Canales v. Southport Correctional Facility et al

Filing 63

REPORT AND RECOMMENDATIONS RE: 42 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM MOTION for More Definite Statement filed by S. Lee, G. Hungerford, P. Chappius, H. Hetrick, C. Skelly, G. Cleveland, T. Griffin, Brofs, F. Rhodes, S. Wenderlish, Carl J. Koenigsmann, Albert Prack, John Rafferty, W. Fennessy, R. Snyder, M. Sheahan, C. Hillman, A. Lamb, M. Shumaker, E. Myers, T. Evans, Muccigrasso, J. Mackay, C. Wesley, McCovey, D. Venettozzi; [ 48] MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by A. Bartlett; and 44 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by S. VonHagn.Objections due per 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72.Signed by Hon. Hugh B. Scott on 3/28/2017.(Copy of this R&R mailed by first-class mail to: Luis A. Canales, 10A0768, GREEN HAVEN CORRECTIONAL FACILITY, Box 4000, Stormville, NY 12582-0010.) (GAI)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
LUIS A. CANALES, #10-A-0768,
Plaintiff,
No. 12-CV-693(LJV)(HBS)
Report and Recommendation
and Decision and Order

-vsM. SHEAHAN, et al.,
Defendants.
__________________________________
I.

Introduction
This case has been referred to the undersigned by Hon. Lawrence J. Vilardo for

all pre-trial matters, including preparation of a Report and Recommendation on
dispositive motions. (Dkt. Nos. 29, 41.) Currently pending before the Court are the
Defendants’ motions to dismiss (Dkt. Nos. 42, 44, 48) and Plaintiff’s cross-motion to
amend/correct (Dkt. No. 60.) For the reasons set forth below, the Court grants Plaintiff’s
non-dispositive motion in part, and recommends denying Defendants’ dispositive
motions in their entirety.
II.

Factual Background and Procedural History
Plaintiff Luis Canales (“Plaintiff”), an inmate in the care and custody of the State

Department of Corrections and Community Supervision (“DOCCS”), filed this action
against approximately 35 proposed defendants, based upon 22 causes of actions
alleging a multitude of violations of his constitutional rights pursuant to 42 U.S.C. §
1983.

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Many of the proposed defendants were dismissed by this Court upon initial
screening, (Dkt. Nos. 1, 4), and, after Plaintiff’s multiple attempts at amending his
original complaint, the second amended complaint is currently the operative pleading.
(Dkt. Nos. 6, 10, 24, 28, 32-33, 37.) The claims therein generally assert use of force and
retaliation; denial of medical treatment and reasonable accommodation; and denial of
library and mail services. (Dkt. No. 32 at 2-3.)
Defendants have moved to dismiss certain claims contained in the second
amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. Nos. 42, 44, 48.)
Alternatively, Defendants seek a more definite statement pursuant to Fed.R.Civ.P.
12(e). (Id.)
In opposition to Defendants’ motions, Plaintiff has filed a “cross-motion for leave
to file an amended complaint” in which he does not challenge the substance of
Defendants’ motion to dismiss, but rather requests to amend his complaint for a third
time in order to provide a more definite statement to cure the defects raised by
Defendants. (Dkt. No. 61, ¶ 2.)1
Attached to Plaintiff’s cross-motion is a proposed third amended complaint (Dkt.
No. 60, Ex. A), which pares down the substance of his claims, eliminating Bartlett, Brois,
Canfield, Chappius, Elmer, Evans, Fennessey, Hilman, Koenigsmann, Lee, Mackay,
McCooey, Muccigrasso, Prack, Rhodes, Snyder, VonHagn, and Wenderlich as
defendants; and presents eleven sets of claims or “causes of action” against the
remaining defendants. He has abandoned his claims relating to interference with access

1

Reading Plaintiff’s submission as a response to Defendants’ request for a more definite
statement, the Court will recommend that the portion of Defendants’ motion requesting relief
under Fed.R.Civ.P. 12(e) be denied as moot.
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to library and mail services, and has re-asserted his Eighth Amendment and Due
Process claims, as discussed in further detail below.
For the reasons below, it is recommended that Defendants’ motions to dismiss
be denied, and their alternative motion for a more definite statement be denied as moot.
Plaintiff’s cross-motion for leave to amend is granted in part.
III.

Discussion
A.

General Principles of Law

In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept the
factual allegations in the complaint as true and draw all reasonable inferences in favor
of the plaintiff. See Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
It need not accept as true, however, allegations that are conclusory, that is, bare,
unadorned allegations that lack specificity. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009).
To survive a motion to dismiss, “a complaint must contain sufficient factual matter...’to
state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, the factual allegations
must permit the Court “to infer more than the mere possibility of misconduct.” Iqbal, 556
U.S. at 679.
Because Plaintiff is proceeding pro se, the Court must “construe [the] complaint
liberally and interpret it to raise the strongest arguments that it suggests.” Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation and internal quotations omitted).
Plaintiff brings this action under 42 U.S.C. § 1983, which imposes liability on
anyone who, under color of state law, deprives a person “of any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. In other words, to

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recover under this section, a plaintiff must show a violation of a federal constitutional or
statutory right.
Moreover, the personal involvement of defendants in an alleged constitutional
deprivation is a prerequisite to an award of damages under § 1983. Gaston v. Coughlin,
249 F.3d 156, 164 (2d Cir. 2001); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);2
Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). Personal
involvement may be shown by evidence that: (1) the defendant participated directly in
the alleged constitutional violation; (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong; (3) the defendant
created or permitted the continuation of a policy or custom under which unconstitutional
practices occurred; (4) the defendant was grossly negligent in supervising subordinates
who committed the wrongful acts; or (5) the defendant exhibited deliberate indifference
to the rights of inmates by failing to act on information indicating unconstitutional acts
were occurring. Colon, 58 F.3d at 873.2 “There is no respondeat superior liability in §
1983 cases.” Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). Thus, supervisory
officials may not be held liable merely because they hold a position of authority. Black v.
Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
B.

