Booker v. Griffin et al
Filing
304
OPINION & ORDER: re: 289 CROSS MOTION for Summary Judgment filed by Amin Doshawn Booker, 279 FIRST MOTION for Summary Judgment filed by E. Demo, Thomas Griffin, G. Keller, Paul Chappius, Jr., Joseph Bellnier. Defendants' motio n for summary judgment is DENIED in part and GRANTED in part. The Court awards Defendants partial summary judgment on Plaintiffs request for injunctive relief. Defendants' motion for summary judgment is DENIED in all other respects.Plaintiff 9;s motion for partial summary judgment is DENIED in part and GRANTED in part. The Court awards Plaintiff summary judgment on his Fourteenth Amendment due process claim in connection with the Hearing, and on Defendants' affirmative defenses of q ualified immunity and exhaustion. Plaintiff's motion for partial summary judgment is DENIED in all other respects. A telephonic Pretrial Conference is scheduled for March 28, 2024 at 12 pm. To access the teleconference, please follow these direc tions: (1) Dial the Meeting Number: (877) 336-1839; (2) Enter the Access Code: 1231334 #; (3) Press pound (#) to enter the teleconference as a guest. The Clerk of Court is directed to terminate the motions at ECF Nos. 279 and 289. SO ORDERED., ( Pretrial Conference set for 3/28/2024 at 12:00 PM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 2/23/2024) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
02/23/2024
AMIN BOOKER,
No. 16 Civ. 00072 (NSR)
Plaintiff,
OPINION & ORDER
-againstTHOMAS GRIFFIN, et al.,
Defendants.
NELSON S. ROMÁN, United States District Judge
Amin Booker (“Plaintiff”) commenced this action against Thomas Griffin, Edward
Demo, Paul Chappius, Gregory Keller, and Joseph Bellnier, (“Defendants”), asserting numerous
claims, including that: (i) Defendants Griffin and Demo violated his First and Fourteenth
Amendment rights by retaliating against him with a false Administrative Segregation (“Ad.
Seg.”) Recommendation because Plaintiff had made a number of complaints against Green
Haven Correctional Facility (“Green Haven”), where he was then incarcerated; (ii) Defendants
Chappius and Keller denied the Plaintiff due process in connection with the Ad. Seg. hearing in
violation of the Fourteenth Amendment and the New York State Constitution; (iii) Defendants
Bellnier and Keller failed to provide Plaintiff meaningful periodic reviews of the basis for his
placement in Ad. Seg. in violation of the Fourteenth Amendment and the New York State
Constitution; and (iv) the Defendants subjected Plaintiff to unconstitutional conditions of
confinement in violation of the Eighth Amendment. (Third Amended Complaint (“Compl.”),
ECF No. 228.)
Presently before the Court are (1) Defendants’ motion for summary judgment on all of
Plaintiff’s claims (ECF No. 279); and (2) Plaintiff’s motion for partial summary judgment on his
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Fourteenth Amendment claims in connection with the Ad. Seg. hearing and the periodic reviews
regarding his placement in Ad. Seg. (ECF No. 289). Plaintiff additionally moves for summary
judgment on Defendants’ affirmative defenses of “failure to exhaust” and qualified immunity.
(Id.)
For the following reasons, the Court GRANTS in part and DENIES in part Defendants’
motion for summary judgment, and the Court GRANTS in part and DENIES in part Plaintiff’s
motion for partial summary judgment.
BACKGROUND
I.
Factual Background
The parties have submitted briefs, statements of material facts pursuant to Local Civil
Rule 56.1, and the record and exhibits from discovery in the instant proceeding, which reflect the
following factual background.
A. Plaintiff’s Role on the ILC and Meeting with Defendant Griffin
In April 2015, Plaintiff was incarcerated at Green Haven. At Green Haven, Plaintiff
served as an active member of the Inmate Liaison Committee (“ILC”), a group dedicated to
recording and addressing inmates' concerns and grievances within the facility, as well as the
Green Haven anti-gang program. (Plaintiff’s Statement of Material Facts (“Pltf.’s 56.1”) ¶ 1.)
He also participated in the family reunion program, which requires inmates to be free of any
“major, severe, chronic, or excessive disciplinary problems.” (Id.)
In early April 2015, the ILC requested a meeting with the Department of Corrections and
Community Supervision (“DOCCS”) Commissioner Anthony Annucci to address inmate
complaints of excessive and arbitrary beatings by prison staff. (Declaration of Amin Booker in
Support of Motion for Summary Judgment (“Booker Decl.”), ECF No. 297 ¶¶ 21-23.) On April
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21, 2015, Plaintiff and Defendant Griffin, the Superintendent of Green Haven, met in the
facility’s package room. The parties dispute what occurred during this meeting. Plaintiff claims
that Defendant Griffin pulled Plaintiff from his cell and cornered him in the facility’s package
room. (Pltf.’s 56.1 ¶ 18.) He then instructed Plaintiff to stop raising the topic of excessive and
arbitrary beatings at ILC meeting and threatened him for “trying to go above [his] head and have
[his] bosses come in [his] facility.” (Booker Decl. ¶¶ 44-47.) Defendant Griffin then threatened
to put Plaintiff in solitary confinement “with a push of a button,” and promised that Plaintiff
would be in solitary “for years.” (Pltf.’s 56.1 ¶¶ 20, 34; Booker Decl. ¶ 49.)
The Defendants instead contend that Defendant Griffin interviewed Plaintiff about a
rumored work stoppage demonstration (the “Demonstration”) at Green Haven and whether he
was currently affiliated with the Bloods gang (the “Bloods”). (Declaration of Thomas Griffin in
Support of Motion for Summary Judgment (“Griffin Decl.”), ECF No. 286, ¶ 22.) Plaintiff
denied currently being a part of the Bloods, but did admit to past involvement with them. (Id.)
Plaintiff also said he had heard about a planned demonstration and that if Defendant Griffin “let
him go to the yard that night, he could Ad. Seg.t down the demonstration.” (Id.) Based on this
purported statement, Defendant Griffin concluded that Plaintiff had “significant influence and
authority within the Bloods organization and could stop the demonstration.” (Id.)
B. Defendants’ Investigation of the Rumored Demonstration
The next day, on April 22, 2015, Plaintiff was transferred to Elmira Correctional Facility
(Elmira”) and placed into solitary confinement. (Pltf. 56.1 ¶¶ 35-38.) At the next Green Haven
ILC meeting, additional complaints about inmate beatings were raised, and Defendant Griffin
allegedly announced to the ILC Chair that he was “putting [Plaintiff] under [i.e., in the AD.
SEG.] to be an example to anyone who has that bright idea again.” (Id. ¶ 60.)
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On the same day, Defendant Griffin contacted Defendant Joseph Bellnier, the Deputy
Commissioner of DOCCS, to report a potential inmate demonstration at Green Haven. (Pltf.’s
56.1 ¶ 27.) Defendant Griffin was allegedly advised based on intelligence gathered from
confidential informants that Plaintiff, among others, had been identified as a possible leader of
the planned demonstration. (Griffin Decl. ¶ 20.) Defendant Bellnier immediately authorized an
investigation into the demonstration. (Id. ¶¶ 27-29.) Defendant Edward Demo arrived as the lead
investigator, and with Defendant Griffin, conducted interviews through the end of the night. (Id.
¶ 30.)
Defendant Griffin mentioned to Defendant Demo that he had interviewed the Plaintiff in
the package room and that Plaintiff had allegedly told Griffin he could stop the demonstration.
(Declaration of Edward Demo in Support of Motion for Summary Judgment (“Demo Decl.”),
ECF No. 285 ¶ 7.) Demo also interviewed Plaintiff, though the parties’ accounts of the interview
differ. Plaintiff claims that during the interview, Demo only asked Plaintiff about a use of
excessive force incident involving an inmate named “Africa” that allegedly occurred in April
2015, and not about the alleged demonstration. (See Booker Decl. ¶¶ 58-62.) Defendants claim,
however, that Plaintiff told Defendant Demo that he had spoken to Defendant Griffin earlier that
day and he did not know about anything going on or why he was being interviewed. (Demo
Decl. ¶ 9.) He further stated that he heard that incarcerated individuals were being beat up that
day and the day before but that he had nothing to do with it. (Id.) When Demo asked Plaintiff
whether he thought there will be a problem at the facility, he said that nothing will happen. (Id.)
