Ford v. Deacon

Full title: COREY FORD, Plaintiff, v. RICHARD DEACON, et al., Defendants.

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Date published: Aug 27, 2018

9:16-CV-01001 (MAD/TWD) (N.D.N.Y. Aug. 27, 2018)

Opinion

9:16-CV-01001 (MAD/TWD)

08-27-2018

COREY FORD, Plaintiff, v. RICHARD DEACON, et al., Defendants.

APPEARANCES: COREY FORD 95-A-8605 Plaintiff pro se Five Points Correctional Facility Caller Box 119 Romulus, New York 14541 HON. BARBARA UNDERWOOD Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: KYLE W. STURGESS, ESQ. Assistant Attorney General

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

APPEARANCES: COREY FORD
95-A-8605
Plaintiff pro se
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541 HON. BARBARA UNDERWOOD
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: KYLE W. STURGESS, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION

I. INTRODUCTION

The claims remaining in pro se Plaintiff Corey Ford's civil rights action, brought under 42 U.S.C. § 1983, are: (1) First Amendment retaliation claims against Defendants Richard Deacon ("Deacon"), formerly a Lieutenant with the Department of Corrections and Community Supervision ("DOCCS"), working at Shawangunk Correctional Facility ("Shawangunk"), and Tracy Phillips ("Phillips"), a DOCCS Correction Officer ("C.O."), also at Shawangunk; (2) First Amendment retaliation claims against Deacon, Christopher Miller ("Superintendent Miller"), Superintendent at Great Meadow Correctional Facility ("Great Meadow"); Rodney Eastman ("Eastman"), First Deputy Superintendent at Great Meadow; and Colin Fraser ("Fraser"), a Captain at Great Meadow, for acts that occurred at Great Meadow; (3) Eighth Amendment conditions of confinement claims against Defendants Superintendent Miller, Eastman, and Fraser occurring at Great Meadow; (4) Fourteenth Amendment due process claims against Defendants Superintendent Miller and Eastman at Great Meadow; and (5) First Amendment retaliation and access to court claims against Defendant C.O. Daniel McClenning ("McClenning") at Great Meadow. (See generally Dkt. Nos. 1 and 9.) Defendants now move for summary judgment pursuant to Rule 56. (Dkt. No. 64.) Plaintiff has filed papers in opposition to Defendants' motion, and Defendants have filed a reply. (Dkt. Nos. 69, 70.)

For reasons that follow, the Court recommends that Defendants' motion for summary judgment be granted in its entirety.

II. FACTUAL BACKGROUND

A. Incident at Green Haven Correctional Facility

On April 14, 2004, while Plaintiff was being housed in Green Haven Correctional Facility ("Green Haven"), Plaintiff assaulted C.O. Matt Miller by burning him with a hot oily substance and stabbing him multiple times. (Dkt. Nos. 64-1 at ¶¶ 5-6; 69-2 at ¶¶ 5-6.¹) Defendant McClenning was involved in subduing Plaintiff and testified against him in the trial on criminal charges resulting from the assault. (Dkt. No. 69-3 at 74, 77-89.²)

1 Paragraph numbers are used where documents identified by CM/ECF docket number contain consecutively numbered paragraphs.

2 Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.

In 2005, Plaintiff commenced a civil action against a number of corrections personnel, including McClenning, alleging, inter alia, excessive force as he was escorted to the special housing unit ("SHU") following the April 14, 2004, incident. (Dkt. No. 64-2 at 81-83.) See Ford v. Phillips, et al., No. 1:05-cv-06646-NRB (S.D.N.Y. 2005), Dkt. No. 2. The action was settled after it had been dismissed against McClenning based upon a determination that McClenning had not acted improperly in subduing Plaintiff. See No. 1:05-cv-06646-NRB (S.D.N.Y. 2005), Dkt. No. 74.

B. Shawangunk

1. Deacon

Subsequent to the April 14, 2004, assault, Plaintiff was transferred to Shawangunk where he remained in the special housing unit ("SHU") until on or about May 28, 2014. (Dkt. Nos. 64-1 at ¶ 8; 69-2 at ¶ 8.) Defendant Deacon, who had been assigned to Green Haven at the time of the April 14, 2004, attack on Miller, was the A & B Housing Unit Sergeant and was responsible for overseeing SHU on the 3pm to 11pm shift at Shawangunk from approximately 2012 through late 2013. (Dkt. No. 64-3 at ¶¶ 7-8.)

Deacon was assigned to Green Haven at the time of Plaintiff's April 2004 attack on Miller and was moved to Shawangunk in 2012. (Dkt. No. 64-3 at ¶¶ 1, 4.) Plaintiff was not familiar with Deacon prior to Deacon's arrival at Shawangunk. (Dkt. No. 64-2 at 69-70.) Plaintiff claims that beginning in or about August or September of 2012, Deacon engaged in a course of harassment against him by: (1) in August or September 2012 telling Plaintiff he would do everything in this power to ensure Plaintiff was never released from SHU into general population because of what Plaintiff had done to Matt Miller, one of Deacon's closest friends, Dkt. No. 64-2 at 74-75); (2) generally harassing Plaintiff by doing such things as yelling into his cell in an attempt to bait him into engaging in misconduct that would result in a misbehavior report (Dkt. Nos. 1 at ¶ 14; 64-2 at 109-111); (3) giving Plaintiff smaller portions of food (Dkt. No. 64-2 at 114); and (4) playing a role in the search of Plaintiff's cell and the confiscation and destruction of a Bible that had been in Plaintiff's possession for eighteen years.³ (Dkt. Nos. 1 at ¶¶ 39-40; 64-2 at 132-36, 147; 64-2 at 98, 115-17, 161-62, 210-12.) Plaintiff claims that Deacon's harassing actions at Shawangunk were done in retaliation for Plaintiff's April 2004 attack on Miller at Green Haven. (Dkt. No. 1 at ¶ 117.)

3 In his response to Item 27 of Defendants' Statement of Material Facts, Plaintiff denies ever accusing Deacon of engineering the confiscation of his Bible, only the destruction. (Dkt. No. 69-2 at ¶ 27.) In response to Item 29, Plaintiff explains that the search was not ordered or directed by Deacon, whose responsibilities at the time did not involve cell searches in SHU. Id. at ¶ 29.

Deacon has denied Plaintiff's allegations including: (1) being friends with Matt Miller or knowing of any lawsuits Plaintiff brought against Miller or McClenning; (2) threatening Plaintiff or engaging in any harassing behavior against him; (3) involvement in the destruction of Plaintiff's Bible; and (4) involvement in Plaintiff being placed in administrative segregation ("Ad Seg") at Great Meadow. (See generally Dkt. No. 64-3.)

2. Phillips

In his complaint, Plaintiff has alleged that Defendant Phillips, along with Deacon, destroyed his Bible. (Dkt. No. 1 at ¶ 40.) Phillips is a C.O. who has worked at Shawangunk during most of his time with DOCCS. (Dkt. No. 64-4 at ¶ 4.) Phillips knew of the April 2004 incident at Green Haven but has never worked at Green Haven and never knew or worked with Matt Miller. Id. Phillips was unaware that Plaintiff had sued Green Haven corrections personnel after the incident. Id. From approximately 2010 through 2015, Phillips worked in the Shawangunk disciplinary office, and while he knew who Deacon was, they did not work in the same area except when one of them picked up overtime outside of their normal positions, and Phillips was not supervised by Deacon. Id. at ¶ 5.

Phillips acknowledges having participated in several cell searches in SHU, including Plaintiff's cell, in April 2014, at the direction of Lieutenant Gardner, but does not recall whether he or anyone else confiscated Plaintiff's Bible. Id. at ¶ 6. Phillips, however, denies having been ordered to destroy Plaintiff's Bible by Deacon or being involved in the destruction of Plaintiff's Bible. Id. at ¶ 8. While Plaintiff continues to believe Phillips destroyed his Bible, see Dkt. 69-2 at ¶ 32, Plaintiff testified at his deposition that, except for the Bible, Phillips had "always been a sweetheart" and was being used as a pawn by Deacon in destroying the Bible. (Dkt. No. 64-2 at 148-49.) When asked whether he thought Phillips was following orders in destroying the Bible or retaliating against Plaintiff, Plaintiff responded that he believed Phillips was following Deacon's orders. Id. at 150.

C. Great Meadow

1. Placement in Ad Seg

a. Fraser's Recommendation

Plaintiff was transferred to Great Meadow on or about May 28, 2014, and placed in keeplock for what he believed to be fifteen days. (Dkt. Nos. 1 at ¶ 44; 64-6 at 10.) Shortly before Plaintiff's arrival at Great Meadow, Defendant Fraser, who was a member of the facility's Crisis Intervention Unit ("CIU"), which dealt with the assessment and development of strategies for dealing with certain types of security and safety issues at the facility, received an email from Deacon informing him that Plaintiff was an active member of the Bloods street gang and claimed to be a "two star" general in the organization. (Dkt. No. 64-5 at ¶¶ 5, 10 and pp. 11-12.) Upon receipt of the email from Deacon, Fraser decided to take a closer look at Plaintiff's background and contacted the DOCCS Central Office, which tracks gang information to verify that Plaintiff was associated with the Bloods. Id. At ¶ 11. Fraser also asked Deacon about Plaintiff's conduct and reviewed Plaintiff's disciplinary history, which he found to be extensive. Id. Plaintiff's disciplinary history included, inter alia, the attack on Matt Miller and assaults on other inmates. Id.; Dkt. No. 64-2 at 251-56.

Based upon the information he collected, on May 28, 2014, Fraser recommended that Plaintiff be considered for Ad Seg status. (Dkt. No. 64-5 at ¶ 12 and p. 13.) Superintendent Miller approved Fraser's recommendation that Plaintiff be placed in Ad Seg, which triggered Plaintiff's right to an Ad Seg hearing. (Dkt. Nos. 64-6 at 15; 64-7 at ¶ 10.)

Plaintiff claims he has never been a member of the Bloods street gang, and that Deacon gave Fraser false information in retaliation for Plaintiff's attack on Matt Miller ten years earlier and the filing of grievances against Deacon at Shawangunk. (Dkt. Nos. 1 at ¶¶ 117, 126-27; 64-2 at 116; 161; 64-6 at 18.) Plaintiff testified at his deposition that Fraser had written the recommendation for Ad Seg because Fraser had worked closely with Matt Miller at Green Haven, and before the Ad Seg hearing, Fraser told Plaintiff that Plaintiff had hurt Fraser's friend Matt Miller. (Dkt. No. 64-2 at 195-96.) Plaintiff believed there could be no other reason for Fraser making the recommendation than the incident in which Plaintiff assaulted Matt Miller. (Dkt. No. 64-2 at 197.)

