Mitchell et al v. Cuomo et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DONTIE MITCHELL,
Plaintiff,
9:20-CV-1407
v. 	(ECC/DJS)
ANTHONY J. ANNUCCI, et al.,
Defendants.
APPEARANCES: 	OF COUNSEL:
DONTIE MITCHELL
Plaintiff, Pro Se
58894
Albany County Correctional Facility
840 Albany Shaker Road
Albany, New York 12211
HON. LETITIA JAMES 	ELIZABETH V. LOMBARDI, ESQ.
New York State Attorney General 	Assistant Attorney General
Counsel for Defendants
300 South State Street - Suite 300
Syracuse, New York 13202
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
Presently pending is Defendants’ Motion for Judgment on the Pleadings, pursuant
to F ED . R. CIV . P. 12(c). 	Dkt. No. 63. 	Plaintiff opposed the Motion, Dkt. No. 71, and
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Defendants replied. Dkt. No. 72. For the reasons that follow, it is recommended that the
Motion be granted in part and denied in part.
I. FACTUAL BACKGROUND
The claims in this action relate to Plaintiff’s time incarcerated in the custody of the
New York State Department of Corrections and Community Supervision (“DOCCS”) at
several different correctional facilities, as well as one claim arising after his release from
custody. 	Plaintiff is the founder of Ujamaa Fraternal Dynasty (“UFD”), which he
identifies as a “mutual self-improvement fraternity.” Dkt. No. 21, Am. Compl. at ¶¶ 26-
27. 	Plaintiff’s efforts to promote and gain recognition for UFD within DOCCS
correctional facilities underlie the allegations in this action. See generally id. As relevant
to the Motion, this Court has previously summarized Plaintiff’s claims at each facility in
this manner:
A. Great Meadow C.F.
On February 20, 2021, Miller ordered members of the Crisis Intervention
Unit (“CIU”), including Cucchi, to frisk Plaintiff and his cell for UFD
literature and materials. Am. Compl. at ¶¶ 80, 91. As a result of the search,
Cucchi issued a misbehavior report charging Plaintiff with violating Rule
105.14 and 105.13 related to gang activity. 	Id. at ¶¶ 91-93. On February
21, 2020, Miller ordered Plaintiff to be placed in the SHU, in the F-Block,
the “most isolated SHU” at Great Meadow, for possessing UFD literature
and materials. Id. at ¶¶ 78, 84, 88.
A Superintendent’s Hearing was conducted, with CHO Jane Doe presiding.
Am. Compl. at ¶ 94. CHO Jane Doe refused to allow Plaintiff to submit
documentary evidence or call witnesses in his defense. Id. at ¶¶ 95-96. CHO
Jane Doe found Plaintiff guilty of the charges and sentenced Plaintiff to sixty
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days in the SHU. 	Id. at ¶¶ 97-98. Plaintiff appealed the disciplinary
determination to Venettozzi. 	Id. at ¶ 99. Venettozzi affirmed the decision.
Am. Compl. at ¶ 100. Plaintiff served sixty-one days in the SHU. Id. at ¶ 101.
The Amended Complaint also specifically avers that Defendant Miller’s
conduct was motivated by a retaliatory animus involving other litigation
involving Plaintiff. Am. Compl. at ¶¶ 85 & 88.
Dkt. No. 35 at p. 5.
B. Washington C.F.
In July 2020 and August 2020, Plaintiff’s outgoing JPay4 messages were
“arbitrarily and capriciously censored and rejected” by John Doe #4. Am.