During the investigation, Defendant Demo never spoke to anyone who professed personal
knowledge that Plaintiff was involved in the Demonstration or that he was involved with the
Bloods—the group rumored to be involved with the Demonstration. (Pltf.’s 56.1 ¶¶ 30-32.) In
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fact, inmates repeatedly named other inmates as being involved. (Id. ¶ 31.) Defendant Demo
claims that, after the investigation, an unidentified inmate told him that other, also unidentified
confidential informants (“CI”) had suggested that Plaintiff could be involved in the
Demonstration. (Id. ¶¶ 35.) Such CI intel was only ever given to Defendant Demo second-hand
as he never met the CIs and did not investigate their motives, their reliability, or whether they
had personal knowledge of Plaintiff. (Id. ¶¶ 35-36.)
On April 24, two days after Plaintiff was moved to the AD. SEG., Defendant Griffin
wrote a memorandum to his brother, Assistant Commissioner Patrick Griffin, stating that he had
interviewed Plaintiff on April 21 and concluded that Plaintiff “would pose a threat to safety and
security of any facility he would be housed.” (Id. ¶¶ 41-45.) To the memo, Defendant Griffin
attached a open letter (the “Open Letter”) purportedly circulated to prompt the Demonstration,
but did not explain how he obtained it or how it was connected to Plaintiff. (Id. ¶ 55.) The Open
Letter does not mention the Bloods, Plaintiff, or the word “demonstration.” (Id. ¶ 24.) The Open
Letter is typed in both Spanish and English. (Id. ¶ 25.)
The same day, after Plaintiff was already in solitary, Defendant Demo was subsequently
directed to draft an Ad. Seg. Recommendation (“Recommendation”) in part because of
Defendant Griffin’s conclusion that Plaintiff posed a threat. (Id. ¶¶ 49, 57.) Defendant Demo
then contacted the gang unit of the New York City correctional department to seek information
about Plaintiff. (Id. ¶ 46.)
The parties dispute whether the DOCCS records indicated gang involvement, as Plaintiff
contends the computer system erroneously included expunged and incorrect charges. (See, e.g.,
Declaration of Paul J. Kremer in Support of Plaintiff’s Cross-Motion for Summary Judgment,
ECF No. 296, Ex. 26.) Defendant Demo, however, concluded in his Recommendation that
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Plaintiff had influence in the Bloods. (Pltf.’s 56.1 ¶¶ 50-51.) Defendant Demo admits that the
only evidence he found tying Plaintiff to the Bloods was from the second- and third-hand inmate
statements. (Id. ¶ 48.)
C. The Ad. Seg. Hearing
Plaintiff was served with a copy of the Recommendation on or about April 25, 2015.
(Defendants’ Statement of Material Facts (“Defs.’ Rule 56.1”) ¶ 36.) The Recommendation is
largely a recitation of Plaintiff’s disciplinary record and allegedly expunged findings. (Pltf.’s
56.1 ¶ 50.) The Recommendation asserts that Plaintiff “had an inmate disseminate a letter to the
inmate population” and that he “had the ability to organize inmates.” (ECF No. 113-1 (copy of
Recommendation).) It does not, however, identify any inmates or groups thereof influenced by
Plaintiff or the time or place of any organizing activities. (See id.) The Recommendation
concludes by saying that Plaintiff “has proven him self [sic] to be a severe management
problem.” (Id.) No other inmate was ever disciplined regarding the purported Demonstration.
(Pltf.’s 56.1 ¶ 59.)
In May 2015, the Deputy Superintendent of Elmira Correctional Facility, Defendant
Kirkpatrick, commenced a hearing against Plaintiff to determine whether he should be placed
into Ad. Seg. (Id. ¶ 55.) At the hearing, Defendant Griffin testified first that Plaintiff was
threatening inmates in the Green Haven yard within the week before his transfer to Ad. Seg. (Id.
¶¶ 63-65.) Before the hearing was concluded, however, Kirkpatrick was promoted to be
Superintendent of Clinton Correctional Facility. (Defs.’ 56.1 ¶ 38.) Because Defendant
Kirkpatrick could no longer serve as the hearing officer, on June 30, 2015, Superintendent
Chappius appointed Defendant Captain Gregory Keller to take his place. (Id.)
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At the new hearing (the “Hearing”) beginning July 7, 2025, the testimony given at the
hearings before Defendant Kirkpatrick was thrown out. (Id.) At the outset of the hearing,
Defendant Keller dismissed Plaintiff’s argument that it was improper to start the hearing over,
rather than continuing from where the first hearing ended. (See Declaration of Gregory Keller in
Support of Defendants’ Motion for Summary Judgment (“Keller Decl.”), ECF No. 283 ¶ 14.)
Defendant Keller informed Plaintiff instead that all the testimony would be retaken so that
Defendant Keller could assess the evidence for himself.
(Id.; ECF No. 283-4 (Hearing
Transcript) at 11-12, 17, and 20.)
A reading of the Recommendation was used as the notice of charges against Plaintiff.
(Pltf.’s 56.1 ¶ 65.) Plaintiff was never shown the Open Letter. (Id. ¶ 22.) According to Plaintiff,
without hearing the key allegations against him, he purportedly believed that Defendant Griffin’s
allegation lodged during the first hearing—that Plaintiff threatened inmates in the Green Haven
yard—was still the main assertion against him in the Hearing before Defendant Keller. (Id. ¶ 81.)
Accordingly, Plaintiff allegedly focused his defense on disproving that he threatened inmates in
the yard. (Id.)
Plaintiff presented evidence and witnesses to show that Plaintiff was not in the yard
during the time that Defendant Griffin claimed he was. (See ECF No. 296-2 (Hearing Transcript)
at 109; ECF No. 296-37 (Hearing Determination Appeal Record) at 232-45.) For example,
Plaintiff solicited questionnaires from inmates in his block and the adjacent cell block at Green
Haven to verify that Plaintiff never asked nor threatened the inmates to refuse work or to not
attend programs. (Pltf.’s 56.1 ¶ 79.) On July 21 and 22, eight witnesses, five of whom were
inmates from Green Haven, testified in Plaintiff’s defense. (ECF No. 296-2 at 88-96, 106-127,
134-142.) The inmates claimed that they were never approached by Plaintiff nor had heard of
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him approaching anyone else to participate in the rumored Demonstration.) (Id. at 106-140;
Pltf.’s 56.1 ¶ 83.)
During the Hearing, Defendant Keller denied some of Plaintiff's requests for documents
and to call certain witnesses from DOCCS staff and inmates who were also alleged to have
participated in planning the Demonstration. (Id. ¶ 72.) Defendant Keller also excluded a witness
who could speak to Plaintiff's involvement in the anti-gang program at Green Haven on the basis
that such witness was “irrelevant.” (Id. ¶ 86.) Defendant Keller also frequently interrupted
Plaintiff’s questioning of witnesses to rephrase questions or strike questions. (Id. ¶¶ 67, 77, 86.)
Defendant Keller alleges that this only occurred when he determined certain questions were
inappropriate, such as those pertaining to testimony given at the first hearing before Defendant
Griffin. (Keller Decl. ¶ 17.)
Defendant Keller excluded Plaintiff from hearing the “confidential” testimony against
him even though no CI testified or was identified at the Hearing. (Pltf.’s 56.1 ¶¶ 69-76.) The
testimony in question relayed that an unspecified number of unidentified CIs linked Plaintiff to
the Demonstration, (id. ¶ 71), and that a high-ranking Blood member in another facility stated
that if anything happened in Green Haven, Plaintiff “would have something to do with it.” (ECF
No. 296-2 at 328.) Defendant Keller did not speak to any of the CI sources’ himself. (Pltf.’s 56.1
¶¶ 70-73.)
Defendant Keller reached a disposition on August 21, 2015, agreeing with Defendant
Demo’s recommendation and sentencing Plaintiff to indefinite placement in Ad. Seg. (Id. ¶ 74.)
Plaintiff voiced concern about potential due process violations in the Hearing to Defendant
Chappius, Superintendent at Elmira, but Chappius took no action in response to Plaintiff’s
complaints. (Id. ¶ 82.) Plaintiff then appealed the disposition of the Hearing to the DOCCS
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Director of Special Housing, Donald Venettozzi, who affirmed the disposition on November 6,
2015. (Id. ¶ 83.)