In his declaration, Fraser has stated that the recommendation was not based primarily on gang affiliation or Plaintiff's rank in the organization, but on the cumulative effect of Plaintiff's affiliations and history, in particular his assaults on staff and inmates, coupled with his threatening demeanor, al of which made Plaintiff a security risk in general population. (Dkt. No. 64-5 at ¶ 13.) Although not reflected in his Ad Seg recommendation or hearing testimony, in his declaration, Fraser has stated he was also concerned that Plaintiff's history and high profile might make him a target of other inmates. Id. at ¶ 14; Dkt. Nos. 64-5 at 13; 64-6 at 20-23.

b. Ad Seg Hearing

Plaintiff was served with the formal charges on May 29, 2014, and met with his chosen assistant the following day. (Dkt. No. 64-6 at 9-10, 12.) Plaintiff refused to sign the statement agreeing the assistant had "interviewed witnesses, assisted as required, and reported the results to the inmate charged." Id. at 12. The statement did not identify any documents or witnesses requested by Plaintiff. Id. at 12.

According to Superintendent Miller, Great Meadow's hearing officers, including full time hearing officers and several members of the facility administration who handle hearings in addition to their regular duties, operate on a "wheel" or rotation, and Miller's assignment of Eastman as hearing officer was based on the rotational schedule. (Dkt. No. 64-7 at ¶ 10.) Plaintiff testified at his deposition that when he told Superintendent Miller prior to the hearing that Plaintiff had been sent to Great Meadow to be killed, hurt very badly, or paralyzed, Miller told Plaintiff that Eastman would be his Ad Seg hearing officer, and Plaintiff would be found guilty. (Dkt. No. 64-2 at 199-200.) Miller denies ever having a conversation with Plaintiff in which he told Plaintiff his placement in Ad Seg was retaliatory. (Dkt. No. 64-7 at ¶ 17.)

Plaintiff's hearing was held before Eastman on June 5 and 6, 2014. (Dkt. No. 64-6 at 15-24.) Plaintiff claims that there was an off the record discussion before Eastman commenced the proceedings on June 6, 2014, in which Eastman and Fraser told Plaintiff "'that he better not object to anything that may take place during the proceedings.' 'They bolster that plaintiff was lucky they do not release the 700 officers to kill him.' 'Because plaintiff hurt a very close friend of defendant Fraser,' and suit his other friend, defendant McClenning and grieved his pal, defendant Deacon." (Dkt. No. 1 at ¶ 56) (unaltered text). Plaintiff contends that the threats were real and severe, and once they were over, Plaintiff had no choice but to agree not to object on the record. Id. at ¶¶ 56-57. Fraser has denied making any off the record comments or threats at the hearing or observing Eastman doing so. (Dkt. No. 64-5 at ¶ 15.)

Plaintiff's assistant was not present at the hearing, and Plaintiff informed Eastman that although the assistant's statement did not list any additional information or supporting documentation requested by Plaintiff, Plaintiff had, in fact, requested "any and all information they were using saying that I am part of some gang now all of a sudden after all these years." (Dkt. No. 64-6 at 15-16.) According to Plaintiff, he was told by his assistant that he would have to receive the information at the hearing. Id. at 16. Eastman confirmed that Plaintiff had already received the Ad Seg report and told Plaintiff he would receive copies of supporting documentation entered into the record at the hearing. Id. Eastman also noted that Plaintiff had not requested any witnesses, and Plaintiff responded he did not know who to call. Id. Plaintiff told Eastman he did not like it being said that Plaintiff was a part of something and putting a target on him so when he was ready to go to another facility he was already targeted by the officers because he was said to be part of a gang. (Dkt. No. 64-6 at 20.) Eastman noted on the record that Plaintiff believed the Ad Seg hearing was being conducted, in part, because of the assault on Matt Miller in 2004. Id. at 20.

Fraser was the sole witness at Plaintiff's hearing. Id. at 20-22. By way of background, Fraser testified that he had numerous trainings on gang intelligence and gang awareness as a member of the CIU. Id. at 21. Eastman asked Fraser how he confirmed Plaintiff was part of a gang, to which Fraser responded that after receiving the email from Shawangunk that Plaintiff was a member of the Bloods and held the position of General, Fraser confirmed it through DOCCS Central Office. Id. at 20. Fraser testified that "[b]ased on [Plaintiff's] affiliation with Bloods and the seriousness of the assault that occurred in Green Haven Correctional Facility, um, I believe his presence in our population presents a danger to both general population, staff, and the facility itself." Id. at 21.

Eastman gave Plaintiff an opportunity to present questions for Eastman to ask Fraser on Plaintiff's behalf. Id. In response to those questions Fraser testified that Deacon was the individual at Shawangunk who had stated Plaintiff was a gang member. Id. When asked the identity of the individual with whom Fraser had communicated at Central Office regarding Plaintiff's alleged gang involvement, Fraser responded he was not 100% sure and could look at the email, but that typically it would be Senior Investigator Demo ("Demo"). Id. at 21-22. Fraser was unable to respond to Plaintiff's question regarding the approximate date on which Plaintiff was identified as a member of the Bloods and to which particular set of the Bloods he belonged. Id. at 22.

At the end of Fraser's testimony, Eastman noted that on the previous day, Plaintiff had told Eastman he had no witnesses to present, and Eastman then stated he would call Plaintiff back later to read his decision in the record. (Dkt. No. 64-6 at 22.) Eastman subsequently read his disposition affirming the Ad Seg order and identifying the evidence upon which he relied as Fraser's recommendation identifying Plaintiff as a high ranking individual of the blood gang; Plaintiff's disciplinary record reflecting the assault on Matt Miller in 2004; and Fraser's testimony which Eastman found creditable. Id. at 22. Eastman stated further that "[t]he reason for my determination is based on the evidence presented to me. It is clearly your presence in general population here in Great Meadow Correctional Facility to represent a considerable threat to the safety and security of the facility." Id.; Dkt. No. 64-6 at 26. (unaltered transcript).

Eastman had told Plaintiff he would receive copies of documents entered into the record at the hearing. (Dkt. No. 64-6 at 16.) Plaintiff testified at his deposition that he asked Fraser to let him see the emails about which Fraser had testified at the hearing, and Fraser had told Plaintiff he would see them if they were introduced and relied upon at the hearing. (Dkt. No. 64-2 at 198-99.) However, no new documents, including the emails between Fraser and Deacon and Fraser and Demo regarding Plaintiff's gang involvement, which Fraser testified had been relied upon by him in making his recommendation, were entered into the record or provided to Plaintiff. (Dkt. No. 64-6 at ¶ 15.)

Superintendent Miller reviewed and approved Eastman's determination for the reasons set forth in Eastman's determination on the record. (Dkt. No. 64-7 at 4.)

c. Administrative Appeal

Plaintiff submitted an administrative appeal to SHU Commissioner Albert Prack ("Prack") on or about June 9, 2014. (Dkt. Nos. 1 at ¶ 62; 69-3 at 133-41.) The grounds raised on appeal by Plaintiff were lack of meaningful assistance; failure to produce documentary evidence that would substantiate Fraser's testimony regarding information received from Shawangunk and the Central Office regarding Plaintiff's alleged membership in the Bloods gang and provide sufficient proof to support administrative segregation; and failure to provide an impartial hearing officer. (Dkt. No. 69-3 at 133-41.) Prack reviewed and summarily affirmed the determination in the Ad Seg hearing on August 5, 2014. Id. at 142.

d. Article 78

Plaintiff commenced an Article 78 proceeding in New York State Court challenging the placement in Ad Seg in or about October of 2014, following the affirmance by Prack. (Dkt. No. 64-2 at 273-313.) Plaintiff challenged the Ad Seg determination as arbitrary and capricious and in violation of Plaintiff's substantive, regulatory, and procedural due process rights; based on a false misbehavior report; overly vague with regard to Plaintiff's alleged gang membership and emails from Deacon and Demo to Fraser supporting the gang membership allegation against Plaintiff; and failure to present evidence of the emails allegedly relied upon by Fraser. Id. at 303-04, 308. Plaintiff also raised the alleged threats by Eastman and Fraser prior to the hearing and claimed he was denied meaningful employee assistance in connection with the hearing. Id. at 307-08.

The Article 78 was sent to the Appellate Division Third Department on a substantial evidence question after the Attorney General responded. (Dkt. No. 69-3 at 291.) Plaintiff claims he was unable to file a brief in the Article 78 as directed by the Third Department because his legal papers for the proceeding had been lost or destroyed when he was moved from Great Meadow to Five Points Correctional Facility ("Five Points"), and Plaintiff did not have $39.00 to obtain a copy of his Article 78 petition from the Court. (Dkt. Nos. 1 at ¶¶ 108, 110, 122; 69-3 at 297.)

e. Ad Seg Periodic Reviews

The first of Plaintiff's two Ad Seg reviews was completed by the facility three-member committee on September 9, 2014, and signed off on by Superintendent Miller on September 10, 2014. (Dkt. No. 69-3 at 168.) Information provided by the committee regarding Plaintiff's behavior and attitude while in Ad Seg was that "[s]ubject's attitude and behavior appear to be appropriate. He has had no issue adhering to unit protocol or following staff direction. He has not received any subsequent misbehavior reports." Id. The committee nonetheless found that Plaintiff's having shown "a propensity for violence" favored retaining him in Ad Seg. Id. Superintendent Miller decided that Plaintiff should remain in Ad Seg, writing "[a]s stated by committee It is clear that your assignment to G.P. would pose a threat to your safety and the safety of other I/M's as well as the safety of staff. Admin. Seg. is therefore appropriate at this time." Id. (unaltered text).

Plaintiff submitted a written statement in response to the review and Superintendent Miller's determination on September 15, 2014. Id. at 176. Plaintiff reiterated that no emails or other evidence had been produced at his Ad Seg hearing to support the allegations relied upon in placing him in administrative segregation. (Dkt. No. 69-3 at 176.) Plaintiff claimed he had been sent to Great Meadow to be killed for what he had done to Matt Miller, and that Fraser, who authored the Ad Seg recommendation, had been a close friend of Matt Miller's. Id. at 176-77. Plaintiff also raised that he had been threatened with retaliation by Deacon for attacking Miller, and Deacon was the one who sent the email identifying Plaintiff as a member of the Bloods. Id. at 178.

