Citations
- 168 F. Supp. 3d 495
Full opinion text
DECISION AND ORDER
H. KENNETH SCHROEDER, JR., United States Magistrate Judge
Plaintiff, an inmate at Southport Correctional Facility, asserts that he was denied due process at two disciplinary hearings, retaliated against for successfully appealing his first disciplinary sanction, and subjected to cruel and inhumane conditions of confinement related to the use of mechanical restraints and exposure to unnecessary health risks. He seeks relief pursuant to 42 U.S.C. § 1983. Dkt. #1. By Decision and Order signed September 5, 2012 (“Screening Order”), the Hon. David G. Larimer granted plaintiffs motion to proceed in forma pauperis, dismissed several of plaintiffs claims with prejudice for failure to state a claim upon which relief could be granted, and directed that many of the named defendants be terminated from the case. Dkt. #3.
Plaintiffs amended pro se complaint asserts claims against the following parties in the specified capacities: Albert Prack, the Director of Special Housing and Inmate Discipline for New York State Department of Corrections and Community Supervision (“DOCCS”) in his individual capacity (Dkt. #10, ¶ 6); Patrick Griffin, Superintendent of Southport Correctional Facility (“Southport”), in his individual capacity (Dkt. #10, ¶ 7); M. Sheahan, Deputy Superintendent of Security at South-port, in his individual capacity (Dkt. #10, ¶ 8); A. Bartlett,' Deputy Superintendent of Programs at Southport, in her individual capacity (Dkt. #10, ¶ 9); H. Hetrick, Jr., Correction Captain at Southport, in his individual capacity (Dkt. #10, ¶ 10); K. Signor, Correction Captain at Southport during the relevant time period, in his individual capacity (Dkt. #10, ¶ 11); R. Donahue, Correction Lieutenant at South-port, in his individual capacity (Dkt. #10, ¶ 12); N. Sampsell, Correction Sargent at Southport, in his individual capacity (Dkt. #10, ¶ 13); R. Granger, Correction Officer at Southport, in his individual capacity (Dkt. #10, ¶ 14); M. Labar, Correction Officer at Southport, in his individual capacity (Dkt. #10, ¶ 15); R. Fluman, Correction Officer at Southport, in his individual capacity (Dkt. #10, ¶ 16); Brian Fischer, DOCCS Commissioner, in his individual and official capacities (Dkt. #10, ¶ 17).
On August 7, 2013, the parties consented pursuant to 28 U.S.C. § 636(c) to have the undersigned conduct any and all further proceedings in this case. Dkt. #27. Thereafter, on March 2, 2015, defendants filed a motion for summary judgment. Dkt. #100. Plaintiff cross-moved for summary judgment on or about the same date. Dkt. #102. For the following reasons, defendants’ motion is GRANTED IN PART and DENIED IN PART, and plaintiffs cross-motion is GRANTED IN PART and DENIED IN PART.
FACTUAL BACKGROUND
The following facts are taken from the Amended Complaint (Dkt. #10), Defendants’ Statement of Undisputed Facts (Dkt. #100-1), Plaintiffs Statement of Facts (Dkt. #102); Plaintiffs Affidavit in Support of Summary Judgment (Dkt. #103), Plaintiffs Statement of Disputed Facts (Dkt. #112); and Defendants’ Response to Plaintiffs Statement of Facts (Dkt. #109-1). Plaintiff was confined to Southport (“Southport”) from February 26, 2010 through March 14, 2011. Dkt. #10, ¶ 32. Southport is the first all special housing unit (“SHU”) facility in the entire DOCCS system. Dkt. #100-10, ¶5. Because of its “unique status,” there are certain security measures in place at South-port that are not implemented anywhere else in the DOCCS system. Dkt., ¶ 5.
Southport employs a “Progressive Inmate Movement System” (“PIMS”) through which inmates earn “privileges” within the facility. Dkt. #10, ¶¶ 33, 35; Dkt. #100-14, ¶¶ 8-9 & pp. 55-56. “PIMS” consists of three levels, level one being the most restrictive or “lowest” level and level three being the least restrictive or “highest” level. Dkt. #10, ¶ 33, 35. Each level has designated cell blocks or “companies.” Dkt. #100-14, ¶ 9. The criteria for moving to the next level include 30-day status without any disciplinary infractions. Dkt. #100-14, ¶ 9. An inmate’s physical transfer to the next level “company” can only take place as space permits. Dkt. #100-14, ¶ 9.
As an inmate moves up through the levels, he receives extra “privileges,” including the removal of mechanical restraints. Dkt. #10, ¶ 33; Dkt. #103, ¶ 46. All inmates on level one must remain handcuffed with a waist chain even when secured alone in the exercise cage. Dkt. #100-14, ¶ 10 & p. 20; Dkt. #103, ¶ 46. Plaintiff asserts that level one inmates at Southport are the only SHU inmates in the DOCCS system that are bound in mechanical restraints inside the exercise cage without an individual restraint order. Dkt. #102, ¶ 44. Defendant Prack, DOCCS Director of SHU Housing and Inmate Discipline, averred that he was unaware of any other SHU that has this blanket policy. Dkt. #103, ¶ 49. Inmates on level two must be handcuffed with a waist chain until they are secured within the exercise cage, and those on level three are handcuffed with no waist chain until they are secured in the cage. Dkt. #102, ¶ 42; Dkt. #103, ¶ 46; Dkt. #112-1, ¶ 46. For level two inmates, the procedure for entering or leaving the cell and exercise cage is as follows: the inmate sticks his hands out of the feed up hatch, handcuffs are applied, he then turns around and exits the cell backwards, at which time two staff members apply the waist chain. Dkt. #103, ¶ 45.
A level two or three inmate who commits a disciplinary infraction, whether violent or non-violent, is returned to a level one company where he is subjected to the mechanical restraint policy and the requirement of serving 30 days without a disciplinary infraction. Dkt. #100-14, ¶ 13 & pp. 14, 56; Dkt. #102, ¶ 55; Dkt. #103, ¶ 53. At every other SHU operated by DOCCS, the only way an inmate may be bound in mechanical restraints inside the exercise cage is by a written individual restraint order stating the reasons why the removal of restraints in the exercise area would, in light of the particular circumstances relative to the affected inmate, present a threat to the safety or security of the inmate, other persons or state property. See NY DOCCS Directive No. 4933, § 305.4(e)(5) (codified at 7 N.Y.C.R.R. 305.4(e)(5)); Dkt. #102, ¶ 56; Dkt. #103, ¶ 54. Section 305.4(c) provides an appeal mechanism for any SHU inmate subject to a written individual restraint order. Dkt. #102, ¶ 57; Dkt. #103, ¶ 55. Southport’s level one mechanical restraint policy does not require a written justification and does not provide an appeal mechanism. Dkt. #102, ¶ 58; Dkt. #103, ¶ 56; 7 N.Y.C.R.R. 305.4(e)(5) (stating “[t]his paragraph [permitting inmates under a restraint order to be released from mechanical restraints while in the exercise area absent a written justification] does not apply to Southport Correctional Facility”).
