McGriff v. Superintendent Keyser et al

Filing 101

ORDER terminating 93 Letter Motion to Adjourn Conference; terminating 98 Letter Motion for Conference re: 93 LETTER MOTION to Adjourn Conference addressed to Judge Nelson Stephen Roman from Jessica Acosta-Pettyjohn dated 6/11/20 21., 98 LETTER MOTION for Conference addressed to Judge Nelson Stephen Roman from Jessica Acosta-Pettyjohn dated 9/15/2021. The Court has reviewed Defendants' request for leave to file a motion for summary judgment (ECF No. 98 ), Plaintiff's letter requesting that the Court wait to address the request until Plaintiff was released on September 23, 2021 and could procure an attorney (ECF No. 99), and Plaintiff's letter notifying the Court of his new address (ECF No. 100). The Court waives the pre-motion conference requirement and grants Defendants leave to file their proposed motion for summary judgment as follows: moving papers shall be served (not filed) on December 15, 2021; opposition papers shall b e served (not filed) on January 14, 2022; reply papers shall be served on January 31, 2022. All motion papers shall be filed on the reply date, January 31, 2022. If Plaintiff has not obtained counsel by the reply date, Defendants shall file all m otion papers, including Plaintiff's opposition papers. If Plaintiff has obtained counsel by the reply date, parties shall file their own papers. The parties shall provide two hard courtesy copies of all motion papers to Chambers as they are s erved. The Court has set the briefing schedule to afford Plaintiff time to find counsel. If Plaintiff is unable to comply with the current briefing schedule, he must timely seek an extension of his deadline to serve his opposition papers. The Cle rk of Court is directed to terminate the motions at ECF No. 98 and 93, to mail a copy of this order to pro se Plaintiff at the address on ECF, and to show service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 10/12/2021) (jca) Transmission to Docket Assistant Clerk for processing.

MEMORANDUM ENDORSEMENT
McGriff v. Superintendent Keyser et al.

7:17-cv-07307-NSR-PED

10/12/2021

The Court has reviewed Defendants’ request for leave to file a motion for summary
judgment (ECF No. 98), Plaintiff’s letter requesting that the Court wait to address the
request until Plaintiff was released on September 23, 2021 and could procure an
attorney (ECF No. 99), and Plaintiff’s letter notifying the Court of his new address
(ECF No. 100).
The Court waives the pre-motion conference requirement and grants Defendants leave
to file their proposed motion for summary judgment as follows: moving papers shall
be served (not filed) on December 15, 2021; opposition papers shall be served (not
filed) on January 14, 2022; reply papers shall be served on January 31, 2022. All
motion papers shall be filed on the reply date, January 31, 2022. If Plaintiff has not
obtained counsel by the reply date, Defendants shall file all motion papers, including
Plaintiff’s opposition papers. If Plaintiff has obtained counsel by the reply date,
parties shall file their own papers. The parties shall provide two hard courtesy copies
of all motion papers to Chambers as they are served.
The Court has set the briefing schedule to afford Plaintiff time to find counsel. If
Plaintiff is unable to comply with the current briefing schedule, he must timely seek
an extension of his deadline to serve his opposition papers.
The Clerk of Court is directed to terminate the motions at ECF No. 98 and 93, to mail
a copy of this order to pro se Plaintiff at the address on ECF, and to show service on
the docket.
Dated: October 12, 2021
White Plains, NY

Case 7:17-cv-07307-NSR-PED Document 98 Filed 09/15/21 Page 1 of 3

STATE OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES

DIVISION OF STATE COUNSEL

ATTORNEY GENERAL

LITIGATION BUREAU
DIRECT DIAL: [phone]

September 15, 2021
Via ECF
Honorable Nelson S. Román
United States District Judge
Southern District of New York
300 Quarropas Street
White Plains, New York 10601
Re:

McGriff v. Keyser, No. 17 Civ. 7307 (NSR)