Plaintiff's second periodic review was completed by the committee on November 12, 2014, and signed off on by Superintendent Miller on November 17, 2014. Id. at 192. The review was essentially the same as the September, 9, 2014, review, and Superintendent Miller's rationale for keeping Plaintiff in Ad Seg was "As stated above." Id.

Plaintiff wrote a written response on November 19, 2014, in which he claimed that Fraser, Eastman, and Superintendent Miller were aware he had never been a gang member. Id. at 193. Plaintiff again expressed his belief that his placement in Ad Seg was all part of a conspiracy by Deacon, Fraser, Eastman, and Superintendent Miller to retaliate against him because of Matt Miller. Id.

According to Plaintiff, on or about November 19, 2014, when Offender Rehabilitation Coordinator Arena ("Arena"), one of the members of the Ad Seg review committee, was making rounds in SHU, Plaintiff asked her what evidence was considered in the decision to keep him in administrative segregation. (Dkt. No. 1 at ¶ 82.) According to Plaintiff, she responded that no further investigation was done, and the decision to keep Plaintiff in Ad Seg was based on the Ad Seg hearing packet. Id.; see also Dkt. No. 64-2 at 220.

2. Conditions of Confinement at Great Meadow

According to Plaintiff, shortly after his arrival at Great Meadow, he was placed in SHU cell F-1 29, which smelled unclean and of another human being. (Dkt. No. 1 at ¶ 46.) Plaintiff saw and smelled feces and months of dried urine on the cell bars and gate mesh, plexiglass, and feed-up slot. Id. The cell floors were caked with dirty buggers and other unknown stains, and the sink and toilet were extremely filthy with months upon months of dirt, food, and waste. Id. Plaintiff's request for cleaning supplies was denied, and he was deprived of cell clean up for eleven days. Id. Plaintiff remained in cell F-1 29 for around a month to a month and a half before being moved to F-1 15. (Dkt. No. 64-2 at 175-77.)

Plaintiff claims that while in cell F-1 29, he was surrounded by mental patients who banged on their plexiglass and metal walls with their feet, hands, and gallon buckets day and night. Id. at ¶ 61. Plaintiff contends that the area in which he was placed was an area for torture designated for inmates for retaliatory reasons. Id. At his deposition, Plaintiff testified that everyone knows cell F-1 29 is a punishment cell. (Dkt. No. 64-2 at 170.)

Plaintiff has submitted the affidavit of inmate, Angel Ordonez ("Ordonez"), dated June 9, 2014, whom Plaintiff has described as a depressed mental patient who had attempted suicide on numerous occasions, regarding Plaintiff's placement in cell F-1 29 and the condition of the cell.⁴ (Dkt. Nos. 1 at ¶ 61; 69-3.) According to Ordonez, he had resided in the cell until May 28, 2014, when he was moved to cell F-1 27 shortly before Plaintiff was moved into cell F-1 29. (Dkt. No. 69-3 at ¶ 1.) Ordonez corroborated to some degree Plaintiff's description of the condition of the cell, and Ordonez explained that he had not been allowed to clean the cell because he had a mental health disorder. Id. at ¶ 4. Ordonez claimed the cell had not been cleaned for 120 days. Id. at ¶ 5. Ordonez stated in his affidavit that he saw Plaintiff being denied cleaning supplies. Id. at ¶ 18.

4 Aside from his statements regarding the condition of cell F-1 29 while he was housed there and of observing an unidentified individual deny Plaintiff cleaning supplies, Ordonez's affidavit is largely inadmissible hearsay that cannot properly be considered in opposition to Defendants' summary judgment motion. See Howley v. Town of Stratford, 217 F.3d 141, 155 (2d Cir. 2000) ("hearsay assertion that would not be admissible if testified to at trial is not competent for a Rule 56 affidavit").

In or about June or July 2014, Plaintiff wrote a grievance complaining the F Block ventilation system was off. (Dkt. No. 64-7 at 10.) Superintendent Miller noted in his decision on the grievance that the system was off but reset as soon as possible, and that the system occasionally kicked off and maintenance was doing everything in its power to resolve the situation. (Dkt. No. 64-7 at 10.) Plaintiff wrote a number of grievances on conditions of confinement after being moved to cell F-1 15.⁵ A September 15, 2014, grievance complained of broken windows from cell F-1 17 down to F-1 cell 29. (Dkt. No. 69-3 at 180.) The grievance was denied through Plaintiff's appeal to the Central Office Review Committee ("CORC") on the grounds that the windows had been inspected and found to be free from deficiencies. (Dkt. No. 69-3 at 181-84.)

5 In his complaint, Plaintiff alleges he was moved to cell F-2 15. (Dkt. No. 1 at ¶ 131.) At his deposition, Plaintiff corrected it to cell F-1 15. (Dkt. No. 64-2 at 189.)

Plaintiff also wrote a grievance complaining of the showers being cold with very low water pressure for the previous month, and cold air coming into the showers on the bottom of the yard doors, dropping the temperature in the shower room to freezing at night. (Dkt. No. 69-3 at 186.) The Superintendent granted Plaintiff's grievance to the extent of having the maintenance department contacted to inspect the water pressure and temperature. (Dkt. No. 69-3 at 188.)

On October 27, 2014, Plaintiff wrote another grievance complaining that the vents were inoperable. Id. at 190. According to Plaintiff, he had written numerous grievances complaining of the ventilation system. Id. On December 7, 2014, Plaintiff wrote a grievance complaining that the exhaust fan in front of his cell was constantly being turned on as a collective punishment for all of the inmates, raising the noise level, causing a drop in temperature, resulting in yelling and banging on the cell walls with buckets by the mentally ill and other inmates. (Dkt. Nos. 69 at ¶ 49; 69-3 at 258, 273.) Plaintiff also wrote to Superintendent Miller complaining of the use of the exhaustion fan as a collective punishment for the inmates. Id. at 258.

On or about December 14, 2014, Plaintiff was moved to cell 24 on the even side of F-Block. (Dkt. No. 1 at ¶ 87.) The even side was considered the quiet side without extremely loud inmates or mental patients. Id. According to Plaintiff, the cell was filthy with a barely workable sink, and his request for cell clean-up was denied. Id. Plaintiff requested that a work order be put in for sink repair but nothing happened. Id.

3. Loss or Destruction of Legal Documents

On or about February 5, 2015, Plaintiff was advised by the area supervisor ("Sergeant") he was being packed up and drafted out of Great Meadow. (Dkt. No. 1 at ¶ 90.) Plaintiff asked the Sergeant who would pack his property, and the Sergeant responded they were not taking any bags. Id. Plaintiff's cell bag, which had all of his active legal work in it, including the Article 78 he was pursuing at the time, was in the draft officer's possession when Plaintiff left Great Meadow, although according to Plaintiff, all of his bags should have accompanied him when he left. (Dkt. No. 64-2 at 92-93.) When Plaintiff arrived in the draft room, all of his personal property was there except for his cell bag. (Dkt. No. 69-3 at 264.)

In the draft room, Plaintiff saw Defendant McClenning, who had been involved in stopping the assault on Matt Miller in 2004, testified against Plaintiff at the criminal trial on the assault, and was initially a defendant in Plaintiff's civil action. Id. McClenning had Plaintiff sign additional I-64 forms. Id. at ¶ 91. When Plaintiff asked him why, McClenning told him to shut up. Id. According to Plaintiff, McClenning told Plaintiff he had been waiting to "get your ass for 10 years. You hurt my friend Miller. . . . Deacon ensured to keep track of you and sent us work to get your ass, mother fucker. . . . You filed a lawsuit against me, and wrote grievances against my friend Sgt. Deacon, you know we always win, and keep track of you mother fucker." Id. at ¶ 91.

McClenning drove Plaintiff to Washington Correctional Facility ("Washington"). (Dkt. No. 64-2 at 91.) From there, Plaintiff was driven to Downstate Correctional Facility ("Downstate"). Id. Plaintiff's personal belongings should have been on the bus to Washington and then transferred to Downstate with Plaintiff. Id. at 93. However, when Plaintiff finally arrived at Five Points Correctional Facility ("Five Points"), on February 9, 2015, he was informed he had no property. (Dkt. No. 69 at ¶ 53.) Plaintiff did not get his cell bag back until February 12 or 13, 2015. (Dkt. No. 64-2 at 95.) The cell bag had a big hole in the bottom that looked like it had been made with a knife, and Plaintiff's active legal papers were gone. Plaintiff claims that McClenning was responsible for damaging the cell bag and destroying Plaintiff's legal papers. Id. at 99. Plaintiff testified at his deposition that he thought McClenning had acted in retaliation for Plaintiff filing a lawsuit against him in 2004 and probably writing up Deacon, and not for the assault on Matt Miller. (Dkt. No. 64-2 at 95-96.)

In his declaration, McClenning states he never directly handled Plaintiff's property or had it in his direct possession. (Dkt. No. 64-8 at ¶ 8.) According to McClenning, his sole responsibility was transporting Plaintiff's person to Washington. Id. at ¶ 10. McClenning denies destroying or misplacing any of Plaintiff's property or throwing away legal material from Plaintiff's active litigation. Id. Moreover, McClenning denies having had any knowledge regarding Plaintiff's active litigation. Id.

III. APPLICABLE SUMMARY JUDGMENT LEGAL STANDARDS

Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).

A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit.⁶ Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (citations omitted).

6 The Court finds that Plaintiff's complaint is properly verified. (Dkt. No. 1 at 34.)

In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). "To defeat summary judgment, . . . nonmoving parties may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "[T]o satisfy Rule 56(e), affidavits must be based upon 'concrete particulars,' not conclusory allegations. "Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (citation omitted). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).

In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999)⁷ (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

7 Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

IV. PLAINTIFF'S FAILURE TO COMPLY FULLY WITH N.D.N.Y. L.R. 7.1(a)(3)

While courts are required to give due deference to a plaintiff's pro se status, that status "does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment." Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003). In opposing Defendants' summary judgment motion, Plaintiff failed to respond to the statement of material facts filed by Defendants in the manner required under N.D.N.Y. L.R. 7.1(a)(3) by neglecting to set forth a specific citation to the record supporting those instances where he disputes a statement included in Defendants' statement of undisputed facts.⁸ (See Dkt. No. 69-2.)

8 L.R. 7.1(a)(3) requires the opposing party to file a response to the movant's Statement of Material Facts. Under the rule, the response "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises."