Southport was a general population facility converted into a SHU facility. Dkt. #10, ¶ 35. For this reason, the cells are not comprised of four solid walls and a door as they are in modern SHU facilities; rather, the front of the cell is covered by crosshatched iron bars about one and one half inches apart. Dkt. #10, ¶ 36. On level one companies, the entire front of the cell (other than the door) is covered with plexiglass. Dkt. #10, ¶ 36. The feed up slots on levels two and three are built into the cell doors, enabling the occupant of a given cell to reach his arm through the feed up slot and throw water, urine, or feces on the occupant of the neighboring cell. Dkt. #10, ¶¶ 38-39.
On July 8, 2010, plaintiff was housed, in a level three cell, having progressed through levels one and two. Dkt. #10, ¶ 40. Plaintiff claims that the inmate in the neighboring cell was throwing liquid, which plaintiff believed to be urine, into his cell. Dkt. #10, ¶ 41. Plaintiff alleges that he covered the front of his cell with his blanket to protect himself from being pelted with urine. Dkt. #10, ¶ 43. Correctional officer Diehr, who was on rounds on the company, told plaintiff to remove his blanket from the bars. Dkt. #10, ¶¶ 43-44. According to Diehr, plaintiff responded to his direct order by yelling: “what the fuck is wrong with you, I’ll throw a cup of shit in your face you fat hillbilly faggott!” Dkt. #100-3, p. 8. Plaintiff claims that he explained to Diehr that he could not remove the blanket because he had to defend himself from being hit with urine, the officer became belligerent, and fabricated the allegation that plaintiff verbally threatened to throw feces on him. Dkt. #10, ¶ 46. As a direct result of that allegation, plaintiff was moved to a shielded level one cell, where hé claims he remained for hours, without his property, sitting on a bare mattress. Dkt. #10, ¶¶ 48-50.
According to plaintiff, defendant R. Flu-man, the officer on his level one company that evening, did not issue plaintiff his in-cell property or his dinner tray. Dkt. #10, ¶¶ 51-52. Fluman alleges that while he was on his “count round,” he discovered that plaintiff had ripped apart his mattress and covered the front of his cell. Dkt. #100-3, p. 10. When Fluman directed plaintiff to remove the mattress from the front of his cell, plaintiff did not respond. Dkt. #100-3, p. 10. Plaintiff then stated that he was “going to kill himself’ several times, prompting a nurse to place him on suicide watch. Dkt. #100-3, p. 10; Dkt. #10, ¶ 54. Plaintiff was ultimately escorted off the block without incident, permitting defendant Fluman, in his words, to “continue[ ] on my count rounds.” Dkt. #100-3, p. 10; Dkt. #10, ¶ 54. All of these events were memorialized in a second Inmate Misbehavior Report authored by defendant Flu-man on July 8, 2010. Dkt. #100-3, p. 10.
The following day, July 9, 2010, plaintiff was interviewed by L. Seymore, a social worker employed by the New York State Office of Mental Health (“OMH”), who works at Southport. Dkt. #10, ¶ 55. Upon Seymore’s referral, plaintiff was transferred to Elmira Correctional Facility’s satellite unit where he was housed in a special strip cell for observation and evaluation. Dkt. #10, ¶ 56. He returned to a level one cell in Southport on July 16, 2010. Dkt. #112-1, ¶ 5. Both of the July 8, 2010 Inmate Misbehavior Reports authored by Diehr and Fluman, respectively, were combined into one Tier III hearing, conducted by defendant Deputy Superintendent A. Bartlett. Dkt. #10, ¶ 58.
During the hearing, plaintiffs defense was not guilty by reason of mental disease or defect at the time of the incident, specifically, a suicidal breakdown. Dkt. #102, ¶ 12. Plaintiff twice requested the testimony of Seymore, the social worker who referred him for psychiatric evaluation at Elmira’s satellite unit. Dkt. #102, ¶ 5. Bartlett instead took the confidential testimony of OMH Unit Chief D. Fuller. Dkt. #100, ¶ 50; Dkt. #102, ¶¶ 7, 10. Fuller initially testified that on July 9, 2010, plaintiffs thoughts were clear, organized, relevant, and coherent, but then reversed her testimony stating: “I apologize. [¶]... ] Insight and judgment were reported to be poor for circumstances at that time.” Dkt. #102, ¶ 11. Fuller opined that plaintiffs health status at the time of the disciplinary incident “would not have affected his responsibility for his actions.” Dkt. #100, ¶ 50; Dkt. #100-3, ¶ 16. On the other hand, Fuller testified, “[plaintiff] has made positive efforts to avoid additional sanctions since his placement [at Southport], which should be considered.” She further opined:
Although hanging his sheet in front of his cell and obstructing visibility was clearly a violation, his reported intention was to avoid additional problems with other inmates which evidents [sic] an attempt on his part to use a less aggressive mechanism for resolution. Given his lengthy history of impulsivity and low threshold for frustration tolerance, some recognition of this effort may be warranted in considering the... consequences.
Dkt. #100-3, p. 14. Plaintiff did not have an opportunity to cross-examine Fuller because her testimony was confidential. Dkt. #112-1, ¶ 11.
Bartlett found plaintiff guilty of harassment, refusing a direct order (2 counts), threats, and visibility obstruction (2 counts), and not guilty of property damage or loss. Dkt. #100-3, ¶ 18. She imposed a 7-month SHU sentence (with 2 months suspended and 6 months deferred) to begin on January 26, 2011. Dkt. #100-3, ¶ 19.
On October 5, 2010, Prack reversed and expunged Bartlett’s hearing disposition in its entirety, because “there was no indication in the written record as to ’how' plaintiffs mental health was considered.” Dkt. #100-3, ¶ 20, p. 44; Dkt. #102, ¶ 13. Nevertheless, plaintiff claims that he suffered 18 days of shower deprivation (July 8, 2010 through July 25, 2010), and 12 days of cell clean up (July 8, 2010 through July 20, 2010). Dkt. #102, ¶ 14. He was also deprived of any outdoor exercise from July 8, 2010 to August 6, 2010, based on orders authorized by defendants Sheahan and He-trick, Jr. Dkt. #10, ¶¶ 86, 91; Dkt. #102, ¶¶ 16,17.
Plaintiff alleges that he went 18 days without a shower in mid-July while confined in a cell with no window or fan and no circulation of air because the entire front of the cell was covered with plexiglass. Dkt. #112-1, ¶ 14. Although he took “bird baths” in the sink, he developed pimples on his chest, crust on his scalp, grease in his hair, and raw skin on his genitalia and between his buttocks. Dkt. #112-1, ¶ 14.
Defendants claim that the deprivation orders imposed between July 8, 2010 and July 15, 2010 had “no effect” because plaintiff “was not in DOCCS custody.” Dkt. #100-1, ¶ 27; Dkt. #100-12, pp. 5-6, ¶¶ 14,15,17. Plaintiff contends that he was at all times in DOCCS custody because the satellite unit at Elmira is operated by correctional officers under “the auspice” of OMH. Dkt. #112, ¶ 27.