D. Periodic Reviews and Plaintiff’s Conditions in Ad. Seg.
After his conviction, under DOCCS regulations, Plaintiff was entitled to a three-tiered
review of his solitary confinement every 60 days (a period that was shortened to 30 days in
December 2020). (Id. ¶¶ 149-50.) Defendant Keller personally authored and approved some of
Plaintiff’s initial Level One reviews, and Defendant Bellnier, as the Level Three reviewer,
approved the reviews. (Id. ¶¶ 151, 156-67.)
While in solitary, Plaintiff filed multiple grievances about his conditions of confinement,
which were responded to, though not, in Plaintiff’s version of events, adequately addressed.
(Defs.’ Rule 56.1 ¶ 59; Pltf.’s 56.1 ¶ 142.) For example, Plaintiff claims that he suffered sleep
deprivation because of his placement in cells next to inmates who were suffering from
psychological or mental illnesses; the inmates created a persistent, deafening clamor that kept
Plaintiff awake at night. (Pltf.’s 56.1 ¶ 136.) These inmates also started fires, urinated in their
cells, and threw feces at Plaintiff, which left a pervasive smell in his block and cell. (Id.)
Plaintiff’s cell also allegedly suffered from infestations of cockroaches and other insects on
several occasions during his confinement. (Id. ¶¶ 127-131.)
On or about March 19, 2020, Plaintiff was transferred to Attica Correctional Facility.
(Defs.’ Rule 56.1 ¶ 60.) On or about December 22, 2020, Plaintiff began the process of
transitioning from Ad. Seg. to a step-down program. (Id. ¶ 61.) As a result, Plaintiff was no
longer entitled to periodic reviews pursuant. (Id.) On or about January 7, 2021, Plaintiff was
transferred to Midstate Correctional Facility where he was placed into another step-down
program as the first step toward transitioning back into the general population. (Id. ¶ 62.) On or
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about November 5, 2021, Plaintiff transferred to Five Points Correctional Facility where he was
placed into general population. (Id. ¶ 63.) Plaintiff ultimately remained in Ad. Seg. for more than
six and a half years.
II.
Procedural History
On January 4, 2016, Plaintiff commenced the present action pursuant to 42 U.S.C. §
1983, alleging, inter alia, various violations of his First, Eighth, and Fourteenth Amendment
rights by officials at Green Haven and Elmira. (ECF No. 2.) Defendants filed a motion to dismiss
Plaintiff's complaint on January 06, 2017. (ECF No. 46.) Plaintiff opposed Defendants’ motion
to dismiss and filed a cross-motion for summary judgment on his due process claims. (ECF No.
52.) The Court granted the Defendants’ motion to dismiss in part and denied in part, and denied
Plaintiff’s cross-motion for summary judgment. (ECF No. 80.)
On March 17, 2021, Plaintiff filed the operative complaint. (ECF No. 228.) Defendants
filed a motion for summary judgment on all remaining claims (ECF No. 279) and a
memorandum of law in support thereof (“Defs.’ MOL”, ECF No. 280). In response, Plaintiff
opposed Defendants’ motion for summary judgment. (“Pltf.’s Opp.”, ECF No. 300.) Plaintiff
also filed a cross-motion for partial summary judgment on his Fourteenth Amendment due
process claims, as well as Defendants’ affirmative defenses of “failure to exhaust” and qualified
immunity (ECF No. 289), as well a memorandum of law in support thereof (“Pltf.’s MOL”, ECF
No. 290). Defendants filed a reply in further support of their motion for summary judgment as
well as an opposition to Plaintiff’s cross-motion for partial summary judgment. (“Defs.’ Reply”,
ECF No. 292.) Plaintiff also filed a reply in further support of his cross-motion for partial
summary judgment. (“Pltf.’s Reply”, ECF No. 302.)
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LEGAL STANDARDS
Under Federal Rule of Civil Procedure 56(c), summary judgment must be granted if
“there is no genuine issue of material fact and ... the moving party is entitled to a judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4 (1986). “[G]enuineness runs to
whether disputed factual issues can reasonably be resolved in favor of either party, [while]
materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the
outcome under the applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190
F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a
genuine issue of material fact exists, a plaintiff “may not rest upon the mere allegations or
denials of the pleading[s],” but must by affidavit or otherwise “set forth specific facts showing
that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). “Conclusory statements, conjecture
or speculation by the party resisting the motion will not defeat summary judgment.” Kulak v.
City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of
the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736,
742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of
genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).
If the initial burden is met, the non-moving party “must produce specific facts indicating that a
genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely
colorable, or is not significantly probative, summary judgment may be granted.” Scotto v.
Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration
in original).
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The same standard of review applies when the Court is faced with cross-motions for
summary judgment, as here. See Lauria v. Heffernan, 607 F. Supp. 2d 403, 407 (E.D.N.Y. 2009)
(citations omitted). When evaluating cross-motions for summary judgment, the Court reviews
each party’s motion on its own merits, and draws all reasonable inferences against the party
whose motion is under consideration. Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir.
2001).
DISCUSSION
I.
Fourteenth Amendment Due Process Claims
The Fourteenth Amendment to the Constitution provides that “[n]o State shall ... deprive
any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, §
1. “Although prison inmates necessarily have their liberty severely curtailed while incarcerated,
they are nevertheless entitled to certain procedural protections when disciplinary actions subject
them to further liberty deprivations such as loss of good-time credit or special confinement that
imposes an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004). Plaintiff’s
confinement, which includes both his initial placement in administrative segregation following
the Ad. Seg. Hearing and his continuous placement there for six years – is an example of such
hardship.
To present a due process claim, a plaintiff must establish (1) that he possessed a liberty
interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient
process. Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017). This is the relevant test for both
of the Fourteenth Amendment due process claims Plaintiff asserts. The Court considers each
claim in turn.
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Ad. Seg. Hearing
Plaintiff alleges that his right to due process was violated during the Hearing because: (1)
he received insufficient notice of the allegations against him; (2) he was deprived of a reasonable
ability to call witnesses and present a defense; (3) the Hearing was overseen by an allegedly
biased hearing officer who predetermined Plaintiff’s guilt; and (4) the Hearing disposition
entirely lacked in reliable evidence. (Pltf.’s MOL at 9.) Defendants argue that Plaintiff is
mistaken as to each of these allegations and the evidence demonstrates that his due process rights
were not violated. (Defs.’ MOL at 17.) Plaintiff, however, contends that there is no dispute that
Defendants Chappius and Keller failed to provide Plaintiff due process in connection with the
Hearing. (Pltf.’s MOL at 8.) Accordingly, both parties move for summary judgment on this
claim.
This Court has already held that Plaintiff had a liberty interest based on the length of his
confinement, satisfying the first element of the Proctor test. (See ECF No. 80.)
As to the second element of the Proctor test – namely, whether Defendants deprived
Plaintiff of his liberty interest in violation of due process – due process dictates that, in
connection with a disciplinary hearing, “an inmate is entitled to [1] advance written notice of the
charges against him; [2] a hearing affording him a reasonable opportunity to call witnesses and
present documentary evidence; [3] a fair and impartial hearing officer, and [4] a written
statement of the disposition; including the evidence relied upon and the reasons for the
disciplinary actions taken.” Sira, 380 F.3d at 69.
The notice requirement of due process does not demand “notice that painstakingly details
all facts relevant to the date, place, and manner of charged inmate misconduct.” Id. at 72. It does,
however, require notice with “sufficient factual specificity to permit a reasonable person to
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understand what conduct is at issue so that he may identify relevant evidence and present a
defense.” Id. Accordingly, a vague notice that does not clearly delineate “the evidence upon
which a discipline ruling is based” and afford an inmate the “reasonable opportunity to explain
his actions and to alert officials to possible defects in the evidence” is constitutionally deficient.
See id. at 71. For example, in Sira, an inmate was charged with urging, organizing, and
threatening other inmates to participate in a work stoppage demonstration. Id. at 62. The
misbehavior report received by the inmate in advance of his hearing, however, “provide[d] no
notice as to the specific site or sites of his misconduct; it [did] not indicate the words or actions
[the inmate] employed in purportedly urging, organizing, or threatening inmates to participate in
the Y2K strike; and it identifie[d] no inmates toward whom his actions were directed.” Id. at 71.
The Second Circuit accordingly found that the inmate had “presented a viable due process claim
of
inadequate
notice.”
Id.
at
72.
