants Lucien J. Leclaire, Deputy Commissioner of the
Department of Correctional Services and Community Supervision (“DOCCS”) in the State of
New York; Captain Timothy McCarthy, Auburn Correctional Facility (“Auburn”); Lieutenant
Daniel Oleksiw, Auburn; Lieutenant Michael P. Brown, Auburn; Lieutenant Burns, Auburn;

Sergeant Anthony P. Volpe, Auburn; Corrections Officer (“C.O.”) Gary C. Gibson, Auburn;
C.O. Michael Woodard, Auburn; Lieutenant Wayne Jordan, Sullivan Correctional Facility
(“Sullivan”); Lieutenant Garry Sipple, Sullivan; Dennis Giglio, Deputy Superintendent of
Security, Sullivan Correctional Facility; C.O. Joseph Daddezio, Sullivan; Sergeant Paul Mace,
Sullivan; and C.O. Jeremy McGaw, Upstate Correctional Facility (“Upstate”). (Dkt. Nos. 1, 46,
52, 53). 1
The Complaint alleges, inter alia, that Defendants took action in violation of Plaintiff’s
constitutionally protected rights in response to his refusal to remove designs shaved into his
beard. (Dkt. No. 1). By Decision and Order filed October 22, 2015, the Court granted Plaintiff’s
in forma pauperis application, dismissed certain claims and defendants, and found that the
remaining claims survived a sua sponte review and required a response. (Dkt. No. 10). The
claims remaining after initial review are: (1) Fourteenth Amendment due process claims against
Defendants Brown, Jordan, and Giglio, arising out of disciplinary hearings and appeals; (2) First
Amendment retaliation claims against Defendants Gibson, Volpe, Woodard, McCarthy, Burns,
and Brown involving the issuance of a false inmate misbehavior report (“IMR”) and the rigging
of the disciplinary hearing on the IMR; (3) a Fourteenth Amendment due process vagueness
claim against Leclaire regarding DOCCS Directive 4914; (4) Fourteenth Amendment equal
protection claims against Defendants Gibson, Volpe, Woodard, Burns, McCarthy, Brown,
McGaw, Jordan, Daddezio, Sipple, Mace, and Giglio; and (5) various conspiracy claims against
Gibson, Volpe, Woodard, Burns, McCarthy, Oleksiw, Brown, Jordan, Sipple, Daddezio, Mace,
and Giglio. (Dkt. No. 10 at 39).
On November 15, 2016, eleven of the Defendants moved to dismiss pursuant to Fed. R.

1

The summonses were returned unexecuted as to Defendants Burns and Giglio. (Dkt. No. 37). There has been no
appearance by these defendants; they are not parties to the motion to dismiss. (Dkt. No. 46).

2

Civ. P. 12(b)(6) on the grounds that (i) Plaintiff’s claims are barred, in part, by the statute of
limitations; (ii) Plaintiff fails to state a procedural due process claim because he contested
disciplinary hearings and did not identify a protected liberty interest; and (iii) Plaintiff fails to
state a conspiracy claim and, in the alternative, that any conspiracy claims are barred by the
intracorporate conspiracy doctrine. (Dkt. No. 46-1).
This matter was referred to United States Magistrate Judge Thérèse Wiley Dancks who,
on July 10, 2017, issued an Order and Report-Recommendation (“R & R”) recommending that
Defendant’s motion to dismiss be granted on the basis that several of Plaintiff’s claims are barred
by the statute of limitations—specifically, Plaintiff’s (1) Fourteenth Amendment procedural due
process claims against Brown; (2) First Amendment retaliation claim against Defendants Gibson,
Volpe, Woodard, McCarthy, and Brown 2; (3) Fourteenth Amendment equal protection claim
against Defendants Gibson, Volpe, Woodard, McCarthy, Brown, and McGaw; and (4)
conspiracy claim against Defendants Gibson, Volpe, Woodard, McCarthy, Oleksiw, and Brown.
(Dkt. No. 61 at 39). 3 The R & R recommends that Plaintiff’s Fourteenth Amendment due
process claim against Defendant Jordan be dismissed on the ground that Plaintiff fails to
adequately state a claim for violation of his procedural due process rights. (Id. at 35). Finally,
the R & R recommends that Plaintiff’s conspiracy claims be dismissed under the intracorporate
conspiracy doctrine, to the extent that the conspiracy claims against Defendants Gibson, Volpe,
Woodard, McCarthy, Oleksiw, and Brown are not also barred by the statute of limitations. (Id.
at 38).