After his outdoor exercise deprivation order was lifted on August 6, 2010, plaintiff remained on level one, which required that he once again be restrained with a waist chain and handcuffs while alone in the exercise cage. Dkt. #112, ¶ 27(a); Dkt. #102, ¶ 32. Plaintiff asserts that South-port’s “exercise team” is instructed to cinch the waist chain tight enough that it is impossible to slide the waist chain down the legs and remove it from the body. Dkt. #10, ¶ 73. He contends that he was unable to engage in any meaningful exercise or even breathe properly while bound in this manner. Dkt. #10, ¶¶ 75, 95.
Plaintiff asserts that he was also unable to exercise in his cell due to lack of space and poor ventilation made worse by the use of a plexiglass cell-shield which covered the front of his cell for 30 days straight. Dkt. #102, ¶ 18. Plaintiffs South-port cell measured T X 9’. Dkt. #102, ¶ 21. The metal bed frame, which was bolted to the wall, measured 6’8‘ X 2’10‘, and the metal desk, attached to the wall opposite the bed frame, measured 2’10‘ X 1’8‘. Dkt. #102, ¶¶ 22-23. The combination sink-toilet attached to the wall behind the desk measured, 3’ X 2’. Dkt. #102, ¶ 24. This left a 3’ X 6’ area of free space. Dkt. #102, ¶ 25. The front of the cell was covered by a cell-shield and there were no windows in the cell. Dkt. #102, ¶¶ 19-20.
Plaintiff contends that his exercise deprivation order was renewed week after week based on notations written in the “Daily Review” section of his “Deprivation Order Renewal Forms.” Dkt. #100-12, pp. 16-22; Dkt. #102, ¶ 26. These forms contain numerous, cursory reports alleging that plaintiff was “uncooperative with staff,” and “disruptive on gallery,” often authored by the same corrections officer day after day, without any detail. Dkt. #100^12, p. 18. On July 15, 2010, the words “uncooperative with staff” appear in the “Daily Review” Section of the “Deprivation Order Renewal Form,” but are struck out and followed by the letters “OMH.” Dkt. #100-12, p. 16; Dkt. #112-1, ¶ 26. Plaintiff was not at the Southport facility on that date but was being evaluated at Elmira by OMH. Dkt. #112-1, ¶ 26. Defendants allege that plaintiffs deprivation order was reviewed on a daily basis and renewed only because of plaintiffs “continued uncooperative and disruptive conduct, as documented by security staff.” Dkt. #100-1, ¶¶ 29-30. Plaintiff was given written notice of the grounds to renew his deprivation order, and he appealed each one. Dkt. #100-1, ¶ 29; Dkt. #112, ¶ 29.
Captain Hetrick claims he renewed, plaintiffs deprivation order because “his behavior constituted a threat to the safety or security of staff, inmates or State property and not for punishment or any illegitimate purpose.” Dkt. #100-8, ¶ 7. Defendant Sheahan likewise claims that “plaintiffs recreation deprivation orders were only issued because of his continued uncooperative and disruptive conduct,” and were renewed for “legitimate purposes.” Dkt. #100-12, ¶¶ 21, 23-24.
Plaintiff claims that the reports of his “disruptive” and “uncooperative” conduct were falsified by staff to sustain his deprivations as evidenced by the fact that there is no record of his misconduct in the cell block log book. Dkt. #102, ¶ 26.. According to defendant Sheahan, any misbehavior on plaintiffs part would not be entered into the unit log “unless he was being deprived of a specific privilege,” which of course, plaintiff was. Dkt. #102, ¶ 29; Dkt. #112-1, ¶ 23. There is not a single entry in the cell block log documenting misbehavior by plaintiff between July 9, 2010 and September 7, 2010, when he was subject to various deprivations followed by level one restraints. Dkt. #102, ¶ 28; Dkt. #112-1, ¶ 24. Plaintiff asserts that as a result of defendants’ conduct, he went 61 consecutive days without exercise, which jeopardized his health. Dkt. #102, ¶¶ 38-39.
With respect to Southport’s mechanical restraint policy, plaintiff contends that then DOCCS Commissioner Fischer promulgated and authorized the policy, and thereby, treated plaintiff differently than other similarly-situated SHU inmates in DOCCS custody. Dkt. #102, ¶¶ 33, 44-45. Plaintiff asserts that the other supervisory defendants were personally involved for different reasons: Griffin because he signed his name to, adopted, and incorporated the mechanical restraint policy into the Southport Operations Manual, and required all staff to review the mechanical restraint procedures (Dkt. #102, ¶ 34); Sheahan because he admitted that his job duties included assuring compliance with mechanical restraint procedures (Dkt. #102, ¶ 35); and Prack because he was responsible for the overall supervision of disciplinary procedures for DOCCS (Dkt. #102, ¶ 36).
Defendant Fischer, for his part, claims that he had only “general” knowledge of Southport’s PIM’s policies, and none of them were implemented during his tenure. Dkt. #100-5, ¶¶ 7-9. Griffin contends: “I did not formulate the [mechanical policy] which instead [was] well established before my tenure as [Southport] Superintendent.” Dkt. #100-14, ¶ 5. Sheahan claims that although he assured compliance with the restraint policies and authorized deprivation orders, he “did not formulate the policies which have long been in effect.” Dkt. #100-12, ¶ 8. Of the level one mechanical restraint policy, Sheahan declared: “I did not promulgate this policy or have any reason or authority to decline to enforce it.” Dkt. #100-12, ¶ 9. “At times, some inmates, particularly those at Southport who are already facing long-term disciplinary confinement, continue to exhibit as-saultive or other disruptive behavior,” which “constitutes a threat to the safety or security of staff, inmates or state property” and can justify orders of deprivation. Dkt. #100-12, ¶¶ 12-13. Prack contends that “there would be no action he could have taken to prevent” plaintiff being placed in mechanical restraints under the “local Southport SHU Policy.” Dkt. #100-10, ¶ 7.
Southport also allows inmates serving SHU time to act as company “porters” and deliver meals to inmates who are restricted to their cells. Dkt. #102, ¶¶ 62-63. “Porters” are unsupervised on the company block. Dkt. #102-1, p. 92. Defendants contend that “the use of inmate porters dates back more than 20 years, and inmates who demonstrate suitable behavior are eligible for work positions such as the porter position while incarcerated.” Dkt. #100-1, ¶ 32. “[I]nmate porters facilitate[ ] the SHU operations in an economical manner as SHU inmates are confined to their cells.” Dkt. #100-1, ¶ 34. Plaintiff contends that Southport porters routinely withheld food, and extorted or otherwise abused inmates confined in their cells, but inmates rarely complained for fear of retaliation. Dkt. #104, p. 17. Defendant Signor, Southport’s Correction Captain, admitted that prior to the events giving rise to this suit, he had received complaints from inmates that they were not being fed by SHU porters. Dkt. #112-2, ¶ 67.