Likewise, in Taylor v. Rodriguez, the Second Circuit rejected as “vague or conclusory” a
notice that informed an inmate that he was being considered for special confinement based on
past acknowledged membership in the “Latin Kings” gang, “recent tension in B–Unit involving
gang activity,” and unspecified “statements by independent confidential informants.” 238 F.3d
188, 193 (2d Cir. 2001). Such notice left the inmate “hav[ing] to guess what conduct forms the
basis for the charges against him,” and therefore “was too vague to allow [the inmate] to prepare
an adequate defense,” in violation of due process. Id.
Here, the notice received by Plaintiff – namely, the Recommendation – was similarly
constitutionally deficient. The Recommendation contains reference to Plaintiff’s past gangrelated activity, his alleged concession to Defendant Griffin that he carried significant influence
and authority in the Bloods, and a recitation of his history of organizing prison demonstrations.
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The activity with which Plaintiff was presently being charged—organizing an impending
demonstration against the Green Haven administration—however, is not outlined with any
specificity in the Recommendation. Setting aside the lengthy recitation of Plaintiff’s disciplinary
history and Plaintiff’s purported confession to Defendant Griffin that he was once a member of
the Bloods and “could shut down the demonstration” (a disputed fact that the Court will not
consider in resolving cross-motions for summary judgment), the Recommendation contains only
one specific allegation: that at some unspecified date, time, and place within Green Haven,
Plaintiff “had an inmate disseminate a letter to the inmate population for a call to inmates for
‘Solidarity.’” (See ECF No. 113-1.) This sole allegation, however, does not identify when or
where Plaintiff allegedly engaged in misconduct, leaving him unable to determine “whether his
conduct allegedly occurred on a specific day in . . . or over the course of several weeks; and
whether he had to defend against misconduct in the mess, the prison yard, his cell block, or some
other location.” Sira, 380 F.3d at 71-72. A notice which lacks reference to date, time, and place
of accused misconduct is plainly insufficient. Cf. Williams v. Korines, 966 F.3d 133, 144 (2d Cir.
2020) (holding that misbehavior report which contained “the names of the guards who conducted
the search, the date and time of the search, and an explanation that the guards determined that
sixteen of [inmate’s] photographs depicted hand signs that were associated with the Crips”
constituted adequate notice).
In addition, the Recommendation does not identify any specific words or actions that
connect Plaintiff with the Open Letter he allegedly had disseminated, nor does it identify any
specific inmates Plaintiff was allegedly trying to organize. This type of notice impermissibly
leaves a defendant guessing what conduct of his was at issue. Cf. Samuels v. Selsky, 166 F. App'x
552, 554 (2d Cir. 2006) (finding that a misbehavior report that advised an inmate of the date,
15
time, and place of the alleged misbehavior, as well as the conduct at issue satisfied due process).
In fact, the record indicates that Plaintiff positively misunderstood the charges against him, and
instead believed that he was being accused of intimidating inmates in the Green Haven yard and
therefore presented evidence to that end. (See Pltf.’s 56.1 ¶ 63; see also Taylor, 238 F.3d at 193
(“we have no doubt that plaintiff misunderstood what charges were leveled against him. For
example, the plaintiff testified, and introduced witness testimony, on matters concerning a
wholly unrelated disciplinary incident.”).)
Under the standard applied by the Second Circuit in Sira and Taylor, the notice supplied
by the Recommendation was plainly insufficient. As drafted, the Recommendation did not
permit Plaintiff to adequately present a defense. Where, as here, “a defendant is provided with no
specific facts relating to conclusory charges that he violated prison rules prohibiting inmates
from urging or threatening others to cause prison disruptions, he has no more ability to identify
the conduct at issue and to muster a defense than if he had been given no notice at all.” Sira, 380
F.3d at 72 (2d Cir. 2004).
Accordingly, the Court holds that Plaintiff was denied due process in connection with the
Ad. Seg. hearing because he did not receive adequate written notice of the charges against him.
Because the contents of the Recommendation are not in dispute, the Court awards summary
judgment on this issue in Plaintiff’s favor.
Periodic Reviews
Plaintiff asserts that his due process rights were violated by Defendants Keller, Chappius,
and Bellnier because they failed to provide him with meaningful periodic reviews of his Ad. Seg.
status, which lead to his continued placement on Ad. Seg. (Pltf.’s MOL at 19.) Defendants
16
disagree, arguing that Plaintiff received sufficient process in connection with his reviews. (Defs.’
MOL at 24.) Both parties move for summary judgment on this claim.
The Second Circuit has recognized the due process right to be free from pretextual
administrative confinement. Soto v. Walker, 44 F.3d 169, 173 n.4 (2d Cir. 1995); see also Pusepa
v. Annucci, No. 17-CV-1765 (RA), 2019 WL 690678, at *12 (S.D.N.Y. Feb. 19, 2019 (“A
‘pretextual’ administrative confinement may be raised as a separate constitutional violation.”)
(quoting Proctor v. Kelly, No. 05-CV-0692, 2008 WL 5243925, at *12 (N.D.N.Y. Dec. 16,
2008)). To comport with due process, the placement of an inmate in Ad. Seg. “must be
periodically reviewed to ensure that it ‘is not used as a pretext for indefinite confinement.’”
Colon v. Annucci, No. 17-CV-04445 (PMH), 2021 WL 3774115, at *7 (S.D.N.Y. Aug. 24, 2021)
(quoting Zimmerman v. Seyfert, No. 03-CV-01389, 2007 WL 2080517, at *19 (N.D.N.Y. July
19, 2007)). As with Plaintiff’s due process claim in connection with the Hearing, because the
Court has already found that Plaintiff had a liberty interest in being free from confinement (see
ECF No. 80), the sole issue before the Court on this claim is whether Defendants afforded
Plaintiff sufficient process.
When an inmate is confined to Ad. Seg., due process requires that prison officials
periodically review the confinement to ensure that the state’s justification for the confinement
“has not grown stale and that prison officials are not using Ad. Seg. as ‘a pretext for indefinite
confinement of an inmate.’” Proctor, 846 F.3d at 609 (citation omitted). In other words, “a
prisoner who is confined to administrative segregation for an extended period of time must
receive ‘some sort of periodic review’ to verify that they ‘remain[] a security risk’.” Hewitt v.
Helms, 459 U.S. 460, 4777 n.9 (1983). Under the relevant regulations, Defendants Bellnier and
Keller were required to give Plaintiff a meaningful review of his solitary confinement every 60
17
days (later shortened to every 30 days). N.Y. Comp. Codes R. & Regs. tit. 7, § 301.4(d) (2015
version); N.Y. Comp. Codes R. & Regs. tit. 7, § 301.4(c) (2020 version). The periodic reviews
were to consist of three levels of review: first, by a committee of three officials from the facility
where Plaintiff was housed (the “Facility Committee”), which in some instances included
Defendant Keller; next, by a committee of three officials from the DOCCS central office in
Albany (the “Central Office Committee”); and finally, by the Deputy Commissioner for
Correctional Facilities – in this case, Defendant Bellnier. (Pltf.’s 56.1 ¶¶ 149-51, 158.)
The Second Circuit requires that prison officials satisfy three criteria when conducting
periodic reviews: the officials must (1) “actually evaluate whether the continued confinement is
justified rather than [being] guided by a preordained outcome”; (2) “evaluate whether the
justification [for Ad. Seg.] exists at the time of review or will exist in the future”; and (3)
advance the purpose of “maintaining institutional safety and security or another valid reason
rather than the desire to impose punishment on the inmate.” H’Shaka v. O’Gorman, 444 F. Supp.
3d 355, 372 (N.D.N.Y. 2020) (citing Proctor, 846 F.3d at 610-11). “Procedural due process does
not permit a court to review the substance of DOCCS’s decision to confine a defendant in Ad.
Seg.…The Due Process Clause permits only an evaluation of whether Defendants’ method for
coming to their Ad. Seg. determinations is sufficient.” H'Shaka v. O'Gorman, 758 Fed. Appx.
196, 199 (2d Cir. 2019) (internal citations omitted) (emphasis added). Furthermore, regarding
method, “[t]he periodic review can be informal and non-adversarial. These 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 [Ad. Seg.] may continue to be
compelling.’” Giano v. Selsky, No. 91 Civ. 166, 2002 WL 31002803, at *7 (N.D.N.Y. Sept. 5,
2002) (internal quotation marks and citation omitted). Finally, failing to satisfy even one of the
18
Second Circuit’s three criteria for periodic reviews, H’Shaka, 444 F. Supp. 3d at 372, constitutes
a due process violation, Proctor, 846 F.3d at 610.