2

The R & R inadvertently refers to Defendant Brown as “Brooks” in two instances, but otherwise correctly refers to
him as Defendant Brown. (Dkt. No. 61 at 32–33).

3

As the R & R notes, “summonses were returned unexecuted as to Defendants Burns and Giglio. There has been no
appearance on behalf of Burns and Giglio, and they are not parties to the motion to dismiss.” (Dkt. No. 10 at 2 n.1
(internal citations omitted)).

3

Plaintiff filed an 83-page objection to the Report-Recommendation on September 14,
2017. (Dkt. No. 66). Plaintiff’s primary objections are that the R & R: (i) improperly
determined that his claims are barred by the statute of limitations, because the fraudulent
concealment doctrine renders all of his claims timely (id. at 2); (ii) inappropriately applied
“employment discrimination Title VII laws of a continuating [sic] violation doctrine to a prison
setting” (id. at 26); (iii) improperly “denied [him] the benefits of res judicata and collateral
estoppel on the merits foundated [sic] in the complaint” (id. at 29); (iv) improperly applied the
intracorporate conspiracy doctrine in determining that some of his claims are time-barred; and
(v) failed to consider his requests for certification of interlocutory appellate review of three
issues (id. at 26, 77–78, 79). Further, Plaintiff argues that he should be permited to amend his
complaint to state a new claim for First Amendment retaliation due to the fact that Magistrate
Judge Dancks took judicial notice of the 2013 revision to Directive 4914. (Id. at 58–72).
For the reasons set forth below, the R & R is adopted in its entirety.
II. Standard of Review
This court reviews de novo those portions of the Magistrate Judge’s findings and
recommendations that have been properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee’s
note to 1983 amendment. Findings and recommendations as to which there was no properly
preserved objection are reviewed for clear error. Id.
III. Discussion
A. Fraudulent Concealment Doctrine

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Plaintiff objects to the R & R on the basis that the Magistrate Judge failed to consider
Plaintiff’s argument that the doctrine of fraudulent concealment “makes all claims in suit
timely.” (Dkt. No. 66 at 2).
“[T]he doctrine of fraudulent concealment prevents a party from fraudulently concealing
wrongdoing until after the tolling of the statute of limitations.” Aiken v. Nixon, 236 F. Supp. 2d
211, 240 (N.D.N.Y. 2002). “To invoke the doctrine of fraudulent concealment properly [for
purposes of seeking an equitable tolling of the statute of limitations], a plaintiff must establish
three elements, including: (1) wrongful concealment by defendants [of their actions] (2) which
prevented plaintiff's discovery of the nature of the claim within the limitations period, and (3)
due diligence in pursuing the discovery of the claim.” N.Y. Dist. Council of Carpenters Pension
Fund v. Forde, No. 11 Civ. 5474 (LAP), 2013 WL 1454954, at *7, 2013 U.S. Dist. LEXIS
49834, at *21–22 (S.D.N.Y. Mar. 26, 2013). “The relevant question is not the intention
underlying defendants’ conduct, but rather whether a reasonable plaintiff in the circumstances
would have been aware of the existence of a cause of action.” Veltri v. Bldg. Serv. 32b-J
Pension Fund, 393 F.3d 318, 323 (2d Cir. 2004).
The claims for which the R & R recommends dismissal on the basis of the statute of
limitations are all grounded in the issuance of Inmate Misbehavior Reports (“IMRs”), and the
subsequent adjudication and administrative approval of disciplinary actions. (See Dkt. No. 1,
¶¶ 87, 89, 93, 101, 192–198, 221–24, 226–228, 288; Dkt. No. 1-2 at 7, 15, 19–27, 33, 35, 41–45,
47, 62, 72–76, 109, 111, 114–44). Plaintiff does not allege that Defendants undertook any
disciplinary actions, which constitute the basis of the alleged harms against him, in secret or
without his knowledge. Nor does he allege that Defendants successfully conspired to mislead
Plaintiff into believing that he did not have a cause of action, or that he was otherwise not on