Compl. at ¶¶ 102-103. Plaintiff filed a grievance against John Doe #4 and,
as a result, John Doe #4 continued to censor Plaintiff’s messages. Id. at ¶¶
105-106. Plaintiff also wrote letters and formal appeals to Mulcahy and
Tynon informing that he intended to “take legal action.” Id. at ¶¶ 107-108,
110. Walker responded and denied Plaintiff’s appeal. Id. at ¶ 109.
While confined at Washington C.F., Plaintiff submitted a request for
approval to form a prison chapter of the Ujamaa Fraternal Dynasty
(“UFD”). Am. Compl. at ¶¶ 26, 113. Plaintiff, the founder and leader of
UFD, describes UFD as a “mutual self improvement fraternity” which
Plaintiff “uses in prison to positively organize, motivate, inspire, educate,
and mentor young prisoners[.]” Id. at ¶ 27. Because DOCCS has designated
UFD as an “unauthorized organization,” McKoy denied Plaintiff’s request.
Id. at ¶¶ 38, 114.
During his confinement at Washington C.F., Plaintiff submitted a request
to Tynon to correspond with other inmates who “are witnesses” to a
pending lawsuit. 	Am. Compl. at 115. Tynon denied the request. 	Id. at ¶
116. As a result, Plaintiff was unable to depose the inmates. Id. at ¶ 117.
On an unspecified date and time, DOCCS John Doe #5 directed officers to
search Plaintiff’s cube for UFD material. Am. Compl. at ¶ 118. Plaintiff’s
UFD material was found and confiscated. Id.
Dkt. No. 35 at p. 6.
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C. Marcy C.F.
In October 2020, Plaintiff’s JPay messages were censored and rejected. Am.
Compl. at ¶ 120. Plaintiff appealed the censorship of his messages to Reardon.
Id. at ¶ 126. Debejian “responded” but “refus[ed] to render a decision.” Id. at
¶ 127.
On November 3, 2020, DOCCS John Doe #5 directed officers to search
Plaintiff’s cube for UFD materials. 	Am. Compl. at ¶ 128. 	John Doe #2
confiscated UFD literature and materials and issued a misbehavior report
charging Plaintiff with violating Rule 105.14 - unauthorized organization. Id.
at ¶¶ 129-130. As a result, Plaintiff was transferred to the SHU. Id. at ¶ 78.
A Superintendent’s Hearing was held, with ORC John Doe #1 presiding. Am.
Compl. at ¶ 131. 	ORC John Doe #1 refused to allow Plaintiff to present
evidence or call witnesses. Id. at 132-134. ORC John Doe #1 found Plaintiff
guilty and sentenced him to five months in the special housing unit (“SHU”).
Id. at ¶¶ 63, 139.
On November 3, 2020, John Doe #3 packed Plaintiff’s property. Am. Compl.
at ¶ 144. 	John Doe #3 maliciously destroyed Plaintiff’s legal documents
related to Mitchell I, complaints Plaintiff wrote against DOCCS staff, and
personal property. Id. at ¶¶ 145-148. Plaintiff served 98 days in solitary
confinement. Id. at ¶ 143.
Dkt. No. 35 at p. 7.
D. Post-Release First Amendment Claims
The Amended Complaint also alleges that Plaintiff’s First Amendment rights were
violated by DOCCS’ policies that would prevent Plaintiff from communicating with
individuals in custody. See Am. Compl. at ¶¶ 43-45.
II. LEGAL STANDARD FOR MOTION TO DISMISS
On a motion to dismiss, the allegations of the complaint must be accepted as true.
See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court’s function “is merely to assess
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the legal feasibility of the complaint, not to assay the weight of the evidence which might
be offered in support thereof.” 	Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980).
“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).
The Court is bound to give the plaintiff the benefit of every reasonable inference
to be drawn from the “well-pleaded” allegations of the complaint. See Retail Clerks Int’l
Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963). Nevertheless,
“the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” 	Id. (citation omitted). 	A motion to dismiss
pursuant to Rule 12(b)(6) may not be granted so long as the Plaintiff’s complaint includes
“enough facts to state a claim to relief that is plausible on its face.” 	Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at 697. 	“Rule 12(c)
motions for judgment on the pleadings are decided by the same standard as Rule 12(b)(6)
motions to dismiss for failure to state a claim upon which relief can be granted. 	Rubeor
v. Town of Wright, 191 F. Supp. 3d 198, 202–03 (N.D.N.Y. 2016) (citing Hayden v.
Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).
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“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.” Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. In this respect, to survive dismissal, a plaintiff “must provide
the grounds upon which his claim rests through factual allegations sufficient ‘to raise a
right to relief above the speculative level.’” 	ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555).
Thus, in spite of the deference the court is bound to give to Plaintiff’s allegations, it is not
proper for the court to assume that “the [plaintiff] can prove facts [which he or she] has
not alleged or that the defendants have violated the . . . laws in ways that have not been
alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459
U.S. 519, 526 (1983). The process of determining whether a plaintiff has “nudged [his]
claims . . . across the line from conceivable to plausible,” entails a “context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. at 679-80.
Where, as here, the complaint was filed pro se, it must be construed liberally with
“special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Nonetheless, a pro se complaint must state
a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).
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III. DISCUSSION
A. Official Capacity Injunctive Relief Claims
The Amended Complaint asserts claims against individual Defendants in their
official capacities. Am. Compl. at ¶¶ 8-25. Plaintiff seeks monetary damages, as well as
injunctive and declaratory relief. 	Id. at ¶ 22. 	Defendants seek dismissal of official
capacity claims on Eleventh Amendment immunity grounds. Dkt. No. 63-1, Defs.’ Mem.
of Law at pp. 2-3. 	In response, Plaintiff contends that his official capacity claims are
solely for injunctive relief and thus not barred by the Eleventh Amendment. Dkt. No. 71,
Pl.’s Opp. 	Defendants, however, also seek dismissal of all injunctive relief claims as
moot. Defs.’ Mem. of Law at pp. 22-23.
Plaintiff is not presently in DOCCS custody. 	See Pl.’s Opp (listing his current
address as Albany County Correctional Facility). 	His injunctive and declaratory relief
claims, therefore, should be dismissed as moot. “[I]t is well settled that ‘where a prisoner
has been released from prison, his claims for injunctive relief based on the conditions of
his incarceration must be dismissed as moot.’” Rodgers v. Gumbus, 2020 WL 1313586,
at *3 (N.D.N.Y. Feb. 24, 2020), report and recommendation adopted, 2020 WL 1304040
(N.D.N.Y. Mar. 19, 2020) (quoting Pugh v. Goord, 571 F. Supp. 2d 477, 489 (S.D.N.Y.
2008)); see also Mitchell v. Annucci, 2022 WL 445039, at *5 (N.D.N.Y. Feb. 14, 2022),
aff’d, 2023 WL 7648625 (2d Cir. Nov. 15, 2023) (“It is well settled that an inmate’s
transfer to a different prison facility or his release from custody generally moots claims
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for declaratory and injunctive relief based on conditions of confinement and prison
regulations.”).
Accordingly, Plaintiff’s injunctive and declaratory claims should be dismissed.
B. Personal Involvement and Supervisory Liability
Defendants Annucci, McKoy, Reardon, Debejian, Tynon, Mulcahy, and Walker
all seek dismissal of certain claims in the Amended Complaint based on Plaintiff’s failure
to adequately allege their personal involvement in the alleged constitutional violations.
Defs.’ Mem. of Law at pp. 3-11, 14, 17-18, & 20-22. Plaintiff’s response does not address
this defense. See generally Pl.’s Opp.
“[P]ersonal 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) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991));
Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013) (“It is well settled that,
in order to establish a defendant’s individual liability in a suit brought under § 1983, a
plaintiff must show, inter alia, the defendant’s personal involvement in the alleged
constitutional deprivation.”) 	As a result, “[a] plaintiff must thus allege a tangible
connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson,
790 F.2d 260, 263 (2d Cir. 1986).
A supervisory official “may not be held liable for damages merely because he [or
she] held a high position of authority.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)
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(citing cases). Despite this rule, the Second Circuit for some time held that a supervisory
official could be held liable under circumstances related to that supervisory role that did
not involve their direct action. See Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995). Colon
set forth five theories of liability that could apply to supervisory officials. Id. at 873. The
Supreme 	Court’s 	decision 	in 	Ashcroft 	v. 	Iqbal, 	556 	U.S. 	662 	(2009), 	however,
“engendered conflict within our Circuit about the continuing vitality of the supervisory
liability test set forth in Colon.” 	Reynolds v. Barrett, 685 F.3d 193, 206 n.14 (2d Cir.