Leave to Amend

It appears from his submissions that Plaintiff acknowledges that many of his
original 22 causes of action fail to state a claim upon which relief could be granted, and

2

The Second Circuit, though recognizing the dispute, has yet to decide whether the Supreme
Court’s decision in Iqbal “may have heightened the requirements for showing a supervisor’s
personal involvement with respect to certain constitutional violations.” Grullon v. City of New
Haven, 720 F.3d 133, 139 (2d Cir. 2013).
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now cross-moves for leave to file a third amended complaint. Defendants oppose this
motion on the ground that his proposed amendment would be futile. (Dkt. No. 62.)
Leave to file an amended complaint “shall be freely given when justice so
requires.” Fed.R.Civ.P. 15(a). Only “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party . . . [or] futility of amendment” will result in the
court’s denial of a motion for leave to amend. See Foman v. Davis, 371 U.S. 178, 182
(1962); Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83 (2d
Cir. 2002); Milanese v. Rust–Oleum, 244 F.3d 104, 110 (2d Cir. 2001).3 A district court
need not grant leave if amendment would be futile, Reed v. Friedman Mgmt. Corp., 541
Fed.Appx. 40, 41 (2d Cir. 2013), i.e., if the proposed claims could not withstand a
motion to dismiss. Dougherty, 282 F.3d at 88 (stating that an “amendment to a pleading
will be futile if a proposed claim could not withstand a motion to dismiss pursuant to
Rule 12(b)(6)”). Thus, the question before the Court is whether Plaintiffs’ proposed
claims can withstand a Rule 12(b)(6) motion to dismiss for failure to state a claim.4
Much like his previous submissions, Plaintiff’s proposed third amended complaint
is difficult to discern—it is comprised of two “factual statements” and eleven “causes of

3

Although “[a] pro se complaint should not be dismissed ‘without giving leave to amend at least
once when a liberal reading of the complaint gives any indication that a valid claim might be
stated,’” Engles v. Jones, 144 F. Supp. 3d 413, 424 (W.D.N.Y. 2015) (quoting Gray–Davis v.
N.Y., 2015 WL 2120518 at *3 (N.D.N.Y. May 5, 2015)), Plaintiff already been afforded this
opportunity multiple times.
4

The Court notes that Plaintiff cannot re-assert claims that were previously dismissed with
prejudice. (Dkt. No. 10.) See Lee v. Underhill Wiping Cloth, 13 Fed.Appx. 62 (2d Cir. 2001). To
the extent the cross-motion might be construed as a motion for reconsideration of the Court’s
previous screening order, that motion is denied as meritless and/or untimely. These claims
were, and remain, dismissed.
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action” that are not successively numbered. (Dkt. No. 60.) For that reason the Court will
examine Plaintiff’s claims by subject matter and defendant.
1.

Personal Involvement: Supervisory Liability

As a threshold matter, Defendants argue that Plaintiff has not adequately pled
supervisory liability with respect to certain named defendants. (Dkt. No. 62 at 4-5.) For
the following reasons, the Court agrees, denying Plaintiff’s motion to amend his
complaint to include supervisory liability claims against defendants Griffin, Hungerford,
Sheahan, and Venettozzi.
In the third amended complaint, Plaintiff states that defendants Griffin and
Sheahan, former Superintendent and Deputy Superintendent for Security of Southport
Correctional facility (“Southport”), respectively, were personally involved in an excessive
force incident because they had received a written complaint about a corrections
officer’s previous conduct and took no action in response to that information, thereby
permitting a future assault against Plaintiff to occur. (Dkt. No. 60 at 10-11.)
Plaintiff’s allegations are insufficient under the 12(b)(6) standard, and also fails
as a basis for granting leave to amend under Grullon v. City of New Haven, 720 F.3d
133, 140–41 (2d Cir. 2013).
In Grullon, the inmate-plaintiff’s complaint lacked any allegations concerning the
warden’s personal involvement, but in opposition to the warden’s motion to dismiss,
plaintiff attached a copy of a letter he had written to the warden complaining of the
conditions of his confinement and requested an opportunity to amend the complaint.
720 F.3d at 136-37. In concluding that the district court erred in dismissing the plaintiff’s
claims on personal involvement grounds without granting him leave to file an amended

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complaint, the Second Circuit cautioned that “[a]t the pleading stage, even if [the
plaintiff] had no knowledge or information as to what became of his Letter after he sent
it, he would be entitled to have the court draw the reasonable inference if his amended
complaint contained factual allegations indicating that the Letter was sent to the Warden
at an appropriate address and by appropriate means that the Warden in fact received
the Letter, read it, and thereby became aware of the alleged conditions of which Grullon
complained.” Id. at 141.
Grullon is easily distinguishable from the case here, where Plaintiff has attached
a proposed amended complaint in what amounts to be his third opportunity to amend
and, despite his ample opportunities to do so, he has failed to articulate the claim of
personal involvement based on the alleged letter(s). Rather, he has only set forth the
following allegation: “the Superintendent[s] had received written complaint of the [sic]
C.O. Myers, and other officer[s’] use of excessive force against other inmates & was
advised that the officer[s] should be discharged or reassigned due to persistent
complaint[s].” (Dkt. No. 60 at 10-11.) Leave to amend here would be futile based on
these threadbare allegations, and this finding appears to be consistent with a number of
post-Grullon district court opinions dismissing complaints that base a claim of personal
involvement solely on the supervisory prison official’s receipt of a complaint or
grievance. See Guillory v. Cuomo, 616 Fed.Appx. 12, 14 (2d Cir. 2015) (summary
order) (affirming dismissal where plaintiff “did not allege when and where the letters
were sent, what they said, or how they were sent”), accord, Flynn v. Ward, No. 15-CV1028, 2016 WL 1357737, at *13 (N.D.N.Y. Apr. 5, 2016) (“While cognizant of Grullon,
the Court finds that, as presently pleaded, plaintiff has failed to establish that Goppert