Dear Judge Román:
This Office represents defendants William Keyser, Anthony Polizzi, and Stephen Keyser,
(collectively “Defendants”) in the above-referenced matter. Pursuant to Judge Davison’s Order
on August 4, 2021, and Your Honor’s Individual Practices, I write to respectfully request that the
Court schedule a pre-motion conference in order to discuss the Defendants’ anticipated motion for
summary judgment.
Plaintiff, an inmate at Sullivan Correctional Facility (“Sullivan”), alleges that on October
19, 2015, Defendant Keyser wrote a misbehavior report charging him with drug possession and
smuggling contraband. (Dkt. No. 32, ¶ 8,12). Plaintiff was placed in SHU pending a hearing before
Defendant Hearing Officer Polizzi, who found Plaintiff guilty and sentenced him to 45 days
keeplock. Plaintiff contends that he did not receive due process at his disciplinary hearing, and that
the conditions in SHU, where there was ongoing construction during the day, violated the Eighth
Amendment. The sole claims remaining in this case are due process claims concerning the conduct
of the disciplinary hearing against Defendants Polizzi and Keyser, and an Eight Amendment claim
concerning the conditions in SHU against Defendant Superintendent Keyser. These claims are all
meritless.
1. Plaintiff’s Eighth Amendment Claim Fails Because He Failed to Exhaust his
Administrative Remedies Prior to Filing this Action
The Second Circuit has expressly held that the clear language of § 1997e(a) requires that
exhaustion be completed prior to commencement of an action in court. Neal v. Goord, 267 F.3d
116, 123 (2d Cir. 2001). Exhaustion requirement “applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S.
516, 532 (2002). Compliance with the particular prison’s administrative grievance procedure
“define[s] the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). The
exhaustion must be “[p]roper,” meaning that it must “compl[y] with an agency’s deadlines and
28 LIBERTY ST., NEW YORK N.Y. 10005 • PHONE [phone] • FAX [phone] *NOT FOR SERVICE OF PAPERS
HTTP://WWW.AG.NY.GOV

Case 7:17-cv-07307-NSR-PED Document 98 Filed 09/15/21 Page 2 of 3
Page 2
other critical procedural rules because no adjudicative system can function effectively without
imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81,
90-91 (2006). An inmate grievance procedure pursuant to DOCCS Directive 4040 requires an
inmates to follow a three-step process (§ 701.5(a)-(b); 7 N.Y.C.R.R. § 701.5 (a)-(b). Plaintiff
admits that he did not file a grievance concerning the noise while in SHU, and alleges that he
grieved regarding the dusty food but did not receive any response at the time he commenced this
action. Plaintiff thus failed to exhaust his Eighth Amendment claims, and they should be dismissed.
2. Defendant Superintendent Keyser was not Personally Involved in Any Constitutional
Violation
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.” Shomo v. City of New York, 579 F.3d 176,
184 (2d Cir. 2009) (citation omitted). To hold a prison official liable under § 1983 “requires a
showing of more than the linkage in the prison chain of command.” Ayers v. Coughlin, 780 F.2d
205, 210 (2d Cir. 1985). Instead, plaintiffs must allege non-conclusory facts sufficient to establish
that “each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, the only factual
allegations in the Amended Complaint concerning Superintendent Keyser is that he was told,
during rounds and by one letter, of the dusty food and noise issues in SHU. He is sued simply
because of the high-ranking position he holds within DOCCS. This is insufficient to state a claim
as a matter of law. See Ayers, 780 F.2d at 201. Additionally, receiving a letter from an inmate does
not render the official personally involved with respect to the subject matter of the letter. Sealey
v. Giltner, 116 F.3d 47, 51 (2d Cir.1997).
3. Plaintiff Has Not Alleged a Deprivation of A Liberty Interest
The Second Circuit has instructed that “[r]estrictive confinements of less than 101 days do
not generally raise a liberty interest … .” Davis v. Barrett, 576 F.3d 129, 133- 134 (2d Cir. 2009).
Here, Plaintiff alleges that he was only sentenced to 45 days in keeplock, and there are no facts
alleged to indicate that his keeplock confinement was unusual or different from routine restrictive
confinement in keeplock or SHU. The allegations concerning dusty food and noise relate only to
the pre-hearing time spent in SHU. He has thus failed to allege a liberty interest implicating the
Due Process Clause, and the Court need proceed no further.
4. Plaintiff Received All the Process That Was Due In Any Event
The only process that an inmate is due at a disciplinary hearing is “advance written notice
of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and
present documentary evidence; a fair and impartial hearing officer; and a written statement of the
disposition, including the evidence relied upon and the reasons for the disciplinary actions taken.”
Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff v. McDonnell, 418 U.S. 539, 563567 (1974)). Furthermore, “judicial review of the written findings required by due process is
limited to determining whether the disposition is supported by ‘some evidence.’” Id. (citing
Superintendent v. Hill, 472 U.S. 445, 455 (1985). “This standard is extremely tolerant and is
satisfied if there is any evidence in the record that supports the disciplinary ruling.” Sira, 380 F.3d
at 69 (emphasis in original). Here, Plaintiff concedes that he was able to present witnesses and
28 LIBERTY ST., NEW YORK N.Y. 10005 • PHONE [phone] • FAX [phone] *NOT FOR SERVICE OF PAPERS
HTTP://WWW.AG.NY.GOV