The Court finds that Plaintiff has raised triable question of fact as to whether Defendants’
periodic reviews were constitutionally meaningful. In particular, a reasonable fact finder could
conclude that Defendants conducted their reviews by going through the procedural motions
guided by a preordained outcome, thereby failing to satisfy the first Proctor factor requiring
prison officials to “actually evaluate whether the continued confinement is justified.” H’Shaka,
444 F. Supp. at 372. For example, for several extended periods of time, “the first and third
paragraphs of the Facility Committee’s reviews were copied and pasted verbatim,” and “[t]he
reviews are replete with identical typos.” (Pltf.’s Reply at 8, n. 4, 5.) These nearly identical
reviews may be indicative of a sham review process and “suggest to a reasonable jury that
[Plaintiff’s] reviewers treated the process as satisfied by boilerplate explanations instead of a
forthright review.” Proctor, 846 F.3d at 613. Additionally troubling is Defendant Bellnier’s
admission that at his level of review, he would not consult Plaintiff’s previous reviews as
reference points, (ECF No. 296-54 at 149:12-15), and relied completely on the information given
to him by the Facility and Central Office Committees, (id. at 213:10-15), because he believed
that he was not required to conduct independent investigations of people that were “assigned to
do the work for me,” (id. at 237). As a result, “DOCCS officials’ own statements raise serious
doubts about whether they have conducted [the Plaintiff’s] periodic reviews with the outcomes
pre-ordained" and “may raise questions in a reasonable jury's mind about whether that process
has been meaningful as it relates to [Plaintiff].” Proctor, 846 F.3d at 612.
The Court also questions whether Defendants violated the second Proctor factor, which
required them to genuinely evaluate whether the justification for Plaintiff’s continued placement
19
in Ad. Seg. existed at the time of each review or would exist in the future. The main explanation
repeated throughout reviews for why Plaintiff should remain in Ad. Seg. was because “[h]e has a
charismatic personality that he uses this [sic] to manipulate others, particular other inmates.”
(See ECF No. 303-1 at 643, 650, 653, 656, 659, 663.) The Second Circuit has explained,
however, that “[r]eviews must take into account prison conditions and inmate behavior as they
change over time.” Proctor, 846 F.3d at 611 (emphasis added). Focusing on an immutable trait
like an inmate’s personality undermines the purpose of this review, which is to track changes
which “may modify the calculus of whether the inmate presents a current threat to the safety of
the facility.” Id. The Court notes that even consistent praise throughout 2018 and 2019 by the
Central Review Committee that Plaintiff was cordial with staff (ECF No. 303-1 at 626), polite
and respectful (id. at 650), and displayed appropriate behavior and attitude (id. at 666, 672, 695)
did not “modify the calculus” of whether Plaintiff posed a threat. His charismatic personality
instead served as an apparently iron-clad justification for indefinite confinement.
Finally, a reasonable fact finder could also find that Defendants violated the third Proctor
factor, which requires that an inmate’s continued placement in Ad. Seg. advance the purpose of
“maintaining institutional safety and security or another valid reason rather than the desire to
impose punishment on the inmate.” Proctor, 846 F.3d at 610-11. Plaintiff’s reviews repeatedly
reference his past indiscretions, even though these incidents were all remote in time and had no
apparent connection to his behavior in Ad. Seg. (See, e.g. ECF No. 303-2 at 672, 674, 677, 681,
684.) Conversely, Plaintiff’s good behavior while in Ad. Seg. did not appear to move the needle,
so to speak, on Defendants’ evaluation of his continued confinement. (See, e.g. 303-1 at 626,
650, 666, 672, 695.) Defendant Bellnier even specifically admitted that he had no process for
determining when the information contained within Plaintiff’s reviews became stale, (Pltf.’s 56.1
20
¶ 164 (when asked “When would information become stale or too old to include in future
reviews?” he replied “I have no way of answering that question.”)), nor did he read previous
reviews to track any positive trends in Plaintiff’s behavior, (ECF No. 296-54 at 149:15).
The Court is therefore “troubled by the complete absence of any meaningful indication
by DOCCS of when and under what circumstances Plaintiff might be released from Ad. Seg.”
See H'Shaka, 444 F. Supp. 3d at 374. The Second Circuit has made clear that “[t]he state may not
use Ad. Seg. as a charade in the name of prison security to mask indefinite punishment for past
transgressions.” Proctor, 846 F.3d at 611. “Based on the current record, a reasonable fact finder
could conclude that Defendants used Plaintiff's remote violent conduct prior to being placed in
Ad. Seg. (and his sporadic, relatively minor non-violent incidents while in Ad. Seg.) as a pretext
for their desire to keep him in Ad. Seg. in order to punish him for past conduct,” in violation of
the third Proctor factor. H'Shaka, 444 F. Supp. 3d at 374. A reasonable jury may conclude that
the Defendants “use[d] past events alone to justify indefinite confinement” in violation of due
process. Proctor, 846 F.3d at 611.
“It is important to recognize that not all of the evidence points in favor of [Plaintiff].
Some of the evidence could lead a reasonable jury to conclude, as Defendants urge, that DOCCS
officials have analyzed Plaintiff’s good behavior in their section 301.4(d) reviews and ‘found it
to be outweighed by other facts.’” Id. at 614 (citation omitted). The reviews and evidence
proffered by Defendants suggests that there were times when Plaintiff followed the rules, and
there were other times when he committed infractions and received inmate misbehavior reports,
undermining his record of good behavior. (See ECF No. 287-3 at 612-614.) Moreover,
Defendants dispute Plaintiff’s contention that Defendant Keller coerced another committee
member to blindly sign off on continuing Plaintiff’s Ad. Seg. without properly reviewing the
21
information, and whether Bellnier merely rubber-stamped the recommendations from his
subordinates. (See Defs.’ Reply at 23.) A reasonable jury may still conclude that DOCCS
officials had a methodical approach to conducting periodic Ad. Seg. reviews. Because of these
factual disputes, the Court cannot grant Plaintiff summary judgment on this claim.
Likewise, however, the Court cannot grant Defendants summary judgment on this claim
either. Given all the admissible evidence of Defendants’ statements and Plaintiff's disciplinary
history, there is a genuine dispute of material fact regarding whether Defendants engaged in a
meaningful review of Plaintiff’s continued Ad. Seg. status. Plaintiff has presented triable factual
questions as to whether his reviews have been constitutionally meaningful. On that basis, the
Court denies both parties’ motion for summary judgment as to this claim.
II.
Qualified Immunity
Defendants argue they are entitled to qualified immunity with respect to Plaintiff’s claim
that his rights under the First, Eighth, and Fourteenth Amendments were violated. (Defs.’ MOL
at 29.) Plaintiff, by contrast, argues that Defendants cannot meet the high bar for proving the
affirmative defense of qualified immunity, and therefore the Court should grant summary
judgment for him on this issue. (Pltf.’s Opp. at 23.)
The Court can afford a defendant summary judgment as to qualified immunity if the
Court finds: “[1] the asserted rights were not clearly established, or [2] if the evidence is such
that, even when it is viewed in the light most favorable to the plaintiff[] and with all permissible
inferences drawn in [his] favor, no rational jury could fail to conclude that it was objectively
reasonable for the defendants to believe that they were acting in a fashion that did not violate a
clearly established right.” Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir. 1996) (citations
omitted). If the asserted right was clearly established, however, then “the immunity defense
22
ordinarily should fail, since a reasonably competent public official should know the law
governing his conduct,” with the exception “if the official pleading the defense…can prove that
he neither knew nor should have known of the relevant legal standard.” Harlow v. Fitzgerald,
457 U.S. 800, 818-19 (1982). This exception is known as the extraordinary circumstances
exception because it requires “extraordinary circumstances…and is generally predicated upon
the defendant relying upon advice of legal counsel.” Walker v. Schult, 463 F. Supp. 3d 323, 338
(N.D.N.Y. 2020), rev’d and remanded on other grounds, 45 F.4th 598 (2d Cir. 2022). For this
reason, the extraordinary circumstances exception “applies only rarely.” Id. (quoting Wyo., Dep't
of Envtl. Quality, 902 F.2d 1482, 1488 (10th Cir. 1990)).