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notice of a potential claim after an IMR was issued or the disciplinary hearing occurred. See
Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995) (“To take advantage of [the]
doctrine [of fraudulent concealment], however, a plaintiff must submit non-conclusory evidence
of a conspiracy or other fraudulent wrong which precluded his possible discovery of the harms
that he suffered.”); New York v. Hendrickson Bros., Inc., 840 F.2d 1065, 1083 (2d Cir. 1988)
(fraudulent concealment tolls the statute of limitations only where plaintiff “remained in
ignorance of [his] cause of action”). Indeed, Plaintiff acknowledges that he was
contemporaneously aware of each IMR, disciplinary hearing, or administrative approval that
allegedly constituted a violation of his rights. (See Dkt. No. 1 at ¶¶ 87, 89, 93, 101, 192–98,
221–24, 226–28, 288). The doctrine of fraudulent concealment is therefore inapplicable.
After reviewing this issue de novo, the Court agrees with Magistrate Judge Dancks’
determination that Plaintiff’s (1) Fourteenth Amendment procedural due process claims against
Brown; (2) First Amendment retaliation claim against Defendants Gibson, Volpe, Woodard,
McCarthy, and Brown; (3) Fourteenth Amendment equal protection claim against Defendants
Gibson, Volpe, Woodard, McCarthy, Brown, and McGaw; and (4) conspiracy claim against
Defendants Gibson, Volpe, Woodard, McCarthy, Oleksiw, and Brown are barred by the statute
of limitations.
B. Continuing Violation Doctrine
Plaintiff objects to the R & R on the basis that it improperly applies “employment
discrimination Title VII laws of a continuating [sic] violation doctrine to a prison setting” in
determining that Plaintiff’s Fourteenth Amendment equal protection claims are barred by the
statute of limitations. (Dkt. No. 66 at 26–28).

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“Under Title VII’s continuing violation doctrine, ‘if a plaintiff has experienced a
continuous practice and policy of discrimination, . . . the commencement of the statute of
limitations period may be delayed until the last discriminatory act in furtherance of it.’”
Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (quoting Fitzgerald v.
Henderson, 251 F.3d 345, 359 (2d Cir. 2001)). “[T]he continuing-violation doctrine has been
applied, both by the Second Circuit and by courts in other jurisdictions, to a variety of non-Title
VII claims,” including Eighth Amendment deliberate indifference and racial discrimination
claims and claims brought under § 1983 in a prison context. Remigio v. Kelly, No. 04-cv-1877,
2005 WL 1950138, at *7, 2005 U.S. Dist. LEXIS 16789, at *22 (S.D.N.Y. Aug. 2, 2005); see
also Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (Eighth Amendment
deliberate indifference claim); Washington, 373 F.3d at 317 (racial discrimination claim under §
1983). The Second Circuit has generally reasoned by analogy to Title VII cases when applying
the continuing violation doctrine to circumstances other than employment discrimination cases.
See Washington, 373 F.3d at 317 (conducting continuing violation analysis of § 1983 claim, but
finding that doctrine did not toll the statute of limitations because claims accrued when defendant
undertook discrete act of initiating disciplinary proceeding). Regardless of the context, however,
“federal courts look unfavorably on continuing violation arguments, and have applied the theory
only under ‘compelling circumstances,’ such as where the unlawful conduct takes place over a
period of time, making it difficult to pinpoint the exact day the violation occurred.” Yip v. Bd. of
Trs., No. 03-CV-00959C (SR), 2004 WL 2202594, at *4, 2004 U.S. Dist. LEXIS 28366, at *14
(W.D.N.Y. Sep. 29, 2004).
Here, Plaintiff has alleged discriminatory actions by Defendants Gibson, Volpe,
Woodard, McCarthy, and Brown specifically in connection with the January 28, 2011 IMR and