Case 7:17-cv-07307-NSR-PED Document 98 Filed 09/15/21 Page 3 of 3
Page 3
documents, he questioned the witnesses at the hearing, and heard the audio tape of the phone call
in question. Plaintiff contends only that he was denied due process during his disciplinary hearing
because Defendant Keyser was purportedly not able to specify the coded language used on
Plaintiff’s phone call that indicated he was smuggling drugs, and there was thus not “substantial
evidence” in the record to support Defendant Polizzi’s guilty verdict. But the Due Process Clause,
even if applicable, would require only that there be “some evidence” in the record to support the
disciplinary conviction. Sira, 380 F.3d at 69. Even were Keyser’s testimony to be disregarded, the
misbehavior report and testimony of other witnesses were more than sufficient to meet this
minimal standard. See Eleby v. Selsky, 682 F. Supp. 2d. 289, 293 (W.D.N.Y. 2010). Failure to
consider all plaintiff’s objections would amount to harmless error in any event. Id.
5. Defendants Are Entitled to Qualified Immunity
The Second Circuit has instructed that “[t]he issues on qualified immunity are: (1) whether
Plaintiff has shown facts making out [a] violation of a constitutional right; (2) if so, whether that
right was ‘clearly established’; and (3) even if the right was ‘clearly established,’ whether it was
‘objectively reasonable’ for the officer to believe the conduct at issue was lawful.” Gonzalez v.
City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). All Defendants are entitled to qualified
immunity because Plaintiff does not make out a claim for a due process violation, as the time
served in SHU did not implicate a liberty interest and he was afforded all process guaranteed in a
disciplinary hearing. Additionally, the conditions while in SHU, were compelled by necessity, and
a reasonable official could have believed that construction noise during the day did not implicate
the Eight Amendment. In any event, a reasonable official in Defendants positions could have
believed that the actions they are alleged to have taken did not violate the Constitution.
Respectfully submitted,
By:
/s/
Jessica Acosta-Pettyjohn
Assistant Attorney General
[e-mail]
cc:

Dewitt McGriff
DIN: 97-A-6773
Sullivan Correctional Facility
P.O. Box 116
325 Riverside Drive
Fallsburg, NY 12733
(Via First Class Mail)

28 LIBERTY ST., NEW YORK N.Y. 10005 • PHONE [phone] • FAX [phone] *NOT FOR SERVICE OF PAPERS
HTTP://WWW.AG.NY.GOV

Case 7:17-cv-07307-NSR-PED Document 99 Filed 09/23/21 Page 1 of 2
Docket in case#--- CV/CR --XX 7307
17
As: pro se P letter dated 9/20/2021re 9/23/21 release date and response to
Date: 09 I 23 I 2021
Defendants' letter at ECF No. 98.

9/23/2021

Case 7:17-cv-07307-NSR-PED Document 99 Filed 09/23/21 Page 2 of 2

Case 7:17-cv-07307-NSR-PED Document 100 Filed 09/27/21 Page 1 of 3

Case 7:17-cv-07307-NSR-PED Document 100 Filed 09/27/21 Page 2 of 3

Case 7:17-cv-07307-NSR-PED Document 100 Filed 09/27/21 Page 3 of 3