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was personally involved in any constitutional deprivation. While the memoranda contain
Goppert’s name, plaintiff has failed to plead facts establishing where the memoranda
were sent, by what means they were forwarded and what response, if any, he received
from Goppert. Without more, the allegations are not enough to allege personal
involvement in any constitutional deprivation.”).
Accordingly, Plaintiff has not sufficiently alleged supervisory liability on behalf of
Griffin and Sheahan,5 and any amendment to include such a claim in the proposed third
amended complaint would be futile. See Grullon, 720 F.3d at 140 (“Leave to amend
may properly be denied if the amendment would be futile”); see also Ruotolo v. City of
N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (leave to amend may be denied plaintiff has
repeatedly failed to cure deficiencies through prior amendments).
Plaintiff next claims that Hungerford caused injury to Plaintiff by not supervising
the gallery thereby failing to witness the alleged assault on him by corrections officers
on August 8, 2011. He also claims that Hungerford neglected to move Plaintiff to
another housing area “away from the risk of being retaliate[d]” against. (Dkt. No. 60 at
12.)6

5

To the extent Plaintiff seeks to establish supervisory liability against Sheahan based on his
forwarding of a July 7, 2011, letter from Plaintiff requesting to be moved to a new housing unit
(Dkt. No. 60 at 9), it is well-settled that where a supervisor merely received information of
unconstitutional acts but reasonably acted upon it such as by referring or forwarding it to
another staff member, personal involvement still cannot be shown. See Goris v. Breslin, 402
Fed.Appx. 582, 584 (2d Cir. 2010) (affirming dismissal of case where personal involvement
“was limited to the receipt of two letters from [plaintiff], which [defendant] promptly referred to
other individuals for investigation and response”).
6

Even if interpreted as a “failure-to-protect” claim under the Eighth Amendment, Plaintiff’s
allegations fall short because the facts alleged indicate that Hungerford was not actually present
during an assault or incident, nor that Hungerford was aware of any specific assault or on notice
that one might occur. See, e.g., Bridgewater v. Taylor, 832 F. Supp. 2d 337 (S.D.N.Y. 2011)
(dismissing prisoner's § 1983 claim for failure to protect where defendant did not participate in,
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“An allegation that a defendant failed to adequately train or supervise
subordinates implicates the fourth Colon factor, i.e., that ‘the defendant was grossly
negligent in supervising subordinates who committed the wrongful acts.’” Samuels v.
Fischer, 168 F.Supp.3d 625, 638 (S.D.N.Y. 2016) (quoting Colon, 58 F.3d at 873). To
support a finding of personal involvement on that basis,
Plaintiff must show that the defendant knew or should have
known that there was a high degree of risk that his
subordinates would behave inappropriately, but either
deliberately or recklessly disregarded that risk by failing to
take action that a reasonable supervisor would find
necessary to prevent such a risk, and that failure caused a
constitutional injury to Plaintiff.
Id. (alteration and internal quotation marks omitted).
The third amended complaint contains no allegations that Hungerford actually
participated in any wrongdoing, but simply alleges that Hungerford was not present in
the area where the assault occurred. (Dkt. No. 60 at 9, 12). Such generalized
allegations fall short of adequately alleging any wrongful conduct on the part of
Hungerford. See Vogelfang v. Capra, 889 F. Supp. 2d 489, 502 (S.D.N.Y. 2012) (“[T]he
mere fact that a defendant possesses supervisory authority is insufficient to
demonstrate liability for failure to supervise under § 1983.”) (internal quotation marks
omitted)). Again, Plaintiff fails to establish personal involvement by the named
defendant and the supervisory liability claims against Hungerford are futile.
Finally, in the context of his August 25, 2011 Superintendent Hearing, Plaintiff
claims that defendant Venettozzi, Director of Special Housing Unit (“SHU”) Inmate

and had no other connection to, initial altercation and she was not present at all when second
alleged altercation occurred).
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Disciplinary Program, is “liable for personal involvement” for violations of Plaintiff’s rights
to due process of law because Venettozzi was “informed of those violation’s [sic]
through his appeal and failed to remedy the wrong.” (Dkt. No. 60 at 22.) His claim is
therefore based solely on Venettozzi’s affirmance of a disciplinary determination. (Id. at
14.) While this Court and others have previously held that merely affirming a disciplinary
decision on appeal does not amount to personal involvement in a constitutional
violation, see, e.g., Abdur-Raheem v. Selsky, 598 F. Supp.2d 367, 370 (W.D.N.Y. 2009)
(stating that affirming the disposition of a hearing “is not enough to establish [a
defendant’s] personal involvement), there has been disagreement among the courts to
this end. See Brown v. Brun, No. 10-CV-0397, 2010 WL 5072125, at * 2 (W.D.N.Y. Dec.
7, 2010)) (noting that courts within the Second Circuit are split with regard whether to
the act of affirming a disciplinary hearing is sufficient to allege personal involvement of a
supervisory official, and concluding that the distinction appears to hinge upon whether
the supervisory official proactively participated in reviewing the appeal or merely rubberstamped the results).
Notwithstanding the split of authority, Plaintiff alleges no other facts other than
Venettozzi’s affirmance of the Superintendent Hearing to establish his personal
involvement, and the appeal determination attached to the proposed third amended
complaint (Dkt. No. 60 at 29), suggests no more than a “rubber-stamping” of the
determination as contemplated by courts in this Circuit. See, e.g., Scott v. Frederick,
No. 13-CV-605, 2015 WL 127864, at * 17 (N.D.N.Y. Jan. 8, 2015) (adopting
“affirmance-plus standard, which holds that the mere rubber-stamping of a disciplinary
determination is insufficient to plausibly allege personal involvement.”) In order to