On August 22, 2010, plaintiff wrote a letter which was forwarded to Sheahan, Prack, Griffin, and Signor. Dkt. #102-1, p. 48, 94, 96; Dkt. #112-2, ¶ 62-66. In it, plaintiff expressed concerns about SHU porters withholding food and abusing him because he was the only white inmate on the company. Dkt. #102-1, p. 96; Dkt. #112-2, ¶ 62, 66. At that time, plaintiff had been to Southport on eight prior occasions. Dkt. #102-1, pp. 132-133; Dkt. #112-2, ¶ 87. Of his time in Southport, plaintiff wrote: “I find myself continuously being the sacrificial lamb for the racial animosity between the black inmates and the white staff.” Dkt. #102, p. 91. “The black porter.. .in charge of the food [is] under absolutely no supervision [a]nd I am defenseless locked in the cell.” Dkt. #102-1, p. 92. Plaintiff requested to be moved “to D-block level 2 where all the cameras are [a]nd where staff issues the food” or to a level one gallery. Dkt. #102-1, pp. 48, 92. Sheahan and Prack responded to plaintiffs letter, Sheahan advising him to use the “established grievance mechanism or by writing to the superintendent,” and Prack counseling plaintiff to “discuss his transfer concerns with [his] corrections counselor.” Dkt. #102-1, pp. 94, 96; Dkt. #112-1, ¶¶ 64-65. On September 1, 2010, defendant Signor denied plaintiffs request ■ for a transfer stating: “at this time your request is based on the anticipation of an incident that may not occur.” Dkt. #102-1, p. 48.
Plaintiff contends that all that changed on November 5, 2010, when inmate Bernard Cooper, an unsupervised SHU porter on plaintiffs cell block, threw several cups of feces through the feed hatch into plaintiffs cell and onto his head, body, clothes, and property. Dkt. #102, ¶ 75; Dkt. # 102-1, p. 116; Dkt. #112-2, ¶72. Plaintiff claims that the assault occurred over 45 minutes and he put up a bed sheet to protect himself from being pelted with feces. Dkt. #10, ¶ 140; Dkt. #102-1, p. 116; Dkt. #112-2, ¶ 94.
According to the certified “A-block” unit log book, while escorting a nurse on the cell block at approximately 7:15 p.m., officer Labar observed what appeared to be feces on the floor and on the bars of plaintiffs cell, and he notified defendant Sampsell, his Correction Sargent. Dkt. #102-1, p. 103; Dkt. #112-2, ¶ 73. At the time of Labar’s initial report, there was no mention of feces being observed on the gallery. Dkt. #112-2, ¶ 74. It was at this point, plaintiff contends, that defendants Fluman, Labar, Sampsell, and Granger decided to “frame” plaintiff for throwing feces to retaliate against him for successfully appealing Fluman’s July 8, 2010 misbehavior report. Dkt. #112-2, ¶ 77. Plaintiff claims that he was in the process of cleaning the feces off his head, face, and upper body, when defendants Sampsell, Granger, and Fluman came into plaintiffs cell, handcuffed him, took him out of his cell, and seated him in the day room. Dkt. #112-2, ¶ 75. As the three men stood over plaintiff, Fluman allegedly stated: “I don’t know how you go over on my ticket but you are going down for throwing shit tonight. You fucked up my count.” Dkt. # 112-2, ¶ 76.
Plaintiff claims that at Fluman’s urging and behest, Labar wrote plaintiff up for throwing feces on himself and his own property. Dkt. #112-2, ¶ 78. In his report, Labar alleged that he noticed that plaintiff had thrown something out of his cell, and determined by the “splash pattern” that plaintiff had thrown feces on his own cell gate. Dkt. #112-2, ¶ 80. The “A-block” log book entry states “8:05 p.m.: [ajfter reviewing the physical evidence it was Inmate Ruggiero.. .who had thrown feces on the gallery and on his own property.” Dkt. #102-1, p. 103. Defendant Sampsell’s memorandum regarding the incident reads as follows:
On 11-5-10 at approximately 7:10 p.m. I Sgt. Sampsell was notified of an unhygienic act in the A block on 12 gallery. I responded and found A-12-2 cell to have feces on the floor inside the cell gate and on the floor between the cell desk and bed. Some small amounts of feces were also found on the side of the desk, on the cell wall near the cell gate and on the bottom half of the cell gate. I checked the gallery from several angles finding only three Styrofoam cups which appeared to have milk in them on the floor directly beneath the feed up slot of A-12-2 cell. No splash pattern could be found on the gallery floor, walls or cell fronts. The gallery was dry and did not show any signs of being cleaned. I walked the gallery and did not smell any feces coming from any other area, no mops, buckets, towels or cups were seen. As inmate Ruggiero was removed I took a closer look at the feces in the cell noticing that the feces on the desk, bed sheets and cell wall appeared to have been poured on these objects and not thrown due to the lack of any splash pattern. Due to the lack of any splash patterns and the location of the feces it was determined that Inmate Ruggiero was responsible for the unhygienic act.
Dkt. #102-1, p. 107.
• According to Labar, inmates at South-port frequently throw feces and it was neither a bizarre or abnormal occurrence. Dkt. #102, ¶ 71. Inmate Cooper, the man plaintiff claims threw feces on him, had an unhygienic act on his disciplinary record prior to his appointment as an unsupervised porter at Southport. Dkt. #102-1, p. 72; Dkt. #112-2, ¶ 71. Defendants Prack, Griffin, Sheahan, and Signor — the parties who oversee DOCCS special housing (Dkt. #100-10, ¶ 4), authorize deprivation orders, assign porters, and investigate inmate complaints regarding porters at Southport (Dkt. #100-8, ¶ 4; Dkt. #100-12, ¶ 8; Dkt. #100-12, ¶ 11; Dkt. #100-13, p. 2, ¶ 6) — contend that they were not aware that feces-throwing was epidemic at Southport. Dkt. #100-10, ¶ 8; Dkt. # 102-1, p. 72; Dkt. #112-2, ¶ 69. “Although unhygienic acts did happen at Southport,” defendants attest, “they were not frequent incidents and were addressed accordingly with sanctions and removal of the inmate from the porter position.” Dkt. #100-1, ¶ 34; Dkt. # 100-12,. ¶ 10; Dkt. #100-13, ¶ 5; Dkt. #100-14, ¶ 18. Of the SHU porters, defendants claim that they “had no control whatsoever over inmates throwing feces or denying meals.” Dkt. #100-1, ¶ 33; Dkt. #100-10, ¶8; Dkt. #100-12, ¶10.
Fluman claims that he “had nothing to do” with the issuance of the November 5, 2010 misbehavior report and was “unaware of the disciplinary disposition” of the July 8, 2010 misbehavior report or “any reversal thereof.” Dkt. #100-6, ¶ 5. Granger declared that “he has no recollection of the events at issue,” and “had nothing to do with the issuance of the November 5th misbehavior report or... July 8th misbehavior report or the administrative reversal of which plaintiff alleges is the grounds for the alleged retaliation.” Dkt. #100-7, ¶ 4. Labar, who issued the report, contends that it “was not false and I did not issue it for a retaliatory motive.” Dkt. #100-9, ¶ 6. Sampsell declared that he “made the good faith determination that plaintiff had thrown feces in violation of inmate rules.” Dkt. #100-11, ¶ 5.