As an initial matter, Plaintiff’s rights were clearly established by 2015. The Court has
previously found that “[t]here is no question” that Plaintiff’s First Amendment rights “were
clearly established at the time of Defendants’ alleged retaliation.” (See ECF No. 80 at 26.)
Likewise, it is well-established that prison inmates have a right to due process at prison
disciplinary hearings, Sira, 380 F.3d at 69, and through Ad. Seg. reviews, Proctor, 846 F.3d at
608. The right to be free from inhumane and unjustified solitary confinement was also clearly
established by 2015. H’Shaka, 444 F. Supp. 3d at 390 (“[T]he Supreme Court indicated in 2002
(well before [p]laintiff was placed in Ad. Seg.) that the Eighth Amendment is violated by
conditions that are totally without penological justification.”) Accordingly, the First, Eighth, and
Fourteenth Amendment rights asserted by Plaintiff were clearly established before the events at
issue.
Because the relevant law was clearly established, Defendants are not entitled to a
qualified immunity defense. See Harlow, 457 U.S. at 818–19. “Prison officials are charged with
knowledge of relevant decisional law, especially the decisions of the circuit in which they
23
perform their official duties.” Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). The law in
this Circuit was clear. In fact, the law of qualified immunity does not even “require a case on
point concerning the exact permutation of facts that state actors confront in order to establish a
clear standard for their behavior,” and yet Sira, Proctor, and H’Shaka share factual similarities
(and, in the case of Proctor, even the same defendant) as this case, such that Defendants should
have been aware of Second Circuit case law that had clearly established the rights advanced by
the Plaintiff. See Hancock v. County of Rensselaer, 882 F.3d 58, 69 (2d Cir. 2018).
Because Defendants are charged with knowledge of the law, the Court disagrees with the
Defendants’ contention that it was objectively reasonable for them to believe that their actions
did not violate clearly established law. The Defendants contend that “Griffin and Demo were
justified in investigating the impending II demonstration due to the extreme security risk it would
create for the facility.” (Defs. MOL at 30.) But, for the purposes of a qualified immunity
analysis, it does not matter if investigating a rumored prisoner demonstration was “justified.”
Rather, Defendants should have been aware that investigating an inmate as pretext to retaliate
against the inmate for exercising his First Amendment rights was not justified. (See ECF No. 80
at 26.) Likewise, Defendants claim that Keller and Bellnier, respectively, acted reasonably in
conducting the Hearing and reviewing the periodic reviews because they acted in accordance
with DOCCS rules and regulations. But “the fact that there may have been a policy that
promoted or allowed [unlawful] conditions does not constitute [the] exceptional circumstances”
required to sustain a defense of qualified immunity. Walker, 463 F. Supp. 3d at 338 (citation
omitted). Finally, Defendants have also not established extraordinary circumstances based on
reliance on the advice of counsel. See id.
24
Accordingly, Defendants cannot rely on the defense of qualified immunity against
Plaintiff’s claims. The Court therefore awards the Plaintiff summary judgment on this issue.
25
III.
Exhaustion
In their answer to the operative complaint, Defendants asserted the defense of exhaustion,
contending that Plaintiff “may have failed to exhaust his available administrative remedies as to
some or all of his claims.” (ECF No. 220 ¶ 151.) Plaintiff moves for summary judgment on this
defense on the grounds that Defendants cannot produce any evidence that Plaintiff failed to
administratively exhaust any of his claims. (Pltf.’s MOL at 24.)
The Defendants failed to respond to Plaintiff’s arguments concerning the defense of
exhaustion in their opposition papers. “[I]n the case of a counseled party, a court may, when
appropriate, infer from a party’s partial opposition [to summary judgment] that relevant claims or
defenses that are not defended have been abandoned.” Jackson v. Fed. Exp., 766 F.3d 189, 198
(2d Cir. 2014); see also Spagnuolo v. Howell, 814 F. App'x 614, 618–19 (2d Cir. 2020)
(affirming trial court’s dismissal at summary judgment of a party’s claims based on the party’s
failing to respond to the opposition’s argument for their dismissal).
Accordingly, the Court finds that Defendants have abandoned the defense of exhaustion
and awards Plaintiff summary judgment on this issue.
IV.
Unconstitutional Conditions of Confinement
Defendants seek summary judgment on Plaintiff’s claim that Defendants Keller,
Chappius, and Bellnier violated his Eighth Amendment rights by subjecting him to more than six
years of solitary confinement without any legitimate penological justification. (Defs.’ MOL at
19.) Plaintiff opposes and argues that he “has adduced evidence sufficient to support both of the
findings necessary for this claim,” and therefore defeat summary judgment. (Pltf.’s Opp. at 7.)
The Supreme Court has held that “[c]onfinement in a prison or in an isolation cell,” such
as Ad. Seg., “is a form of punishment subject to scrutiny under Eighth Amendment standards.”
26
Hutto v. Finney, 437 U.S. 678, 685 (1978). “The conditions of special housing units,” however,
“do not per se constitute cruel and unusual punishment in violation of the Eighth Amendment.”
Dixon v. Goord, 224 F. Supp. 2d 739, 748 (S.D.N.Y. 2002) (citing Anderson v. Coughlin, 757
F.2d 33 (2d Cir. 1985)); see also Madison v. Crowley, No. 19-CV-6554 FPG, 2020 WL
2542636, at *13 (W.D.N.Y. May 19, 2020) (“Generally speaking, confining an inmate in SHU
[special housing units], without more, and notwithstanding the restrictions that such confinement
imposes on inmate life, does not constitute cruel and unusual punishment.”) Rather, “whether
incarceration in the SHU violates the Eighth Amendment…depends on the duration and
conditions of the confinement.” Gonzalez v. Hasty, 802 F.3d 212, 224 (2d Cir. 2015). In order to
establish an Eighth Amendment violation, an inmate must demonstrate that (1) the conditions of
his confinement in Ad. Seg. “result[ed] in unquestioned and serious deprivations of basic human
needs such that the conditions pose[d] an unreasonable risk of serious damage to his health” (the
“Objective Test”); and (2) “the defendants imposed the conditions with deliberate indifference,
meaning that the defendants knew of, and disregarded, an excessive risk to the plaintiff's health
or safety” (the “Subjective Test”). Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013); Jolly v.
Coughlin, 76 F.3d 468, 480 (2d Cir. 1996).
Regarding the Objective Test, to defeat summary judgment, the undisputed facts on the
record must show “objectively, sufficiently, serious...denial of the minimal civilized measure of
life's necessities.” Willey v. Kirkpatrick, 801 F.3d 51, 66 (2d Cir. 2015). The Objective Test can
be satisfied based on the length of the confinement, such that the effects are “grossly
disproportionate” to the reasons for the isolation. Peoples v. Fischer, 898 F. Supp. 2d 618, 621
(S.D.N.Y. 2012) (“Numerous courts have found that long stretches of segregation can constitute
cruel and unusual punishment.”); H’Shaka, 444 F. Supp. 3d at 379 (finding the discrepancy
27
between length of time in solitary confinement and severity of infractions raises a genuine
question of fact under Objective Test). As for the Subjective Test, keeping an inmate in solitary
confinement without sufficient “penological justification” can alone demonstrate deliberate
indifference. H’Shaka, 444 F. Supp. 3d at 380. This is in part because of “the fact that the risk of
harm is obvious” when an inmate is kept in solitary confinement for extended periods of time.
Hope v. Pelzer, 536 U.S. 730, 738 (2002); see also Davis v. Ayala, 135 S.Ct. 2187, 2210 (2015)
(“But research still confirms what this Court suggested over a century ago: Years on end of neartotal isolation exact a terrible price,” including common side effects of anxiety, panic,
withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors); Peoples v.
Annucci, 180 F. Supp. 3d 294, 299 (S.D.N.Y. 2016) (“the deleterious effects of isolated housing
on inmates—especially to those assigned to long-term solitary confinement—are well-known
and amply documented,” including the fact that prolonged solitary confinement “can and does
lead to significant psychological harm”).
Here, Plaintiff was held for over six years in solitary confinement because of his alleged
attempt to organize a prisoner demonstration and his “charismatic personality.” (See ECF No.
