Barnes v. County of Monroe (85 F. Supp. 3d 696, 2015)

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

INTRODUCTION

Plaintiff Jessie James Barnes (“Plaintiff’), proceeding pro se, is an inmate currently housed at Upstate Correctional Facility. Plaintiff brings the instant action pursuant to 42 U.S.C. § 1988, alleging that Defendants committed various viqlations of Plaintiffs state and constitutional rights while he was detained at the Monroe County Jail (“MCJ”) during 2008 and 2009.

Presently before the Court is the motion by Defendants County of Monroe, Monroe County Executive Maggie Brooks, Monroe County Sheriff Patrick M. O’Flynn, MCJ Superintendent Ronald Harling, Major E. Krenzer, Major Caceci, Captain Jolly, Captain Thomas, Lieutenant Dimartino, Lieutenant Lipari, Lieutenant Horan, Lieutenant Kaiser, Lieutenant Kloner, Sergeant DeRosa, Sergeant Mooney, Sergeant McGowan, Sergeant Hayes, Corporal Kim-ball, Corporal Gatti, Corporal Guest, Corporal Knapp, Corporal Cardella, Corporal Amatore, Corporal Kennelly, Corporal Pratt, Corporal Inipoli, Corporal Preston, Corporal T. Peck, Corporal S. Peck, Corporal Shellard, Corporal Carlo, Corporal Tripoli, Corporal Messura, Deputy Kluth, Deputy Scally, Deputy Luther, Deputy Atkins, Deputy Newton, Deputy Willis, Deputy Waud, Deputy James Amico, Deputy Ellen Danehy, Deputy Isiah Raby, Deputy Fitzsimmons, Deputy Palma, Deputy Daly, Deputy Galen, Deputy DiFlores, Deputy Alberti, Jane Doe Nurse, Nurse Mary, Greg Domalski, Bradley Meister, Avis Robinson, E. Holman, Letitia Miller, Michelle Rizzo, and Todd Thibaut (“County Defendants”) for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (Dkt. ■119), Defendant Ellie Holman’s separate motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (Dkt. 120), Plaintiffs motion for recusal (Dkt. 142), and Plaintiffs request to convert Defendants’ motions for judgment on the pleadings into a motion for summary judgment (Dkt. 133).

For the following reasons, the County Defendants’ motion (Dkt. 119) is granted in part and denied in part, Defendant Holman’s motion (Dkt. 120) is granted, and Plaintiffs request to convert Defendants’ motion for judgment on the pleadings into a motion for summary judgment. (Dkt. 133) is denied. In addition, Plaintiffs motion for recusal (Dkt. 142) is denied.

PROCEDURAL BACKGROUND

Plaintiff filed his original complaint in this matter on March 22, 2010, alleging numerous causes of action against approximately 88 Defendants, along with an application to proceed in forma pauperis. (Dkt. 1, 2). On April 1, 2010, the Court granted Plaintiff leave to proceed informa pauperis. (Dkt. 3). In that order, the Court also dismissed Defendants Ontario County and Ontario County Attorney as parties to this action. (Id.).

Plaintiff filed a motion to appoint counsel on April 28, 2010 (Dkt. 4), and on May 17, 2010, the Court denied his motion (Dkt. 5).

On July 6, 2010, the County Defendants filed a motion to dismiss. (Dkt. 6). On July 27, 2010, the Court added Corporal Messura as a Defendant. (Dkt. 10). Plaintiff moved to amend his complaint on August 3, 2010. (Dkt. 12). On October 6, 2010, Defendants Beilein, Harrison-Ross, and Stewart filed a motion for summary judgment. (Dkt. 18). On December 27, 2010, Plaintiff filed another motion to amend his complaint. (Dkt. 27). On July 26, 2011, Plaintiff voluntarily dismissed Defendants Beilein, Harrison-Ross, Stewart, and the Citizen’s Policy and Complaint Review Council, and the Court dismissed these parties with prejudice by Court order. (Dkt. 60, 61). On January 11, 2012, 2012 WL 92553, the Court issued an order granting Plaintiffs motion to amend his complaint (Dkt. 27), and dismissing as moot Plaintiffs additional motion to amend (Dkt. 12) as well as the 'County Defendants’ motion to dismiss (Dkt. 6). (Dkt. 62).

On January 25, 2012, Plaintiff filed his second amended complaint. (Dkt. 64). On March 22, 2012, the Courh ordered that Plaintiffs second amended complaint be amended to insert the name of Cynthia L. Muller in place of the aforementioned Jane Doe nurse. (Dkt. 78). On April 10, 2012, the County Defendants filed a motion for judgment on the pleadings. (Dkt. 82). On June 6, 2012, the Court ordered that Defendants Greg Domalski, Bradley Meister, Avis Robinson, Deputy Fitzsimmons, James Amico, and Deputy Ellen Danehy be added as Defendants in place of formerly named John Does. (Dkt. 92). Plaintiff filed a motion to amend his complaint on July 26, 2012. (Dkt. 96). On August 1, 2012, Defendants Mary Ann MeQueeney and Debbie Scarpulla, two nurses employed by Correctional Medical Care, Inc. (“CMC”), filed a motion to dismiss the claims against them. (Dkt. 97).

On August 2, 2012, the Court granted Plaintiffs request to file a third amended complaint, making Plaintiffs third amended complaint the operative pleading for this matter. (Dkt. 99).

On August 2, 2012, the Court dismissed Defendants MeQueeney, Scarpulla, Bye, Showers, Schultz, Wheatley, Burns, Cav-iccholi, Harris, Knox, Lopez, Chance, Gal-lina, and Potocki in accordance with Plaintiffs voluntary dismissal of these Defendants. (Dkt. 100). The outstanding motion for judgment on the pleadings (Dkt. 82) and motion to dismiss (Dkt. 97) were denied as moot. (Dkt. 99).

On February 4, 2013, the County Defendants filed a motion for judgment on the pleadings (Dkt. 119), and the remaining Defendants, Holman and Muller, filed a motion to dismiss for failure to state a claim (Dkt. 120).

The County Defendants filed a motion to stay discovery on March 7, 2013. (Dkt. 125). The remaining Defendants filed a declaration in support of this motion to stay discovery on March 13, 2013. (Dkt. 127).

On June 19, 2013, Plaintiff filed his response to Defendants’ motions and requested that the County Defendants’ motion be converted into a motion for summary judgment and be granted in his favor. (Dkt. 133).

On July 11, 2013, the Court dismissed Defendant Muller in accordance with Plaintiffs voluntary dismissal of this Defendant. (Dkt. 135).

The Court granted Defendants’ motion to stay discovery (Dkt. 125) on September 19, 2013, 2013 WL 5298574 (Dkt. 138). On February 13, 2014, the Honorable Charles J. Siragusa, United States District Judge for the Western District of New York, transferred this case to the undersigned. (Dkt. 141).

On January 13, 2015, Plaintiff filed a motion for the recusal of the undersigned. (Dkt. 142).

FACTUAL BACKGROUND

Plaintiffs third amended complaint against the remaining 58 Defendants asserts the following facts. (Dkt. 95).

In or about July 2008, Plaintiff was arrested, charged with burglary, and remanded to MCJ pending trial. (Id. at ¶ 20).

On August 7, 2008, Plaintiff was fighting with two other inmates, Trustee Eades and Tyrone Members, when Defendant Newton jumped on Plaintiffs back, struck Plaintiff in the mouth, and knocked out one of Plaintiffs front teeth. (Id.). Plaintiff alleges that Defendant Newton “premeditated” the attack on Plaintiff, and that Defendants Amico and Danehy “collaborated” with Defendant Newton to delay the call of a “Code 1,” allowing Plaintiff to be attacked by the other inmates. (Id. at ¶¶ 30-32). Plaintiff claims that inmate Eades’ cousin told Plaintiff on June 12, 2009, that Defendant Newton was aware that inmates Eades and Members were going to “attack” Plaintiff and indicated that he would “take care of the Code # 1 response and finish the plaintiff off himself.” (Id. at ¶ 32).

As a result of the August 7, 2008 altercation, Plaintiff was placed in the special housing unit (“SHU”) by Defendants Luther, Newton, DeRosa, Jolly, Krenzer, Horan, Kaiser, and Dimartino. (Id. at ¶ 75). Plaintiff was housed in SHU from August 7, 2008 through August 21, 2008, under full mechanical restraints and under a shower and exercise deprivation order. (Id.).

Although it was not specified in the complaint, Plaintiff must have been released at some time after August 21, 2008, because on October 9, 2008, Plaintiff was arrested after a high-speed chase and was again detained at MCJ on charges of burglary and reckless endangerment, awaiting his July 13, 2009 trial. (Id. at ¶ 21).

On October 11, 2008, Defendants DeRo-sa, Horan, and Jolly placed Plaintiff in SHU. (Id. at ¶ 22). Plaintiff alleges that Defendant DeRosa placed him in SHU in retaliation for the burglary of a family member that may have been committed by Plaintiff. (Id. at ¶ 76). Plaintiff further alleges that his placement in SHU violated his rights to due process. (Id. at ¶ 77). On October 16, 2008, Defendant Krenzer sent Plaintiff a memo indicating: “The circumstances of your arrest and institutional history justify actions taken and measures to isolate you.” (Id. at ¶ 62). On October 20, 2008, Plaintiff sent “an appeal” to Defendant O’Flynn, complaining that Defendants DeRosa and Krenzer were discriminating against him and denying him due process. (Id. at ¶ 63). Plaintiff alleges that he sent a copy of his complaint to Defendant Brooks on March 17, 2009. (Id. at ¶ 25). Plaintiff further claims that he submitted a notice of temporary restraining order and preliminary injunction to Defendant Brooks on April 20, 2009, concerning Plaintiffs allegations of discrimination and denial of due process. According to Plaintiff, he effectuated service of a notice of claim on Defendant County of Monroe on June 29, 2009, (Id. at ¶ 27), and an Article 78 petition on' August 5, 2009 (id. at ¶ 28).

Plaintiff claims that housing sections 2, 2M, 3, and 3M in MCJ were areas known to have “gang activity,” and that Defendants Thomas, Jolly, Dimartino, Horan, Kaiser, Hayes, Mooney, DeRosa, McGowan, Kimball, Knapp, Cardella, Kenelly, Tripoli, S. Peck, and Carlo discriminated against Plaintiff by placing him in this housing “where gang activity is prevalent and rampant or hostile situations are most likely to oecurrjsic] with the Black or Hispanic ethnicity inmates of particular profile and character they deliberately and indifferently assemble in small area with same or similar tendencies and propensities for transgressions or violence.... ” (Id. at ¶ 61). Plaintiff claims that Defendants do not place Caucasian inmates in this housing. (Id. at ¶ 71). Plaintiff contends that Defendants O’Flynn, Brooks, and Harling have “acquiesced” in Monroe County’s alleged discriminatory “policy, practice, or custom” of housing minorities together in MCJ. (Id. at ¶¶ 25-26, 48, 57, 61, 72-73, 94-96).

On November 7, 2008, Defendant Kren-zer placed Plaintiff in second floor housing. (Id. at ¶ 0). On November 18, 2008, Plaintiff was beaten by “two (2) younger minorities,” Acvin King and M. Jones. (Id. at ¶ 41). On November 19, 2008, Defendant DeRosa placed Plaintiff in SHU and allegedly stated: “They should have jumped you, you stabbed that kid in the face with a pencil the whole pitt[sic] should have kicked your ass.” (Id. at ¶ 64). Plaintiff claims that Defendants DeRosa, Horan, Kaiser, Jolly, Amatore, Krenzer, Caceci, and Harling discriminated against Plaintiff by putting him in SHU because there is videotape evidence of King “mercifullessly[sie] repeatedly kicking the plaintiff in his face as he lie on the floor.” (Id. at ¶¶ 65, 77). Plaintiff claims that he was supposed to be released from SHU on December 17, 2008, but was kept in SHU until December 23, 2008, “without adequacy of any due process of law.” (Id. at ¶ 77). Plaintiff contends that he notified Defendants O’Flynn, Harling, and Krenzer that he was improperly placed in SHU, but that these individuals “failed to remedy the wrong.” (Id. at ¶ 78).

After his release from SHU on December 23, 2008, Plaintiff claims that he was placed in a cell that was “atrociously unsanitary disgustingly filthy with excrement, urine, feces and spew all over walls, ceiling, floor and bars for (3) three more consecutive days where ventilation, system were non-existent and cell smell toxicly[sic] aweful[sie] ...” by Defendants Jolly, Horan, Kaiser, DeRosa, McGowan, Knapp, Kennedy, Cardella, S. Peck, and Tripoli. (Id. at ¶ 60).

On December 26, 2008, Plaintiff informed Defendant Tripoli that he did not want to return to the mainframe housing area, and according to Plaintiff, Tripoli responded: “I don’t give a fuck how many times you got your ass kicked on mainframe we have decide[d] that you will only be placed in a cell on the main-frame and no place else, either you go to 3M or I will put you back in SHU.” (Id. at ¶ 66). On January 19, 2009, Plaintiff was attacked by three other inmates. (Id. at ¶ 43). Plaintiff claims that Defendants Waud and Willis “bragged” about Plaintiff getting beaten up on this occasion. (Id. at ¶ 44).

On February 26, 2009, Plaintiff claims that he asked Defendant Waud to lock him in his cell with a large bag of commissary items at approximately 8:30 p.m. (Id.). Plaintiff then alleges that at approximately 9:00 p.m., Defendant Waud opened all of the cells, and Plaintiff left for a short time to brush his hair. (Id. at ¶ 45). When Plaintiff returned, his belongings were in disarray, and a “large amount” of commissary was taken from his cell. (Id.). Plaintiff claims that inmates Frye, Spivey, Ali, and Houston stole his property, and that this theft would appear on videotape. (Id. at ¶¶ 45, 47).

Plaintiff alleges that Defendant Waud permitted the theft of commissary to occur in retaliation for Plaintiffs filing of grievances, as evidenced by Defendant Waud’s statement that he hated Plaintiff because “he is a piece of shit that likes to file grievances on staff.” (Id. at ¶ 46). Plaintiff alleges that Defendants Waud, T. Peck, Mooney, Dimartino, Robertson, and Fitz-simmons “collaborated reports” to delete any references to the theft of Plaintiffs commissary. (Id. at ¶ 47). Plaintiff contends that Defendants Krenzer, Harling, Jolly, Dimartino, Mooney, T. Peck, Waud, Fitzsimmons, and Robinson altered the videotape evidence by deleting from the tape the time period from 8:55 p.m. through 9:30 p.m. (Id. at ¶ 101). Plaintiff further claims that Defendants Harling, Krenzer, Thomas, and Jolly encouraged the falsification of records relating to the incident. (Id. at ¶ 48). According to Plaintiff, Defendant Monroe County continues to withhold the videotape evidence, which Plaintiff claims is in the possession of Defendants Amico, Danehy, Meister, Domalski, Miller, Rizzo, Fitzsimmons, and Robinson. (Id. at f¶ 100,102).

Although Plaintiff does not explain what happened after the alleged theft of his commissary was discovered, Plaintiff alleges that he was taken out of the booking area on a stretcher following the incident. (Id. at ¶ 49). As Plaintiff was carried out on a stretcher, Plaintiff claims Defendant DeRosa called out: “Hey Jessie I see you got your ass kicked that is good for you they did a pretty good job this time.” (Id.). When Defendant Raby asked Plaintiff how many inmates jumped him, Defendant Holman allegedly stated: “Oh Jessie Barnes always gets his ass kicked.” (Id. at ¶ 53).

Plaintiff alleges that Nurse Muller deliberately omitted from her February 26, 2008 medical notes the fact that Plaintiff was vomiting blood, with the intention of downplaying his injuries. (Id. at ¶ 103). Plaintiff voluntarily dismissed Ms. Muller as a defendant to this action with prejudice, and Ms. Muller was dismissed from this matter by Court order dated July 12, 2013. (Dkt. 135).

Between February 27, 2009 and March 2, 2009, Plaintiff was housed in a booking cell, and was allegedly kept on a shower and exercise deprivation order by Defendants T. Peck, Mooney, Waud, Dimartino, and Jolly. (Dkt. 95 at ¶ 79).

On an unspecified date, Plaintiff alleges that Defendant Kluth “humiliated and degraded” Plaintiff for “5 or 6 consecutive hours” after Defendant DeRosa pointed at Plaintiff, and subsequently issued two false misbehavior reports against Plaintiff. (Id. at ¶ 67).

On March 2, 2009, before being placed in SHU, Plaintiff was subjected to a “degrading and humiliating strip-search” by Defendant Scally. (Id. at ¶ 69). Plaintiff claims that he filed a grievance against Defendant Scally on March 3, 2009, and later that day, Defendant Scally approached Plaintiffs cell and “blew-up his cheeks making jestures[sic] and stated: ‘Oh Jessie suck my dick.’ ” (Id. at ¶ 92). Plaintiff claims that Defendants Atkins, Scally, Guest, Amatore, and McGowan then filed a false misbehavior report against Plaintiff in retaliation for Plaintiffs grievance against Defendant Scally. (Id. at ¶ 93). As a result of this misbehavior report, Defendants Hayes, Horan, Jolly, McGowan, Guest, Scally, Atkins, and Krenzer placed Plaintiff in SHU on a shower and exercise deprivation order for over 30 consecutive days, causing Plaintiff “extreme outrageous emotional distress, physical suffering and mental anguish.” (Id. at ¶ 80). Plaintiff claims to have contested this determination but his grievance and subsequent appeal were denied. (Id. at ¶ 81).

According to Plaintiff, Defendants Kren-zer and Thomas told Plaintiff that the 30-day order “may have been a bit much,” and that he would be taken out of SHU on April 13, 2009, if he did not have .“any write ups or bad reports.” (Id. at ¶ 82). Plaintiff claims that Defendant Atkins intentionally “documented degenerate as-nine[sic] notes, log entries, segregation reports and e-mails” between April 9, 2009, and April 12, 2009, to prevent Plaintiffs early removal from SHU. (Id. at ¶ 83).

Plaintiff alleges that his original petition to state court was notarized on April 15, 2009, by the law librarian, and that when copies of the petition were delivered to Plaintiffs cell on April 16, 2009, Defendant Atkins saw the petition. (Id. at ¶ 85). Plaintiff alleges that another false misbehavior report was issued against Plaintiff on April 16, 2009, in retaliation for Plaintiffs state court petition. (Id. at ¶ 86). As a result of this misbehavior report, Defendants Newton, Horan, Jolly, and Krenzer placed Plaintiff on a shower and exercise deprivation order. (Id.). Plaintiff claims to have filed an administrative appeal with Defendant Harling on April 17, 2009, with respect to the new deprivation order and his concerns about the false misbehavior report. (Id. at ¶ 87). Defendant Harling responded on April 21, 2009. (Id.).

Plaintiff claims that he was required to remain in full mechanical restraints during his isolated morning exercise period from March 2009 until August 31, 2009, and that this requirement constituted cruel and unusual punishment and violated his rights under the due process and equal protection clauses of the New York State and United States Constitutions. (Id. at ¶ 88).

On May 2, 2009, Plaintiff claims that Defendant Willis let inmate Clark out of his cell and instructed the inmate to throw “urine, feces, and dirty mop water in the plaintiffs cell,” endangering Plaintiffs life, health, and safety. (Id. at ¶ 54). Plaintiff further claims that Defendant Willis took Plaintiffs personal towel that held sentimental value and threw the towel into the urine and feces. (Id. at ¶ 55). Plaintiff alleges that later that day Defendant Willis stood in front of Plaintiffs cell with inmate Clark and Defendant Gatti when Defendant Gatti, whom Plaintiff had never seen before, called Plaintiff a “nigger” and said that he would kill Plaintiff. (Id. at ¶ 56).

On May 4, 2009, Defendants Scally, Amatore, and Atkins allegedly filed a false misbehavior report against Plaintiff, which caused Plaintiff to be placed on a 23-day consecutive “styro-foam tray order,” in retaliation for Plaintiff “seeking redress of grievances in judicial and administrative forums.” (Id. at ¶¶ 58, 90).

On August 12, 2009, Plaintiff alleges that he was participating in his one hour of exercise when Defendant Daly harassed Plaintiff about Plaintiffs upcoming parole hearing. (Id. at ¶ 33). Following this encounter, Plaintiff requested to speak with a supervisor, and was placed in a no-contact visitation cell for 45 minutes. (Id. at ¶ 34).

Later that day, Defendant Daly entered the visitation room at the end of Plaintiffs 50(h) deposition with the Ontario County Attorney. (Id. at ¶ 35). According to Plaintiff, Defendant Shellard also entered the room, and when Plaintiff reached for his legal documents, Defendant Shellard pushed Plaintiff face-first into the glass window. (Id.). Defendants Shellard, Daly, and Alberti then allegedly pushed Plaintiff to the floor, kicked, stomped on, and punched Plaintiff, although he was in full restraints. (Id. at ¶ 36). Plaintiff claims that Defendants Alberti and Daly used the handcuffs to “inflict pain and suffering on [Plaintiff] causing him to lose the feeling in his hands.” (Id. at ¶ 37).

Plaintiff alleges he was then taken to the elevator, where Defendant Lipari was standing shaking a canister of mace and watching Plaintiff. (Id.). After the elevator arrived at the second floor, Plaintiff claims he was pushed into the hallway. (Id. at ¶ 38). Plaintiff claims that he tried to steady himself by grabbing the gate and that Defendant Galen told him not to touch the gate, and that Defendants Alberti and Daly then grabbed Plaintiff and slammed his head. „ (Id. at ¶¶ 38-39). Plaintiff claims that he urinated and defecated on himself, and experienced dizziness and a concussion. (Id. at ¶ 39). Plaintiff was then allegedly dragged back to his cell by Defendants Galen, Daly, and Alberti. (Id.).

Plaintiff also complains about conditions of confinement at MCJ. Plaintiff claims that Monroe County failed to properly train or supervise Defendants Brooks and O’Flynn, resulting in the “gross negligent management” of various officers, and ultimately violations of Plaintiffs constitutional rights. (Id. at ¶¶48, 57, 61, 89, 97). For example, Plaintiff alleges that the County’s failure to properly train or supervise Defendants Brooks and O’Flynn led to their negligent management of Defendants Harling and Krenzer, who permitted Plaintiff to be housed in the mainframe section of housing at MCJ. (Id. at ¶ 61).

In that same vein, Plaintiff generally, claims that Defendant County of Monroe has maintained a discriminatory classification policy for over fifteen years at MCJ. (Id. at ¶ 71). Specifically, Plaintiff alleges that this policy involves placing all minorities in SHU for “minor or miscellaneous rule violations” resulting in the minorities’ denial of access to public information. (Id. at ¶ 72). Further, Plaintiff claims that the conditions in SHU are extreme, insofar as the “5 ft. long lights just 3 ft. above bed remain on 24 hrs. a day no matter how hot temperature is outside and these bright lights causes [sic] sleeplessness excruciating head-aches, eye pains, anxiety, mental anguish and endless pain and suffering.” (Id. at ¶ 73). Plaintiff claims that minorities are disproportionately exposed to these extreme conditions. (Id.).

In addition, Plaintiff claims that the County of Monroe maintains a defective grievance program at MCJ, insofar as there is bias in the program that denied Plaintiff his right to “petition government for redress of grievances under administrative forum.” (Id. at ¶¶ 91, 95-97).

Plaintiff claims that he has filed numerous grievances, complaints, and appeals with Defendants Harling and Krenzer in relation to the alleged mistreatment by Defendants Atkins, Scally, Newton, Willis, Guest, Amatore, and DeRosa, but states that Defendants Harling and Krenzer have continued to show “deliberate indifference” to Plaintiffs concerns. (Id. at ¶ 59).

Plaintiff claims that Defendants Lipari and Harling provided fraudulent responses to Plaintiffs grievance 09-33, and excluded four witness statements in connection with Plaintiffs grievance 09-49, contributing to Defendant County of Monroe’s “faulty” grievance program. (Id. at ¶ 94).

Plaintiff alleges that Defendants Lipari, Guest, S. Peck, and Shellard did not appropriately conduct their investigations against supervisors in relation to Plaintiffs grievances 09-01, 09-32, 09-35, 09-46, 09-49, 09-81, 09-88, and 09-89, in violation of Plaintiffs rights under 7 NYCRR § 701.8(d)(1) and the First and Fourteenth Amendments to the U.S. Constitution. (Id. at ¶ 95).

Plaintiff generally claims that the investigation into his grievance 09-01 was biased and prejudiced, in violation of his right to seek redress of grievances. (Id. at ¶ 96).

Plaintiff alleges that he was denied due process of law at nine disciplinary hearings. (Id. at ¶ 97). Plaintiff claims that eight separate provisions of the NYCRR were violated by Defendants Messura, Preston, and Pratt at these hearings. (Id.). Plaintiff further claims that Defendants Krenzer and Harling were notified of these violations through Plaintiffs appeals, but that Defendants were deliberately indifferent to Plaintiffs complaints and failed to remedy the wrong. (Id. at ¶ 98).

DISCUSSION

Rule 12(c) motions for judgment on the pleadings are evaluated by the same standard applicable to motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.2010). These motions must be made after the close of the pleadings, “but early-enough not to delay trial....” Id.

“ ‘In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.’ ” Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir.1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991)). A court should consider the motion “accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiffs favor.” Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) (internal quotations and citation omitted). To withstand dismissal, a plaintiff must set forth “enough facts to state a claim to relief that is plausible on its face.” Bell-Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “ ‘A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ ” Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir.2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

“[A] plaintiffs obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S,Ct. 1955 (alteration in original) (internal quotations and citations omitted). Thus, “at a bare minimum, the operative standard requires the plaintiff [to] provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.” Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir.2008) (alteration in original) (internal quotations and citations omitted).

“A complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) (citations omitted).

In addition, “[i]t is well-settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to raiseThe strongest arguments that they suggest.” Green v. United States, 260 F.3d 78, 83 (2d Cir.2001) (internal quotations and citation omitted); see also Hemphill v. New York, 380 F.3d 680, 687 (2d Cir.2004) (alteration in original) (internal citation omitted) (“It is well-established that “when [a] plaintiff proceeds pro se ... a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations.’ ”). Moreover, “a pro se litigant should be afforded every reasonable opportunity to demonstrate that he has a valid claim.” Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir.1984). “Even in a pro se case, however, ‘although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.’ ” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.2010) (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009)). A court may not “invent factual allegations [plaintiff] has not pled.” Id.

I. Plaintiffs Motion for Recusal

In a letter dated January 1, 2015, and filed January 13, 2015, Plaintiff asks that the undersigned recuse herself from this matter pursuant to 28 U.S.C. § 455(a). (Dkt. 142). Plaintiff alleges in a concluso-ry fashion that the undersigned has racial and prejudicial biases due to her recent unfavorable decision following a bench trial in a separate matter, designated by case number 01-CV-6559, and that therefore recusal is appropriate. (IcL). Defendants have filed papers in response to the motion (Dkt. 144 at 2; Dkt. 145), and Plaintiff has filed reply papers (Dkt. 147). The recusal issue is a threshold issue that must be resolved before the Court may consider any substantive motion.

“Title 28 U.S.C. § 455(a) requires a judge to recuse [herjself ‘in any proceeding in which [her] impartiality might reasonably be questioned.’ ” Cox v. Onondaga Cnty. Sheriffs Dep’t, 760 F.3d 139, 150 (2d Cir.2014) (quoting 28 U.S.C. § 455(a)). “Recusal motions ‘are committed to the sound discretion of the district court....’” Abidekun v. N.Y.C. Transit Auth., No. 93-CV-5600 (FB), 1998 WL 296372, at *1 (E.D.N.Y. June 4, 1998) (quoting United States v. Conte, 99 F.3d 60, 65 (2d Cir.1996)). “In cases where a judge’s impartiality might reasonably be questioned, the issue for consideration is not whether the judge is in fact subjectively impartial, but whether the objective facts suggest impartiality.” Williams v. LaClair, No. 9:10-CV-635(GLS/RFT), 2013 WL 1193766, at *3 (N.D.N.Y. Jan. 29, 2013) (citing Liteky v. United States, 510 U.S. 540, 548, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)).

Here, the fact that the Court reached an unfavorable decision in another, unrelated matter provides no basis for recusal. Mills v. Poole, Nos. 1:06-cv-00842-MAT-VEB, 1:11-cv-00440-MAT, 2014 WL 4829437, at *6 (W.D.N.Y. Sept. 29, 2014) (“[Plaintiffs] claims of bias and impartiality on the part of the undersigned ... are both conclusory and based entirely on his disagreement with the Court’s decisions. This is an insufficient basis for recusal.”). Put simply, there is no evidence justifying recusal nor is there any basis for recusal. Accordingly Plaintiffs motion for recusal is denied.

II. County Defendants’ Motion for Judgment on the Pleadings

A. Municipal Liability

Plaintiff sues the County of Monroe in its “official capacity as a municipal entity” (Dkt. 95 at ¶ 5), alleging that the County: (1) failed to “properly train or supervise Defendants Brooks and O’Flynn” (id. at ¶¶ 48, 57, 61, 89, 97); (2) maintained a discriminatory custom, policy, or practice of classifying inmates by race and placing those racial minorities in unsafe or unsanitary conditions (id. at ¶¶48, 60, 71, 73); and (3) maintained an unconstitutional grievance program (id. at ¶¶ 91, 95-97).

Defendants argue that Monroe County has not assumed liability for the acts of the County Sheriff or his deputies by local law, and therefore Monroe County cannot be liable to the extent Plaintiff alleges claims under New York State law. (Dkt. 119-2 at 4-5). Defendants also argue that Monroe County and Defendant Brooks cannot be held liable for Plaintiffs § 1983 claims because he has failed to plausibly allege that the County is responsible for developing or implementing the policies, procedures, and regulations related to the conduct of the Sheriff deputies named as Defendants. (Dkt. 119-2 at 5).

1. State Law Causes of Action

Plaintiff claims on numerous occasions that Monroe County “failed to properly train or supervise” Defendants Brooks and/or O’Flynn. (See e.g. Dkt. 95 at ¶¶ 48, 57, 61, 89). To the extent Plaintiff is attempting to assert claims under New York State law, his claims fail. Monroe County has not assumed liability for the acts of the Sheriff or his deputies by local law, and therefore the County cannot be held liable to the extent Plaintiff is alleging a state law claim based upon a respondeat superior theory. See D’Amico v. Corr. Med. Care, Inc., 120 A.D.3d 956, 959, 991 N.Y.S.2d 687 (4th Dep’t 2014); Smelts v. Meloni 306 A.D.2d 872, 873, 762 N.Y.S.2d 467 (4th Dep’t 2003), lv. denied 100 N.Y.2d 516, 769 N.Y.S.2d 203, 801 N.E.2d 424 (2003). Furthermore, as discussed further below, Plaintiff fails to state any plausible claim as to Defendant Brooks’ or O’Flynn’s personal involvement and liability, thus negating any corresponding responsibility on the part of the County for their conduct.

2. Section 1983 Claims

“[A] municipality can be held liable under Section 1983 if the deprivation of the plaintiffs rights under federal law is caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir.2012), cert. denied, — U.S.-, 134 S.Ct. 125, 187 L.Ed.2d 255 (2013). That is, “to assert a claim of municipal liability under § 1983, a plaintiff must allege the existence of a policy or custom that caused injury, and a direct causal connection between that policy or custom and the deprivation of a constitutional right.” Blyden v. N.Y.P.D., No. 05 CV 4740 SJF LB, 2005 WL 3388609, at *2 (E.D.N.Y. Dec. 12, 2005). “Absent such a custom, policy, or usage, a municipality cannot be held liable on a respondeat superior basis for the tort of its employee.” Jones, 691 F.3d at 80.

“To prevail on a Section 1983 claim against a municipal entity, a plaintiff must show: ‘(1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.’ ” Reid v. Nassau Cnty. Sheriff’s Dep’t, No. 13-CV-1192 (SJF)(SIL), 2014 WL 4185195, at *10 (E.D.N.Y. Aug. 20, 2014) (quoting Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir.2008)). “A municipal policy may be pronounced or tacit and reflected in either action or inaction.” Cash v. Cnty. of Erie, 654 F.3d 324, 333 (2d Cir.2011). “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.” Connick v. Thompson, 563 U.S. 51, 131 S.Ct. 1350, 1359, 179 L.Ed.2d 417 (2011).

Plaintiff has, in a conclusory fashion, alleged that Monroe County has a discriminatory policy of housing minorities together at MCJ, which leads to • “rampant” gang activity. (Dkt. 95 at ¶¶ 25-26, 48, 57, 61, 72-73, 94-96). However, Plaintiff fails to allege with any factual specifics the existence of a sanctioned County policy that states that minority inmates should be placed in certain housing. Plaintiff would be required to allege that the practices were “so persistent and widespread as to practically have the force of law.” Con-nick, 131 S.Ct. at 1359. This Plaintiff has failed to do.

“The mere assertion ... that a municipality has such a custom or policy is insufficient in the absence of allegations of fact tending to support, at least circumstantially, such an inference.” Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993), overruled on other grounds, Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Here, Plaintiff offers no allegations of fact tending to support even an inference of an official policy. “Where a plaintiff can show only misbehaving officers, but has not [alleged] an official policy that led to the constitutional or statutory violation, his claim must fail.” Adilovic v. Cnty. of Westchester, No. 08 Civ. 1097KPGG), 2011 WL 2893101, at *8 (S.D.N.Y. July 14, 2011) (quotations omitted).

Plaintiff also includes numerous general allegations in his complaint that the MCJ maintains an unconstitutional grievance program. (Dkt. 95 at ¶¶ 91, 94-98).

“[T]he law is clear that plaintiff has no constitutional right to have his grievances processed at all, or if processed, to have the procedure done properly.” Hill v. Napoli No. 6:09-CV-6546-MAT, 2014 WL 1322476, at *14 (W.D.N.Y. Mar. 31, 2014) (internal quotation and cita-tiorf omitted); see also Green v. Herbert, 677 F.Supp.2d 633, 639 (W.D.N.Y.2010) (inmate’s claims that officer assigned to investigate his grievance conducted a biased, unfair investigation “fails because an inmate has no constitutional right to have his grievances processed or investigated in any particular manner.”) (internal quotations and citation omitted).

Plaintiff contends that Monroe County maintains a grievance program that is biased and prejudicial. (Dkt. 95 at ¶¶ 91, 95-97). “Claims of hearing officer bias are common in § 1983 cases by inmate plaintiffs, and where they are based on purely conclusory allegations, they are routinely dismissed.” Washington v. Afify, 968 F.Supp.2d 532, 541-42 (W.D.N.Y.2013). “An inmate’s own subjective belief that the hearing officer was biased is insufficient to create a genuine issue of material fact.” Booker v. Maly, No. 9:12-CV-246 NAM/ATB, 2014 WL 1289579, at *11 (N.D.N.Y. Mar. 31, 2014). Plaintiff has failed to articulate any facts to support his otherwise conclusory statements that Defendant hearing officers showed any bias or prejudice toward Plaintiff or any other minority inmate. Plaintiff has also failed to plead that there is any official policy or custom supporting a biased or prejudicial grievance program.

In sum, Plaintiffs allegations against the County under § 1983 must be dismissed because he has failed to allege a plausible claim that the County had a custom, policy, or usage that led to the deprivation of Plaintiffs constitutional rights. Plaintiffs claims are conclusory in nature, and are therefore insufficient to withstand scrutiny under Fed.R.Civ.P. 12(c).

B. Sheriff O’Flynn Liability

Plaintiff sues Monroe County Sheriff Patrick O’Flynn in his individual capacity, alleging that Defendant O’Flynn engaged in “gross negligent management” of various officers at MCJ and supported the “unconscionable tyranny” of placing all minorities in SHU. (Dkt. 1 at ¶¶ 7, 48, 57, 61, 63, 72-73, 78, 94-96). Further, Plaintiff claims that Defendant O’Flynn received numerous complaints and appeals from Plaintiff concerning the alleged racial discrimination and unlawful conduct, and that Defendant O’Flynn “acquiesced in the application of this discrimination against the Plaintiff.” (Dkt. 1 at ¶¶24, 63, 78). Defendants argue that Plaintiffs claims against Defendant O’Flynn fail because Plaintiff has not established personal involvement on behalf of the Sheriff. (Dkt. 119-2 at 6-7). The Court agrees.

1. New York State Claims

It is well settled that “the Sheriff cannot be held personally liable on the basis of respondeat superior for the alleged negligent acts of his deputies.” Schulik v. Cnty. of Monroe, 202 A.D.2d 960, 961, 609 N.Y.S.2d 502 (4th Dep’t 1994). As a result, Defendant O’Flynn may not be found liable under a responde-at superior theory for any alleged negligent acts performed by the County Defendants.

To the extent that Plaintiff alleges that Defendant O’Flynn is responsible for the actions of his deputies under New York law, these claims are dismissed.

2. Section 1983 Claims

“[PJersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (citations omitted). As explained by the Second Circuit Court of Appeals:

[wjithin the Second Circuit, it is generally accepted that a supervisory defendant may have been personally involved in a constitutional deprivation within the meaning of § 1983 if he: (1) directly participated in the alleged infraction; (2) after learning of the violation, failed to remedy the wrong; (3) created a policy or custom under which unconstitutional practices occurred or allowed such policy or custom to continue; (4) was grossly negligent in managing subordinates who caused the unlawful condition or event; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995). “Mere linkage in the prison chain of command is insufficient to implicate a state commissioner of corrections or a prison superintendent in a § 1983 claim.” Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003) (quotation omitted).

Here, Plaintiff argues that Defendant O’Flynn was personally involved in the alleged constitutional deprivations because he “is the chief policy maker for MCJ which created conditions which unconstitutional ratifications' occurred.” (Dkt. 133-3 at 16). However, Plaintiff has failed to allege, beyond conclusory allegations, that there was a policy that created unconstitutional conditions at MCJ.

Further, although Plaintiff alleges that he sent Defendant O’Flynn numerous notices of his concerns about alleged constitutional deprivations, “the receipt of letters or grievances, by itself, does not amount to personal involvement.” Mateo v. Fischer, 682 F.Supp.2d 423, 430 (S.D.N.Y.2010) (citing Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997)). See also Ramsey v. Goord, No. 05-CV-47A, 2005 WL 2000144, at *8, 2005 U.S. Dist. LEXIS 42953, at *8 (W.D.N.Y.2005) (“the fact that a prisqn official in the prison ‘chain of command’ affirms the denial of an inmate’s grievance is not enough to establish the requisite personal involvement of that official”). Plaintiff has not alleged that Defendant O’Flynn responded to any oí his grievances or appeals, and his conclusory allegations that Defendant O’Flynn “acquiesced” in his poor treatment on the basis of this failure to respond does not state a claim against a supervisory defendant.

In addition, Plaintiff claims that Defendant O’Flynn engaged in “gross negligent management” of various officers. (Dkt. 95 at ¶¶ 48, 57, 61, 94-96). For example, Plaintiff alleges that Defendant O’Flynn negligently managed Defendants Lipari and Harling, who allegedly filed a “fraudulent response” to Plaintiffs grievances. (Id. at ¶ 94). These allegations of negligent management on the part of Defendant O’Flynn lack any factual support. Moreover, as discussed in further detail later in this discussion, Plaintiff has failed to sufficiently allege that his rights were violated by the filing of a fraudulent response. Indeed, each of Plaintiffs allegations of negligent management is attached to an alleged violation that he has failed to sufficiently allege. Absent an underlying constitutional violation, there can be no supervisory liability, or negligent management. See Murray v. Pataki, No. 9:03-CV-1263 (LEK/RFT), 2007 WL 956941, at *7 (N.D.N.Y. Mar. 29, 2007) (“Plaintiff has failed to establish that Goord was grossly negligent in his supervision of unknown subordinates, especially since no constitutional violation arose from this incident. ...”).

As a result, Plaintiffs claims against Defendant O’Flynn are dismissed.

C. Defendant Brooks

Plaintiff sues Monroe County Executive. Maggie Brooks in her individual capacity, alleging that Defendant Brooks engaged in “gross negligent management” of various officers at MCJ and supported the “unconscionable tyranny” of placing all minorities in SHU. (Dkt. 1 at ¶¶ 6, 25-26, 48, 57, 61, 72-73, 94-96). For the same reasons that Plaintiff has failed to state a claim against Defendant O’Flynn, he has failed to state a claim against Defendant Brooks. Defendant Brooks’ position as chief executive of Monroe County does not suffice to state a claim against her. Plaintiff fails to offer any factual support for his conclusory allegations against Defendant Brooks, and he has not sufficiently alleged that constitutional violations occurred for any of the underlying events that he alleges Defendant Brooks negligently managed. Accordingly, Plaintiffs claims against Defendant Brooks are dismissed.

D. Jail Supervisors and Administrators

Defendants argue that the claims against the MCJ supervisors and administrators must be dismissed because § 1983 liability may not be imposed merely because an individual holds a supervisory position of authority. (Dkt. 119-2 at 7-8 (citing Colon, 58 F.3d at 873)). Although this is an accurate statement of the law, Defendants fail to demonstrate which claims against which Defendants fail to demonstrate personal involvement. Rather, Defendants generally argue that “the actions against all Jail Supervisors and Administrators should be dismissed for lack of personal involvement.” (Dkt. 119— 2 at 8). To the extent that any supervisory Defendants are dismissed from this action based on lack of personal involvement, these Defendants are dismissed in the more detailed discussion below. However, the Court disagrees with Defendants that, as a matter of law, all “jail supervisors and administrators” must be dismissed. Rather, as discussed further below, Plaintiff has sufficiently alleged personal involvement by some of these Defendants.

E.Prisoner Litigation Reform Act (“PLRA”)

Defendants contend that Plaintiffs claims are barred by the Prisoner Litigation Reform Act (“PLRA”). (Dkt. 119-2 at 12-13). Specifically, Defendants argue that Plaintiff has failed to exhaust his administrative remedies or show that he was injured with respect to the matters at issue in this litigation. (Id. at 12). Plaintiff argues that the PLRA does not apply to him as he was a pretrial detainee at the time of the alleged violations. (Dkt. 133-3 at 24). Plaintiffs argument is without merit, because “the PLRA’s strict exhaustion requirement does indeed apply in actions brought by pretrial detainees.” Baez v. Parks, No. 02 CIV.5821 PKC DF, 2004 WL 1052779, at *5 (S.D.N.Y. May 11, 2004) (collecting cases); see also Little v. Mun. Corp., 51 F.Supp.3d 473, 502-03, No. 12-CV-5851 (KMK), 2014 WL 5011091, at *19 (S.D.N.Y. Sept. 30, 2014) (applying PLRA exhaustion requirements to pretrial detainees); Franklin v. Canty, No. 13 CV 3873(VB), 2014 WL 2217003, at *2 (S.D.N.Y. May 27, 2014) (same).

The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). “This administrative exhaustion provision requirement ‘applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.’ ” Torres v. Carry, 672 F.Supp.2d 338, 342-43 (S.D.N.Y.2009) (quoting Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)). “This provision affords ‘prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being ha[u]led into court[,]’ and also creates an administrative record that facilitates judicial review.”- Torres v. Anderson, 674 F.Supp.2d 394, 397 (E.D.N.Y.2009) (quoting Jones v. Bock, 549 U.S. 199, 204, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007)).

However, “[t]he only circumstance in which it is appropriate to dismiss a complaint on nonexhaustion grounds is when it is apparent from the face of the complaint that the plaintiff failed to exhaust his administrative remedies.” Randle v. Alexander, 960 F.Supp.2d 457, 483 (S.D.N.Y.2013); see also Parris v. N.Y.S. Dep’t Corr. Servs., 947 F.Supp.2d 354, 361 (S.D.N.Y.2013) (denying motion to dismiss on grounds of exhaustion where it was not evident from the face of the complaint that plaintiff had or had not complied with the inmate grievance program); Johnson v. Westchester Cnty. Dep’t of Corr. Med. Dep’t, No. 10 Civ. 6309, 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011) (denying a motion to dismiss when the complaint was ambiguous about exhaustion). “Most circuits that have considered the issue, ... including this circuit, have held that nonexhaustion is an affirmative defense, and that therefore defendants bear the burden of proof and prisoner plaintiffs need not plead exhaustion with particularity.” McCoy v. Goord, 255 F.Supp.2d 233, 248 (S.D.N.Y.2003).

Defendants have not met their burden to demonstrate that Plaintiff failed to exhaust his administrative remedies. Defendants argue that the documents attached to Plaintiffs complaint do not show that a final determination was made by the Citizen Policy and Complaint Review Council, and therefore Plaintiff has not exhausted his administrative remedies. (Dkt. 119-2 at 12). However, it is Defendants’ burden to demonstrate nonexhaustion, not Plaintiffs burden to plead exhaustion with particularity. It is not apparent from the face of Plaintiffs complaint that he has failed to exhaust his administrative remedies. Although Plaintiff makes some allegations that he filed grievances and appeals as to his underlying concerns, he does not discuss his pursuit of administrative remedies as to each and every claim. As a result, it would be inappropriate at this stage in the litigation to dismiss Plaintiffs claims for failure to exhaust his administrative remedies under the PLRA.

F. Res Judicata /Collateral Estoppel

Plaintiff has brought previous litigation concerning issues that overlap with the allegations he makes in his current complaint. In Barnes v. Monroe County Sheriff, 89 A.D.3d 1471, 933 N.Y.S.2d 630 (4th Dep’t 2011), the court reviewed Plaintiffs Article 78 proceeding seeking review of the administrative hearings on November 27, 2009, and March 9, 2009, which resulted in Plaintiffs placement in SHU. The Fourth Department dismissed Plaintiffs petition. Id. In Barnes v. Harling, 96 A.D.3d 1415, 945 N.Y.S.2d 901 (4th Dep’t 2012), lv. denied, 19 N.Y.3d 1011, 951 N.Y.S.2d 706, 976 N.E.2d 233 (2012), Plaintiff brought an Article 78 proceeding seeking review of his placement in SHU as a result of his hearings on March 11, 2009, March 25, 2009, April 16, 2009, and disciplinary orders from March 28, 2009, April 3, 2009, April 27, 2009, and May 21, 2009. The Fourth Department found that Plaintiff was “not entitled to any of the relief he seeks,” and the Court of Appeals denied Plaintiffs motion to appeal this determination. Id.

Defendants request that this Court take judicial notice of the determinations made in these state court matters and find that Plaintiff is precluded from relitigating those issues under the doctrines of res judicata and collateral estoppel. “ 'A court may take judicial notice of matters of public record,- including ... decisions in prior state court.’ ” Pacherille v. Burns, 30 F.Supp.3d 159, 161 (N.D.N.Y.2014) (quoting Johnson v. Pugh, No. 11-CV-385, 2013 WL 3013661, at *2 (E.D.N.Y. June 18, 2013)). The Court takes judicial notice of these decisions from the Fourth Department. See Stewart v. Transp. Workers Union of Greater N.Y., Local 100, 561 F.Supp.2d 429, 435-36 (S.D.N.Y.2008) (stating that a district court may take judicial notice of matters of public record in resolving a Rule 12(c) motion). “In the context of a Rule 12(c) motion, however, the Court should generally take judicial notice ‘to determine what statements [the documents] contain[ ] ... not for the truth of the matters asserted.’ ” Piazza v. Fla. Union Free Sch. Dist., 777 F.Supp.2d 669, 678 (S.D.N.Y.2011) (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir.1991)) (alterations in original).

Here, claim preclusion, or res judicata, does not bar Plaintiffs civil rights lawsuit based upon his prior Article 78 proceedings. “As the Second Circuit explained ... claim preclusion, known as res judicata, requires that a final judgment on the merits of an action be given preclusive effect, barring parties as well as those in privity with them from relitigating in a subsequent action a claim which was or could have been raised in the prior suit.” Johnson v. McClure, No. 9:06-CV-0431, 2009 WL 2356147, at *7 (N.D.N.Y. July 28, 2009) (citing Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286-87 (2d Cir. 2002)). In this case, Plaintiffs civil rights claims could not have been raised in the Article 78 proceedings. “[A] New York plaintiff is not barred from seeking damages, in federal court, on civil rights claims by reason of a prior judgment on the same underlying facts in an Article 78 proceeding and therefore that action cannot give the damages relief demanded in a civil rights suit such as this one.” Davis v. Halpern, 813 F.2d 37, 39 (2d Cir.1987); see also Leo v. N.Y.C. Dep’t of Educ., No. 13 CV 2271(RJD)(JMA), 2014 WL 6460704, at *4 (E.D.N.Y. Nov. 17, 2014) (res judicata doctrine did not apply to plaintiffs § 1983 claims because plaintiff could not have received damages for violations of his civil rights in his prior Article 78 proceeding).

However, a portion of Plaintiffs claims are barred under the doctrine of issue preclusion, also known as collateral estoppel. “[U]nder New York law, the doctrine of collateral estoppel ‘precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same.’ ” Shell v. Brun, 362 F.Supp.2d 398, 400 (W.D.N.Y.2005) (quoting Ryan v. N.Y. Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 (1984)). “It is well-settled that collateral estoppel may bar a plaintiff from bringing an action in federal court pursuant to 42 U.S.C. § 1983.” Id.; see also Vann v. Fischer, No. 11 Civ.1958(KPF), 2014 WL 4188077, at *25 (S.D.N.Y. Aug. 25, 2014) (plaintiff barred in § 1983 action from re-litigating issues concerning bias and due process violations during prison disciplinary proceeding that were previously raised during Article 78 proceeding).

There are two requirements for the application of collateral estoppel to an issue: “(1) the issue in question was actually and necessarily decided in a prior proceeding, and (2) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.” McKithen v. Brown, 481 F.3d 89, 105 (2d Cir.2007), cert. denied 552 U.S. 1179, 128 S.Ct. 1218, 170 L.Ed.2d 59 (2008) (quotation omitted).

“To determine whether the first action provided a full and fair opportunity to litigate requires consideration of: the nature of the forum and the importance of the claim in the prior litigation, the incentive and initiative to litigate and the actual extent of litigation, the competence and expertise of counsel, the availability of new evidence, the differences in the applicable law and the foreseeability of future litigation.” Shell v. Brun, 362 F.Supp.2d 398, 400 (W.D.N.Y.2005).

Here, the state court has already examined Plaintiffs challenges to his November 27, 2009, March 9, 2009, March 11, 2009, March 25, 2009, and April 16, 2009 hearings, and his disciplinary orders from March 28, 2009, April 3, 2009, April 27, 2009, and May 21, 2009, which resulted in Plaintiffs placement in SHU. It appears that Plaintiff was given a full opportunity to litigate these issues in his Article 78 proceedings. As a result, Plaintiffs claims related to these hearings and assignments to SHU must be dismissed as barred by the doctrine of collateral estoppel.

G. Excessive Use of Force

Plaintiff asserts § 1983 claims of excessive use of force based upon alleged incidents on August 7, 2008, and August 12, 2009. “To state a § 1983 claim, a plaintiff must allege that defendant, while acting ‘under color of state law,’ deprived Plaintiff of his constitutional or statutory rights.” Cunningham v. Rodriguez, No. 01 Civ. 1123(DC), 2002 WL 31654960, at *4 (S.D.N.Y. Nov. 22, 2002) (quoting 42 U.S.C. § 1983). “A pretrial detainee who is subjected to excessive force may bring a claim under § 1983.” Id.

“Because the Eighth Amendment’s protection from cruel and unusual punishment does not apply until after conviction and sentence, the right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment.” Adilovic, 2011 WL 2893101, at *4 (quotations omitted). “The Second Circuit applies the same standard to excessive force claims brought under the Fourteenth Amendment as under the Eighth Amendment.” Virella v. Pozzi, No. 05 Civ. 10460(RWS), 2006 WL 2707394, at *3 (S.D.N.Y. Sept. 20, 2006) (citing United States v. Walsh, 194 F.3d 37, 47 (2d Cir.1999)).

“[T]he analysis provided by the Supreme Court in Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), that requires a sentenced prisoner to satisfy both an objective and subjective prong to establish an Eighth Amendment violation also applies to excessive force claims brought by a pretrial detainee.” Perkins v. Brown, 285 F.Supp.2d 279, 283 (E.D.N.Y.2003).

“The objective component of a claim of cruel and unusual punishment focuses on the harm done, in light of ‘contemporary standards of decency.’ ” Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009) (quoting Hudson, 503 U.S. at 8, 112 S.Ct. 995). “Nonetheless, the Eighth Amendment’s prohibition against cruel and unusual punishment does not extend to ‘de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience' of mankind.’ ” Id. at 269 (quoting Hudson, 503 U.S. at 8, 112 S.Ct. 995). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.” Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.1973).

“The subjective requirement is satisfied if the defendant acted wantonly with a sufficiently culpable state of mind.” Perkins, 285 F.Supp.2d at 283. “Where a state official is accused of using excessive physical force against a pretrial detainee, the inquiry turns on ‘whether- force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’ ” Id. (quoting United States v. Walsh, 194 F.3d 37, 48-49 (2d Cir.1999)).

1. August 7, 2008

Plaintiff alleges that Defendant Newton used excessive force on Plaintiff on August 7, 2008, when he responded to the fight between Plaintiff ■ and inmates Eades and Members, and jumped on Plaintiffs back, striking Plaintiff in the face and knocking out a tooth. (Dkt. 95 at ¶ 20). Defendants argue that Plaintiff fails to sufficiently allege that Defendants had a culpable state of mind insofar as “any alleged force used by defendant was made in a good faith effort by defendants to maintain or restore discipline.” (Dkt. 119-2 at 15). Defendants claim that the force was used because Plaintiff was fighting with other inmates and resisted the placement of handcuffs. (Id.).

Objectively, Plaintiff has sufficiently alleged that Defendant Newton used force above a de minimis level. Plaintiff claims that Defendant Newton jumped on his back and knocked out a tooth. At this early, stage in the litigation, this force and subsequent injury satisfies the first prong of an excessive use of force claim. See Tafari v. McCarthy, 714 F.Supp.2d 317, 362 (N.D.N.Y.2010) (finding incident where officer pulled plaintiffs face into steel door, breaking his tooth, may support excessive use of force claim).

Subjectively, Plaintiff has sufficiently alleged that Defendant Newton was not merely using force to maintain or restore discipline. Taking Plaintiffs claims as true, Defendant Newton “premeditated” the whole incident and intended for Plaintiff to be attacked by two other inmates.

As a result, Plaintiffs claim of