Where a party has failed to respond to the movant's statement of material facts in the manner required under N.D.N.Y. L.R. 7.1(a)(3), the facts in the movant's statement to which Plaintiff has not properly responded will be accepted as true (1) to the extent they are supported by evidence in the record,⁹ and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion.¹⁰ See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Because Plaintiff's responses to the items in Defendants' statement of material facts that are disputed by him do not cite supporting admissible evidence and do not themselves constitute admissible evidence, the Court will not consider the responses in opposition to Defendants' motion. See Spiegel, 604 F.3d at 81 (court may rely only on admissible evidence in determining whether summary judgment is appropriate). However, in deference to Plaintiff's pro se status, the Court, in the exercise of its discretion, has opted to conduct an assiduous review of the entire summary judgment record despite Plaintiff's failure to comply with the local rule. See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001).

9 L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).

10 The Clerk's Office provided Plaintiff with the requisite notice of the consequences of his failure to respond to Defendants' summary judgment motion. (Dkt. No. 65 at 2.)

V. LEGAL STANDARDS FOR PLAINTIFF'S CLAIMS

A. First Amendment Retaliation

Plaintiff has asserted First Amendment retaliation claims against Defendants Deacon, Phillips, Miller, Eastman, Fraser, and McClenning. (Dkt. No. 64-9 at 3-10, 16-19, 22-23.) To prevail on a First Amendment retaliation claim, an inmate 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 [conduct] and the adverse action." Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002)). "Adverse action" for purposes of a retaliation claim has been defined objectively as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381. Otherwise, the retaliatory act is simply de minimis and outside the scope of constitutional protection. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 366 (S.D.N.Y. 2011) (citing Dawes, 239 F.3d at 492-93). The adverse action inquiry is a contextual one. Mateo v. Fischer, 682 F. Supp. 2d 423, 433 (S.D.N.Y. 2010) (citing Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). "Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a [retaliatory] action taken against them is considered adverse." Dawes, 239 F.3d at 493 (quoting Thaddeus X v. Blatter, 175 F.3d 378, 398 (6^th Cir. 1999) (en banc)).

An inmate bears the burden of showing that "the protected conduct was a substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In evaluating whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, "a number of factors may be considered, including: (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his motivation. Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58 F.3d at 873). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. A showing of temporal proximity, without more, has generally been found insufficient to survive summary judgment. See Roseboro,791 F. Supp. 2d at 370 (citations omitted).

Because of the relative ease with which claims of retaliation can be incanted, courts have scrutinized retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz, 534 U.S. at 506. As the Second Circuit has noted,

[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official--even those otherwise not rising to the level of a constitutional violation--can be characterized as a constitutionally proscribed retaliatory act.

Dawes, 239 F.3d at 491. Accordingly, claims of retaliation must be supported by specific facts; conclusory statements are not sufficient. Flaherty, 713 F.2d at 13; see also Houston v. Goord, No. 9:03-CV-1412 (GTS/DEP), 2009 WL 890658, at *11 (N.D.N.Y. Mar. 31, 2009) ("Analysis of retaliation claims . . . requires thoughtful consideration of the evidence presented concerning the protected activity in which the inmate Plaintiff has engaged and the adverse action taken against him or her, as well as the evidence tending to link the two. When such claims, which ordinarily are exceedingly case specific, are alleged in only conclusory fashion, and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, the entry of summary judgment dismissing plaintiff's retaliation claims is warranted.").

Even if a plaintiff makes the appropriate showing of retaliation, a defendant may avoid liability if he demonstrates that he would have taken the adverse action even in the absence of the protected conduct. See Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) (defendant may be entitled to summary judgment upon showing that the alleged retaliatory action would have taken even without the improper motivation).

B. Eighth Amendment Conditions of Confinement

Plaintiff has alleged Eighth Amendment conditions of confinement claims against Defendants Fraser, Eastman, and Superintendent Miller with regard to his living conditions at Great Meadow. (Dkt. No. 1 at ¶¶ 128-133.) The Eighth Amendment prohibits the infliction of "cruel and unusual punishments." U.S. Const. amend. VIII. The prohibition extends to prison conditions. Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998). "The Constitution does not mandate comfortable prisons . . . but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations and internal quotation marks omitted). "Because society does not expect or intend prison conditions to be comfortable, only extreme deprivations are sufficient" to support a claim for unconstitutional conditions of confinement. Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999).

To state a claim under the Eighth Amendment based upon conditions of confinement, an inmate must satisfy both an objective and a subjective element. Farmer, 511 U.S. at 834, 837. To satisfy the objective element, a plaintiff must establish that he was incarcerated under conditions that resulted in a "sufficiently serious" deprivation, such as the denial of a "life[ ] necessit[y]" or a "substantial risk of harm." Id. at 834. To satisfy the subjective element, a plaintiff must establish that the "defendant official acted with a sufficiently culpable state of mind . . ., such as deliberate indifference to inmate health or safety." Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citations and internal quotation marks omitted).

To establish the objective element, an inmate must show "that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health." Id. Health includes the risk of serious damage to "physical and mental soundness." Darnell v. Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (quoting LaReau v. MacDougall, 473 F.2d 974, 978 (2d Cir. 1972)). Prison officials violate the Eighth Amendment when they "deprive an inmate of his 'basic human needs' such as food, clothing, medical care, and safe and sanitary living conditions." Walker, 717 F.3d at 125 (quoting Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (per curiam)). There is no "static test" for determining whether a deprivation is serious enough to violate an inmate's Eighth Amendment rights. Id. (citing Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012)). "The conditions themselves must be evaluated in light of contemporary standards of decency." Jabbar, 683 F.3d at 57 (citation and internal quotation marks omitted).

When the challenged prison conditions include exposure to unsanitary conditions, the Second Circuit has been unwilling "to set a minimum duration and minimum severity of an exposure for it to reach the level of a constitutional violation." Willey v. Kirkpatrick, 801 F.3d 51, 68 (2d Cir. 2015). There is no "bright-line durational requirement for a viable unsanitary conditions claim. Nor is there some minimal level of grotesquerie required . . . ." Id. Courts must "evaluate the product of these two components [on a case-by-case basis and] whether exposure to human waste is cruel and unusual depends on both the duration and severity of exposure." Id. "The severity of an exposure may be less quantifiable than its duration, but its qualitative offence to a prisoner's dignity should be given due consideration." Id.

To constitute deliberate indifference under the subjective element, "[t]he prison official must know of, and disregard, an excessive risk to inmate health or safety." Jabbar, 683 F.3d at 57; see also Trammel v. Keane, 338 F.3d 155, 162-63 (2d Cir. 2003) (the state of mind for the subjective element in cases involving prison conditions is "deliberate indifference to inmate health or safety."). "The official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837. Mere negligence is not enough. Id. at 835.

C. Fourteenth Amendment Due Process

A prisoner asserting a procedural due process claim "must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process." Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court held that an inmate's liberty interest is implicated by prison discipline only if the discipline "imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." In Arce v. Walker, 139 F.3d 329, 334 (2d Cir. 1998), the Second Circuit found that the liberty interest standard articulated in Sandin applies to Fourteenth Amendment procedural due process challenges to placement in Ad Seg.

Procedural due process does not permit a court to review the substance of a defendant's decision to confine an inmate in Ad Seg. Proctor v. LeClaire. 846 F.3d 597, 608 (2d Cir. 2017). "The Due Process Clause permits only an evaluation of whether Defendants' method for coming to their Ad Seg determinations is sufficient." Id. The Second Circuit noted in Proctor that in making that determination that ". . . we are mindful of the context in which this case arises and the deference we owe prison officials in carrying out their daily tasks. (citation omitted). '[O]ne cannot automatically apply procedural rules designed for free citizens in an open society . . . to the very different situation . . . in a state prison.' Wolff v. McDonnell, 418 U.S. 539 547-48 (1974)." Id.

Citing Hewitt v. Helms, 459 U.S. 460, 474 (1983), abrogated in part on other grounds by Sandlin, 515 U.S. 472, the Court explained in Proctor the process due from prison officials making Ad Seg determinations as follows:

The [Supreme] Court made it clear that Ad Seg is appropriate when necessary to incapacitate an inmate who "represents a security threat" or to "complet[e] ...an investigation into misconduct charges." Id. at 476 [ ]. So long as prison officials seek to achieve one or both of these goals, they have wide latitude in the procedures they deploy. Before confining an inmate in Ad Seg. prison officials must provide "some notice of the charges against him and an opportunity to present his views to the prison official charged with deciding whether to transfer him to [Ad Seg]," although not necessarily a full hearing. Id.; accord Taylor v. Rodriguez, 238 F. 3d 188, 192 (2d Cir. 2001). Once that has occurred, prison officials need only conduct "an informal, non-adversary evidentiary review" of whether the confinement is justified. Hewitt, 459 U.S. at 476 [ ]. Their final Ad Seg decision may "turn largely on purely subjective evaluations and on predictions of future behavior." Id. at 474 [ ] (internal quotation marks omitted).

"The standard for sufficiency of evidence in the prison administrative or disciplinary context is 'some' or a 'modicum' of evidence to support the hearing officer's decision." Zimmerman v. Seyfert, No. 9:03-CV-1389 (TJM), 2007 WL 2080517, at *14 (N.D.N.Y. July 19, 2007) (citations omitted). The state law standard requiring that a hearing officer's determination be supported by "substantial evidence" is not applicable to federal due process claims. Id.; see also Proctor v. Kelly, No. 05-CV-0692 (GTS/GJD), 2008 WL 5243925, at *13 (N.D.N.Y. Dec. 16, 2008) (substantial evidence standard used by New York in prison disciplinary and administrative segregation proceedings is not applicable to federal due process claims); Cabassa v. Gummerson, No. 9:01-CV-1039 (DNH), 2008 WL 4416411, at *12 (N.D.N.Y. Sept. 24, 2008) (violation of a DOCCS directive regarding review of administrative segregation determinations does not amount to constitutional violation).

In addition to the requirement that an inmate be given notice and an opportunity to be heard before being placed in Ad Seg, inmates confined to Ad Seg must be given some sort of periodic review of their confinement to verify that the inmate remains a security risk throughout his term so that Ad Seg is not used as a pretext for indefinite confinement of the inmate. Hewitt, 459 U.S. at 477 n.9; Proctor, 846 F.3d at 609-10. The Second Circuit explained in Proctor that "[p]eriodic Ad Seg reviews are also flexible and may be based on 'a wide range of considerations,' including but not limited to observations of the inmate in Ad Seg, 'general knowledge of prison conditions,' misconduct charges, ongoing tensions in the prison, and any ongoing investigations. [Hewitt, 459 U.S. at 477 n.9]." Id. at 609.