7

subsequent disciplinary proceedings. (Dkt. No. 1-2 at 41). Similarly, Plaintiff alleges that
Defendant McGaw discriminatorily filed an IMR against him at Upstate for refusing McGaw’s
direct order to remove the design shaved into Plaintiff’s beard. (Id. at 111–12). Both allegations
describe conduct that is “discrete in its nature” and “wholly separable” from other allegations of
discrimination. Washington, 373 F.3d at 319. In other words, Plaintiff’s allegations do not
describe “a continuous or ongoing policy or practice” of discrimination necessary to demonstrate
the kind of compelling circumstances that justify tolling of the statute of limitations by the
continuing violation doctrine. Id. “That the continuing violation doctrine can apply . . . does not
mean it must.” Shomo, 579 F.3d at 182.
After reviewing this issue de novo, the Court concludes that Magistrate Judge Dancks
properly considered the continuing violation doctrine and agrees with Magistrate Judge Dancks’
determination that it does not render Plaintiff’s claims timely and that Plaintiff’s Fourteenth
Amendment equal protection claims against Gibson, Volpe, Woodard, McCarthy, Brown, and
McGaw should be dismissed.
C. Collateral Estoppel
Plaintiff seems to object to the R & R on the basis that it fails to consider that, because
prior prison disciplinary proceedings determined that his beard was in compliance with Directive
4914, Defendants should be estopped from “making any motion in its defense or affirmative
defense like the motion to dismiss 12(b)(6) as to the present motion on any litigation grounds for
that matter.” (Dkt. No. 66 at 34). Plaintiff’s objections are meritless.
In order for a plaintiff to “bar a defendant from litigating an issue on collateral estoppel
grounds: (1) the issues in both proceedings must be identical, (2) the issue in the prior
proceeding must have been actually litigated and actually decided, (3) there must have been a

8

full and fair opportunity for litigation in the prior proceeding, and (4) the issue previously
litigated must have been necessary to support a valid and final judgment on the merits.”
Faulkner v. Nat'l Geographic Enters., 409 F.3d 26, 37 (2d Cir. 2005). Assuming, arguendo, that
the doctrine of collateral estoppel may apply to prison disciplinary proceedings, 4 none of the
issues raised by Plaintiff’s claims for First Amendment retaliation, Fourteenth Amendment due
process violations, Fourteenth Amendment equal protection violations, and conspiracy to deprive
Plaintiff of his constitutionally protected rights were addressed or determined in his prison
disciplinary proceeding. The doctrine of collateral estoppel is therefore inapplicable.
D. Intracorporate Conspiracy Doctrine
Plaintiff objects to the R & R’s application of the “intracorporate conspiracy doctrine in a
prison context” as it is “strictly a business . . . doctrine.” (Dkt. No. 66 at 80). Plaintiff argues
that the R & R “uses the intracorporate conspiracy doctrine to evade Plaintiff’s claims against
Defendants to favor them in the face of prior Northern District rejections of the doctrine in a
prison setting.” (Id.). The cases Plaintiff offers in support, however, acknowledge the
appropriateness of applying the doctrine in a prison setting. See, e.g., Benitez v. Hamm, No.
9:04-CV-1159 (NAM/GHL), 2009 WL 3486379, at *18–19, 2009 U.S. Dist. LEXIS 97495, at
*68–71 (N.D.N.Y. Sept. 30, 2009) (Lowe, Mag. J.) (“I will assume that the [intracorporate
conspiracy] doctrine applies in § 1983 cases.”); Orafan v. Goord, 411 F. Supp. 2d 153, 164-65
(N.D.N.Y. 2006) (Magnuson, J.) (“The intracorporate conspiracy doctrine applies to individual
defendants of a correctional institution.”), vacated and remanded on other grounds sub nom.
Orafan v. Rashid, 249 Fed. App’x 217 (2d Cir. 2007); Medina v. Hunt, No. 9:05-CV-1460

4

See Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995) (noting that “there is a substantial question as to whether,
under New York Law, collateral estoppel should ever apply to fact issues determined in a prison disciplinary hearing
and reviewed for substantial evidence in an Article 78 proceeding, given the ‘procedural laxity’ of such prison
hearings and the limited nature of substantial-evidence review”).