303-1 at 643, 650, 653, 656, 659, 663.) DOCCS’s own guidelines, however, recommend limiting
“keeplock admission”, such as Ad. Seg., to 30 days. N.Y. Comp. Codes R. & Regs. tit. 7, §
270.2;4. Plaintiff “was in solitary for 2,387 days—more than 79 times longer than the guidelines
sentence.” (Pltf.’s Opp. at 8. (emphasis omitted).) A reasonable jury could therefore find that
Plaintiff’s lengthy confinement was “grossly disproportionate” to the reasons for the isolation.
Peoples, 898 F. Supp. 2d at 621. “[E]ven if Plaintiff's past violent behavior provides a possible
penological justification, there is a point at which circumstances (i.e., the amount of time in Ad.
Seg. and the inmate's behavior during that time) reasonably suggest that such justification is no
28
longer legitimate.” H'Shaka, 444 F. Supp. at 380. Accordingly, if Plaintiff’s continued
confinement in Ad. Seg. was based on past violent conduct alone and Defendants failed to take
into account the lack of more-recent serious disciplinary infractions, Plaintiff could succeed on
his Eighth Amendment claim.
Regarding the Subjective Test, as discussed earlier in this opinion, there is a genuine
dispute of material fact regarding whether the Defendants were relying solely on Plaintiff's past
conduct when deciding to hold him in Ad. Seg. As a result, there is also a genuine dispute of
material fact as to whether the Defendants had a legitimate penological justification for holding
Plaintiff in Ad. Seg. for the purposes of the Eighth Amendment. See id. Plaintiff’s Eighth
Amendment claim is thus “intertwined with his procedural due process claims”—in other words,
if Defendants failed to provide meaningful review of Plaintiff’s status for more than six years
and instead retained him in solitary “for solely punitive reasons, his right to due process and his
right to be free from cruel and unusual punishment are both implicated.” Smith v. Annucci, No.
6:18-CV-06261 EAW, 2019 WL 539935, at *7 (W.D.N.Y. Feb. 11, 2019). Conversely, if
Defendants meaningfully reviewed Plaintiff’s continued confinement and “reached the
conclusion that Plaintiff [could not] be released from administrative segregation for reasons of
institutional safety, Plaintiff cannot succeed on either of his claims.” Id. Plaintiff’s Eighth
Amendment claim therefore turns on an unresolved question of fact – namely, whether the
Defendants have put forth a sufficient penological justification for Plaintiff’s years-long
confinement. As a result, Defendants’ motion for summary judgment as to this claim is denied.
V.
Retaliation
Plaintiff claims that Defendants Griffin and Demo violated his First and Fourteenth
Amendment rights by transferring him to a different facility and subjecting him to indefinite
29
solitary confinement in retaliation for raising grievances as a member of the ILC. (Pltf.’s Opp. at
15.) Defendants dispute their involvement in the actions taken against Plaintiff, and,
alternatively, argue that DOCCS had a legitimate basis to put Plaintiff in solitary confinement.
(Defs.’ MOL at 22-23.) Defendants seek summary judgment on Plaintiff’s First and Fourteenth
Amendment claim for retaliation. (Id. at 23.) Plaintiff opposes, contending that “Defendants’
assertions are not undisputed, and even if DOCCS did have a legitimate penological basis to
confine [Plaintiff], that would not necessarily rule out unlawful retaliation.” (Pltf’s Opp. at 15.)
To prevail on a retaliation claim, an inmate must show first that he engaged in (1)
constitutionally protected conduct, (2) that prison officials took adverse action against the
plaintiff, and (3) that there was a causal connection between the protected speech and the adverse
action such that the protected conduct was a substantial or motivating factor for the adverse
action. See Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009). Regarding the second prong of
the Espinal test, “[w]hile...the scope of conduct that can constitute actionable retaliation in the
prison setting it is broad, it is not true that every response to a prisoner's exercise of a
constitutional right gives rise to a retaliation claim.” Dawes v. Walker 239 F.3d 489, 492-93 (2d
Cir. 2001), overruled on other grounds by Swierkiewciz v. Sorema N.A., 534 U.S. 506, 508
(2002). Rather, “[o]nly retaliatory conduct that would deter a similarly situated individual of
ordinary firmness from exercising his or her constitutional rights constitutes an adverse action
for a claim of retaliation.” Id. at 493. Regarding the third prong of the Espinal test, several
factors may be used to determine whether a causal connection exists, including: "(1) the temporal
proximity between the plaintiff's protected activity and the defendant's adverse action, (2) the
prior disciplinary record of the inmate, (3) the outcomes of any hearings regarding the allegedly
retaliatory charges, and (4) any statements defendant makes concerning his motive.” Davidson v.
30
Bartholome, 460 F. Supp. 2d 436, 444 (S.D.N.Y. 2006) (citation omitted). Finally,
“circumstantial evidence alone can be sufficient to meet th[e] burden of proof” for a retaliation
claim. Rodriguez v. McClenning, 399 F. Supp. 2d 228, 236 (S.D.N.Y. Apr. 22, 2005).
Defendants do not dispute that Plaintiff can meet the first prong of the Espinal test –
namely, that Plaintiff engaged in constitutionally protected conduct by raising inmate grievances
through his role on the ILC. (See Defs.’ MOL at 22.) The Second Circuit has specifically found
that “retaliation against a prisoner for filing or voicing grievances on behalf of a prison
population as a member of an inmate grievance body, such as the ILC, ‘violates the right to
petition government for the redress of grievances guaranteed by the First and Fourteenth
Amendments.’” Dolan v. Connolly, 794 F.3d 290, 294–95 (2d Cir. 2015) (quoting Graham v.
Henderson, 89 F.3d 75, 80 (2d Cir. 1996)); see also Franco v. Kelly, 854 F.2d 584, 589 (2d Cir.
1988) (“The right to petition government for redress of grievances—in both judicial and
administrative forums—is ‘among the most precious of the liberties safeguarded by the Bill of
Rights.’”) (quoting United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222 (1967)
(emphasis in original)). Plaintiff's claimed conduct is therefore clearly a protected right of redress
under the First and Fourteenth Amendments, and he has met the first prong of the Espinal test.
The Court finds that Plaintiff has also presented sufficient evidence to demonstrate
adverse action, satisfying the second prong of the Espinal test. The Second Circuit and lower
courts therein have consistently found that being placed in segregated confinement, as Plaintiff
undisputedly was for over six years, is a form of adverse action. See Gill v. Pidlypchak, 389 F.3d
379, 384 (2d Cir. 2004) (finding that a false misbehavior report that resulted in the plaintiff's
placement in keeplock confinement constituted adverse action); Gayle v. Gonyea, 313 F.3d 677,
682 (2d Cir. 2002) (“An allegation that a prison official filed false disciplinary charges in
31
retaliation for the exercise of a constitutionally protected right, such as the filing of a grievance,
states a claim under § 1983.”); Flood v. Cappelli, No. 18-CV-3897 (KMK), 2019 WL 3778736,
at *7 (S.D.N.Y. Aug. 12, 2019) (holding that placing plaintiff in keeplock confinement for six
days constituted an adverse action); Lugo v. Van Orden, No. 07-CV-879, 2008 WL 2884925, at
*4–5 (S.D.N.Y. July 23, 2008) (assuming that placing plaintiff in keeplock confinement for five
days constitutes an adverse action and even “less adverse” action such as being moved to a
different housing unit have been held to be sufficient to state a claim for retaliation).
That Defendants contest the reason why Plaintiff was investigated and placed in the Ad.
Seg. does not alter this analysis. (See Defs.’ MOL at 22-23; Defs.’ Reply at 30-31.) All that is
required to meet this prong at this stage is sufficient evidence demonstrating that Defendants’
investigation and subsequent placement of Plaintiff into Ad. Seg. is the type of conduct “that
would deter a similarly situated individual of ordinary firmness from exercising his or her
constitutional rights,” Dawes, 239 F.3d at 493. Plaintiff has done so. Defendants’ only response
is to deny having played a role in making the determination to issue the Adm. Seg.
Recommendation (see Griffin Decl. ¶ 42; Demo Decl. ¶ 14), or investigate and place Plaintiff in
Ad. Seg. on the basis of unreliable evidence (see Demo. Decl. ¶¶ 9-19). But because Plaintiff
disputes these determinations, (see Pltf.’s 56.1 ¶¶ 28-38; 41-49), this is precisely the sort of
factual dispute that cannot be resolved at summary judgment. See Graham v. Henderson, 89 F.3d
75, 80–81 (2d Cir. 1996) (reversing district court’s grant of summary judgment where inmate
“succeed[ed] in creating a genuine issue of fact over whether he was, as he claim[ed], collecting
names of possible representatives in the grievance process, or, as the defendants argue[d],
circulating a petition and organizing a work slowdown).