On November 17, 2010, defendant Donahue conducted a Tier III hearing on plaintiffs November 5, 2010 misbehavior report. Dkt. #112-2, ¶ 91. Plaintiffs defense was that inmate Cooper had pelted plaintiff with feces and that Fluman and the others “framed” him for throwing feces on himself and his own property. Dkt. #112-2, ¶¶ 91-92. Donahue took testimony from defendant Labar, who testified that there were feces on the gallery, and that Fluman came with Sampsell to investigate. Dkt. #112-2, ¶ 93; Dkt. #102-1, pp. 113-14. When plaintiff attempted to ask Labar about inmate Cooper, who plaintiff alleges threw the feces on him, Donahue stated: “Officer Labar, we’re not gonna answer questions concerning the other inmates.” Dkt. #102-1, p. 115. Donahue also denied as “really not relevant” plaintiffs question as to who notified the watch commander of the incident. Dkt. #102-1, p. 115. When plaintiff attempted to state his objection on the record, Donahue stated: “Fve determined it’s not relevant. If you continue to go on with this, I will remove you from the hearing. Do you understand me?” Dkt. # 102-1, pp. 115-16.
Plaintiff thereafter explained to Donahue his version of what transpired, that is: plaintiff was set to be released from SHU on December 14, 2010; on the evening of November 5, 2010, the porter denied him his dinner tray; right before he was locked in for the night, the porter threw several cups of feces on plaintiff and in his cell; plaintiff hung up his blankets and sheets over the front of his cell to protect himself; the porter came back and tried to wrestle the sheet away; the officer announced ■nurse on rounds, and Labar came down the company with the nurse; several minutes later, Sargent Sampsell, CO Granger, and CO Fluman came to plaintiffs cell; plaintiff was in the process of cleaning feces off his head, face, and upper body; plaintiff was handcuffed; he asked for a shower but was denied; he was taken out of the cell and seated in the dayroom; Fluman told plaintiff: “I don’t know how you got over on my ticket, but you are going down for throwing shit tonight. First thing, you fucked up my count,” referring to July 8, 2010. Dkt. # 102-1, p. 116. Donahue replied to plaintiffs stated defense: “[n]one of that has any bearing on this.” Dkt. #102-1, p. 116.
Plaintiff then called Sampsell as a witness. Dkt. # 102-1, pp. 116-17. Sampsell testified that when he arrived on the cell block, the gallery was dry, free from any splash patterns or “anything for that matter.” Dkt. #112-2, ¶ 94. He further testified that there were two Styrofoam cups on the floor directly below the feed slot and a little bit of water spilling from the cup. Dkt. #102-1, p. 117. “There w[ere] feces present but it was inside the inmate’s cell, on the floor inside the gate, and on the floor between the desk and the bed.” Dkt. #102-1, p. 117. Upon plaintiffs questioning, Sampsell testified: “[s]heets and blankets were attached.. .in the corner at the top of the cell.. .and the other part of the sheets were in the inmate’s hands. He was' taking them down.” Dkt. #102-1, p. 118.
Sampsell testified that he notified the watch commander, but when plaintiff attempted to question Sampsell further about inconsistencies between the A-block and the watch commander logs, Donahue shut him down, stating: “[i]t’s really not relevant, okay?” Dkt. #102-1, p. 118. When plaintiff asked Sampsell, “if I threw feces out of my cell.. .wouldn’t it be, you know, scattered away from my cell?,” Donahue shut down plaintiffs line of questioning stating: “[y]ou’re not asking hypothetical questions.” Dkt. # 102-1, p. 119. Thereafter, when plaintiff referred to the entries from the “A-block” and watch commander’s log, Donahue stated, “[w]hy don’t we just read them into the record, since you want to keep talking about them like they’re some magic.” Dkt. #102-1, p. 120. Plaintiff objected to Donahue’s attitude and demeanor as “biased,” to which Donahue replied: “[i]f you continue like that and interrupt me one more time[,] I will remove you from this hearing.” Dkt. #102-1, p. 120. When plaintiff objected a second time, Donahue told plaintiff: “[dojn’t speak...[i]f you speak you will not be here for the remainder of this hear-, ing.” Dkt. #102-1, p. 120.
Donahue then read from the “A-block” log which indicated: “7:15 p.m., while escorting the nurse, Officer Labar observed what appeared to be feces on the floor... 8:05 p.m.; after reviewing the physical evidence, it was inmate Ruggie-ro .. .who had thrown the feces....” Dkt. #102-1, p. 120-21. “The Watch Commander log book states, 7:10 p.m., Watch Commander notified, inmate Ruggiero... has spread feces in his own cell. OD, DSP Bartlett authorizes shield, deprivation and pre-hearing diet.” Dkt. #102-1, p. 120. The hearing proceeded as follows:
Ruggerio': Okay. If the.. .physical evidence wasn’t reviewed until 8:05, how [does] the log of the Watch Commander at 7:10 [say] to put me on the loaf?'
Donahue-. Okay, one more time. I’m not answering hypothetical questions
Ruggiero-. It’s not a hypothetical question. You just read it into the record. 7:10 p.m....
Donahue: No, but when you ask how, that makes it a hypothetical.
Ruggiero: Because you refuse to let me ask the witness. How can you review evidence at 8:05, but yet the Watch Commander log book entry says 7:10?
Donahue: Okay. The facts are the facts. Do you have any other testimony or evidence?
Ruggiero: Yes I do.
Donahue: Present it now.
Ruggiero: Back to the log entries where he states; 8:05 p.m. (this is the A- ' block logbook entry); physical evidence, it was allegedly me who had thrown feces on the gallery then onto my own property? So, wait. I’m gonna throw shit on my sheets and blankets that I’m gonna have to sleep in that night. Right? I like my property. I like my books. I spend...
Donahue: Okay. None of this is relevant.
Dkt. #102-1, p. 121.
Plaintiff then called Officer Fluman as a witness. Dkt. #102-1, p. 121. After a brief break “to get Fluman’s testimony,” the hearing resumed with Donahue denying Fluman as a witness. Dkt. #102-1, p. 122. “Ruggiero,” Donahue stated, “at this point, I’m gonna tell you that I am denying Officer Fluman as a witness as I’m deeming his testimony.. .redundant to that of Officer Labar and Sargent Sampsell who’ve already testified.” Dkt. #102-1, p. 122. Plaintiff objected given the discrepancy in Labar and Sampsell’s testimony, to which Donahue replied: “[a]nd I’ve already made my decision that that would be redundant.” Dkt. #102-1, p. 122. Another witness, an inmate who was housed in the cell next to plaintiffs on November 5, 2010, refused to testify indicating on a form that “he did not want to be involved.” Dkt. #102-1, p. 123. In closing, plaintiff objected to Donahue’s conduct in refusing to allow plaintiff to question Labar and Sampsell, telling plaintiff to stop when he tried to state his defense, and threatening numerous times to kick him out of the hearing. Dkt. #102-1, pp. 124-25.