2012). The conflict remained unresolved until the Second Circuit’s decision in Tangreti
v. Bachmann which concluded that “after Iqbal, there is no special rule for supervisory
liability. 	Instead, a plaintiff must plead and prove ‘that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.’”
983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. at 676).
Tangreti requires that Plaintiff allege and establish that each Defendant violated
his rights “by [their] own conduct, not by reason of [their] supervision of others who
committed the violation.” 	Id. at 619. 	For supervisory defendants, “a mere ‘linkage’ to
the unlawful conduct through ‘the prison chain of command’ . . . is insufficient to show
his or her personal involvement in that unlawful conduct.” Fabrizio v. Smith, 2021 WL
2211206, at *9 (N.D.N.Y. Mar. 10, 2021), report and recommendation adopted, 2021
WL 2211023 (N.D.N.Y. June 1, 2021) (internal citations and quotations omitted).
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Annucci, the former DOCCS Commissioner, is mentioned only briefly in the
Amended Complaint and solely based on his supervisory position within DOCCS. Am.
Compl. at ¶ 8. 	There are no specific allegations made against Annucci. 	See generally
Am. Compl. 	And as just noted, a defendant’s “mere linkage in the prison chain of
command is insufficient to establish personal involvement in a § 1983 claim.” White v.
Mielnicki, 	2025 	WL 	2933212, 	at 	*10 	(N.D.N.Y. 	Aug. 	27, 	2025), 	report 	and
recommendation adopted, 2025 WL 2775921 (N.D.N.Y. Sept. 30, 2025) (internal
quotations omitted). 	Here, because the only allegation against Annucci relates to his
position of authority, dismissal based on the lack of specific allegations of personal
involvement is recommended.
As to McKoy, however, Plaintiff specifically asserts a violation of his First
Amendment rights based on McKoy’s allegedly unlawful denial of a request to form a
chapter of UFD. 	Am. Compl. at ¶¶ 113-114. 	That claim sufficiently alleges personal
involvement on the part of McKoy.
Plaintiff has also asserted a First Amendment claim against Defendants Tynon,
Mulcahy, and Walker regarding alleged censorship of JPay messages at Washington
Correctional Facility. Id. at ¶¶ 102-112. Plaintiff alleges that his messages were censored
by John Doe # 4 to retaliate against his protected speech. Id. at ¶¶ 103 & 106. He claims
he attempted to address this matter with Defendants Tynon and Mulcahy. 	Id. at ¶ 108.
No further allegation is made with respect to Tynon in this regard. An official’s failure
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to remedy another’s violation of rights, however, it not itself sufficient to establish
personal involvement. 	Logan v. Graham, 2021 WL 4440344, at *4-5 (N.D.N.Y. Sept.
28, 2021); Fabrizio v. Smith, 2021 WL 2211206, at *9. 	Given the lack of any other
allegation against Tynon, and especially in light of the fact that this appeal was responded
to by another individual, Am. Compl. at ¶ 109, Plaintiff has not sufficiently alleged that
Tynon was personally involved with his claim regarding JPay messages. Smart v. Goord,
441 F. Supp. 2d 631, 643 (S.D.N.Y. 2006) (Defendant “cannot be held liable on the sole
basis that he did not act in response to letters of protest”). Similarly, Walker’s denial of
an appeal regarding the conduct of another correctional employee is insufficient to
establish that Walker was personally involved in any violation regarding the censorship
of Plaintiff’s messages. Perrilla v. Fischer, 2013 WL 5798557, at *7 (W.D.N.Y. Oct. 28,
2013).
The Court, however, recommends finding that sufficient personal involvement has
been alleged as to Mulcahy. Mulcahy is alleged to have threatened Plaintiff with further
retaliation if he continued to file complaints. Am. Compl. at ¶¶ 110-111. That clearly is
sufficient to permit the claim to proceed.
The claims on which Reardon and Debejian seek dismissal relate to the alleged
lack of processing of grievances at Marcy C.F. 	Am. Compl. at ¶ 124. 	Plaintiff alleges
that they were each aware that grievances submitted by him were not being filed or
responded to but failed to act to remedy the situation. Id. at ¶¶ 124-125. However, the
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alleged failure to remedy a wrong committed, as Plaintiff alleges as to these Defendants,
is insufficient after Tangreti to establish their personal involvement. Logan v. Graham,
2021 WL 4440344, at *4-5; Fabrizio v. Smith, 2021 WL 2211206, at *9.
The Court notes in addition that Plaintiff’s claims regarding the alleged denial of
First Amendment rights after his release from custody should also be dismissed based on
the lack of personal involvement. Plaintiff claims that he “wants” to communicate with
others 	in 	DOCCS 	custody, 	but 	“will 	be 	prohibited 	from 	doing” 	so 	because 	his
organization is not authorized. 	Am. Compl. at ¶¶ 44-45. 	The Amended Complaint,
however, never alleges that he was actually denied the ability to communicate with
individuals in custody after his release, just that he “will be prohibited” from doing so.
Id. 	For example, it makes no specific claim that Plaintiff ever actually attempted to
contact any individual in DOCCS custody after his release and was denied the ability to
do so. See generally Am. Compl. No Defendant is specifically named as having denied
Plaintiff the ability to communicate with any individual after Plaintiff’s release. 	See
generally id. As a result, the Amended Complaint “fails to allege specific acts by specific
defendants, and thus fails to show personal involvement for all of the defendants.” Cooke
v. Stern, 2008 WL 238515, at *2 (N.D.N.Y. Jan. 28, 2008); see also Roberts v. City of
New York, 2016 WL 4146135, at *7 (S.D.N.Y. Aug. 2, 2016) (“A complaint that fails to
allege how a specific defendant violated the law or injured the plaintiff should be
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dismissed as to that defendant.”). Dismissal of the post-release First Amendment claim
is, therefore, recommended.
C. Retaliation Claim Against Defendant Miller
The Amended Complaint alleges that Defendant Miller directed that Plaintiff’s cell
be searched to retaliate against Plaintiff for naming Miller as a Defendant in another
federal lawsuit, Mitchell v. Annucci, 19-CV-718 (N.D.N.Y.). Am. Compl. at ¶¶ 80-88.
To state a First Amendment retaliation claim Plaintiff must establish “(1) that the
speech or conduct at issue was protected, (2) that the defendant took adverse action
against the plaintiff, and (3) that there was a causal connection between the protected
speech and the adverse action.” 	Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2002)
(internal quotations omitted). “Courts properly approach prisoner retaliation claims ‘with
skepticism and particular care,’ because ‘virtually any adverse action taken 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.’” Davis v. Goord, 320 F.3d
at 352 (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001)).
While Defendants contend that possession of contraband is not a protected activity,
Defs.’ Mem. of Law at p. 12, the Amended Complaint makes clear that the protected
activity Plaintiff alleges to have engaged in is the filing of a different federal civil rights
lawsuit in which Miller was also named as a Defendant. Am. Compl. at ¶ 81. The filing
of a lawsuit is clearly protected activity. Livingston v. Hoffnagle, 2019 WL 7500501, at
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*13 (N.D.N.Y. Nov. 8, 2019), report and recommendation adopted, 2020 WL 95431
(N.D.N.Y. Jan. 8, 2020). Miller is alleged to have taken the actions at issue here within
days of answering interrogatories in that matter, Am. Compl. at ¶ 86, which is sufficient
at the pleadings stage to find a causal connection.
