Bailey v. Weckesser et al

Filing 48

DECISION AND ORDER: Defendants' partial motion for summary judgment (ECF No. 45) is GRANTED. The procedural due process claim against Coveny and Venettozzi is dismissed, and the Clerk of Court is directed to terminate those defendants from the docket. By separate order, the Court will schedule a status conference to hear from the parties on the progress of this action. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 11/2/2021. copy of order and NEF mailed to plaintiff. (MFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
RALIK BAILEY,
Plaintiff,
v.

Case # 18-CV-6292-FPG
DECISION AND ORDER

CORRECTION OFFICER J. WECKESSER, et al.,
Defendants.
INTRODUCTION
Plaintiff Ralik Bailey brings this prisoner civil rights action against Defendants Correction
Officer J. Weckesser, Deputy Superintendent of Security R. Coveny, and Director D. Venettozzi. 1
He contends that Weckesser filed a false misbehavior report against him, which led to a
constitutionally inadequate hearing before Coveny, resulting in his wrongful confinement in a
special housing unit (“SHU”) for 57 days. See generally ECF No. 1. Currently before the Court
is Defendants’ partial motion for summary judgment as to the due-process claim against Coveny
and Venettozzi. ECF No. 45. For the reasons that follow, Defendants’ motion is GRANTED.
LEGAL STANDARD
Summary judgment is appropriate when the record shows that there is “no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Disputes concerning material
facts are genuine where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
1

The Court dismissed a fourth defendant, Correction Officer T. Hodkinson, from the suit in its March 23,
2020 Decision & Order. ECF No. 26.
1

whether genuine issues of material fact exist, the court construes all facts in a light most favorable
to the non-moving party and draws all reasonable inferences in the non-moving party’s favor. See
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). However, the non-moving party
“may not rely on conclusory allegations or unsubstantiated speculation.” F.D.I.C. v. Great Am.
Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (quotation omitted).
BACKGROUND
The Court begins by summarizing Bailey’s allegations from his complaint. 2 At the time
the relevant events began, Bailey was an inmate at Five Points Correctional Facility (“Five
Points”). ECF No. 1 ¶ 6. In March 2015, Bailey filed two grievances against Weckesser—a
correctional officer at Five Points—alleging that Weckesser had engaged in various misdeeds. On
April 15, 2015, Bailey’s cell was searched by two other correctional officers. Bailey alleges that,
during the search, Weckesser entered his cell, “accosted” him about the grievances, ordered him
out of his cell, and “escorted” him to SHU. ECF No. 1 ¶¶ 15, 18. Bailey claims that Weckesser
then filed a false misbehavior report against him. Id. ¶ 19.
Bailey was served with notice of the misbehavior report and charges, and he was given an
opportunity to defend himself at a “Tier III hearing.” 3 ECF No. 1 ¶ 23. Bailey alleges that the
hearing was defective in several respects: he was not given a sufficient opportunity to proffer
exculpatory evidence; he did not receive help from his designated employee-assistant; Coveny (the
presiding hearing officer) pressured him to plead guilty before the hearing; Coveny interrupted

2

The Court may consider the allegations in Bailey’s complaint as evidence because he signed the complaint
under penalty of perjury. See ECF No. 1 at 12; see also Brandon v. Kinter, 938 F.3d 21, 26 n.5 (2d Cir.
2019).
3

New York’s prison system “conducts three types of inmate disciplinary hearings. . . . Tier III hearings
address the most serious violations and can result in unlimited SHU confinement and the loss of ‘good time’
credits.” Brooks v. Prack, 77 F. Supp. 3d 301, 306 n.1 (W.D.N.Y. 2014).
2

him when he attempted to speak or defend himself; Coveny removed Bailey from the hearing on
the contrived basis that Bailey had “create[ed] a disturbance” at the hearing; and the hearing was
conducted in Bailey’s absence. Id. ¶¶ 31, 32, 38, 39, 40. Bailey claims that both Weckesser and
Hodkinson gave false testimony during the hearing. Id. ¶ 41.
After the hearing, Coveny found Bailey guilty of nearly all of the charges. ECF No. 1 ¶
42. Bailey received a penalty of 180 days in SHU, 180 days of no privileges, and a recommended
90-day loss of good time credits. Bailey was moved to Southport Correctional Facility on May
17, 2015 to carry out his SHU confinement. Id. at 9.