In Proctor, the Second Circuit recognized the counterbalancing interests of the prison administration in adopting and executing policies and practices that in their judgment are needed "to preserve internal order and discipline and to maintain institutional security," and the private interest of inmates implicated by a long stay in Ad Seg. 846 F.3d at 610 (quoting Bell v. Wolfish, 441 U.S. 520. 546-47 )1979). The following three criteria were provided by the Court for analysis in determining whether the review process employed related to continued Ad Seg confinement violates due process.

First, the reviewing officials must actually evaluate whether the inmate's continued Ad Seg confinement is justified. . . . It is not enough for officials to go through the motions of nominally conducting a review meeting when they have developed a pre-review conclusion that the inmate will be confined in Ad Seg no matter what the evidence shows. Review with a preordained outcome is tantamount to no review at all. Id. at 610.

Second, the reviewing officials must evaluate whether the justification for Ad Seg exists at the time of the review or will exist in the future, and consider new relevant evidence as it becomes available. . . . Ad seg reviews may not be frozen in time. . . . Rather, reviews must take into account prison conditions and inmate behavior as they change over time; those changes may modify the calculus of whether the inmate presents a current threat to the safety of the facility. The periodic Ad Seg review test announced by the Hewitt Court is not whether the confined inmate was a threat to the facility when he was confined initially; it is whether the inmate "remains a security risk" on the date of periodic review. . . (emphasis added). This is not to say that prison officials are barred from according significant weight to events that occurred in the past. Neither do we suggest that recent events categorically ought to be more salient in periodic reviews than those that occurred long ago. We conclude merely that prison officials must look to the inmate's present and future behavior and consider new events to some degree to ensure that prison officials do not use past events alone to justify indefinite confinement.

Third . . ., the reviewing officials must maintain institutional safety and security (or other valid administrative justification) as their guiding principles throughout an inmate's Ad Seg term. SHU confinement that began for proper Ad Seg purposes may not morph into confinement that persists for improper purposes. The state is entitled to the procedural flexibility that Hewitt allows because of its manifest interest in maintaining safe detention facilities and

other similar administrative concerns; "the Mathews balancing test tips in favor of the inmate's liberty interest" when a state seeks to impose discipline. . . . The state may not use Ad Seg as a charade in the name of prison security to mask indefinite punishment for past transgressions.

Proctor, 846 F.3d at 610-11 (citing Hewitt v. Helms, 459 U.S. 460 (1983) 9other citations omitted)).

D. Access to Courts

It is well-settled that inmates have a constitutional right to "meaningful" access to the courts. Bounds v. Smith, 430 U.S. 817, 823 (1977). This right is implicated when prison officials "actively interfer[e] with inmates' attempts to prepare legal documents, or file them[.]" Lewis v. Casey, 518 U.S. 343, 351, 353 (1977) (citations omitted). Confiscation of an inmate's legal papers may constitute a denial of access to the courts. Hiney v. Wilson, 520 F.2d 589, 591 (2d Cir. 1975); see also Lewis, 518 U.S. at 350 (recognizing right of access to the courts is protected by prohibiting prison officials from actively interfering with the preparation of legal documents). "Mere 'delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation.'" Davis, 320 F.3d at 352 (citing Jermosen v. Coughlin, 877 F. Supp. 864, 871 (S.D.N.Y. 1995)). In addition, "to establish a constitutional violation based on a denial of access to the courts, a plaintiff must show that the defendant's conduct was deliberate and malicious, and that the defendant's actions resulted in actual injury to the plaintiff." Collins v. Goord, 581 F. Supp. 2d 563, 573 (S.D.N.Y. 2008). In order to show actual injury, the defendants' conduct must have "hindered [plaintiff's] efforts to pursue a legal claim." Lewis, 518 U.S. at 351 (1996). Thus, an inmate must show more than a refusal to provide legal materials. Id. To demonstrate "actual injury" the inmate must demonstrate "that a nonfrivolous legal claim had been frustrated or was being impeded" due to the action or inaction of prison officials. Id. at 353.

The right of access to the courts "is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." See Christopher v. Harbury, 536 U.S. 403, 415 (2002). "The injury requirement reflects the facts that 'the very point of recognizing any access claim is to provide some effective vindication for a separate and distinct right to seek judicial relief for some wrong.'" Cunningham v. District Attorney's Office for Escambia Cnty., 592 F.3d 1237, 1271 (11th Cir. 2010) (quoting Christopher, 536 U.S. at 414-15). "Actual injury" may be defined as "actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or present a claim." Id. at 348.

E. Supervisory Liability

The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (a "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections . . . in a § 1983 claim") (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Therefore, "a plaintiff must . . . 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).

The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.¹¹

11 The Second Circuit has thus far not determined whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).

"Fundamentally, for a supervisor to be liable under Section 1983, there must 'of course' have 'been an underlying constitutional deprivation' by a subordinate, Blyden,186 F.3d at 265, and a 'causal link' between the supervisor's conduct and the violation of the plaintiff's civil rights." Nicholson v. Fischer, No. 13-CV-6072-FPG-MWP, 2018 WL 2009432, at *5 (W.D.N.Y. April 28, 2018) (citing Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002)).

VI. ANALYSIS OF PLAINTIFF'S CLAIMS

A. Retaliation Claim Against Deacon Regarding Keeping Plaintiff in SHU

Plaintiff alleged in his complaint and subsequently testified at his deposition that in August or September 2012, while Plaintiff was in SHU at Shawangunk, Deacon told him that he and Matt Miller were friends, and Deacon would do everything in his power to ensure Plaintiff never got out of SHU. (Dkt. Nos. 1 at ¶ 14; 64-2 at 115-117.) Plaintiff testified at his deposition that Deacon made the threat on only one occasion. (Dkt. No. 64-2 at 113, 116.) Plaintiff contends that Deacon made good on the threat to keep him in SHU by initially laying the groundwork for a claim that Plaintiff was a member of the Blood gang through the confiscation of a card from a former girlfriend of Plaintiff's that had the word "beloved" on it during a cell search on December 18, 2013. (Dkt. Nos. 1 at ¶ 20; 69 at ¶¶ 9-10.) According to Plaintiff, after the card was confiscated, Counselor Kober informed Plaintiff that he and Deacon believed the word "beloved" was gang language, and at that point Plaintiff realized that "Deacon's entire angle was revenge by way of retaliation was to label plaintiff a "Blood gang member.'" (Dkt. No. 69 at ¶ 10.)¹² (unaltered text).

12 The paragraph numbers on Plaintiff's affidavit go from 10 to 12. (Dkt. No. 69 at 3.) It appears the paragraph in which the above-quoted language appears was intended to be paragraph 11.

On May 27, 2014, when Plaintiff was being transferred to Great Meadow, Deacon emailed Fraser informing him "[y]ou are getting a crook being dropped from our box Corey Ford Aka C-Murder He is an active member of the bloods and claims in his correspondence to hold the rank of 2 star General." (Dkt. No. 69-3 at 119-20.) (unaltered text). Fraser relied upon the information from Deacon on Plaintiff's alleged gang membership in recommending that Plaintiff be placed in Ad Seg and testified about it at Plaintiff's hearing. (Dkt. Nos. 64-2 at 13; 64-6 at 20.)

Plaintiff has identified three reasons for Deacon's alleged retaliatory actions to keep Plaintiff in SHU. In his complaint, and again at his deposition, Plaintiff claimed that Deacon threatened to do everything in his power to keep Plaintiff in SHU because Plaintiff had hurt one of his friends and sued another one. (Dkt. Nos. 1 at ¶ 14; 64-2 at 75.) At another point in his complaint, Plaintiff alleges that "Deacon began his retaliation against Plaintiff for the assault that took place in 2004 at Green Haven" involving Matt Miller. (Dkt. No. 1 at ¶ 117.) Plaintiff also alleged in his complaint that "[b]efore plaintiff left Shawangunk Corr. Facility SHU, defendant Deacon made good on his promise to keep plaintiff confined to SHU, for assaulting ex-C.O. Miller, and writing grievances and complaints about his threats to retaliate." Id. at ¶ 126. In his affidavit in opposition to Defendants' summary judgment motion, Plaintiff states he filed Grievance No. 28197/13 "for threats, of retaliation, revenge, to keep plaintiff in SHU for alleged assault on his co-worker and close friend C.O. M. Miller." (Dkt. No. 69 at ¶ 5.)

In analyzing Plaintiff's retaliation claim, the Court must first consider whether Plaintiff's speech or conduct was protected. Holland, 758 F.3d at 225. An inmate's assault on a corrections officer does not constitute protected activity for purposes of a retaliation claim. See Jackson v. Dzurenda, No. 3:11-CV-1668 (RNC), 2012 WL 5448330, at *2 (D. Conn. Nov. 7, 2012) ("An inmate's assault on an officer plainly does not constitute protected activity" for purposes of a retaliation claim); Ford v. Fischer, No. 09-CV-723 (DNH/ATB), 2011 WL 856416, at *11 n.16 (N.D.N.Y. Jan. 31, 2011) ("Participation in an assault is not a protected activity that can form the basis of a retaliation claim"); Reeder v. Artus, No. 09-CV-575 (DNH/DRH), 2010 WL 3636138, at *6 (N.D.N.Y. July 27, 2010) (assaulting a corrections officer is not the sort of thing protected by the constitution). Therefore, Plaintiff's assault on Matt Miller in 2004 was not protected conduct and cannot support a retaliation claim against Deacon.

Filing lawsuits and grievances can be protected conduct for purposes of a retaliation claim. See Baskerville, 224 F. Supp. 2d at 732 (filing a lawsuit is a constitutionally protected activity for purposes of a retaliation claim) (citing Bounds, 430 U.S. at 821-32; Flynn v. Ward, No. 15-CV-1028 (TJM/CFH), 2018 WL 3195095, at *8 (N.D.N.Y. June 7, 2018) ("It is well-settled that the filing of a grievance constitutes protected speech under the First Amendment" for purposes of a retaliation claim) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)). However, even assuming Deacon's alleged threat to use his power to keep Plaintiff in SHU and alleged scheme to falsely identify Plaintiff as a member of the Bloods gang as a vehicle for doing so constituted adverse action, the Court finds that no reasonable jury would conclude that there was an adequate causal connection between Plaintiff's 2005 lawsuit against McClenning and the grievances filed against Deacon by Plaintiff, and Deacon's alleged adverse action.