After the close of evidence, Donahue took approximately 12 minutes to consider the evidence, made a written deposition (which he read into the record) finding plaintiff guilty of committing an unhygienic act. Dkt. # 102-1, p. 125. In so doing, Donahue explicitly credited Labar’s report and testimony, the supporting testimony of Sampsell, and “the log book entries which support the report.” Dkt. #102-1, p. 125. Donahue imposed the following sentence on plaintiff: 6 months SHU time (3 months suspended and 6 months deferred), thereby extending plaintiffs release date from December 14, 2010’to March 14, 2011; 3 months recommended loss of good time; 7 days restricted diet (3 days suspended and 6 months deferred). Dkt. #102-1, p. 125; Dkt. #112-2, ¶ 100. On appeal, defendant Prack modified plaintiffs sentence by removing the 3 days restricted diet, which Donahue had imposed “suspended.” Dkt. #112-2, ¶ 106. In modifying the sentence, Prack stated “the nature of the offense does not warrant the penalty imposed.” Dkt. #100-4, p. 45.
It is undisputed that prior to his determination, plaintiff had no disciplinary history of unhygienic acts. Dkt. #102-1, pp. 135-36; Dkt. #112-2, ¶ 88. Rather, it was Inmate Cooper, the SHU porter, with a history of such conduct. Dkt. #112-2, ¶ 89.
Defendant Donahue contends that it is “evident” from the hearing transcript that he conducted the disciplinary hearing in a “fair and impartial manner” and he afforded plaintiff “all the due process he was entitled to under applicable constitutional principles.” Dkt. #100-4, ¶ 4. “Due to the sheer amount of hearings that take place in the prison setting, it is necessary to reduce the number of redundant testimonies in order to keep the efficacy of the process in motion.” Dkt. #100M, ¶ 11. Plaintiffs “hypothetical” questions about the log books, Donahue opined, “clearly seemed like an effort to stall and further delay the hearing.” Dkt. #100-4, ¶ 13. “I was not biased nor did I determine plaintiffs guilt prior to the hearing.” Dkt. #100-4, ¶ 18. “In no way was [plaintiff] treated unfairly or stopped from presenting relevant evidence or testimony.” Dkt. #100-4, ¶ 17.
At the time that plaintiff began his sentence for committing an “unhygienic act,” he had been in SHU for 334 consecutive days. Dkt. #112-2, ¶ 101. The 3-month SHU sentence imposed by Donahue began on December 14, 2001 and continued until March 14, 2010, resulting in an aggregate sentence of 424 days of SHU confinement. Dkt. #112-1, ¶ 102. As a result of his guilty disposition, plaintiff was deprived of outdoor recreation for 24 days, showers for 12 days, cell clean-up for 5 days, and subjected to a restricted diet for 11 days as well as the cell-shield. Dkt.. #112-2, ¶¶ 103,108-111,115.
Defendants Bartlett and Sheahan renewed plaintiffs deprivations based on negative “Daily Review” notations from staff indicating plaintiff was “disruptive on gallery,” “uncooperative with staff,” “ignore[d] staff direction,” and exhibited a “poor demeanor toward staff.” Dkt. #102-1, pp. 138-41. Plaintiff contends that, like before, these notes were falsified to sustain his deprivations. Dkt. #112-2, ¶ 111-12. Bartlett contends that she renewed plaintiffs deprivation order because “his behavior constituted a threat to the safety or security of staff, inmates or state property and not for punishment or any illegitimate purpose.” Dkt. #109-2, ¶ 5. Again there were no entries in the unit logs documenting misconduct by plaintiff during the period that he was being deprived. Dkt. #112-2, ¶¶ 113-14. After plaintiffs outdoor exercise was restored, he was again subject to the level one mechanical restraint policy from November 29, 2010 through January 3, 2011, approximately 36 days. Dkt. # 112-1, ¶ 116.
Regarding the use of SHU porters, plaintiff asserts the following basis for defendants’ personal involvement: Griffin promulgated the policy of allowing inmates serving SHU time to act as company porters to serve food to inmates (Dkt. #102, ¶¶ 62, 63); Sheahan assisted in assigning inmates to porter jobs (Dkt. #102, ¶ 64); and Signor vetted complaints from inmates regarding SHU porters (Dkt. #112-2, ¶ 67). Griffin contends: “I did not formulate the [SHU porter policy] which instead [was] well established before my tenure as [Southport] Superintendent.” Dkt. #100-14, ¶ 5. Signor asserts that he did not implement the policy of using SHU porters, rather, “the utilization of SHU porters was instituted on or about December 1990, twenty years before the plaintiffs complaint arose.” Dkt. #100-13, ¶ 7. Defendant Prack claims that he “did not formulate the.. .longstanding poli[cy]” of using inmate porters nor did he “have any reason to decline to enforce [it].” Dkt. #100-10, ¶ 9.
Mr. Ruggiero exhausted his administrative remedies (Dkt. #10, ¶¶ 115-21, 228-38) and thereafter commenced this pro se action pursuant to 42 U.S.C. § 1983, alleging violations of his rights under First, Eighth, and Fourteenth Amendments of the United States Constitution. He has asked for a declaratory relief as well as punitive and compensatory damages. Dkt. #10, ¶¶ 241-44. As noted above, defendants have moved for summary judgment against all of causes of action in plaintiffs complaint and plaintiff has cross-moved for summary judgment.
DISCUSSION AND ANALYSIS
Summary Judgment
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In reaching this determination, the court must assess whether there are any material factual issues to be tried while resolving ambiguities and drawing reasonable inferences against the moving party, and must give extra latitude to a pro se plaintiff.” Thomas v. Irvin, 981 F.Supp. 794, 798 (W.D.N.Y.1997) (internal citations omitted).
A fact is “material” only if it has some effect on the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir.1998). A dispute regarding a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).
Once the moving party has met its burden of ‘demonstrating the absence of a genuine issue of material fact, the nonmov-ing party must come forward with enough evidence to support a jury verdict in its favor, and the motion will not be defeated merely upon a ‘metaphysical doubt’ concerning the facts, or on the basis of conjecture or surmise/ Bryant, 923 F.2d at 982 (internal citations omitted). A party seeking to defeat a motion for summary judgment:
must do more than make broad factual allegations and invoke the appropriate statute. The [party] must also show, by affidavits or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, that there are specific factual issues that can only be resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995).
Plaintiff brings his complaint under 42 U.S.C. § 1983, which provides a civil claim for damages against “[ejvery person who, under color of any statute... of any State.. .subjects, or causes to be subjected, any citizen... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir.1999) (internal citations omitted). To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must establish that a person acting under color of state law deprived him of a federal right. Id. Here, plaintiff claims that defendants violated his rights under the First, Eighth, and Fourteenth Amendments to the Constitution of the United States. Dkt. #10.
Due Process Claims
Due Process in the Pñson Context
“To prove a violation of due process, a plaintiff must establish that: (1) he possessed a liberty interest; and (2) defendants deprived him of that interest without sufficient process.” Walker v. Fischer, 523 Fed.Appx. 43, 44 (2d Cir.2013) (citing Giano v. Selsky, 238 F.3d 223, 225 (2d Cir.2001)); Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir.2004). An inmate’s protected liberty interest is implicated only where the conduct at issue imposes an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).
State statutes and regulations do not create federally protected due process rights; rather, the only process due an inmate is the minimal process guaranteed by the Constitution. Wolff v. McDonnell, 418 U.S. 539, 564-70, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir.2004). Simply put, “federal law, not state regulations, determines the procedures necessary to protect that liberty interest.” Blouin v. Spitzer, 356 F.3d 348, 363 (2d Cir.2004) (citing cases). For this reason, “the only relevant inquiry [is] whether constitutional ’minimal procedures’ [for the loss of a protected liberty interest] were met, not whether state procedures were followed.” Shakur, 391 F.3d at 119; Cepeda v. Urban, No. 12-CV-408 (F), 2014 WL 2587746, at *9 (W.D.N.Y. June 10, 2014).
“An inmate subject to a disciplinary hearing is entitled to an impartial hearing officer,” Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir.1996), who does not “prejudge the evidence.” Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir.1990). At the same time, “[i]t is well recognized that prison disciplinary hearing officers are not held to the same standard of neutrality as adjudicators in other contexts,” and “[t]he degree of impartiality required of prison officials does not rise to the level of that required of judges generally.” Allen, 100 F.3d at 259 (citing cases). Not only are prison disciplinary hearing officers accorded greater flexibility, the due process impartiality standard is satisfied if “some evidence” in the record supports the prison officer’s disciplinary decision. Superintendent v. Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); see also Zavaro v. Coughlin, 970 F.2d 1148, 1152 (2d Cir.1992).
Procedurally, an inmate facing disciplinary proceedings must bé provided with “written notice of the charges against him,” “a brief period of time” to prepare his defense, and a “written statement by the fact finder as to the evidence relied on and reasons for the disciplinary action.” Wolff, 418 U.S. at 564-65, 94 S.Ct. 2963 (internal citations omitted). The inmate mqst also “be allowed to call witnesses and present documentary evidence in his defense when permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.” Wolff, 418 U.S. at 566, 94 S.Ct. 2963. Consistent with this right, a judicial officer may not refuse to interview a requested witness without assigning a valid reason. Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir.1998).
July 2010 Hearing (Bartlett)
Plaintiff asserts a liberty interest in receiving one hour of exercise per day and the ability to shower two times a week and to clean his cell three times a week. See 7 NYCRR 304.3, 304.5(a), 304.5(e). Plaintiff was denied outdoor recreation for 30 days, returned to mechanical restraints for an additional month, deprived of showers for 18 days, and cell clean-up for 12 days. Dkt. #10, ¶ 92. Plaintiff claims that he was denied due process when Bartlett failed to call L. Seymore, the OMH social worker who evaluated him after his suicide threat, and thereby undermined his defense of not guilty by reason of mental disease or defect. Dkt. #100-3, pp. 15, 30; Dkt. #102, ¶ 5.
Presuming (without finding) that the collective deprivations imposed on plaintiff amounted to an “atypical” hardship, this Court finds that Bartlett provided plaintiff with sufficient process at his July 2010 hearing. The hearing transcript reveals that Bartlett took the testimony of several witnesses at plaintiffs request, including Nurse Miller, who put plaintiff on suicide watch on July 8, 2010. Dkt. #100-3, ¶¶ 11, 13-15. Although she allowed Nurse Miller’s factual testimony that plaintiff threatened to kill himself, Bartlett concluded that Miller was not trained to opine on plaintiffs mental capacity at the time of the incident. Dkt. #100-3, p. 23. “I will get your mental health status from mental health staff that are trained to do that,” Bartlett stated. Dkt. #100-2, p. 23. When plaintiff requested Seymore later in the proceedings, Bartlett assured plaintiff, “I will be getting confidential OMH testimony. . .about your state of mind,” to which plaintiff responded, “Alright.” Dkt. #100-3, p. 30.
Shortly thereafter, D. Fuller, the Chief of the OMH Unit, gave confidential testimony apparently using Seymore’s contemporaneous treatment notes. Dkt. #100-3, p. 13. Fuller corrected herself once during her testimony regarding defendant’s mental state on July 9, 2010, but ultimately testified that plaintiff “presented as angry,” “reported suicidal ideation,” and that his “insight and judgment were.. .poor for the circumstances at that time.” Dkt. #100-3, p. 13; Dkt. #111, p. 25. Fuller opined that plaintiffs mental status at the time of the disciplinary incident “would not have affected his responsibility for his actions,” but noted that plaintiff had been in SHU for nearly 8 months and had made positive efforts to avoid additional sanctions. She testified that although putting a sheet in front of his cell was a violation, it was also “an attempt on his part to use a less aggressive mechanism for resolution” of his problems with other inmates. Dkt. #100-3, p. 14. Fuller urged Bartlett to recognize plaintiffs efforts to avoid confrontation with his fellow inmates in deciding plaintiffs “consequences.” Dkt. #100-3, p. 14.'
In the view of this Court, Fuller was a qualified witness who testified ably, if imperfectly, regarding plaintiffs mental state on July 8, 2010. Fuller demonstrated knowledge of plaintiffs mental history, his institutional adjustment, his disciplinary record, and the facts surrounding his alleged misbehavior. She advocated for leniency in imposing any punishment against plaintiff. Given Fuller’s apparent qualifications and preparation, it cannot be said that Bartlett violated plaintiffs due process right by taking Fuller’s testimony rather than Seymore’s.
Plaintiff argues that Bartlett failed to specify in the statement of evidence relied upon “how” she considered plaintiffs mental health as required by 7 N.Y.C.R.R. 254.6(f). In reading her written disposition into the record, Bartlett merely noted that: “[cjonfidential OMH testimony was also taken into consideration in establishing the inmate’s frame of mind during these incidents and in giving sanctions.” Dkt. #100-3, p.. 36. This explanation falls short of what is required by 7 N.Y.C.R.R. 254.6(f). However, a violation of 7 N.Y.C.R.R. 254.6(f), without more, does not establish Bartlett’s liability under 42 U.S.C. § 1983. See Patterson v. Coughlin, 761 F.2d 886, 891 (2d Cir.1985) (holding that a “state employee’s failure to conform to state law does not in itself violate the Constitution and is not alone actionable under § 1983”); Cepeda, 2014 WL 2587746, at *6.
For this reason, summary judgment is granted in favor of defendant Bartlett on plaintiffs due process claim relating to the July 2010 hearing and plaintiffs cross-motion on that claim is denied.
Substantive Due Process Retaliation Claim (Sampsell, Labar, Granger and Fluman)
While an inmate has no constitutional protection against false accusations, he does have a substantive due process right not to be retaliated against for exercising his constitutional rights. Jones v. Coughlin, 45 F.3d 677, 679-80 (2d Cir.1995); Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir.1988). Because claims of retaliation can be invoked with “relative ease,” Cannon v. Wood, No. 9:10-CV-01332 (GTS/RFT), 2013 WL 838299, at *4-6 (N.D.N.Y. Jan. 22, 2013), report and recommendation adopted, No. 9:10-CV-1332 (GTS/RFT), 2013 WL 838294, at *3 (N.D.N.Y. Mar. 6, 2013), courts should examine such claims “with skepticism and particular care.” Colon v. Coughlin, 58 F.3d at 872 (citation omitted); Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) (stating that “virtually any adverse action taken against a prisoner by a prison official-even those otherwise not rising to the level of a constitutional violation-can be characterized as a constitutionally proscribed retaliatory act”), overruled on other grounds by Swierkiewicz v. Sorema, 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996).
To establish a First Amendment retaliation claim, an inmate must show that: (1) he was engaged in constitutionally protected activity; (2) the defendants took adverse action against the plaintiff; and (3) there was a causal connection between the protected activity and the adverse action in that the alleged conduct was substantially motivated by the protected activity. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004). The plaintiff bears the initial burden to show that the defendant’s actions were improperly motivated.
To satisfy the second prong, a prisoner must present evidence from which a court could infer that defendants acted with an improper motive. A plaintiff may meet this burden by presenting circumstantial evidence of a retaliatory motive, thus obviating the need for direct evidence. Such evidence may include: (1) temporal proximity between the protected activity and the alleged retaliatory act; (2) plaintiffs prior good disciplinary record; (3) plaintiffs vindication at his disciplinary hearing; and (4) defendants’ statements regarding their motive for the discipline. See Colon, 58 F.3d at 872-73; see also Bennett v. Goord, 343 F.3d 133, 139 (2d Cir.2003) (holding that plaintiff met his burden by presenting circumstantial evidence that defendant correctional officers filed disciplinary charges against him just as he was settling a lawsuit against the correctional facility and the disciplinary charges were subsequently reversed as unfounded).
“Adverse action” is retaliatory conduct “that would deter a similarly situated individual of ordinary firmness” from exercising his constitutional rights. Barrington v. New York, 806 F.Supp.2d 730, 745 (S.D.N.Y.2011) (internal citations omitted). If it would not, the retaliatory act is “de minimis and therefore outside the ambit of constitutional protection.” Dawes, 239 F.3d at 493.
Here, plaintiff has presented evidence that: (1) he successfully appealed the adverse disciplinary finding based on Flu-man’s July 2010 misbehavior report; (2) defendants Fluman, Labar, Granger, and Sampsell conspired to “frame” him for throwing feces on November 5, 2010; and (3) they did so because plaintiff “got over on [Fluman’s] ticket” and “fucked up [his] count.” Dkt. #104, p. 20. There are facts in this record from which a reasonable juror could infer that defendants acted with improper motive in filing the November 5, 2010 misbehavior report: first, the disciplinary finding was reversed on October 5, 2010, only one month prior to the second misbehavior report; second, plaintiffs July 8, 2010 misbehavior occurred during Flu-man’s “count rounds” and Fluman’s statement that plaintiff was “going down for throwing shit tonight” because he “fucked up [Fluman’s] count;” third, plaintiff had no other disciplinary reports filed against him between July and November 2010; and fourth, it was unlikely that plaintiff would throw feces on himself and his belongings. Also in dispute is whether plaintiff asked for and was denied a shower, facts which are relevant to defendants’ motives.
Defendants, for their part, dispute that they acted with retaliatory motives or that they even knew about the prior disciplinary finding being reversed. Dkt. #100-6, ¶ 5; Dkt. #100-7, ¶ 4; Dkt. #100-9, ¶ 6; Dkt. #100-11, ¶ 5. On this record, there are genuine issues of fact as to whether Fluman knew about the reversal, whether he threatened plaintiff for “getting over on [his July 8, 2010] ticket,” and whether Labar, Granger, and Sampsell had a “meeting of the minds” with Fluman to retaliate against plaintiff. These disputed facts are material to whether the defendants acted with retaliatory motives and preclude summary judgment for either plaintiff or defendants.
November 2010 Hearing (Donahue)
“Confinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under San-din’’ Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000); see also Sims v. Artuz, 230 F.3d 14, 23 (2d Cir.2000) (holding that the plaintiffs sentence of one year was “of sufficient length to be atypical and significant”). At the time that plaintiff began his 3-month SHU sentence imposed by Donahue, plaintiff had already served 334 days in SHU. By the time he was done serving those three months on March 14, 2010, he had been confined in SHU for 424 days. This aggregate punishment is sufficiently “atypical and significant” to implicate the protections of the due process clause. Giano, 238 F.3d at 226 (holding that separate SHU sentences “should be aggregated for purposes of the Sandin inquiry” when they constitute a sustained period of confinement); Sealey v. Giltner, 197 F.3d 578, 588 (2d Cir.1999) (reasoning that “[w]herever the point is beyond which confinement in harsh conditions constitutes atypicality, a prison official must not be permitted to extend such confinement beyond that point without according procedural due process”).
This Court finds that Donahue prejudged the evidence against plaintiff, prevented him from questioning Labar and Sampsell about matters directly relevant to his defense under threat of being removed from the hearing, and failed to provide a valid reason for not calling Fluman as a witness. Plaintiffs defense to the charge of committing an unhygienic act was that: inmate Cooper, the company porter, assaulted plaintiff by throwing several cups of feces into his cell; plaintiff tried to defend himself by putting sheets over the front of his cell; and Fluman convinced Labar, Granger, and Sampsell to frame plaintiff for “throwing shit” in retaliation for successfully appealing Flu-man’s July 8, 2010 “ticket.” When plaintiff stated his defense on the record, Donahue stated: “[n]one of that has any bearing on this.” Dkt. #102-1, p. 116.
This set the stage for the remainder of the hearing, preemptively excluding any inquiry into inmate Cooper’s conduct, the “A-block” and watch commander’s log books, the feces pattern, and plaintiffs motives. When plaintiff attempted to question Labar about inmate Cooper, Donahue shut him down saying: “we’re not gonna answer questions about the other inmates.” Dkt. #102-1, p. 115. Plaintiff inquired how, if Labar did not see plaintiff throw something from his cell until 7:15 and the defendants did not review the physical evidence until 8:05 p.m. (according to the “A-block” log), the watch commander was notified that plaintiff had committed a violation and placed plaintiff on a pre-hearing restricted diet at 7:10 (according to the watch commander’s log). This question prompted Donahue to state: “I’m not answering hypothetical questions.” Dkt. #102-1, p. 121. And later in the hearing, Donahue asserted that the inconsistencies between the log books were “really not relevant...” Dkt. #102-1, p. 118. When plaintiff pressed the issue of the log books, Donahue stated, “[w]hy don’t we read them into the record since you want to keep talking about them like they’re some magic.” Dkt. #102-1, p. 120.
Throughout the proceeding, Donahue did little to disguise his contempt for plaintiff. Any attempt by plaintiff to object was met with threats to remove plaintiff from the hearing. When plaintiff objected to Donahue’s demeanor as “biased,” Donahue’s terse response was: “[djon’t speak.” Dkt. #102-1, p. 120. •
With respect to the key physical evidence, plaintiff asked Sampsell: “if I threw feces out of my cell.. .wouldn’t it be, you know, scattered away from my cell?,” Donahue shut down this legitimate line of questioning stating: “[yjou’re not asking hypothetical questions.” Dkt. #102-1, p. 119. Plaintiff then questioned what possible motive he would have to “throw shit on my sheets and blankets that I’m gonna have to sleep in that night,” to which Donahue replied: “[njone of this is relevant.” Dkt. #102-1, p. 121. Finally, Donahue denied plaintiffs request to call Fluman as a witness, concluding that his