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comply with the Iqbal pleading requirements, Plaintiff simply recites the Colon factors in
their entirety and again, this is insufficient to allow for the amendment of the second
amended complaint on this ground. See Samuels, 168 F. Supp. 3d at 636–37 (“Second
Circuit law has long taught that, even within the context of the Colon framework, ‘merely
recit[ing] the legal elements of a successful § 1983 claim for supervisory liability . . .
does not meet the plausibility pleading standard.’”) (citing Dotson v. Farrugia, No. 11–
CV–1126, 2012 WL 996997, at *6 (S.D.N.Y. Mar. 26, 2012).
2.

Eighth Amendment: Use of Mechanical Restraints in SHU

Plaintiff alleges that Hungerford and Sheahan “recommended and authorized
that Plaintiff be placed in mechanical restraint[s] for 28 days” in violation of the Eighth
Amendment prohibition against cruel and unusual punishment. (Dkt. No. 60 at 26.)
Specifically, he claims that the mechanical restraints were applied while in the exercise
cage, and that they were not authorized or directed by Sheahan. Plaintiff also complains
of receiving only one-hour of daily exercise and lack of proper ventilation and windows
in his cell. (Id.)
Plaintiff fails to state a claim upon which relief can be granted, and thus it would
be futile to allow its inclusion in the third amended complaint. Standards for operation of
SHUs at DOCCS facilities are contained in DOCCS Directive 4933, codified at 7
N.Y.C.R.R. §§ 300-305. All SHU inmates are permitted one hour of daily outdoor
exercise, see § 304.3, however, they may be mechanically restrained during that hour.
See § 305.4(e)(5). Although he alleges that the restraints limited his movement, thereby
preventing him from exercising properly for 28 days, this allegation fails to rise to the
level of cruel and unusual punishment. See Brown v. Coughlin, No. 93-CV-0633, 1995

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WL 643349, at *3 (W.D.N.Y. Oct. 13, 1995) (“being required to wear mechanical
restraints in the manner required and during exercise periods does not constitute the
unnecessary and wanton infliction of pain.”) (citing Whitley v. Albers, 475 U.S. 312
(1985)); accord Gomez v. Sepiol, No. 11-CV-1017, 2014 WL 1575872, at *16 (W.D.N.Y.
Apr. 11, 2014) (holding that plaintiff’s allegations that he was required to wear handcuffs
and a waist chain during exercise and visits fail to state a claim of cruel and unusual
punishment under the Eighth Amendment).
Moreover, Plaintiff’s other complaints do not allege that he was subject to
anything other than normal SHU conditions (one hour of exercise, poor ventilation in
SHU cell) and as such do not state a claim upon which relief can be granted. See
Marino v. Watts, No. 12-CV-801, 2015 WL 5603454, at *3 (N.D.N.Y. May 29, 2015),
report and recommendation adopted in part, rejected in part on other grounds, 2015 WL
5603472 (N.D.N.Y. Sept. 23, 2015) (inmate who was placed in SHU for two and one
half months, during which he did not have “window ventilation, sunshine, or fresh air” in
addition to other harsh conditions, failed to establish that the conditions were sufficiently
serious under the objective prong of the Eighth Amendment/Due Process analysis); see
also Hattley v. Goord, No. 02 Civ. 2339, 2006 WL 785269, at *5–6 (S.D.N.Y. March 27,
2006) (finding, on summary judgment, normal conditions of SHU confinement do not
amount to an Eighth Amendment violation). Because these proposed claims cannot
withstand a motion to dismiss for failure to state a claim, Plaintiff’s motion for leave to
amend on this ground is denied as futile.

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3.

Deliberate Indifference to Medical Needs

Plaintiff claims that defendant Gorg was deliberately indifferent to his medical
needs when she did not admit him to the infirmary to receive medical attention after he
was allegedly assaulted by corrections officers. (Dkt. No. 60 at 10.) Although he
characterizes her conduct as “negligence,” he goes on to state that she “intentionally
den[ied] . . . Plaintiff[‘s] request for . . . adequate medical attention.” (Id. at 13.) Plaintiff
states that he was in extreme pain, and suffered swelling, bruising, contusions, and
paralysis in various parts of his body, as well as headaches and blurry vision. (Id. at 10.)
Plaintiff also appears to allege that he was denied certain medication. (Id. at 13.) This
claim is substantially the same as the one set forth in the second amended complaint,
(Dkt. No. 32 ¶ 5), and Defendants have not moved for dismissal of the claim on the
merits. (Dkt. No. 42-1 at 11.) Their belated argument that Plaintiff only articulates a
claim of medical negligence, which is not cognizable under § 1983 (Dkt. No. 62 at 8), is
unavailing and the Court finds that Plaintiff’s deliberate indifference claim against Gorg
should press forward as articulated in the third amended complaint.
4.