There is no evidence in the summary judgment record that Deacon was personally involved in Plaintiff's 2005 lawsuit against McClenning and others for excessive force following Plaintiff's assault on Matt Miller. "Generally, alleged retaliation motivated by an action the prisoner took which did not personally involve the prison officials is insufficient for a retaliation claim." Ortiz v. Russo, No 13 CIV. 5317, 2015 WL 1427247, at *11 (S.D.N.Y. Mar. 27, 2015) (citing Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a corrections officer when the alleged basis for retaliation was a complaint about an incident involving another corrections officer)); Guillory v. Ellis, No. 9:11-CV-600 (MAD/ATB), 2014 WL 4365274, at *18 (N.D.N.Y. Aug. 28, 2014) ("it is difficult to establish one defendant's retaliation for complaints against another defendant").

Moreover, the approximately nine years between Plaintiff's 2005 lawsuit against McClenning and Deacon's alleged threat and subsequent action to keep Plaintiff in SHU in 2014 is too great a time gap to support an inference of causation. See Moore v. Kwan, No. 12-CV-4120, 2016 WL 9022575, at *15 *S.D.N.Y. Mar. 30, 2016), aff'd 683 F. App'x 24 (2d Cir. 2017) ("Courts have found causation based upon temporal proximity where the lapse between the protected act and the adverse actions consisted of a few months, not years."); Baskerville, 224 F. Supp. 2d at 732 (no temporal proximity where a prior lawsuit was filed three years prior to the retaliatory act).

The Court also rejects Plaintiff's claim that Deacon's threat to keep Plaintiff in SHU was made in retaliation for a series of grievances Plaintiff filed against Deacon at Shawangunk subsequent to the threat. Plaintiff himself claims that Deacon made the threat he was going to use all his power to keep Plaintiff in only one time, and that it was in August or September 2012. (Dkt. Nos. 1 at ¶ 14; 64-2 at 75.) Grievances filed after the allegedly retaliatory action, cannot be a substantial factor in the alleged retaliation. See Diaz v. Fischer, No. 08-CV-1208 (LEK/DRH), 2010 WL 1132772, at *9 (N.D.N.Y. Feb. 23, 2010).

Based on the foregoing, the Court recommends that Defendant Deacon be granted summary judgment on Plaintiff's First Amendment retaliation claim regarding the threat made and actions allegedly taken by Deacon to keep Plaintiff in SHU.

B. Retaliation Claim for Harassment by Deacon

Plaintiff has alleged that Deacon engaged in a course of harassing conduct against him while he was in the Shawangunk SHU. (Dkt. No. 1 at ¶ 18.) Plaintiff testified at his deposition that after August or September 2014, Deacon harassed him every chance he got doing such things as yelling at the top of his lungs, "where is Ford . . . I don't see him," and coming by and kicking the gate and telling people to give him smaller portions of food. (Dkt. Nos. 1 at ¶ 18; 64- 2 at 108-11.)

"It is well-settled that 'verbal harassment, or even threats, are generally held not to rise to the level of adverse action that will support a First Amendment retaliation claim.'" Thomas v. Pingotti, No. 9:17-CV-0300 (GTS/DEP), 9:17-CV-0377 (GTS/ATB), 2017 WL 3913018, at *4 (N.D.N.Y. Sept. 6, 2017) (quoting Rosales v. Kikendall, 677 F. Supp. 2d 643, 648 (W.D.N.Y. 2010)); see also Reed v. Doe No. 1, No. 9:11-CV-0250 (TJM), 2013 WL 5441503, at *6 (N.D.N.Y. Sept. 27, 2013) ("it is well-established, however, that verbal harassment and derogatory comments by prison workers aimed at an inmate, however unprofessional, do not rise to a level of constitutional significance, and therefore cannot constitute adverse action sufficient to support a retaliation cause of action.").

Therefore, the Court recommends that Deacon also be granted summary judgment on Plaintiff's First Amendment retaliation claim regarding Deacon's alleged harassment.

C. Retaliation Claim Against Deacon and Phillips Regarding the Alleged Destruction of Plaintiff's Bible

Plaintiff has alleged in his complaint that Deacon destroyed a Bible that had been in Plaintiff's possession for eighteen years until it was confiscated during a search of his cell on or about April 14, 2014. (Dkt. No. 1 at ¶¶ 39-40.) Plaintiff further alleged that Deacon "destroyed the Bible in retaliation because he believed he had failed his leader and mentor C.O. M. Miller, to keep his promise that he would assure plaintiff stay in SHU." Id. at ¶ 40. (unaltered text). At his deposition, Plaintiff testified that while no one had told him Deacon had ordered the search of his cell when the Bible was taken, he believed Deacon was involved and the search was undertaken in retaliation for Matt Miller. (Dkt. No. 64-2 at 136.) Plaintiff also testified that he believed Deacon had taken the Bible and told Defendant Phillips to get rid of it. (Dkt. No. 64-2 at 132.) Plaintiff conceded "I could be wrong but I know Deacon." Id. at 148.

Deacon has denied playing any role in the search of Plaintiff's cell in April 2014 and at that time had been the relief Charts Sergeant for several months and would have had no involvement with cell searches in SHU, nor any reason to order them. (Dkt. No. 64-3 at ¶ 13.) Deacon does not recall ever directing a search of Plaintiff's cell. Id. Deacon denies ever having possession or control over Plaintiff's Bible, and denies Plaintiff's claim that Deacon destroyed the Bible or ordered it destroyed is untrue. Id. at ¶¶ 13-14.

Phillips has also submitted a declaration in which he has stated that he recalls participating in a search of several cells, including Plaintiff's, in April 2014 at the direction of Lieutenant Gardner. (Dkt. No. 64-4 at ¶ 6.) According to Phillips, if he or another officer had confiscated Plaintiff's Bible because it had for some reason been designated as suspected contraband, it would have been secured in a contraband locker in the disciplinary office and subject to a strict set of policies governing the documentation, securing, and treatment of suspected contraband. Id. at ¶¶ 6-7. Phillips has stated in his declaration that Deacon, as Charts Sergeant, would not have been involved in dealing with contraband and never ordered Phillips to destroy Plaintiff's Bible. Id. at ¶ 8. Phillips denies destroying Plaintiff's Bible. Id.

Plaintiff testified at his deposition that he had known Phillips for years and never had a problem with him, and that Phillips was a "sweetheart." (Dkt. No. 64-2 at 148-49.) Plaintiff also testified that he believed that Phillips was used as a pawn by Deacon in connection with the destruction of the Bible. Id. at 148. When asked if he believed Phillips had been acting in retaliation or following orders, Plaintiff testified he believed Phillips was following Deacon's orders. Id. at 150.

The Court finds no evidence in the summary judgment record supporting Plaintiff's belief that Deacon and Phillips were involved in the destruction of his Bible. Conjecture and speculation are insufficient to create a genuine issue of fact. Kerzer, 156 F.3d at 396. Therefore, the Court finds that no reasonable jury could conclude that either Deacon or Phillips engaged in adverse action with regard to Plaintiff's Bible as required for a First Amendment retaliation claim, Holland, 758 F.3d at 225, and recommends that Deacon and Phillips be granted summary judgment on Plaintiff's First Amendment retaliation claim regarding the destruction of his Bible.

D. Retaliation Claims Against Fraser, Eastman, and Superintendent Miller Regarding Plaintiff's Transfer to Great Meadow and Placement in Ad Seg

Plaintiff has alleged in his complaint that when he learned that he was being transferred to Great Meadow, he realized immediately he was being retaliated against because McClenning, who had been involved in the incident with Matt Miller, testified against Plaintiff at the criminal trial, was a defendant in Plaintiff's excessive force action, and was a friend/mentor of Matt Miller at Great Meadow. (Dkt. No. 1 at ¶ 43.) According to Plaintiff, the day after he arrived at Great Meadow, when his cell was opened for him to take a shower, he saw numerous white officers with batons waiting to attack him with deadly physical force in retaliation presumably for the Matt Miller assault. Id. at ¶ 45. Plaintiff went back into his cell to avoid the confrontation. Id. Plaintiff testified at his deposition that he told Superintendent Miller he had been sent to Great Meadow to be murdered or badly hurt. (Dkt. No. 64-2 at 200-01.) However, Plaintiff has conceded he was never assaulted by staff or inmates while housed at Great Meadow. Id. at 155-56.

At his deposition, Plaintiff testified that someone in the Inspector General's Office was responsible for his transfer to Great Meadow. (Dkt. No. 64-2 at 157.) Moreover, in his responses to items 38 and 39 of Defendants' statement of material facts, Plaintiff has admitted that Fraser, Eastman, and Miller did not organize or direct his transfer to Great Meadow and did not have the power or authority to do so. (Dkt. No. 69-2 at 15.) Plaintiff has, however, asserted a claim against Fraser, Eastman, and Miller that they placed him in Ad Seg at Great Meadow in retaliation for his assault on Matt Miller. (Dkt. Nos. 69 at ¶¶ 21-22; 69-3 at 152.)

According to Plaintiff, Fraser had worked closely with Matt Miller at Green Haven and wrote the Ad Seg recommendation out of retaliation for his close friend. (Dkt. Nos. 1 at ¶ 47; 64-2 at 195-96.) Plaintiff testified at his deposition that there could be no reason other than the incident with Matt Miller that Fraser wrote the Ad Seg recommendation. (Dkt. No. 64-2 at 197.) Plaintiff has alleged in his complaint that on June 6, 2014, Superintendent Miller told Plaintiff that Eastman would be his hearing officer on the Ad Seg hearing, that Plaintiff would be found guilty, and he should not have fought Matt Miller, sued Miller and McClenning, or filed grievances against Deacon. (Dkt. No. 1 at ¶ 54.)

Fraser has denied that his Ad Seg recommendation was in retaliation for an assault that had occurred ten years ago at another facility or a lawsuit he knew nothing about, but rather that it was based on his understanding of Plaintiff's history and profile. (Dkt. No. 64-5 at ¶ 18.) Eastman has denied that the Ad Seg process or his determination were retaliatory since he had no reason to retaliate against Plaintiff in that Plaintiff had filed no grievances or lawsuits against him at the time and Eastman was unaware of any filed against his colleagues. (Dkt. No. 64-5.) According to Eastman, his determination was based upon Plaintiff's gang membership and Plaintiff's lengthy and disturbing disciplinary record highlighted by the 2004 attack but also including assaults on other inmates, which suggested that Plaintiff's presence in general population would create a dangerous risk of disturbances. Id. at ¶ 9.

Superintendent Miller has denied selecting Eastman as hearing officer and has also denied telling Plaintiff that he was being placed in Ad Seg out of retaliation. (Dkt. No. 64-7 at ¶¶ 10-17.) According to Superintendent Miller, Plaintiff's claim that everything that occurred at Great Meadow with which Plaintiff disagreed or he disliked was based on an attack that he occurred ten years ago was "simply speculative and wrong." Id. at ¶ 18.