On administrative appeal, Venettozzi

modified the sentence to 90 days in SHU, 90 days of no privileges, and a recommended 90-day
loss of good time credits. Bailey filed an Article 78 action in state court to challenge the
determination. Before that action was resolved, Venettozzi administratively reversed the findings
of guilty, and the Article 78 action was dismissed as moot. Id. ¶ 45; see also Bailey v. Annucci,
45 N.Y.S.3d 815 (3d Dep’t 2017). Bailey was released from SHU on July 13, 2015—57 days
later.
In April 2018, Bailey filed the present action. ECF No. 1. District Judge Michael A.
Telesca screened the complaint and construed it to raise two claims under 42 U.S.C. § 1983: (1) a
First/Fourteenth Amendment retaliation claim against Weckesser and Hodkinson, 4 and (2) a
procedural due process claim against Coveny and Venettozzi. See ECF No. 10 at 7-10.
DISCUSSION
In support of summary judgment, Defendants argue, among other things, that the due
process claim fails because Bailey has not established a liberty interest giving rise to due process

4

It is unclear whether Judge Telesca also read Bailey’s complaint to raise a due process claim against
Weckesser. See ECF No. 10 at 8. Even if the complaint could be so construed, that claim would be
dismissed on the same basis discussed herein.
3

protection. ECF No. 45-5 at 17-19. Because the Court agrees, it need not address Defendants’
other arguments.
An inmate has “no due process claim under the Fourteenth Amendment” if he cannot
establish “that he had a protected liberty interest in being free from the punishment that was
imposed upon him as a result of [a disciplinary] hearing.” Scott v. Albury, 156 F.3d 283, 286 (2d
Cir. 1998) (per curiam). “A prisoner’s liberty interest is implicated by prison discipline, such as
SHU confinement, only if the discipline imposes an atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir.
2004) (internal quotation marks and brackets omitted). “Factors relevant to determining whether
the plaintiff endured an atypical and significant hardship include the extent to which the conditions
of the disciplinary segregation differ from other routine prison conditions and the duration of the
disciplinary segregation imposed compared to discretionary confinement.” Id. (internal quotation
marks omitted). “Disputes about conditions may not be resolved on summary judgment, but where
the conditions are undisputed,” the issue “should be resolved by the court as a matter of law.” Id.
(internal citation omitted); see also Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999) (“The . . .
standard of ‘atypical and significant hardship’ is an issue of law.”).
Although the Second Circuit has avoided “a bright line rule that a certain period of SHU
confinement automatically fails to implicate due process rights,” as a general matter, “SHU
confinements of fewer than 101 days could constitute atypical and significant hardships if the
conditions [are] more severe” than what the Second Circuit calls “normal SHU conditions.”
Palmer, 364 F.3d at 65 (emphasis added). Thus, at 57 days of confinement, Bailey must submit
“proof of conditions more onerous than usual” to support a due process claim. Davis v. Barrett,
576 F.3d 129, 133 (2d Cir. 2009) (“[R]estrictive confinements of less than 101 days do not

4

generally raise a liberty interest warranting due process protection” and “require proof of
conditions more onerous than usual.”); Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (“We
have said that under abnormal or unusual SHU conditions, periods of confinement of less than 101
days may implicate a liberty interest.”). “Under the ‘normal conditions of SHU confinement in
New York,’” an inmate is:
placed in a solitary confinement cell, kept in his cell for 23 hours a day, permitted
to exercise in the prison yard for one hour a day, limited to two showers a week,
and denied various privileges available to general population prisoners, such as the
opportunity to work and obtain out-of-cell schooling. Visitors [are] permitted, but
the frequency and duration [is] less than in general population. The number of
books allowed in the cell [is] also limited.
Palmer, 364 F.3d at 65 n.3.
Here, Bailey has not presented sufficient evidence that his SHU conditions so deviated
from the norm as to constitute atypical and significant hardship. Indeed, most of the conditions he
identifies are the normal restrictions attendant to SHU, which, by definition, are not “abnormal or
unusual SHU conditions.” Ortiz, 380 F.3d at 654. For example, Bailey alleged that he was
confined to his single-occupancy cell for 23 hours each day, in accordance with applicable agency
regulations. See Palmer, 364 F.3d at 65 n.3; 7 N.Y.C.R.R. § 304.3. He received two showers per
week, 7 N.Y.C.R.R. § 304.5(a), and was handcuffed when moving outside his cell. Id. § 305.3.
He could not work, eat meals outside his cell, and had limited access to music, reading materials,
and television shows. See id. §§ 304.2(a), 304.11, 304.12; Palmer, 364 F.3d at 65 n.3. He could
not “participate in programs to meet [his] program needs.” ECF No. 1 at 9. Bailey alleges that on
one occasion, his wife was prevented from entering the facility for a visit, though he did not know
why. ECF No. 45-4 at 179-80; Palmer, 364 F.3d at 65 n.3 (“Visitors [are] permitted [for inmates
in SHU], but the frequency and duration [is] less than in general population.”).

