9:20-cv-01407•Mitchell et al v. Cuomo et al
Texto completo
- 1 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 1 of 19
- 2 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 2 of 19
- 3 - 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. Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 3 of 19
- 4 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 4 of 19
- 5 - 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)). Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 5 of 19
- 6 - “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). Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 6 of 19
- 7 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 7 of 19
- 8 - 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) Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 8 of 19
- 9 - (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). Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 9 of 19
- 10 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 10 of 19
- 11 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 11 of 19
- 12 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 12 of 19
- 13 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 13 of 19
- 14 - *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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 14 of 19
- 15 - 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). Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 15 of 19
- 16 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 16 of 19
- 17 - 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 Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 17 of 19
- 18 - 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. Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 18 of 19
- 19 - 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). Case 9:20-cv-01407-ECC-DJS Document 74 Filed 01/29/26 Page 19 of 19
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.