Defendants also contend that Miller’s ordering of a cell search is not an adverse
action for purposes of a retaliation claim. 	An adverse action is generally defined as
“retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness
from exercising . . . constitutional rights.’” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.
2004) (quoting Davis v. Goord, 320 F.3d at 353). As Defendants point out, “many of the
district courts in the Second Circuit have found that cell searches, even if conducted for
retaliatory reasons, cannot constitute an adverse action for the purposes of a retaliation
claim.” Guillory v. Haywood, 2015 WL 268933, at *21 (N.D.N.Y. Jan. 21, 2015); see
also Defs.’ Mem. of Law at pp. 12-13 (citing cases). In some circumstances, however,
“allegations that a defendant confiscated personal property and/or legal papers during the
course of a cell search have been deemed sufficient to deter an inmate of ordinary
firmness from exercising his constitutional rights.” 	Guillory v. Haywood, 2015 WL
268933, at *21. There does not seem to be a dispute that the material confiscated from
Plaintiff’s cell was contraband. While Plaintiff claims the material “did not pose a risk
to safety and security” within the correctional facility, Am. Compl. at ¶ 83, he concedes
that the UFD is designated as an unauthorized organization, which in turn prohibits the
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possession of UFD literature. 	Id. at ¶¶ 38-39. 	“Confiscation of contraband does not
constitute adverse action sufficient for a retaliation claim.” Stewart v. Richardson, 2019
WL 719638, at *4 (S.D.N.Y. Feb. 20, 2019); see also Jones v. Harris, 665 F. Supp. 2d
384, 398 (S.D.N.Y. 2009) (“since one purpose of a cell search is to locate and recover
contraband, the court cannot turn a blind eye to the fact that prisoner property is
sometimes seized when cells are searched.”). Here, the mere direction to conduct a cell
frisk, assuming that Miller in fact did so, that ultimately resulted in the confiscation of
contraband does not constitute an adverse action sufficient to maintain a retaliation claim
against Defendant Miller.1
D. Due Process
Plaintiff also alleges that the disciplinary proceedings that resulted from the cell
search just discussed violated due process. Am. Compl. at ¶¶ 90-101. Defendants seeks
dismissal of this claim arguing that the short period of disciplinary confinement was
insufficient to trigger a protected liberty interest and that sufficient evidence supported
the determination to defeat a due process claim. Defs.’ Mem. of Law at pp. 14-16.
In determining whether an inmate’s confinement effects a violation of
procedural due process, we consider whether the plaintiff had a protected
liberty interest in not being confined . . . and, if so, whether the deprivation
of that liberty interest occurred without due process of law. 	A prisoner’s
liberty interest is implicated by prison discipline, such as SHU confinement,
1 Plaintiff was issued a misbehavior report because of the search, but that was not issued by Defendant Miller and
cannot be an adverse action attributed to him. See Am. Compl. at ¶ 91 (identifying Defendant Cucchi as the author
of the misbehavior report).
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only if the discipline imposes an atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.
Gonzalez v. Hasty, 802 F.3d 212, 223 (2d Cir. 2015) (internal quotations, citations, and
alterations omitted).
While the Second Circuit has “explicitly avoided a bright line rule that a certain
period of SHU confinement automatically fails to implicate due process rights,” Palmer
v. Richards, 364 F.3d 60, 64 (2d Cir. 2004), Defendants correctly note that periods of less
than 100 days confinement have frequently been found insufficient to establish a claim.
Nwaokocha v. Sadowski, 369 F. Supp. 2d 362, 370 (E.D.N.Y. 2005) (citing cases).
Plaintiff was ordered confined for only 60 days, but he specifically alleges that this
sentence was disproportionate for the charges lodged against him. Am. Compl. at ¶ 98.
The imposition of a “disproportionately harsh [SHU sentence]. . . weighs in favor of an
atypical and significant hardship.” Cox v. Malone, 199 F. Supp. 2d 135, 143 (S.D.N.Y.
2002); see also Horne v. Coughlin, 949 F. Supp. 112, 117 (N.D.N.Y. 1996) (noting that
a disciplinary sentence that is “grossly disproportionate” to the offense charged may be
atypical for purposes of a due process claim).
In the context of inmate disciplinary hearings, the Fourteenth Amendment requires
inmates receive certain protections including: (1) at least twenty-four hours written notice
of the disciplinary charges; (2) the inmate be permitted to call witnesses and present
evidence “when permitting him to do so will not be unduly hazardous to institutional
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safety or correctional goals”; (3) the inmate be judged by a fair and impartial hearing
officer; (4) the disciplinary conviction be supported by some evidence; and (5) the inmate
be provided with a written statement of fact findings that support the disposition as well
as the reasons for the disciplinary action taken. Wolff v. McDonnell, 418 U.S. 539, 563-
66 (1974). Here, Defendants address only the issue of whether the disciplinary findings
were supported by some evidence. Defs.’ Mem. of Law at p. 15. They do not argue that
all other requirements have been insufficiently alleged or shown here, which is significant
since Plaintiff specifically alleges that he was denied the documents and witnesses in
support of his defense. Am. Compl. at ¶ 96.
In the absence of a specific record regarding the nature of Plaintiff’s disciplinary
confinement or a full record regarding the disciplinary proceedings themselves, the Court
recommends that the Motion to Dismiss the due process claim be denied.
E. Access to Court Claim
Plaintiff also alleges that Defendant Tynon denied him his constitutional right of
access to courts by denying him access to witnesses. Am. Compl. at ¶¶ 115-117.
“A plaintiff’s constitutional right of access to the courts is violated where
government officials obstruct legitimate efforts to seek judicial redress.” 	Jeanty v.
Sciortino, 669 F. Supp. 3d 96, 116 (N.D.N.Y. 2023) (citation omitted).
To establish a denial of access to the courts claim, a plaintiff must satisfy two
prongs. First, a plaintiff must show that the defendant acted deliberately and
maliciously. Second, the plaintiff must demonstrate that he suffered an actual
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injury, i.e. [the defendant] took or was responsible for actions that hindered a
plaintiff’s efforts to pursue a legal claim.
Rasheen v. Adner, 356 F. Supp. 3d 222, 235 (N.D.N.Y. 2019) (internal quotations and
citations omitted).
The Amended Complaint does not specifically allege harm at all, claiming only
that the inability to depose fellow inmates hindered Plaintiff’s ability to prevail in his
prior action. Am. Compl. at ¶¶ 116-117. This claim is entirely conclusory. “A prisoner’s
conclusory assertion that he suffered prejudice does not suffice to support an access to
court claim.” 	Arce v. Walker, 58 F. Supp. 2d 39, 44 (W.D.N.Y. 1999). 	More
significantly, a deposition of an individual incarcerated in a correctional facility may
proceed only by way of court order. FED . R. CIV . P. 30(a)(2)(B). Plaintiff sought leave
to depose inmates during his litigation of the other matter. The District Court denied that
request because Plaintiff had not shown his ability to cover the costs of those depositions.
Mitchell v. Annucci, 19-CV-718, Dkt. No. 51 at p. 12. Subsequent motions for the same
relief were also denied. Mitchell v. Annucci, 19-CV-718, Dkt. Nos. 60 & 118 at pp. 11-
12. Having availed himself of the opportunity to seek permission for depositions and that
relief having been denied, Plaintiff cannot establish that any action by Defendant Tynon
caused him prejudice regarding depositions. This claim, therefore, should be dismissed.
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IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendants’ Motion to Dismiss (Dkt. No. 63) be
GRANTED in part and DENIED in part as set forth herein; and it is
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)2 days within
which to file written objections to the foregoing report. 	Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72 & 6(a).
Dated: January 29, 2026
Albany, New York
2 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
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