Retaliation

Plaintiff advances a variety of vague, discursive claims of retaliation against
multiple defendants. First, he claims that Hungerford, Lamb, and Myers subjected
Plaintiff to excessive force and false disciplinary charges in retaliation for his filing of a
grievance complaint regarding his confinement at Southport. (Dkt. No. 60 at 12.)
Second, he claims that defendants Myers, Rafferty, and Skelly, acting in concert, filed a
false misbehavior report against him. (Id. at 20, 22.) Finally, Plaintiff claims that
defendant Skellly dropped his food tray, did not deliver his law library request, and

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asked him “do you like to be filing grievance[s] against other [corrections officers]?” (Id.
at 23.)
Plaintiff’s claims of retaliation, exclusive of those brought against Lamb and
Myers, fail to state a claim upon which relief can be granted.
It is well-established that “retaliation against a prisoner for pursuing a grievance
violates the right to petition government for the redress of grievances guaranteed by the
First and Fourteenth Amendments and is actionable under [42 U.S.C.] § 1983.” Graham
v. Henderson, 89 F.3d 75, 80 (2d Cir.1996). “To state a First Amendment retaliation
claim sufficient to withstand a motion to dismiss, a plaintiff must allege ‘(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.’” Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015)
(quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). The Second Circuit
defines “‘adverse action’ objectively, as retaliatory conduct ‘that would deter a similarly
situated individual of ordinary firmness from exercising . . . constitutional rights.’” Gill v.
Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (quoting Davis v. Goord, 320 F.3d 346,
353 (2d Cir. 2003), superseded by 320 F.3d 346 (2d Cir. 2003)) (emphasis in original).
The Second Circuit has “made clear that this objective test applies even where a
particular plaintiff was not himself subjectively deterred; that is, where he continued to
file grievances and lawsuits.” Id. at 381. The Second Circuit recognized that there are
situations in which de minimis retaliation is “outside the ambit of constitutional
protection.” Id. (citing Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir.1999)).

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Plaintiff’s complaint is replete with statements that defendants engaged in
conduct “in retaliation.” These statements, however, are completely conclusory. He
makes various references to unspecified “grievances,” “complaints,” and at least one
Article 78 proceeding in state court that he has filed. Plaintiff concludes that, as a result,
all of Defendants’ actions contained in the third amended complaint were simply done in
retaliation, including, but not limited to, the use of force incident, a Tier III disciplinary
hearing, the filing of multiple false misbehavior reports, and apparently an incident
wherein he was withheld mail, library materials, and a food tray. (Dkt. No. 60 at 8-26.)
Read together, the core of Plaintiff’s retaliation claims appears to be a rampant
conspiracy between Hungerford, Lamb, Myers, Rafferty, and Skelly to retaliate against
him in various ways. Such conclusory allegations of wrongdoing, however, fail to satisfy
the plausibility standard of Iqbal and must be dismissed. See Santiago v. Pressley,
No.10 Civ. 4797, 2011 WL 6748386, *6 (S.D.N.Y. 2011) (The “conspiracy claim . . .
fail[s] to satisfy the plausibility standard of Iqbal because [defendant] has offered
nothing in support of those claims but conclusory allegations of wrongdoing.); Peoples
v. Fischer, No.11 Civ. 2694, 2011 WL 6034374, *3 (S.D.N.Y. 2011) (“[C]omplaints
containing only conclusory, vague, or general allegations that the defendants have
engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly
dismissed.”) (internal quotation marks omitted).
Taken individually, these allegations do not give rise to a retaliation claim. First,
Plaintiff has not alleged personal involvement by Hungerford with respect to the false
misbehavior report. To the extent he attempts to do so under a theory of supervisory
liability, such a claim fails. See Discussion supra at III.B.1.

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Plaintiff’s claims against Rafferty are somewhat more specific. He claims that
Rafferty denied him due process during a disciplinary hearing to “cover up a[n]
excessive use of force incident . . .” and “in retaliation for “exercising a protected
activity.” (Dkt. No. 60 at 20.) Again, however, fatal to Plaintiff’s claim is that he alleges
no causal connection other than an underlying conspiracy among several Southport
employees.
Finally, he alleges that Skelly withheld mail, library materials, and a food tray in
retaliation for a grievance that he filed against other “corrections officers.” Although

at

least one court has held that preventing an inmate’s access to the law library when the
inmate has a pending lawsuit constitutes an adverse action for purposes of a retaliation
claim, see Guillory v. Haywood, No. 13-cv-01564, 2015 WL 268933, at *17 (N.D.N.Y.
Jan. 21, 2015), the present allegations do not establish an adverse action. Instead,
Plaintiff appears to allege a single instance where Skelly did not deliver his requested
library materials on an unspecified date in connection with an unknown grievance or
complaint. Such an allegation of a single instance of vague conduct does not meet the
requisite plausibility standard. Cf. Shariff v. Poole, 689 F.Supp.2d 470, 478-79
(W.D.N.Y. 2010) (plaintiff satisfied adverse action requirement by showing “an
excessive number of cell searches, false misbehavior reports, confiscation of legal
documents, and verbal threats followed by excessive pat frisking and searching”).
Likewise, the alleged withholding of Plaintiff’s mail is insufficient. Battice v. Phillip, No.
CV–04–669, 2006 WL 2190565, at *6 (E.D.N.Y. Aug. 2, 2006) (“allegations that
[defendant] withheld [plaintiff’s] mail . . . do not constitute adverse actions.”). As these

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claims would be futile to include in the new complaint, Plaintiff’s motion for leave to
amend on this ground is denied excepting defendants Lamb and Myers.
5.