5

To be sure, Bailey alleges other, more unusual conditions. He claims that one or more
inmates “scream[ed] and yell[ed] all night.” ECF No. 45-4 at 174, 194-95. Bailey claims that
some inmates routinely threw feces or urine on other inmates, which caused officers to beat those
inmates in retaliation, and which caused a stench of feces and urine in the public areas of the
facility.

Id. at 174, 178. Also, the inmates that handled meal distribution sometimes spit in

inmates’ food. Id. at 181. Bailey does not claim that he was subjected to any of these indignities,
however. Id. at 175, 192-93.
These additional facts do not establish an atypical and significant hardship. In Sealey v.
Giltner, 197 F.3d 578 (2d Cir. 1999), the Second Circuit held that an inmate’s segregation in SHU
for 101 days did not meet that standard, where the inmate was kept in his cell for 23 hours each
day, was given one hour of recreation time daily, was limited to three showers per week, and lost
“various privileges” during his segregation. See Sealey, 197 F.3d at 586-87. Like Bailey, the
Sealey plaintiff also alleged that “[t]here was no quiet bell in the SHU, so it was noisy most of the
time.” Id. at 581. And not only did inmates occasionally throw feces at one another, but the Sealey
plaintiff had been hit by feces “a few times.” 5 Id. at 581, 587. Because the conditions that Bailey
identifies are, at most, as severe as those in Sealey, and given that he was confined for substantially
less time, Bailey has not demonstrated an atypical and significant hardship. Accord Phillips v.
LeCuyer, No. 08-CV-878, 2013 WL 1024667, at *14 (N.D.N.Y. Feb. 19, 2013) (“The conditions

5

Although Bailey alleges that there was a stench of urine and feces whenever he left his cell, see ECF No.
45-4 at 178, that fact is insufficient to render his conditions atypical—particularly given that he was
confined to his cell 23 hours each day. See Davis, 576 F.3d at 134 (atypical conditions where plaintiff was
confined to SHU for 55 days, plaintiff’s mattress was “infected” with body waste, and cell was subject to
“daily” flooding and “feces and urine thrown by other inmates”); Jackson v. Prack, No. 16-CV-7561, 2019
WL 6119010, at *7 (S.D.N.Y. Nov. 18, 2019) (atypical conditions where plaintiff was confined to SHU for
90 days, other inmates threw feces around him, and there was an “unbearable stench that affected [the
plaintiff’s] ability to eat”).
6

which plaintiff alleged he experienced over the first 77 days of SHU confinement . . . were not
more severe than ‘normal’ SHU conditions as defined by Sealey, and did not give rise to a protected
liberty interest.”); Long v. Crowley, No. 09-CV-456, 2012 WL 1202181, at *11 (W.D.N.Y. Mar.
22, 2012) (“Because Plaintiff’s 60–days confinement in keeplock subjected Plaintiff to conditions
that were no more severe than those to which the inmate in Sealy was subjected to for 101 days
while in SHU, it logically follows that Plaintiff’s confinement in keeplock, in this case, does not
implicate a protected liberty interest.” (emphasis added)).

Accordingly, because there is

insufficient evidence that Plaintiff was subjected to atypical and significant hardship giving rise to
a protected liberty interest, his due process claim against Coveny and Venettozzi fails. See Sealey,
197 F.3d at 583, 589-90. Summary judgment is therefore appropriate.
CONCLUSION
For the reasons discussed above, Defendants’ partial motion for summary judgment (ECF
No. 45) is GRANTED. The procedural due process claim against Coveny and Venettozzi is
dismissed, and the Clerk of Court is directed to terminate those defendants from the docket. By
separate order, the Court will schedule a status conference to hear from the parties on the progress
of this action.
IT IS SO ORDERED.
Dated: November 2, 2021
Rochester, New York

______________________________________
HON. FRANK P. GERACI, JR.
United States District Judge
Western District of New York

7