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(DNH/GHL), 2008 WL 4426748, at *8, 2008 U.S. Dist. LEXIS 120759, at *54 (N.D.N.Y. Sep.
2, 2008) (Lowe, Mag. J.) (applying intracorporate conspiracy doctrine analysis to prison
context). Further, in each of these cases, the defendants were alleged to have been “pursuing
personal interests wholly separate and apart from the entity.” Orafan, 411 F. Supp 2d at 165
(citation and internal quotation marks omitted). In such situations, the intracorporate conspiracy
doctrine does not bar conspiracy claims, and defendants may be found liable for their conduct.
Id.
Plaintiff has failed to allege any nonconclusory facts that raise a plausible claim that
Defendants at either Auburn or Sullivan were pursuing interests that were wholly separate from
DOCCS and their employment by DOCCS. Having reviewed this issue de novo, the Court
agrees with Magistrate Judge Dancks’ recommendation that Plaintiff’s conspiracy claims should
be dismissed under the intracorporate conspiracy doctrine, to the extent that the claims against
Defendants Gibson, Volpe, Woodard, McCarthy, Oleksiw, and Brown are not already timebarred by the statute of limitations as discussed in Section III.A, supra. See Hartline v. Gallo,
546 F.3d 95, 99 n.3 (2d Cir. 2008) (affirming dismissal of § 1985 claim against police officers,
police department, and the village under intracorporate conspiracy doctrine).
E. Request for Certification of Interlocutory Appeal
Plaintiff objects to the R & R on the basis that it fails to consider his request to certify an
order to the Second Circuit Court of Appeals so that he may obtain a decision relating to
application of the continuing violation and intracorporate conspiracy doctrines to his case. (Dkt.
No. 66 at 26, 79).
Pursuant to 28 U.S.C. § 1292(b), a district court may certify an order for interlocutory
appeal where “such order involves a controlling question of law as to where there is substantial

10

ground for difference of opinion and . . . an immediate appeal from the order may materially
advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “[L]eave to appeal
from interlocutory orders should be granted only in exceptional circumstances [that] . . .
overcome the general aversion to piecemeal litigation and justify departing from the basic policy
of postponing appellate review until after the entry of final judgment.” Picard v. Estate of
Madoff, 464 B.R. 578, 582–83 (S.D.N.Y. 2011) (citation and internal quotation marks omitted).
“Interlocutory appeals are strongly disfavored in federal practice. Movants cannot invoke the
appellate process as a vehicle to provide early review of difficult rulings in hard cases. Only
exceptional circumstances will justify a departure from the basic policy of avoiding appellate
review until a final decision on the merits.” Glatt v. Fox Searchlight Pictures, Inc., No. 11 Civ.
6784 (WHP), 2013 WL 5405696, at *2, 2013 U.S. Dist. LEXIS 139594, at *3 (S.D.N.Y. Sept.
17, 2013) (quoting In re Ambac Fin. Grp., Inc. Sec. Litig., 693 F. Supp. 2d 241, 282
(S.D.N.Y.2010)).
Plaintiff fails to demonstrate any “controlling question of law as to where there is
substantial ground for difference of opinion.” There are no “exceptional circumstances” that
warrant certification of an order for interlocutory appeal, and Plaintiff’s request is accordingly
denied.
F. New Claim for First Amendment Retaliation
Plaintiff asserts that, because Magistrate Judge Dancks’s took judicial notice in the
R & R that Directive 4914 was amended to prohibit beard “[p]atterns, designs, or braids” on
March 1, 2013 (Dkt. No. 61 at 4 n.4), he is entitled to assert a new claim that Defendants
retaliated against him by “informing ‘DOCS/Albany’ about the beard designs” in violation of his