32
Finally, the Court holds that Plaintiff has demonstrated a genuine issue of material fact as
to the third prong of the Espinal test – namely, that the protected conduct was a substantial or
motivating factor in the Defendants’ decision to investigate and place Plaintiff in solitary. First,
the temporal proximity between Plaintiff’s advocacy as part of the ILC and the adverse action of
placing him in solitary confinement is circumstantial evidence of a retaliatory motive on the part
of Defendants. See Washington v. Afify, 681 F. App'x 43, 46 (2d Cir. 2017) (finding that
temporal proximity between filing of inmate grievance and allegedly false misbehavior report
was circumstantial evidence of retaliation); Espinal, 558 F.3d 119, 129 (2d Cir. 2009) (denying
summary judgment given “the passage of only six months between the dismissal of Espinal’s
lawsuit and an allegedly retaliatory beating”). Defendants placed Plaintiff in Ad. Seg.
approximately one month after “the ILC’s requests that issues be escalated to the HUB
Superintendent and Commissioner (on March 16, 2015 and April 9, 2015, respectively).” (Pltf.’s
Opp. at 17.)
Second, and perhaps more compelling, Plaintiff has proffered direct evidence of
retaliatory animus. Plaintiff contends that Defendant Griffin threatened him in the package room
for raising issues on behalf of the ILC (Pltf.’s 56.1 ¶¶ 18-20; Booker Decl. ¶¶ 44-47), in advance
of instigating an investigation against him based on allegedly false information (Pltf.’s 56.1 ¶¶
21-27). Defendant’s Griffin’s purported actions suggest retaliatory intent. See Washington, 681
F. App'x at 46 (reversing grant of summary judgment on retaliation claim where inmate alleged
that correction officers confronted him directly about his practice of filing grievances before they
issued an allegedly false misbehavior report against him) (summary order). The Court is aware
that the parties offer conflicting testimony as to what prompted the investigation into Plaintiff
and his subsequent placement in the Ad. Seg. Defendants insist that they investigated Plaintiff
33
based on credible information that he was organizing an unlawful Demonstration at Green
Haven, not in response to his advocacy on the ILC. (Defs.’ MOL at 22-23.) Plaintiff, by contrast,
denies there being any legitimate evidence of his involvement in a purported Demonstration.
(Pltf.’s Opp. at 18-19.) If a trier of fact were to conclude that Plaintiff is telling the truth, then the
Defendants are lying about the reasons for launching the investigation and placing Plaintiff in
solitary. Accordingly, “[a] false reason for the [investigation and placement] would support the
inference that the real reason was the improper one: retaliation.” Gayle, 313 F.3d at 683 (denying
summary judgment where fact issue existed as to whether retaliation was substantial factor in
officials' decision to charge and punish prisoner); see also Fann v. Graham, No.
915CV1339DNHCFH, 2018 WL 1399331, at *9 (N.D.N.Y. Jan. 11, 2018) (same), report and
recommendation adopted, No. 915CV1339DNHCFH, 2018 WL 1399340 (N.D.N.Y. Mar. 19,
2018). If true, the facts as Plaintiff alleges—namely, that he was not organizing any
demonstration—suggest that the Defendants disciplined him because of his leadership on the
ILC. Because a genuine issue of material fact exists with regard to Defendants’ retaliatory intent,
the Court denies summary judgment as to Plaintiff’s First Amendment claim.
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VI.
Injunctive Relief
Plaintiff brings multiple claims for injunctive relief, including (1) changes to Ad. Seg.
procedures, (2) his return to general population, (3) the restoration of his property, (4) the
reversal and expungement of his institutional records, and (5) prohibiting Defendants from
retaliating against him (see ECF No. 228, at Request for Relief), all of which Defendants contend
must be dismissed because he “has returned to general population,” (Defs.’ MOL at 23). Plaintiff
disagrees and asserts that he is entitled to trial on his injunctive relief claims. (Pltf.’s Opp. at 19.)
The Court agrees with Defendants that Plaintiff’s release from Ad. Seg. moots his second
request. The Second Circuit has held that an inmate’s claim for injunctive relief from solitary
confinement is moot once the period of confinement has lapsed. Ayers v. Coughlin, 780 F.2d
205, 210 (2d Cir. 1985) (per curiam); see also Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d
Cir. 1983) (“The hallmark of a moot case or controversy is that the relief sought can no longer be
given or is no longer needed”). Plaintiff’s release from Ad. Seg. likewise renders his first request
for changes to Ad. Seg. procedures moot. “Once the conduct of which a prisoner complains is no
longer directed at that prisoner, a prisoner's personal claim for injunctive relief from that conduct
is moot.” Clarkson v. Coughlin, 783 F. Supp. 789, 794–95 (S.D.N.Y. 1992). This Court has
previously found moot a plaintiff’s request for a declaration that DOCCS's treatment of deaf and
hearing-impaired inmates is unlawful, and an injunction against the officials them to provide the
requested services for the same reason. See id.
Because all Defendants have retired from DOCCS, Plaintiff’s fifth request is also moot.
(See Defs.’ 56.1 ¶¶ 3-7.) “A case is deemed moot where the problem sought to be remedied has
ceased, and where there is no reasonable expectation that the wrong will be repeated.” Prins v.
Coughlin, 76 F.3d 504, 506 (2d Cir.1996) (per curiam) (quoting Preiser v. Newkirk, 422 U.S.
35
395, 402 (1975) (quotation marks omitted)). Defendants are no longer DOCCS employees and
therefore cannot retaliate against Plaintiff or re-place him in Ad Seg.
To the extent that Plaintiff’s property has not been returned to him as part of his release
from Ad. Seg., his third request for injunctive relief survives. Next, because inaccuracies in his
institutional records may cause him harm in the future, Plaintiff’s fourth request for reversal and
expungement also survives. Finally, Defendants did not address why Plaintiff’s third or fourth
requests for relief should be dismissed in either their moving or reply papers. The Court thus
deems any arguments against them abandoned. See Jackson, 766 F.3d at 198.
Accordingly, the Court grants partial summary judgment to Defendants on the issue of
injunctive relief.
VII.
Eleventh Amendment Damages
Defendants contend that the Eleventh Amendment bars Plaintiff’s damages claims
against Defendants in their official capacity. (Defs.’ MOL at 28) (citing Seminole Tribe of Fla.,
517 U.S. 44, 73 (1996).) Defendants are correct that sovereign immunity bars suit against a state
official sued in his official capacity, unless Congress has abrogated that immunity or the state has
consented to suit. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 & n.9
(1984). Plaintiff counters, however, that he has sued each Defendant in his individual and his
official capacity. (Pltf.’s Opp. at 22.) The Eleventh Amendment does not bar a federal court from
granting monetary relief against state officials sued in their individual capacities. Williams v.
Marinelli, 987 F.3d 188, 197 (2d Cir. 2021) (citing Hafer v. Melo, 502 U.S. 21, 31 (1991)).
Accordingly, Plaintiff can seek damages from Defendants in their individual capacity, and
Defendants’ motion on this issue is denied.
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CONCLUSION
Defendants’ motion for summary judgment is DENIED in part and GRANTED in part.
The Court awards Defendants partial summary judgment on Plaintiff’s request for injunctive
relief. Defendants’ motion for summary judgment is DENIED in all other respects.
Plaintiff’s motion for partial summary judgment is DENIED in part and GRANTED in
part. The Court awards Plaintiff summary judgment on his Fourteenth Amendment due process
claim in connection with the Hearing, and on Defendants’ affirmative defenses of qualified
immunity and exhaustion. Plaintiff’s motion for partial summary judgment is DENIED in all
other respects.
A telephonic Pretrial Conference is scheduled for March 28, 2024 at 12 pm. To access
the teleconference, please follow these directions: (1) Dial the Meeting Number: (877) 336-1839;
(2) Enter the Access Code: 1231334 #; (3) Press pound (#) to enter the teleconference as a guest.
The Clerk of Court is directed to terminate the motions at ECF Nos. 279 and 289.
Dated: February 23, 2024
White Plains, New York
SO ORDERED:
________________________
NELSON S. ROMÁN
United States District Judge
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