The Court finds that Defendants Fraser, Eastman, and Superintendent Miller are all entitled to summary judgment on Plaintiff's retaliation claims related to his being moved to Great Meadow and his placement in Ad Seg. As already explained, an inmate's attack on a corrections officer does not constitute protected activity for purposes of a retaliation claims. See Jackson, 2012 WL 5448339, at *2. Moreover, no reasonable jury would find an adequate causal connection between Plaintiff's 2005 lawsuit against McClenning or grievances he filed against Deacon at Shawangunk and Fraser, Eastman, and Superintendent Miller's involvement in Plaintiff's placement in Ad Seg. See Ortiz, 2015 WL 1427247, at *11 (alleged retaliation motived by action prisoner took that did not personally involve prison officials is generally insufficient for retaliation claim); Baskerville, 224 F. Supp. 2d at 732 (no temporal proximity where lawsuit filed three years prior to alleged retaliation).

In addition, the Court has found no evidence in the summary judgment record sufficient for a reasonable jury to conclude that Fraser, Eastman, and the Superintendent's actions in connection with Plaintiff's placement in Ad Seg were retaliatory. Plaintiff's conclusory assertions, conjecture, and speculation as to the Defendants' motivation is not enough to avoid summary judgment. See Kerzer, 156 F.3d at 400.

In light of the foregoing, the Court recommends that Fraser, Eastman, and Superintendent Miller be granted summary judgment on Plaintiff's retaliation claim related to Plaintiff's transfer to Great Meadow and placement in Ad Seg.

E. Conditions of Confinement Claims Against Fraser, Eastman, and Superintendent Miller Regarding Housing Conditions at Great Meadow

1. Plaintiff's Claims Regarding the Conditions of his Confinement

Plaintiff has asserted an Eighth Amendment conditions of confinement claim against Defendants Fraser, Eastman, and Superintendent Miller in connection with his living conditions while at Great Meadow. (Dkt. No. 1 at ¶¶ 128-133.) Plaintiff has claimed that SHU cell F-1 29, where he was housed for approximately a month and a half, was filthy and unsanitary, and he was denied cleaning supplies for eleven days. (Dkt. Nos. 1 at ¶ 46; 64-2 at 175-77.) According to Plaintiff, everyone knew that SHU cell F-1 29, which was surrounded by mental patients who banged the plexiglass and metal walls, was a punishment cell. (Dkt. Nos. 1 at ¶ 61; 64-2 at 170, 175-76.)

Plaintiff has alleged in his complaint that Fraser, Eastman, and Superintendent Miller "strategically housed plaintiff in F-2 29 cell to be tortured next Mental Health Patients whose untreated illnesses were severe and beyond just yelling at the top of their lungs, but by banging on plaintiff's thin metal walls and their plexiglass partitions with their 3 ½ gallon buckets." (Dkt. No. 1 at ¶ 129.) (unaltered text). Plaintiff suggests that he was placed in that cell because his admission to SHU was actually punitive and not administrative as was claimed. (Dkt. No. 64-2 at 173.) He theorized at his deposition that Eastman and Superintendent Miller were responsible for his placement there and were the ones who said Plaintiff should be taken to SHU cell F-1 29. Id. at 173-74. Plaintiff also testified that because Miller was Superintendent whatever he said goes. Id. at 184. When Plaintiff was asked if he had complained about the conditions of cell F-1 29 to Superintendent Miller in addition to writing grievances, Plaintiff testified he had not because it was Miller's prison, and Miller already knew what cell F-1 29 was used for and knew what the back cells were used for, that they were filthy, that the inmates do not get cleaning supplies, and the porters do not come and clean out the cells when the inmates leave. (Dkt. No. 64-2 at 185-86.)

Plaintiff also filed grievances claiming that the ventilation system did not function properly; windows were broken; the showers were cold with little water pressure; cold air was coming into the showers through the bottom of the yard doors creating freezing conditions at night; and a large exhaust fan outside Plaintiff's cells was turned on as a punitive measure. (Dkt. No. 64-7 at 10; 69 at ¶ 49; 69-3 180-86, 190, 258, 273.)

2. Defendants' Evidence Relevant to Plaintiff's Conditions of Confinement Claim

Fraser denies having any responsibility for cell maintenance, conditions, or repair and has stated in his declaration that he was never involved in processing or responding to any grievances Plaintiff may have filed concerning his housing. (Dkt. No. 64-5 at ¶ 16.) The Court has found no evidence in the summary judgment record to the contrary.

Eastman has stated in his declaration that Plaintiff's claims that Eastman bears responsibility for the alleged condition of the various SHU F-Block cells in which Plaintiff was housed while in Ad Seg are baseless. (Dkt. No. 64-6 at ¶ 12.) According to Eastman, cells are assigned on an as-available basis, and he had no role in Plaintiff's initial assignment in cell F-1 at 29, nor has he ever been told it is designated as a punishment cell. Id. Eastman has also explained in his declaration that as Deputy Superintendent of Security, he had no role in responding to complaints about cell conditions, cleaning supplies, or fixing sinks. Id. at ¶ 13. Eastman claims to have had no responsibility for the correction of any maintenance or hygiene concerns with regard to Plaintiff's cell. Id. Moreover, Eastman has stated in his declaration that Plaintiff never complained to him directly regarding his cell conditions, although Plaintiff frequently spoke to him when he made his rounds. Id. at ¶ 14. The Court has found no evidence in the summary judgment record to the contrary.

Superintendent Miller has stated in his declaration that he did not direct Plaintiff's placement in any particular cell, and that to the best of his knowledge, assignment would be made on an as-available basis by the staff in SHU. (Dkt. No. 64-7 at ¶ 13.) Superintendent Miller does not typically involve himself in the issue of cell placement and did not do so in this case. Id. at ¶ 14. Miller denies conducting any kind of inquiry or review of decisions made regarding Plaintiff's cell placement except to the extent of reviewing grievances addressed by the Inmate Grievance Resolution Committee ("IGRC") and affirming grievance determinations having to so with his living conditions, and did not direct Plaintiff's movement between cells. Id.; Dkt. No. 64-7 at pp. 10-11, 13-6.

In addition, Superintendent Miller has stated he plays no personal role in overseeing cell maintenance and correcting cell defects, and that those duties fall to the officers and Sergeants responsible for the housing units where maintenance or repair problems have been discovered or reported by inmates. Id. at ¶ 15. Miller had a number of conversations with Plaintiff during his rounds of SHU and does not recall Plaintiff ever making complaints directly to him about the conditions of his cell. Id. at ¶ 16. The Court has found no evidence in the summary judgment record to the contrary.

3. Analysis

Personal involvement in the alleged deprivation of constitutional rights is a prerequisite to an award of damages under § 1983. McKinnon, 568 F.2d at 934. There is no vicarious liability under § 1983. Iqbal, 556 U.S. at 676. Therefore, Fraser, Eastman, and Superintendent Miller may only be held liable if they were personally involved in the violation of Plaintiff's Eighth Amendment right to humane living conditions.

The Court finds that aside from Plaintiff's conclusory assertions and speculation, there is no evidence in the summary judgment record showing that, other than Superintendent Miller's decisions on Plaintiff's grievances regarding his living condition, Fraser, Eastman, and Miller had any personal involvement in determining the cells in which Plaintiff would be housed and no knowledge of or involvement with respect to the conditions about which Plaintiff has complained. Under the Colon criteria for personal involvement set forth above, writing letters and grievances to a supervisory official is insufficient to establish notice of a constitutional violation and personal involvement. See Flynn, 2018 WL 3195095, at *13 (citing Smart v. Goord, 441 F. Supp. 2d 631, 643 (S.D.N.Y. 2006) ("Commissioner . . . cannot be held liable on the sole basis that he did not act in response to letters of protest sent by [plaintiff] . . . ."); Thompson v. Pallito, 949 F. Supp. 2d 558, 575-76 (D. Vt. 2013) (if merely writing an unanswered letter to a prison official were sufficient to establish personal involvement, it would "contravene the black-letter principle that § 1983 does not allow for respondeat superior liability.")

Moreover, even if the Court were to assume solely for purposes of this summary judgment motion that Plaintiff had raised an issue of fact with regard to the objective prong of a conditions of confinement claim, and that one or more of the Defendants may have had some personal involvement, Plaintiff's claim fails on the subjective component of his claim because there is absolutely no evidence in the summary judgment record upon which a reasonable jury could find that any of the three Defendants knew of and disregarded an excessive risk to Plaintiff's health or safety. See Jabbar, 683 F. 3d at 57. There is nothing in the record that shows Fraser, Eastman, or Superintendent Miller were "both aware of facts from which the inference could be drawn that a substantial risk of harm exist[ed], and [they drew] the inference." Farmer, 511 U.S. at 837. Therefore, the Court recommends that Defendants Fraser, Eastman, and Superintendent Miller be granted summary judgment on Plaintiff's Eighth Amendment conditions of confinement claim.

F. Procedural Due Process Claim Against Eastman and Superintendent Miller Regarding his Ad Seg Hearing and Periodic Reviews

Defendants Eastman and Superintendent Miller appear to have conceded for purposes of their summary judgment motion that Plaintiff possessed a liberty interest on his Fourteenth Amendment procedural due process claim and to rely solely on their claim that Plaintiff received all of the process that was due him in connection with his placement and retention in Ad Seg. (Dkt. No. 64-9 at 16-19.)

Plaintiff claims that his procedural due process rights were violated by Eastman's denial of his request for copies of the emails between Deacon and Fraser and Fraser and Demo upon which Fraser had relied in concluding that Plaintiff was a member of the Bloods gang. (Dkt. Nos. 1 at ¶ 136; 69 at ¶¶ 30-31.) According to Plaintiff, the denial prevented him from properly presenting and preparing his defense that Deacon and Fraser conspired to have him placed in Ad Seg in retaliation for the assault on Miller. Id. Plaintiff claims that Eastman and Superintendent Miller further violated his due process rights by failing to have adequate periodic review of his Ad Seg status. (Dkt. No. 69 at ¶¶ 39-41.)