11

First Amendment rights. (Dkt. No. 66 at 58). This is not an objection to the R & R. In any
event, Plaintiff’s arguments are meritless.
To survive a motion to dismiss, “a plaintiff asserting First Amendment retaliation claims
must advance non-conclusory allegations establishing: (1) that the speech or conduct at issue was
protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a
causal connection between the protected speech and the adverse action.’” Dawes v. Walker, 239
F.3d 489, 492 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534
U.S. 506 (2002). “In order to establish a causal connection at the pleading stage, the ‘allegations
must be ‘sufficient to support the inference that the speech played a substantial part in the
adverse action.’” Morey v. Somers Cent. Sch. Dist., 2007 U.S. Dist. LEXIS 20265, at *36
(S.D.N.Y. Mar. 21, 2007) (quoting David v. Goord, 320 F.3d 346, 354 (2d Cir. 2003)). In
determining whether circumstantial facts indicate that a “causal connection exists between the
plaintiff's protected activity and a prison official’s actions, a number of factors may be
considered, including: (i) the temporal proximity between the protected activity and the alleged
retaliatory act; (ii) the inmate’s prior good disciplinary record; (iii) vindication at a hearing on
the matter; and (iv) statements by the defendant concerning his motivation.” Baskerville v. Blot,
224 F. Supp. 2d 723, 732–33 (S.D.N.Y. 2002) (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d
Cir. 1995)).
Plaintiff alleges that Defendants at Sullivan, motivated by Plaintiff’s grievances related to
his refusal to shave designs out of his beard, “retaliated by informing ‘DOCS/Albany’ about the
beard designs” and that their action resulted in the March 1, 2013 amendment to Directive 4914.
(Dkt. No. 66 at 63). Grievances are protected conduct under the First Amendment. See Gill v.
Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (finding that the plaintiff “has sufficiently

12

alleged . . . participation in protected activity: the use of the prison grievance system”). Plaintiff
alleges that he suffered an adverse action when DOCCS amended Directive 4914 in March 2013.
(Dkt. No. 66 at 64). Plaintiff asserts that there is a causal connection between his grievances and
the amendment of Directive 4914, arguing: “How else would the dir. 4914 change/be ‘amended’
to include bar to beard designs if [Defendants] did not report it to Albany/DOCS?” (Id. at 64).
Even assuming that this Directive could constitute an adverse action, the amendment of a
DOCCS directive more than a year after the last protected conduct fails to allege a causal
connection between the protected conduct and the Directive. Indeed, there are no allegations that
allow a plausible inference that any particular Defendant actually urged the amendment of
Directive 4914 following Plaintiff’s grievances.
III. Conclusion
Accordingly, it is hereby
ORDERED that the Report and Recommendation (Dkt. No. 61) is ADOPTED in its
entirety for the reasons stated therein; and it is further
ORDERED that Defendants’ motion to dismiss for failure to state a claim (Dkt. No. 46)
pursuant to Rule 12(b)(6) is GRANTED in part and DENIED in part; and it is further
ORDERED that the motion to dismiss is granted as to and that the following claims are
DISMISSED WITH PREJUDICE: (1) Fourteenth Amendment procedural due process claims
against Defendants Brown and Jordan; (2) First Amendment retaliation claim against Defendants
Gibson, Volpe, Woodard, McCarthy, and Brown; (3) Fourteenth Amendment equal protection
claim against Defendants Gibson, Volpe, Woodard, McCarthy, Brown, and McGaw; (4)
conspiracy claim against Defendants Gibson, Volpe, Woodard, McCarthy, Oleksiw, and Brown

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under §§ 1983, 1985(3), and 1986; and (5) conspiracy claim against Defendants Jordan, Mace,
Daddezio, and Sipple brought under §§ 1983, 1985(3), and 1986; and it is further
ORDERED that the motion to dismiss is DENIED as to the Fourteenth Amendment due
process vagueness claim against Defendant Leclaire; 5 and it is hereby
ORDERED that Defendants Brown, Gibson, Volpe, Woodard, McCarthy, McGaw,
Oleksiw be DISMISSED from this action; and it is further
ORDERED that the Clerk of the Court serve a copy of this Decision and Order on the
plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.
Date: September 29, 2017
Syracuse, New York

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Plaintiff’s equal protection claim against Defendants Jordan, Sipple, Daddezio, Mace, and Giglio remains.

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