Due Process: Disciplinary Hearings

Plaintiff asserts various due process violations against defendants Hetrick and
Rafferty stemming from two disciplinary hearings.
To state a claim under Section 1983 for denial of due process arising out of a
disciplinary hearing, a plaintiff must show that he both: (1) possessed an actual liberty
interest; and (2) was deprived of that interest without being afforded sufficient process.
See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004); Tellier v. Fields, 280 F.3d 69,
79-80 (2d Cir. 2000). “Prison discipline implicates a liberty interest when it imposes
atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Ortiz, 380 F.3d at 654 (quoting Sandin v. Conner, 515 U.S. 472, 484
(1995)); Tellier, 280 F.3d at 80.
“[W]hether the conditions of a segregation amount to an ‘atypical and significant
hardship’ turns on the duration of the segregation and a comparison with the conditions
in the general population and in other categories of segregation.” Arce v. Walker, 139
F.3d 329, 336 (2d Cir. 1998). As to the duration of the disciplinary segregation,
restrictive confinement of less than 101 days, on its own, does not generally rise to the
level of an atypical and significant hardship, Davis v. Barrett, 576 F.3d 129, 133 (2d Cir.
2009), while disciplinary segregation under ordinary conditions of more than 305 days
rises to the level of atypicality. See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000).
Plaintiff alleges that Hetrick presided over a hearing on August 19, 2011,
apparently arising out of Plaintiff’s spilling of a food tray. (Dkt. No. 60 at 23). According

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to Plaintiff, he was deprived of a liberty interest by being sentenced to 180 “days
confinement in SHU, which involved: 23 hours per day in his cell with one hour of
exercise; two showers per week; no restroom privacy; no access to general population
services; his cell was dirty and he was “barely provided” cleaning supplies; and he
suffered vision and hair loss. (Dkt. No. 60 at 24-25.)
The Court assumes without deciding that Plaintiff has plausibly alleged a
protected liberty interest based on the length of his confinement in SHU.7 See Sims v.
Artuz, 230 F.3d 14, 23 (2d Cir. 2000) (noting that segregative sentences of 125–288
days are “relatively long” and therefore necessitate “specific articulation of . . . factual
findings before the district court could properly term the confinement atypical or
insignificant.”) Where an inmate’s liberty interest is implicated, “[b]ecause ‘[p]rison
disciplinary proceedings are not part of a criminal prosecution . . . the full panoply of
rights due a defendant in such proceedings does not apply.” Williams v. Menifee, 331
Fed.Appx. 59, 60 (2d Cir. 2009) (quoting Wolff v. McDonnell, 418 U.S. 539, 556,
(1974)).
The procedural due process afforded to a prisoner charged with a violation in a
disciplinary hearing consists of: “(1) advance written notice of the disciplinary charges;
(2) an opportunity, when consistent with institutional safety and correctional goals, to
call witnesses and present documentary evidence in his defense; and (3) a written
statement by the factfinder of the evidence relied on and the reasons for the disciplinary

7

Plaintiff elsewhere states that he received a “confinement penalty of 3 month’s, 2 month’s
suspended and remaining with 2 additional month’s of (S.H.U.) [sic].” (Dkt. No. 60 at 26.) By the
Court’s calculations, Plaintiff pleads that he received 30 days in SHU from the same disciplinary
hearing. For purposes of the pending motions, however, the Court reads any ambiguities in the
third amended complaint in favor of Plaintiff.
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action.” Menifee, 331 Fed.Appx. at 60 (quoting Sup’t, Mass. Corr. Inst., Walpole v. Hill,
472 U.S. 445, 454, (1985)).
With regard to defendant Hetrick, Plaintiff simply asserts that Hetrick did not
“consider[ ] Plaintiff innocent,” and based the guilty determination upon a false
misbehavior report. This is plainly insufficient, as “an inmate does not possess a due
process right to be free from having a hearing officer rely upon an alleged false
misbehavior report at a disciplinary hearing.” Cole v. N.Y. State DOCCS, No.
914CV0539, 2016 WL 5394752, at *20 (N.D.N.Y. Aug. 25, 2016), report and
recommendation adopted, 2016 WL 5374125 (N.D.N.Y. Sept. 26, 2016) (citing Freeman
v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986), cert. denied, 485 U.S. 982 (1988)).
Plaintiff also claims that defendant Rafferty presided over a Superintendent
Hearing on August 25, 2011, in connection with an August 8, 2011 misbehavior report.
(Dkt. No. 60 at 20-21.) Plaintiff’s penalty, after being found guilty, was twelve months of
SHU with three months suspended, six months deferred, and twelve months loss of
good time. (Id. at 20.) Plaintiff claims that he was denied the rights to present evidence
and call witnesses and was denied an impartial hearing officer. (Id. at 14.) Specifically,
Plaintiff states that he requested, but was not permitted to call, an unidentified witness
who would have testified to observing the assault on Plaintiff, and that Plaintiff was
denied his past grievances, copies of photographs of his injuries, and the medical
records of the corrections officers involved in the assault for him to present at the
hearing. (Id. at 14-15.)
Defendants argue that Plaintiff’s allegations fail to state a due process claim
because the hearing officer was entitled to deny witness testimony and/or documentary

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evidence as redundant or irrelevant, and Rafferty’s refusal to allow this evidence was
therefore proper. (Dkt. No. 62 at 11-13.) While they are correct that “[p]rison officials
must have the necessary discretion to keep the hearing within reasonable limits and to
refuse to call witnesses that may create a risk of reprisal or undermine authority, as well
as to limit access to other inmates to collect statements or to compile other
documentary evidence,” Wolff, 418 U.S. at 566, there is no way of determining from the
face of the third amended complaint why the evidence was excluded or whether it was
justified. Carpenter v. Dep’t of Corr., No. 10 Civ. 8087, 2012 WL 1604878, at *3
(S.D.N.Y. May 8, 2012) (“whether the exclusion of evidence in this case was justified . .
. cannot be determined on the fac[e] of the . . . complaint.”); accord Brooks v. Prack, 77
F. Supp. 3d 301, 318 (W.D.N.Y. 2014) (“At this early stage of the litigation, considering
the low standard required of a pro se plaintiff on a motion to dismiss, the Court finds that
Plaintiff has stated a claim with regard to defendant Esgrow’s failure to allow him to
present witnesses and evidence at his disciplinary hearing.”); see also Vogelfang v.
Capra, 889 F.Supp.2d 489 (S.D.N.Y. 2012) (declining to hold, on motion to dismiss, that
hearing officer had violated Wolff protections)).
Contrary to Defendants’ further contention, Plaintiff’s claims in this instance are
not conclusory. (Dkt. No. 62 at 11-13.) He states that an unidentified witness, whom he
was denied, was in cell location A-1-1 where Plaintiff was being escorted and would
have testified that Plaintiff was beaten by Lamb and Myers. (Dkt. No. 60 at 15.) He goes
on to state that the grievances requested would have been relevant to the corrections
officers’ motivation behind the misbehavior report and the alleged assault, i.e.,
retaliation (id.), that the medical condition of Myers was relevant to whether Plaintiff

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committed the assault upon him and was guilty of the charges brought (id.), and that
photographs of Plaintiff’s injuries would show that he was assaulted by the officers. (Id.
at 16.) Finally, Plaintiff contends he was not provided a reason for being denied this
evidence. (Id. at 15-16.)
“[T]he law is well settled that in assessing the alleged futility of a proposed
amended complaint, the Court must assume the truth of the allegations in the proposed
amended complaint.” Wallace v. Warden of M.D.C., No. 14CIV6522, 2016 WL 6901315,
at *8 (S.D.N.Y. Nov. 23, 2016). Accordingly, whether Plaintiff was entitled to that
evidence is not properly addressed in Defendants’ opposition to the motion to amend,
although such an argument may provide the basis for a successful summary judgment
motion. But see Colantuono v. Hockeborn, 801 F. Supp. 2d 110, 115 (W.D.N.Y. 2011)
(“Here, plaintiff has not alleged what Porter would have testified about, much less what
the substance of Porter’s testimony would have been, or how it would have helped
plaintiff. Again, plaintiff must allege facts making his claims plausible, and this bare
allegation that one witness was denied fails to meet that standard.”)
With regard to his allegations that Rafferty refused Plaintiff access to certain
documentary evidence and to call witnesses, Plaintiff’s motion to amend the complaint
to assert this claim is granted. Accordingly, the Court finds that Plaintiff has pled
sufficient facts to meet the requirements of 12(b)(6), and the Court will permit its
addition.
6.

Eighth Amendment: Restricted Diet

Plaintiff claims that his Eighth Amendment right to be free from cruel and unusual
punishment was violated when defendant Sheahan imposed a seven-day restricted diet

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in connection with a misbehavior report in which Plaintiff was alleged to have spilled a
food tray.8 (Dkt. No. 60 at 24, 26). Plaintiff states that the diet was “nutritionally
inadequate,” and that he suffered abdominal pain, weight loss, and emotional distress
as a result. (Id.) He further alleges that Sheehan knew the diet was nutritionally
inadequate. (Id.)
To plead a conditions-of-confinement claim, a plaintiff must allege “(1) a
deprivation that is ‘objectively, sufficiently serious’ that he was denied ‘the minimal
civilized measure of life’s necessities,’ and (2) a ‘sufficiently culpable state of mind’ on
the part of the defendant official, such as deliberate indifference to inmate health or
safety.” Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (quoting Farmer v.
Brennan, 511 U.S. 825, 834 (1994)). Moreover, the Eighth Amendment requires
“nutritionally adequate food that is prepared and served under conditions which do not
present an immediate danger to the health and well being of the inmates who consume
it.” Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (per curiam) (internal quotation
marks omitted).
Defendants appear to rely on McEachin v. McGuinnis, 357 F.3d 197 (2d Cir.
2004), in support of their motion for dismissal. (Dkt No. 62 at 15.) Therein, the Second
Circuit affirmed the District Court’s sua sponte dismissal of a prisoner’s Eighth
Amendment claim where plaintiff asserted that he suffered severe stomach pain and a
three-pound weight loss as a result of a week-long restricted diet pending a disciplinary
hearing. 357 F.3d at 199, 205. Because the complaint contained no allegation that the
“loaf” diet was nutritionally inadequate, posed an imminent health risk, or physically
8

DOCCS regulations provide that an inmate in SHU may be placed on a restricted diet for up to
seven days pending the outcome of a disciplinary hearing regarding infractions related to food
handling. 7 N.Y.C.R.R. § 304.2.
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injured the plaintiff, the District Court concluded that plaintiff had established neither that
the deprivation imposed by the restrictive diet was of constitutional magnitude, nor that
the defendants acted “maliciously and sadistically to cause harm.” Id. at 199.
Unlike McEachin, Plaintiff here has alleged that the prison officially knowingly
imposed upon Plaintiff a diet that did not contain “sufficient calories, vitamins, and
nutrients to maintain his physical and mental health,” resulting in gastrointestinal
problems for which he received prescribed medication. (Dkt. No. 60 at 26). The Court
finds these allegations sufficient to state a claim upon which relief can be granted. See
Willey v. Kirkpatrick, 801 F.3d 51, 69 (2d Cir. 2015) (“[N]otwithstanding that courts in
this Circuit routinely have dismissed inadequate-nutrition claims . . . Willey’s claim is
not that all restricted diets are unconstitutional, but that the particular food he received
was. Especially in light of the liberality courts must show to pro se pleadings, we find
that Willey adequately pleaded this claim by alleging that his restricted diet [comprised
of stale bread and dried cabbage] was unusually unhealthy.”) (internal quotations and
citations omitted; alterations added); see also Phelps v. Kapnolas, 308 F.3d 180, 186
(2d Cir. 2002) (complaint asserted Eighth Amendment claim where plaintiff alleged
prison officials deprived inmate of nutritionally adequate diet for 14 straight days and
knew that inmate’s diet was inadequate and likely to inflict pain and suffering).
Because Plaintiff has pled sufficient facts to meet the requirements of 12(b)(6),
the Court will permit the addition of this claim.

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7.

Eighth Amendment: Use of Force

Defendants have previously conceded that the excessive force claims against
defendants Lamb and Myers, arising out of the August 8, 2011 use of force incident, are
not subject to dismissal. (Dkt. No. 62 at 4.)
In connection with the same August 8, 2011 use of force incident involving Lamb
and Myers, Plaintiff claims that defendant Shumaker “arrived on the scene before
allegedly Plaintiff would have to be subdued and participated in the use of excessive
force by blowing a fist to Plaintiff after holding from his back [sic].” (Dkt. No. 60 at 10.)
Accepting as true the allegations that defendant Shumaker struck Plaintiff while
he was already restrained by at least two corrections officers and wearing leg shackles,
Plaintiff would state a plausible Eighth Amendment claim. Therefore, the court will
permit the addition of an excessive force claim against Shumaker. See, e.g., Dallio v.
Santamore, No. 06–CV–1154, 2010 WL 125774, at *8–9 (N.D.N.Y. Jan.7, 2010) (finding
that allegations that assaulting officers continued to hit plaintiff after he was restrained
and thus compliant and defenseless triggered an Eighth Amendment claim); see
generally Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (“a prisoner who alleges facts
from which it could be inferred that prison officials subjected him to excessive force, and
did so maliciously and sadistically, states an Eighth Amendment claim on which he is
entitled to present evidence.”)
D.

Rule 12(e) Motion for a More Definite Statement

Defendants also move for a more definite statement under Fed.R.Civ.P 12(e).
Given that the Court finds Plaintiff has filed what is essentially a response to

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Defendants’ request by way of his proposed third amended complaint, the Court
recommends denial of Defendants’ motion for a more definite statement as moot.
E.

Parties and Remaining Claims

Because certain of Plaintiff’s proposed amendments can withstand a 12(b)(6)
motion to dismiss for failure to state a claim, the Court will accept the third amended
complaint for docketing but dismisses all of the third amended complaint9 except for the
following: (1) Plaintiff’s excessive force and retaliation claims against defendants Lamb,
Myers, and Shumaker; (2) his deliberate indifference to medical needs claim against
Gorg; (3) his due process claim against Rafferty based on the alleged exclusion of
exculpatory evidence at a Superintendent Hearing; and (4) his conditions-ofconfinement claim against Sheahan based on the imposition of a restricted diet.
All remaining defendants, identified or not, should be dismissed from this action
for Plaintiff’s failure to state a claim against them pursuant to Fed.R.Civ.P. 12(b)(6) or
28 U.S.C. §§ 1915(e)(2)(B); 1915A(b).
IV.

Conclusion
It is recommended that Defendants’ motions to dismiss (Dkt. No. 42, 44, 48) be

DENIED in their entirety.
Further, it is ordered that Plaintiff’s (non-dispositive) cross-motion for Leave to
Amend be GRANTED in part insofar as the claims discussed above survive 12(b)(6)
scrutiny, and DENIED in all other respects as futile.

9

For purposes of clarity the Court reiterates that the following claims cannot go forward: any
and all claims previously dismissed at initial screening that Plaintiff sought to re-plead in the
third amended complaint; any and all claims abandoned from the second amended complaint;
and the “causes of action” determined to be futile, as discussed above.
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The Clerk of Court is directed to separately docket Plaintiff’s proposed third
amended complaint, which is attached to Plaintiff’s cross-motion for Leave to Amend at
Exhibit A (Dkt. No. 60, Ex. A) as the “third amended complaint.” The Clerk shall
terminate every defendant except Gorg, Lamb, Myers, Rafferty, Sheahan, and
Shumaker.
The remaining Defendants shall have thirty (30) days to answer the third
amended complaint.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED, that this Report and Recommendation be filed with the Clerk of the
Court.
With respect to Defendants’ motions to dismiss, ANY OBJECTIONS to this
Report and Recommendation must be filed with the Clerk of this Court within fourteen
(14) days after receipt of a copy of this Report and Recommendation in accordance with
the above statute, Fed. R. Civ. Proc. 72(b) and Local Rule 72(b).
The District Court ordinarily will refuse to consider on de novo review arguments,
case law and evidentiary material which could have been, but was not, presented to the
Magistrate Judge in the first instance. See, e.g., Patterson-Leitch Co., Inc. v.
Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Failure to file objections within the specified time or to request an
extension of such time waives the right to appeal the District Court’s Order.
Thomas v. Arn, 474 U.S. 140 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d Cir.
1988.

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The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for the
Western District of New York, “written objections shall specifically identify the portions of
the proposed findings and recommendations to which objection is made and the basis
for such objection and shall be supported by legal authority.” Failure to comply with
the provisions of Rule 72(b) may result in the District Court’s refusal to consider
the objection.
Let the Clerk send a copy of this Report and Recommendation and Order to
Plaintiff and Defendants.
IT IS SO ORDERED.
____/s Hugh B. Scott_______
HON. HUGH B. SCOTT
United States Magistrate Judge
Dated: March 28, 2017
Buffalo, New York

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