1. Ad Seg Hearing

Plaintiff has relied largely upon the rights regarding placement in Ad Seg granted inmates under the New York regulations at N.Y. Comp. Codes R. & Regs, tit. 7, §§ 254, 301.4 in support of his Fourteenth Amendment procedural due process claim against Eastman and Superintendent Miller. (Dkt. No. 1 at ¶ 135.) However, "[a]n alleged violation of a prison policy, directive, or regulation, in and of itself, does not give rise to a federal claim, because federal constitutional standards rather than state law define the requirements of procedural due process." Holland v. City of New York, 197 F. Supp. 3d 529, 549 (S.D.N.Y. 2016) (internal quotation marks omitted) (quoting Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990)); Bolden v. Alston, 810 F.2d 353, 358 (2d Cir. 1987) ("State procedural requirements do not establish federal constitutional rights"); O'Diah v. Artus, 887 F. Supp. 2d 497, 501 (W.D.N.Y. 2012) (violation of state regulations by prison officials "does not in itself give rise to a due process claim.").

Under Hewitt, 459 U.S. at 476, due process requires that prior to an inmate's placement in Ad Seg, he "must merely receive some notice of the charges against him and an opportunity to present his views [either orally or in writing] to the prison official charged with deciding whether to transfer him to administrative segregation." Plaintiff was served with formal charges recommending that he be placed in Ad Seg on May 29, 2014. (Dkt. No. 64-6 at 13.) The recommendation placed Plaintiff on notice that his membership in the Bloods gang, the 2004 assault on Matt Miller, and Plaintiff's disciplinary history were the reasons for the Ad Seg recommendation. (Dkt. No. 69-3 at 71.) Plaintiff was asked if he wanted to present witnesses and answered in the negative. (Dkt. No. 64-6 at 16, 22.) Plaintiff presented his views regarding the Ad Seg recommendation at a hearing before Eastman, including his denial that he was a member of the Bloods, his assessment of most of his disciplinary history as "garbage," and his explanation of the assault against Matt Miller, despite his claim that he did not defend against Ad Seg placement because of threats by Eastman and Fraser. Id. at 17-19. Plaintiff was present for Fraser's testimony and was allowed to question Fraser and thereby learned that the individual from Shawangunk who had identified Plaintiff as a member of the Bloods was Deacon, and that it was likely Demo with whom Fraser communicated at Central Office concerning Plaintiff's alleged gang membership. Id. at 21-22.

Plaintiff was not, as he pointed out, provided with copies of the Deacon and Demo emails regarding his alleged membership in the Bloods, nor were the emails produced at the hearing to confirm Fraser's claim. (Dkt. No. 1 at ¶¶ 57-58.) Courts, however, have drawn a distinction between disciplinary and administrative segregation and concluded that prisoners who are segregated for administrative reasons are entitled to fewer protections than those segregated for disciplinary reasons. See Matiyn v. Henderson, 841 F.2d 31, 34 (2d Cir. 1988). In Hewitt, the Supreme Court found that only minimal process was due. Hewitt, 459 U.S. at 472. The Court finds that despite not being given the emails prior to or at the hearing, Plaintiff was clearly placed on notice that the Ad Seg recommendation was based, in part, on his membership in the Bloods; he knew based on Fraser's testimony that Deacon was his accuser; and he clearly denied membership in the Bloods at the hearing.

Based upon the foregoing the Court concludes that failure to give Plaintiff copies of the emails did not deprive him of the ability to prepare a defense to the clear charges in the Ad Seg recommendation, see Taylor v. Rodriguez, 238 F.3d 188, 192-93 (2d Cir. 2001); he was afforded his due process right to the opportunity to be heard at a meaningful time and in a meaningful manner, Doe v. Simon, 221 F.3d 137, 139 (1979); and Plaintiff was provided with all of the process due him under Hewitt.

2. Periodic Reviews

Plaintiff was in Ad Seg at Great Meadow from on or about May 28, 2014, through on or about February 6, 2015. (Dkt. No. 69 at ¶¶ 21, 52.) During that eight month period, two periodic Ad Seg reviews, the first on September 9, 2014, and the second on November 17, 2014, were undertaken by facility three-member committees who recommended keeping Plaintiff in Ad Seg. (Dkt. No. 69-3 at 175, 192.) Superintendent Miller found that keeping Plaintiff in Ad Seg was appropriate at the time of the reviews because it was clear that placing Plaintiff in general population would pose a threat to Plaintiff's safety and the safety of other inmates and staff. Id.

Plaintiff filed written statements objecting to both determinations keeping him in Ad Seg. Id. at 176, 193. Plaintiff claims that Eastman and Miller violated his right to procedural due process by providing inadequate substantive, meaningful review in his two periodic reviews. (Dkt. No. 1 at ¶¶ 80, 140.) "Once an inmate has been confined in Ad Seg, Hewitt mandates that prison officials 'engage in some sort of periodic review of the confinement' to verify that the inmate 'remains a security risk' throughout his term." Proctor, 846 F.3d at 609 (quoting Hewitt, 459 U.S. at 477 n.9).

The Second Circuit recognized in Proctor the state's substantial interest in maintaining institutional security and the need to accord prison administrators wide ranging deference in adopting and executing flexible Ad Seg review policies. Id. at 610. The Court also noted that "the private interest implicated by an extended and indefinite stay in Ad Seg is also weighty" and recognized that the interest of the plaintiff in Proctor, who had spent thirteen years in Ad Seg with no release in sight, in avoiding an indefinite Ad Seg term was surely more substantial that the interest of the plaintiff in Helms, who was in Ad Seg for less than two months. Id. Thus, the Court found that "an inmate who has spent an extended period of time in Ad Seg and whose term is 'potentially limitless' has a 'more significant liberty interest for due process analysis than that attributed to [Helms].'" (quoting Mims v. Shapp, 744 F.2d 946, 951-52 (3d Cir. 1984)).

Plaintiff had been in Ad Seg only a little over three months when he had his first periodic review. He had been in Ad Seg for approximately five and a half months at the time of his second. (Dkt. No. 69-3 at 175, 192.) The reviews reveal that Plaintiff's behavior and attitude over the period of time covered by the review had been evaluated by the committee and found appropriate. However, in light of the reasons for Plaintiff's Ad Seg placement and the relatively short amount of time he had been in Ad Seg, it does not seem unreasonable that the officials would conclude, based upon Plaintiff's behavior over a short period of time, that he was no longer a threat to the safety or security of the facility, or that releasing him into the general population would not constitute a risk to Plaintiff's own safety. Id. at 175.

In Proctor, there was testimonial evidence that those involved in the periodic review of the plaintiff's Ad Seg placement had reached a pre-review conclusion that the plaintiff would remain in Ad Seg over a thirteen year period and beyond, regardless of the existence of evidence supporting his release. Proctor, 846 F. 3d at 605-07. There is no such evidence in this case, and despite Arena's alleged comment that her only involvement was in signing the review, there is no evidence that the decisions reached on Plaintiff's two reviews were guided by anything other than concern for institutional safety.

Based on the foregoing, the Court finds that the periodic reviews of Plaintiff's Ad Seg placement satisfied the three criteria for review set forth in Proctor, and that there was no violation of Plaintiff's procedural due process rights by Eastman and Superintendent Miller.

3. Conclusion

The Court finds that Defendants Eastman and Superintendent Miller did not violate Plaintiff's Fourteenth Amendment procedural due process rights in either his placement in Ad Seg or the periodic reviews, and recommends that the Defendants be granted summary judgment on the claim.

G. Access to Court and Retaliation Claims Against McClenning Regarding the Loss or Destruction of Plaintiff's Materials from Plaintiff's Active Legal Files

Plaintiff claims that McClenning made a hole in Plaintiff's cell bag and took all of his active legal material when Plaintiff was moved from Great Meadow to Five Points in February 2015, thereby preventing him, inter alia, from pursuing an Article 78 proceeding brought with regard to his placement in Ad Seg. (Dkt. No. 64-2 at 95-99.) Plaintiff testified at his deposition that he thought McClenning had acted in retaliation for the lawsuit Plaintiff had filed against him in 2005 and probably for writing up Deacon, but not for the assault on Matt Miller. (Dkt. No. 64-2 at 95-96.)

In his declaration, McClenning acknowledged being involved in restraining Plaintiff following his attack on Matt Miller and testifying against Plaintiff at his criminal trial. (Dkt. No. 64-8 at ¶ 4.) McClenning was transferred from Green Haven to Great Meadow in 2004. Id. While aware that Plaintiff had been transferred to Great Meadow, because of his position in the draft office at Great Meadow, McClenning denies any interaction with Plaintiff until Plaintiff transferred out of Great Meadow. Id. at ¶¶ 5, 8. According to McClenning, he had no involvement in the packing or loading of Plaintiff's belongings, and his only direct interaction with Plaintiff was as the van driver who transported him to Washington, which was less than a mile from Great Meadow. Id. at ¶ 8.

McClenning denies ever directly handling Plaintiff's property or having it in his direct possession. Id. McClenning further denies making the comments alleged by Plaintiff in his complaint. Id. at ¶ 9; see also Dkt. No. 1 at ¶ 91. McClenning also denies throwing away or destroying material from Plaintiff's active legal cases, or having any knowledge of the cases Plaintiff was pursuing. Id. at ¶ 10.

Plaintiff, for his part, has produced no evidence whatsoever establishing that McClenning was involved in the loss of materials in Plaintiff's active legal cases. Plaintiff's belief that McClenning was involved appears to be based solely on the happenstance of McClenning's presence in the draft room and role as driver of the van; the comments Plaintiff claims McClenning made regarding waiting to get Plaintiff's ass for ten years because of what he had done to his friend Matt Miller; and McClenning having Plaintiff sign two additional I-64 forms. (Dkt. Nos. Dkt. No. 1 at ¶ 91; 64-2 at 89-96.)

One of the elements of a First Amendment access to courts claim is that a prison official be personally involved in interfering with or hindering a plaintiff's pursuit of a nonfrivolous legal claim, resulting in actual injury to Plaintiff. Davis, 320 F.3 at 351; Taylor v. Santana, 2007 WL 737485, at *6-7 (S.D.N.Y. 2007). A First Amendment retaliation claim requires that a defendant have personally engaged in adverse action against a plaintiff. Holland, 758 F.3d at 225. Plaintiff has failed to submit evidence sufficient to raise a question of fact on the issue of whether McClenning took any action whatsoever with regard to Plaintiff's active legal papers, let alone that he did so deliberately and maliciously. See Collins, 877 F. Supp. 2d at 871. Plaintiff's conjecture and speculation that McClenning was responsible for the loss or destruction of his legal papers is inadequate to avoid summary judgment in McClenning's favor. See Kerzer, 156 F.3d at 400. Therefore, the Court recommends that McClenning be granted summary judgment on Plaintiff's First Amendment access to court and retaliation claims.

ACCORDINGLY, it is hereby

RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 64) be GRANTED in its entirety; and it is hereby

ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report.¹³ Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: August 27, 2018

13 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. 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. Civ. 6(a)(1)(C).

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge