Plaintiff Feliberto Rivera, Jr., an inmate at Marcy Correctional Facility, sues 46 individual named and 10 unnamed defendants associated with the New York Department of Correctional Services (DOCS), alleging numerous instances of retaliation, mistreatment, and abuse, amounting to violations of his constitutional rights. He also alleges that he was denied access to the courts by various DOCS employees. Rivera sues under 42 U.S.C. §§ 1983, 1985, 1986, and 1988 (2000) for $1 million in compensatory and punitive damages. He also requests a preliminary injunction pursuant to Fed.R.Civ.P. 65 prohibiting DOCS from enforcing several of its correctional regulations. Defendants move to dismiss the complaint. Both sides have submitted exhibits to supplement their pleadings, which allows the court to consider defendants' motion to dismiss as one for summary judgment. The court does so, and for the reasons stated below, defendants' motion is denied in part and granted in part.

Throughout this opinion, the court will attempt to use the correct spelling of defendants' names, taking guidance from court records, exhibits filed by both parties, and defendants' filings. The court has also attempted to supply the first names of defendants where they were not listed in the complaint. The defendants listed in the complaint, with name spellings corrected to the best of the court's ability, in the order of the caption, and including the caption's descriptions, are as follows: George E. Pataki, Governor-Chief Officer of the New York State Department of Correctional Services; Glenn Goord, Commissioner of the New York State Department of Correctional Services; Donald Selsky, Director of Special Housing Unit for the New York State Department of Correctional Services; Brian Malone, Inspector General of the New York State Department of Correctional Services; Christopher P. Artuz, Superintendent of Green Haven Correctional Facility; Dennis Bliden, First Deputy Superintendent of Green Haven Correctional Facility; George S. Schneider, Deputy Superintendent of Security at Green Haven Correctional Facility; Gayle Haponik, Deputy Superintendent of Administrative Services at Green Haven Correctional Facility; J. McKoy, Deputy Superintendent of Programs at Green Haven Correctional Facility; Frank Meeuwisse, Hearing Officer at Green Haven Correctional Facility; Correctional Lieutenants: Gwen S. Schneider; Thomas K. Quackenbush; Michael N. Nagy; T. Gotsch; Correctional Sergeants: William F. Keyser; Alexander C. Miller; Kenneth G. Hafford; Coleman S. Wilson; Ward; Thomas P. McCabe; Correctional Officers: Jerry W. Surber, Jr.; Daniel F. Martuscello; Chris M. Martuscello; Christopher W. Carlton; T. Schihl; Erns; Marc Speed; R. Graziano; Miller; W. Eaton; Tammy Haights, Investigator of the New York State Department of Correctional Services Inspector General's Office; David Miller, Superintendent of Eastern Correctional Facility; Jordan A. Ryan, Superintendent of Cayuga Correctional Facility SHU-200 Box; George B. Duncan, Superintendent at Great Meadow Correctional Facility; William E. Phillips, Deputy Superintendent of Security at Great Meadow Correctional Facility; Dr. Albert Paolano, Medical Director at Great Meadow Correctional Facility; Ted Nesmith, Physician Assistant at Great Meadow Correctional Facility; Harris, Nurse at Great Meadow Correctional Facility; Harold McKinney, Superintendent of Mt. McGregor Correctional Facility; Edward J. McSweeney, Assistant Commissioner/Executive Assistant of the New York State Department of Correctional Services; Gwen Duncan, Inmate Grievance Program Supervisor at Mt. McGregor Correctional Facility; Peter Berezny, Inmate Grievance Program Coordinator for the New York State Department of Correctional Services; Richard Roy, Assistant Commissioner of the New York State Department of Correctional Facilities; Lucien Leclaire, Jr., Deputy Commissioner of the New York State Department of Correctional Facilities; Kenny Marks, Nurse at Great Meadow Correctional Facility; John W. Burge, Auburn Correctional Facility Superintendent; and John/Jane Doe 1-10, in their personal and individual capacity.

Defendants note that according to their records, defendants Artuz, McCabe, C. Martuscello, and Burge have not requested representation by the State in regard to this action. (Def. Mem. at 2 n. 1) However, according to 42 U.S.C. § 1997(e) (c) (1), the court may dismiss an action concerning prison conditions brought pursuant to federal law upon motion of any party. Therefore, the State moves to file its papers on behalf of all named defendants, and that motion is granted.

I.

This is the second time this court has considered Rivera's allegations against DOCS officials. Rivera sued 35 named and seven unnamed DOCS defendants in May 2001 alleging many of the same claims involved in this case. I dismissed that action without prejudice because Rivera had failed to exhaust administrative remedies for several of his claims; I advised Rivera that he could file a new complaint containing only exhausted claims. See Rivera v. Pataki, No. 01 Civ. 5179, 2003 U.S. Dist. LEXIS 11266, at *31 (S.D.N.Y. June 25, 2003). Rivera then initiated this action, in which he reasserts his previous allegations of retaliation, assault, and mistreatment, and also claims that DOCS officials prevented him from exhausting his unexhausted claims from the previous lawsuit.

Many of Rivera's allegations are set forth in the court's previous opinion, see Rivera, 2003 U.S. Dist. LEXIS 11266, at *3-*7. I have repeated them here when necessary to provide context for my decision. Rivera's complaint was received by the Pro Se Office on December 10, 2003, and filed in the Clerk's Office on February 17, 2004. The claims rest on alleged events at Green Haven Correctional Facility from November 1999 through January 2000, at Eastern, Cayuga and Auburn Correctional Facilities in January and February 2000, at Great Meadow Correctional Facility in April and May 2001, and at Mt. McGregor Correctional Facility from July through October 2003.

A. Green Haven Claims

In March 1999, Rivera filed a lawsuit in this District against 38 DOCS officials alleging mistreatment in connection with a dental procedure he underwent at Green Haven in 1997. That lawsuit was eventually dismissed when Judge Chin granted the defendants' motion for summary judgment. See Rivera v. Goord, 253 F. Supp. 2d 735 (S.D.N.Y. 2003); see also Rivera v. Goord, 119 F. Supp. 2d 327 (S.D.N.Y. 2000) (granting defendants' motion to dismiss Rivera's claims in part and denying it in part). In the instant lawsuit, Rivera claims that various officials within DOCS and at Green Haven retaliated against him for filing that lawsuit.

Specifically, Rivera alleges that in November 1999, he was prevented from mailing legal documents by several Green Haven employees, among them defendants Sergeant William Keyser (Compl. ¶ 13), and Officer Thomas P. McCabe (Id. ¶ 14). When Rivera complained about these incidents to Lieutenant Thomas Quackenbush, also a defendant in this case, Quackenbush "refused to act." (Id. ¶ 14) Plaintiff alleges that he wrote to complain about these incidents also to defendants DOCS Commissioner Glenn Goord, Green Haven Superintendent Christopher Artuz, Green Haven Deputy Superintendent Dennis Bliden, and Tammy Haights, an employee at the DOCS Inspector General's Office. Plaintiff alleges that Haights visited him at Green Haven in response to his complaints, but that she and defendant Inspector General Brian Malone ultimately "refused to take action and assisted in the conspiracy to cover up the wrong doings." (Id. ¶ 15)

Rivera alleges also that officials at Green Haven refused to provide him with a package containing $383.00 worth of clothing, towels, and bedding that he ordered from an outside vendor. Defendant Artuz allegedly refused to provide plaintiff with a tracking slip for the package, and "instead acted in a retaliatory conspiracy to cover up plaintiff['s] stolen property." (Id. ¶ 16)

Plaintiff next claims that on November 15, 1999, defendants Artuz, George Schneider, Haponik, McKoy, Gwen Schneider, Martuscello, Malone, Haights, and John and Jane Does acting together filed two falsified misbehavior reports against him, and then "deliberately ordered plaintiff into a life-threatening situation, in retaliation, to cause him harm." (Id. ¶ 17) It is unclear from plaintiff's complaint exactly what this "life-threatening situation" was, but it appears that during a facility lockdown, Rivera was ordered to clean an area where inmates were throwing objects from their cells. Rivera refused, and was cited for refusing a direct order. See Pl. Resp. Ex. Q. Rivera was called for his hearing on the misbehavior reports 18 days after they were issued. When Rivera objected to the late date of his hearing, which was supposed to occur within seven days of the issuance of the misbehavior report, defendant Michael Nagy, the hearing officer, informed Rivera that defendant Donald Selsky had granted a "blanket extension" of the hearing date, and then found him guilty of the charged offense. Rivera had not been notified of this extension, and claims that because Nagy was one of the defendants in his prior lawsuit against Green Haven officials, Nagy was "using the disciplinary system as a source of retaliation against plaintiff." Rivera complained about Nagy's actions to defendants Artuz, Goord, Bliden, and Haights to no avail; he alleges that they "instead assisted in the retaliatory conspiracy to violate plaintiff's rights." (Id. ¶¶ 18-20)

Plaintiff is suing two defendants with the last name Martuscello. In describing this incident, plaintiff does not specify whether he is accusing Daniel or Chris Martuscello.

Rivera has submitted two sets of exhibits in this case: The first was attached to his Complaint, filed on February 17, 2004, and the second was attached to his Response, filed on September 22, 2004. Where the Complaint exhibits are cited, the court will refer to "Pl. Ex. [letter]." Where the Response exhibits are cited, the court will refer to "Pl. Resp. Ex. [letter]."

Plaintiff's complaint also details an episode on November 16, 1999, in which his cell was ransacked, his property destroyed, and he was physically assaulted. Plaintiff claims that defendant Correction Officer Jerry Surber, Jr., when standing in front of Rivera's cell, told several other officers, "He's an ass hole, ransack his cell!" (Id. ¶ 21) At that point, Surber ran a hand-scanner over plaintiff's body, and ordered him strip searched in front of defendants Carlton, Martuscello, and Hafford, as well as three other prisoners. During this time, defendants Miller, Wilson, and Schihl "ransacked" plaintiff's cell, and when plaintiff complained to defendant Hafford, Hafford allegedly ordered Surber and Carlton to handcuff Rivera and lock him in the shower. (Id.) Rivera claims that while in the shower, he was "smacked, hit in both the lower and upper parts of his body while still handcuffed, and denied medical treatment." (Id.) When Rivera was taken back to his cell, it was "turned up side down," — he claims that his legal documents were "thrown everywhere," his "priceless family photographs" were destroyed, and "body oil and cooking oil was thrown over all of [his] belongings." (Id.) Defendants Surber, Martuscello, Carlton, Miller, and Wilson then allegedly asked plaintiff, "How do you like what we did to your cell?" When he told them that he would inform the judge in his pending civil case of their conduct, defendant Surber made several profane comments about plaintiff's judge, and told him, "I don't care who you are suing; we can still do as we please." (Id.)

When describing this incident in his complaint, Plaintiff does not specify which Martuscello defendant was involved. See supra, note 3. However, later in his complaint, plaintiff indicates that Daniel Martuscello was the individual involved. See Compl. ¶ 28(a) n.*.

Plaintiff is suing three defendants with the last name "Miller." The first is David Miller, Superintendent of Eastern Correctional Facility. The second is Green Haven Correctional Sergeant Alexander C. Miller. The third is Green Haven Correctional Officer "Miller," with no first name specified. Plaintiff does not specify which "Miller" was involved in this incident.

Rivera claims that in the aftermath of the November 16 incident, defendants Surber, Carlton, Schihl, Hafford, Miller, Martuscello, and Wilson wrote a falsified inmate misbehavior report against him which made no reference to the assault that had occurred, but accused him of possession of contraband. (Id. ¶ 22; see also Rivera Ex. B) Defendant Frank Meeuwisse, the hearing officer who considered the misbehavior report, found plaintiff not guilty of possession of contraband, but did cite him for possession of extra bedding, which had been found during the officers' search of his cell.See Rivera Ex. B. According to Rivera, at this hearing, Meeuwisse informed Rivera that the officers who had searched his cell had illegally taken and destroyed other of his possessions, and warned him to stop complaining about his treatment because "defendants Pataki, Goord, Selsky, Artuz, Malone, Bliden, G. Schneider, Haponik, McCoy, Quackenbush, Nagy, and Gotsch are acting together to harass him" in retaliation for his previous lawsuit against Green Haven officials. (Id. ¶ 22) Rivera alleges that, as part of the same retaliatory conspiracy, defendant Haponik falsified Rivera's facility claim for the destroyed property, incorrectly stating that the only items taken from Rivera's cell were a broken hot pot and a list of names of DOCS employees. (Id. ¶ 23)

Plaintiff claims as well that twice in December, 1999, he was forced to endure extreme cold during strip searches in unheated hallways. Defendants Miller, Erns, and Ward allegedly were involved in these incidents. (Id. at ¶¶ 24-25)

Plaintiff does not specify which "Miller" was involved in these incidents. See supra note 6.

Finally, Rivera describes events leading up to his transfer from Green Haven at 11 p.m. on the night of January 5, 2000, as set forth below.

On January 1, 2000, Correction Officer R. Graziano issued Rivera an Inmate Misbehavior Report, because Rivera had refused a direct order to report to his assigned work program, and the Officer deemed Rivera to be taking part in an inmate work stoppage planned for that day. (Rivera Ex. D) Rivera claims that this report was "part of the retaliatory conspiracy" against him, and points out that the report later "disappeared," and he was never called for a hearing regarding the allegations it contained. (Compl. ¶ 26) That day, when defendant Miller was escorting Rivera to collect his medication, Miller allegedly harassed Rivera about filing complaints, and said to him, "I don't care about the constitution, nor any inmate rights, because you all have no rights!" (Id. ¶ 27)

Plaintiff does not specify which "Miller" was involved in this incident. See supra note 6.

Then, on the morning of January 4, 2000, Rivera claims that he was assaulted by defendants Chris Martuscello, Eaton, Erns, and Speed during a strip frisk. Rivera claims that he was ordered to strip to his undershorts and place his hands on the wall. Martuscello then allegedly ordered Eaton to "commence the sexual assault." Eaton "slammed [Rivera] violently against the wall," and then "began fondling plaintiff's genitalia from behind, by way, of in between his legs." (Id. ¶ 28(b)) Eaton and Martuscello then allegedly grabbed plaintiff's legs and twisted them, causing plaintiff "severe pain." (Id.)

After referring to C. Martuscello in describing the sexual assault, plaintiff then twice names D. Martuscello as involved in the physical assault. The court is unsure whether this is a typographical error (of which there are many in plaintiff's complaint), or whether plaintiff is alleging that both Martuscello defendants were involved in the assault.

Rivera claims that he immediately reported the assault to "the first sergeant he saw," who ordered plaintiff to the clinic, where he was examined and photographed. Plaintiff alleges that on his way to the clinic, he was threatened and mocked by Correction Officer Conforti, who told Rivera, "Crybaby, you're lucky we haven't really kicked your ass yet!" (Id. at 28(c))

Later on the day of the alleged assault, Correction Officer Eaton filed an Inmate Misbehavior Report against Rivera for "Lying," which stated that, contrary to Rivera's assertions, he had not used any force during the morning strip search. (Rivera Ex. E) Rivera alleges that this Report was filed to cover up the assault that had occurred. (Compl. ¶ 28(d)) The Report later "disappeared," and Rivera was never called to a hearing concerning the allegation that he had lied about the assault. (Id.)

Indeed, Rivera appears to be the only party in possession of a copy of the Misbehavior Report. Lieutenant T. Gotsch, in a January 24, 2000 letter responding to plaintiff's complaint about the January 4 assault, mentions that he was unable locate the Misbehavior Report or any other evidence that an assault had occurred. (Rivera Ex. F).

The following day, January 5, 2000, Officer Eaton filed another Inmate Misbehavior Report against Rivera which was identical (in words and punctuation) to the January 1 Report accusing Rivera of participating in a planned inmate work stoppage. (Rivera Ex. G; Compl. ¶ 29 (b))

Later on January 5, Officer Eaton informed Rivera that he was being transferred out of Green Haven Correctional Facility due to his complaints about the January 4 assault. (Compl. ¶ 29(a)) Rivera was transferred to Eastern Correctional Facility Special Housing Unit at 11 p.m. that evening "with only the clothes on his back." (Id. ¶ 30)

Rivera later appealed his transfer from Green Haven, claiming that he had been improperly transferred for retaliatory reasons. DOCS Assistant Commissioner Richard Roy informed plaintiff that he had been removed from Green Haven not "due to disciplinary reasons, but due to separation issues." (Rivera Resp. Ex. J-2) In a May 8, 2001 letter to Rivera, Deputy DOCS Commissioner Lucien Leclaire further explained that all Green Haven inmates involved in the January 2000 work stoppage had been transferred from the facility; Leclaire acknowledged that Rivera had been found not guilty after his transfer of involvement in the work stoppage, and advised him to discuss further transfer options with his assigned counselor. (Rivera Ex. J-2)

At his administrative hearing on January 18, 2000, Rivera was found not guilty of work stoppage charges because he was under medical restrictions at the time, and had not been "fully cleared to return to work." (Rivera Ex. G).

B. Eastern, Cayuga, and Auburn Claims

Rivera spent two nights at Eastern Correctional Facility and was transferred to Cayuga Correctional Facility on January 7, 2000. Plaintiff was at Cayuga until February 9, 2000, when he was transferred to Auburn Correctional Facility, where he remained until April 30, 2001.

Rivera claims that throughout his time at Eastern and Cayuga he was denied medical treatment, and unable to eat or sleep because of the pain he was suffering. According to Rivera, he was denied his prescribed medication and his dental mouth guard, and Green Haven officials had failed to send these items when he was transferred. (Compl. ¶ 29(a)) Plaintiff also alleges that defendants Pataki, Goord, Selsky, Malone, Artuz, Bliden, George Schneider, Haponik, McKoy, Gwen Schneider, and Gotsch together "stole, destroyed, and/or deliberately lost" plaintiff's 13 bags of personal property "in the course of retaliating against plaintiff [due] to his pending civil action." (Id. ¶ 30) Rivera claims that these defendants falsified an inmate property I-64 form, misrepresenting the amount of property he had and failing to send most of it to Cayuga after Rivera's late-night transfer from Green Haven. (Id.)

Rivera also claims that defendants Pataki, Goord, Selsky, Malone, Artuz, Bliden, McKoy, George Schneider, Gotsch, Ryan, Burge, and Gwen Schneider improperly "red tagged" his institutional records upon his arrival at Auburn, ordering that he be generally separated from all inmates. As a result of his "red-tagging," plaintiff was denied jobs, visits with his young son, and the opportunity to transfer out of a disciplinary facility and to a facility closer to home. (Id. ¶ 31)

C. Great Meadow Claims

Rivera was transferred from Auburn Correctional Facility to Great Meadow Correctional Facility on April 25, 2001. (Id. ¶ 32(a)) Upon his arrival at Great Meadow on April 30, 2001, Rivera was taken to the facility clinic, where defendant Nesmith, a Physician's Assistant at Great Meadow, inquired about the medication Rivera was taking. Rivera informed Nesmith that Prozac, Imitrex, Neurontin, Motrin, and a daily mouth guard had been prescribed for him to treat his migraine headaches and chronic jaw condition (Temporomandibular Joint Disease, or TMJ). Nesmith took away all of Rivera's medication except the Neurontin, and told Rivera that the clinic would give him his other medication at a later date. (Id.)

For the next three weeks, until approximately late May, 2001, Rivera was denied his prescribed medications. He alleges that during this time, he suffered severe pain and migraine headaches, and was unable to eat or sleep because of the pain in his mouth. During this period, Rivera visited the Great Meadow clinic at least seven times complaining of extreme pain, and once was admitted to the hospital ward overnight. (Id. ¶ 32)

After filing an initial complaint on May 2, 2001, plaintiff was informed that he could not receive his other medications until Dr. Albert Paolano, the Great Meadow physician, had approved them. (Id. ¶¶ 32(d)-(e)) Despite repeated visits to the clinic and complaints of severe pain, defendants Nesmith and William Phillips, Deputy Superintendent of Security at Great Meadow, allegedly refused to take action to alleviate Rivera's condition. (Id. ¶¶ 32(i)-(j))

On May 13, 2001, Rivera reported to emergency sick call and was admitted to the facility hospital overnight by the nurse on duty and given Tylenol. The following morning, Dr. Paolano saw Rivera in the facility hospital, and ordered him back to his cell without medication, telling him: "You don't suffer from a severe condition of TMJ or headaches! You do not belong up here! I do not care about the course of treatment prescribed to you by all the specialists and I am not going to give you back your prescribed medications, which the specialists, have found to work for you! In fact, I am discharging you from the hospital right now!" (Id. ¶ 34)

Plaintiff returned to his cell and continued to endure severe pain. On May 18, 2001, the correctional officers on Rivera's block noticed that he was in severe pain and contacted the clinic, but defendant Harris, a Nurse at the Great Meadow clinic, told the officers that Dr. Paolano had instructed her that he was the only person allowed to treat Rivera, and that Rivera would have to wait until the following week. (Id. ¶ 35) Rivera's condition continued to deteriorate, and the sergeant on duty saw then called the clinic himself, demanding that Nurse Harris treat Rivera. Upon Rivera's arrival at the clinic, however, Harris refused to treat him, stating, "I can not do anything for you. Don't you understand Dr. Paolano is my boss, and he clearly stated you aren't to be seen by anyone but him sometime next week." (Id.)

Plaintiff notes in passing that defendant Kenny Marks, one of the nurses at Great Meadow, promised to "take care of" getting Rivera his prescribed medications, but failed to do so. (Compl. ¶ 35).

Plaintiff's allegations concerning his treatment at Great Meadow conclude after the events of May 18, 2001; Rivera apparently did receive treatment for his condition sometime shortly after that date.

D. Mt. McGregor Claims

At some point before June 2003, Rivera was transferred from Great Meadow Correctional Facility to Mt. McGregor Correctional Facility. In early July 2003, Rivera received this court's opinion dismissing all of his claims without prejudice because he had failed to exhaust his administrative remedies as to the Green Haven allegations. I informed Rivera that he was free to file another complaint containing only exhausted claims, and that even though the statute of limitations had expired for his Green Haven, Eastern, and Auburn claims, New York CPLR § 205(a) provided a grace period of six months from the date of decision during which he would be permitted to file and serve a complaint containing his otherwise time-barred claims. Rivera, 2003 U.S. Dist. LEXIS 11266, at *31-32.

On or about July 5, 2003, after receiving the court's opinion, Rivera alleges that he filed 15 grievances at Mt. McGregor Correctional Facility in order to exhaust his unexhausted claims. (Compl. ¶ 36(b)) On approximately July 7, 2003, Defendant Gwen Duncan, the Inmate Grievance Program (IGP) Supervisor at Mt. McGregor, refused to accept these grievances because they were untimely. (Id.; see also Plaintiff's Response Memorandum at 2; Rivera Ex. M-A) Duncan asked Rivera to present mitigating circumstances to justify the late submission of these grievances. Rivera explained that this court had referred him to the IGP, directed him to exhaust his administrative remedies, and said that "referral to the IGP by the courts" was one of the stated examples for mitigating circumstances in DOCS regulations. See Rivera Ex. M-A; 7 N.Y.C.R.R. § 701.7(a)(1). Although there is no administrative record of her decision, according to Rivera, Duncan later denied Rivera's request to file untimely grievances. (Compl. ¶ 36(b); Rivera Ex. M-A)

This was the second time Rivera had attempted to file untimely grievances after being directed to do so by a court. On May 20, 2003, Duncan denied Rivera's request to submit grievances stemming from his treatment at Green Haven in 1997 and 1999 — claims that were part of plaintiff's previous federal lawsuit against 38 Green Haven officials — because those claims were untimely. See Eagen Affidavit, Def. Ex. E, at 5. Judge Chin had dismissed these unexhausted claims "on the condition that defendants provide Rivera with an opportunity to exhaust his administrative remedies in light of the Supreme Court's decision inPorter v. Nussle, 534 U.S. 516 (2002) [which mandated administrative exhaustion in all inmate § 1983 suits]." Rivera, 253 F. Supp. at 749. Duncan acknowledged that the Court had directed Rivera to exhaust his administrative remedies, but explained that Rivera had waited too long to file his grievances, because the Porter decision had been released "over one year ago," and Rivera had provided no explanation for his failure to file the grievances closer to the date of the Porter decision. BecausePorter was no longer new law, it failed to qualify as a "mitigating circumstance" justifying the late filing of grievances concerning retaliation. See Eagen Aff., Def. Ex. E, at 5. Judge Chin's dismissal of Rivera's unexhausted claims was conditioned on Rivera having the opportunity to exhaust those claims. Therefore, Duncan's refusal to allow Rivera to file his 1997 and 1999 Green Haven grievances ostensibly gave Rivera the right to refile a federal action based upon those claims. So far as the court knows, Rivera did not do so.

The court may consider the factual allegations in plaintiff's Response to supplement those in his complaint because of the liberal standard afforded to the pleadings of pro se litigants. See Verley v.Goord, No. 02 Civ. 1182, 2004 U.S. Dist. LEXIS 857, at *15-*17 (S.D.N.Y. Jan. 22, 2004) (collecting cases from the District applying this rule).

DOCS regulations require that an inmate grievance must be submitted within 14 days of the alleged occurrence unless the inmate can provide mitigating circumstances to excuse the delay. 7 N.Y.C.R.R. 701.7(a)(1).

In April 2004, DOCS amended its grievance mechanisms, and eliminated "referral from the courts . . ." as an example of mitigating circumstances justifying an untimely grievance. See Eagen Aff., Def. Ex. A.

On July 23, 2003, Rivera filed an administrative appeal of Duncan's decision with Mt. McGregor Superintendent Harold McKinney. (Compl. ¶ 36(c); see also Rivera Ex. M-A) When he did not receive a timely response from McKinney, on August 6, 2003, Rivera directed his complaint to DOCS Commissioner Goord. Defendant McKinney responded on August 19, 2003 that he had completed an investigation of the matter, and that IGP Supervisor Duncan had acted appropriately. (Pl. Resp. at 3; Eagen Aff., Def. Ex. D, at 11) Commissioner Goord responded to plaintiff on August 26, 2003, through Assistant Commissioner Edward McSweeney, that the proper procedure to appeal IGP Supervisor Duncan's decision was by filing a grievance, not by writing letters to DOCS officials. (Pl. Resp. at 3; Eagen Aff., Def. Ex. D, at 10)

Before he was aware that the only way to protest Duncan's decision was through the grievance process, Rivera also filed complaints with Inmate Grievance Program Regional Coordinator Peter Berezny and Governor George Pataki. Both individuals subsequently informed him that the inmate grievance process was the appropriate forum for his complaints. See Pl. Resp. at 4; Pl. Resp. Ex. D (containing this correspondence).

Following the directions in McSweeney's letter, Rivera then filed a grievance on September 3, 2003, complaining that he was being denied access to the courts and that IGP Supervisor Duncan had violated DOCS regulations. (Eagen Aff., Def. Ex. E, at 3) On September 9, 2003, the Inmate Grievance Resolution Committee (IGRC) found that DOCS regulations were being followed, and on September 11, 2003, Superintendent McKinney affirmed the ICRC decision. (Id. at 9, 2) On October 23, 2003, the IGP Central Office Review Committee (CORC) upheld the Superintendent's decision and held that IGP Supervisor Duncan's decision was in compliance with DOCS regulations. (Id. at 1) On December 10, 2003, Rivera filed the instant action, reasserting his claims from his previous lawsuit before this court, and also claiming that DOCS had improperly denied him the opportunity to exhaust his administrative remedies.

To justify its decision, the CORC quoted Duncan's May 20, 2003 letter to Rivera explaining why she was preventing him from filing his untimely grievances related to his suit before Judge Chin. (Eagen Aff., Def. Ex. E, at 1) The record contains no documentary evidence of Duncan's denial of Rivera's claims in the action pending before this court. The CORC's citation of Duncan's letter was perhaps relevant because the reasoning behind Duncan's refusal to permit Rivera to file his untimely grievances in both cases was ostensibly the same: The Porter decision, now more than a year old, was no longer a sufficient justification for late filing of claims. No DOCS official ever explained to Rivera why "referral to the IGP by the courts" — a stated mitigating circumstance for untimely grievance submission — was not deemed a sufficient mitigating circumstance to justify late filing in both cases.

II.

"The settled rule is that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004) (internal quotation marks omitted). When considering the claims of a pro se plaintiff, the court is obligated to construe the pleadings liberally in plaintiff's favor, and interpret them to raise the strongest arguments they suggest. See, e.g., Sharpe v. Conole, 386 F.3d 482, 484 (2d Cir. 2004); Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001).

In deciding a motion to dismiss, the court may consider only the facts alleged in the complaint, and any exhibits attached to the complaint or incorporated therein by reference. Int'l Audiotext Network, Inc. v. ATT Co., 62 F.3d 69, 71-72 (2d Cir. 1995). Both parties in this case have submitted evidence outside the pleadings for the court's consideration. If the court is satisfied that both parties have had a reasonable opportunity to contest any facts averred outside the pleadings, and that neither party has been taken by surprise, the court may consider facts outside the pleadings and convert a motion to dismiss to a motion for summary judgment. Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990); see also Arnold v. Goetz, 245 F. Supp. 2d 527, 540 (S.D.N.Y. 2003). In papers submitted on August 17, 2004, defendants notified plaintiff that their submission of additional materials could allow the court to treat their motion to dismiss as one for summary judgment, and accordingly, along with his Response plaintiff submitted exhibits in addition to those he had already attached to his Complaint. Because the additional materials submitted by both parties are helpful in parsing the complex facts in this case, and because both parties were on notice of the potential consequences of the submission of such materials, I will convert defendants' motion to dismiss into one for summary judgment. To prevail, defendants must prove that this case contains "'no genuine issue as to any material fact'" and that they "'are entitled to judgment as a matter of law.'" Allen v.Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(c)).

Defendants have not contested any of the facts in plaintiff's complaint, instead arguing their case solely on legal grounds. However, as explained below, defendants do not prevail on all of their legal claims. Defendants' converted motion for summary judgment is therefore denied in part and granted in part.

III.

A. Exhaustion of Administrative Remedies

The Prison Litigation Reform Act of 1995 states: "No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States ( 42 U.S.C. 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). As the Supreme Court held inPorter v. Nussle, 534 U.S. 516, 532 (2002), the administrative exhaustion requirement "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." The exhaustion requirement is a prerequisite to all prisoner claims, even if the remedy requested is not available in an administrative grievance proceeding. Id. at 524 (citing Booth v. Churner, 532 U.S. 731, 740-41 (2001)). This requirement exists in order "to reduce the quantity and improve the quality of prisoner suits . . . [and to afford] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Id. at 524-25.

Exhaustion of administrative remedies is not a jurisdictional prerequisite. Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). The failure to exhaust administrative remedies is an affirmative defense that may be waived, Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004), and is subject to estoppel,Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). Where, as here, defendants have raised the issue of administrative exhaustion as an affirmative defense and plaintiff has plausibly countered that assertion, the court must conduct a three-step inquiry, as our Circuit recently held in five cases decided on August 18, 2004. First, the court must ask whether administrative remedies were in fact "available" to the prisoner. Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) (citingAbney v. McGinnis, 380 F.3d 663 (2d Cir. 2004)). Second, the court must determine whether defendants forfeited the defense of administrative exhaustion by failing to raise or preserve it, id. (citing Johnson, 380 F.3d 691), or whether defendants are estopped to raise the defense by their own actions inhibiting the inmate's exhaustion of remedies, id. (citing Ziemba, 366 F.3d at 163). Third, the court must inquire whether the prisoner has alleged "special circumstances" that justify his failure to exhaust administrative remedies. Id. (citing Giano v. Goord, 380 F.3d 670 (2d Cir. 2004)).

1. The Grievance Process

In order to exhaust a claim, DOCS regulations provide that an inmate must file a grievance and appeal it through three tiers of review:

First, the inmate files a level 1 grievance (either on an Inmate Grievance Complaint Form, or on plain paper if the form is not readily available) with the Inmate Grievance Resolution Committee ("IGRC"), which is composed of fellow inmates and prison officials. The IGRC must convene a hearing, if necessary, within seven working days, and issue a written decision within two days of the hearing. Next, the inmate has four days to appeal the IGRC decision to the superintendent of the facility, who must respond within ten days and must provide 'simple directions' on how to appeal to the next level, the Central Office Review Committee ("CORC"). The inmate's final opportunity for resolution of his grievance is to appeal to the CORC within four working days of the superintendent's decision. The CORC then has 20 working days to render a decision. 7 N.Y.C.R.R. 701.7(c)(4).

Hemphill, 380 F.3d at 682 (footnote omitted). Defendants concede that plaintiff has followed the above procedures and administratively exhausted his claims regarding his medical treatment at Cayuga and Great Meadow Correctional Facilities and his claim of denial of access to the courts at Mt. McGregor Correctional Facility. See Defendants' Memorandum in Support of Motion to Dismiss at 15-16; Eagen Aff., Def. Ex. C. Defendants allege, however, that plaintiff's case must be dismissed because he did not exhaust his claims regarding his treatment at Green Haven, Eastern, and Auburn Correctional Facilities.

The inmate has 14 days from the date of the incident complained of to file a complaint, but "mitigating circumstances" may toll the deadline. (a)(1) [note 3 in original].

2. Green Haven, Eastern, and Auburn Claims

At the time of the alleged incidents at Green Haven, Eastern, and Auburn in 1999 and 2000, inmates under this Circuit's jurisdiction were not required to administratively exhaust claims of excessive force or retaliation before filing actions in federal court. But on February 26, 2002, as explained above, the Supreme Court overruled the Second Circuit's holding and mandated exhaustion in all cases containing claims relating to prison life, including § 1983 cases. Porter v. Nussle, 534 U.S. 516.

See Lawrence v. Goord, 238 F.3d 182, 186 (2d Cir. 2001) (holding that no exhaustion was required in cases alleging retaliation); Nussle v. Willette, 224 F.3d 95, 106 (2d Cir. 2000) (holding that no exhaustion was required in cases alleging excessive force and assault).

Rivera knew that the Porter decision might affect his own rights. Plaintiff had filed his original complaint with this court containing his Green Haven, Eastern, and Auburn claims on May 18, 2001, but he had never filed grievances based on those claims, because until the Porter decision, grievances were not prerequisites to § 1983 suits based upon excessive force and retaliation. On April 10, 2002, not long after the Court's decision in Porter, Rivera filed an inmate grievance complaint expressing his concern that Porter was in conflict with DOCS regulations, which provided that all grievances must be brought within 14 days unless an inmate could present mitigating circumstances. (Pl. Resp. Ex. J) Rivera was concerned that DOCS would not consider pending § 1983 suits to be mitigating circumstances, which would result in the dismissal of his (and other inmates') unexhausted claims as untimely. (Id.) Rivera feared that under the current rules, his suit pending before this court would be dismissed for nonexhaustion under Porter, and that he would be then denied the opportunity to exhaust his claims for lack of mitigating circumstances. This is in fact what occurred, both in Rivera's case before Judge Chin and in his case before me. See supra Part I.D n. 13.

Rivera's grievance concerning Porter ultimately was denied because officials at Great Meadow, where plaintiff was then housed, informed plaintiff that they lacked the authority to revise or amend DOCS regulations. (Pl. Resp. Ex. J) On March 25, 2002, DOCS did notify all Inmate Grievance Supervisors that they should "exercise [their] discretion" to allow mitigating circumstances for late grievances that were filed because of the Porter decision. (Eagen Aff., Def. Ex. B) This policy lasted until April 8, 2003, when DOCS informed its Grievance Supervisors that such considerations were no longer "appropriate," because Porter had been in effect for more than a year. (Id.) Rivera never got the benefit of this short-lived DOCS policy. Rivera did not try to file grievances containing the unexhausted claims until early July 2003, when he received this court's decision informing him that he must exhaust his unexhausted claims. When Rivera did try to file grievances containing his unexhausted claims, he was informed that they were untimely, and that he had not specified sufficient mitigating circumstances to excuse his delay.

The CORC, in approving IGP Supervisor Gwen Duncan's denial of Rivera's right to file untimely grievances, explained that because Rivera had waited more than a year after the Porter decision to file his grievances, he could no longer rely on that decision as a mitigating circumstance. (Eagen Aff., Def. Ex. E, at 1) The CORC noted that the court had referred Rivera to the IGP, but did not explain why this was not a sufficient mitigating circumstance to justify late filing.

Notably, in April 2004, DOCS amended its grievance mechanisms, and eliminated "referral from the courts . . ." as an example of mitigating circumstances justifying an untimely grievance. See supra note 16; Eagen Aff., Def. Ex. A.

Given the above facts, the court must assess whether plaintiff's case should be dismissed on nonexhaustion grounds.

a. Availability of Remedies

The court's first inquiry is whether administrative remedies were "in fact available" to Rivera. Abney, 380 F.3d at 667. Our Circuit has not fully explained exactly what it means by "available." However, in Abney, the Court determined that no further remedies were available to the plaintiff where grievances were resolved in his favor, but the promised relief was never delivered, and there was no appeal mechanism for implementation failure. Id. at 669 ("A prisoner who has not received promised relief is not required to file a new grievance where doing so may result in a never-ending cycle of exhaustion."). The Abney Court also noted that remedies were unavailable in cases where officials failed to respond to grievances within the time period prescribed by the regulations, and where officials prevented plaintiffs from employing their administrative remedies. Id.; see also Veloz v. New York, 339 F. Supp. 2d 505, 515-16 (S.D.N.Y. 2004) (holding that remedies are unavailable if there is no grievance mechanism, or if they are "impeded by a correctional officer.") There is an objective standard for determining the availability of remedies: The court must ask whether "a similarly situated individual of ordinary firmness" would have deemed them available. Hemphill, 380 F.3d at 688 (internal quotation marks omitted).

In this case, a grievance mechanism was in place, but DOCS officials prevented Rivera from using it because his claims were untimely. DOCS was not obligated to allow Rivera to file his untimely grievances: The note to 7 N.Y.C.R.R. § 701.7(a)(1) before its April 2004 amendment stated that "[e]xceptions to [the 14-day time limit for filing grievances] may be approved by the IGP supervisor based on mitigating circumstances (e.g., attempts to resolve informally by the inmate, referrals back to the IGP by the courts, etc.)" (emphasis added). Remedies were available to Rivera, but the regulations governing those remedies gave IGP Supervisor Duncan the discretion to prevent him from using the grievance system to file untimely claims. DOCS officials did impede Rivera's administrative remedies, but their actions were objectively permissible under department regulations. Therefore administrative remedies were technically "available" to plaintiff.

See supra note 16.

b. Estoppel

The court must assess whether defendants are estopped to assert the affirmative defense of nonexhaustion by their own actions. In Ziemba, the plaintiff claimed that correction officers prevented him from exhausting his administrative remedies by "beating him, threatening him, denying him grievance forms and writing implements, and transferring him to another prison." 366 F.3d at 162. The Court held that all affirmative defenses, including nonexhaustion, are subject to equitable estoppel, and remanded to the district court to determine whether estoppel should apply in that case. Id. at 163-64; see also Hemphill, 380 F.3d at 688-89 (same);Taylor v. N.Y. State Dep't of Corr., No. 03-1929, 2004 U.S. Dist. LEXIS 25795, at *22 (S.D.N.Y. Dec. 22, 2004) (holding that estoppel applies where prison officials "inhibit an inmate's ability to utilize grievance processes," or where officials fail to "timely advance inmate's grievance or otherwise prevent him from seeking his administrative remedies.") (internal quotation marks omitted).

In this case, defendants are estopped to assert the defense of nonexhaustion because DOCS itself prevented plaintiff from following this court's direction to exhaust his remedies. In Rivera's previous action before Judge Chin, the Court dismissed Rivera's unexhausted claims on the condition that DOCS subsequently allow Rivera to exhaust the claims. Rivera, 253 F. Supp. 2d at 753. Judge Chin explained:

On the one hand, DOCS may rely on Porter v. Nussle retroactively [to require plaintiff to exhaust his claims]. . . . On the other hand, Rivera is being held to the exhaustion requirement, even though he filed suit several years before Porter v. Nussle. It would be highly unfair to permit DOCS to now reject Rivera's grievances as untimely, when he was not required to exhaust when he filed suit, at the same time that DOCS can assert nonexhaustion as a defense. In other words, DOCS cannot have it both ways.

Id. Similarly, when I dismissed Rivera's claims without prejudice in the first iteration of this lawsuit, I told him that he could refile a new complaint containing only exhausted claims, which could include "claims that were exhausted at the time Rivera filed his 2001 complaint, claims that he has since exhausted, and claims he exhausts between now and the filing of the new complaint." Rivera, 2003 U.S. Dist. LEXIS 11266, at *31.

Despite the directions of two courts in this district, despite the express provision in DOCS regulations that "referrals back to the IGP by the courts" could be a mitigating circumstance for untimely filing, and even though Rivera's lawsuits before this court and Judge Chin had both been filed before Porter v. Nussle was decided and before Rivera knew exhaustion was required, DOCS denied Rivera the right to file his grievances, both in this case and in his case before Judge Chin. See supra Part I.D n. 13. After denying Rivera the right to exhaust his claims, defendants assert nonexhaustion as their primary ground for dismissal. As Judge Chin held, defendants cannot have it both ways. Defendants' actions in denying Rivera the right to exhaust his claims estop them to assert nonexhaustion as an affirmative defense.

There is also a possibility that Rivera did attempt to exhaust his claim relating to the alleged sexual assault at Green Haven in January, 2000, because he reported the assault to "the first sergeant he saw," Sergeant Hann (Compl. ¶ 28(c)). If the Sergeant he consulted was the immediate supervisor of any of the officers allegedly involved in the assault, his report of the assault to her would have been the first step in the DOCS expedited grievance procedure for allegations of employee harassment against inmates. See 7 N.Y.C.R.R. § 701.11(b). The supervisor then records the grievance and gives it a calendar number, at which point the superintendent considers it. Id. § 701.11(b)(2)-(3). However, Rivera does not allege that he was given a grievance calendar number for this complaint, and therefore the matter was never referred to the superintendent or considered by the IGRC. Plaintiff was transferred from Green Haven the following day. If Sergeant Hann refused to instigate an expedited grievance process after Rivera's complaint of sexual assault, defendants are estopped to argue nonexhaustion on the sexual assault claim under Ziemba, 366 F.3d 161. However, this issue is moot because the court holds that defendants are estopped to argue nonexhaustion as to all of Rivera's claims.

c. Special Circumstances

The Circuit has held also that "special circumstances," such as when an inmate has "reasonably interpreted" DOCS regulations, may justify his failure to exhaust remedies. Giano, 380 F.3d at 675-76. In Giano, the petitioner believed that several defendants had presented false evidence at two of his disciplinary hearings. Giano interpreted DOCS grievance regulations to mean that his only administrative recourse to protest the hearings was to appeal his disciplinary conviction; in fact, he should have filed a formal grievance. Id. at 676. The Giano Court held that "special circumstances" justifying nonexhaustion "must be determined by looking at the circumstances which might understandably lead usually uncounseled prisoners to fail to grieve in the normally required way."Id. at 678. In Giano, the Court found that DOCS regulations on the subject of the appeal of disciplinary hearings were unclear to the extent that petitioner's reading of the regulations was "hardly unreasonable."Id. at 679.

The same is true in this case: Rivera did the best he could to follow DOCS regulations while responding to an evolving legal framework. Rivera was aware of the effect that Porter might have on his claims. He contacted prison officials about his concerns, but was informed that nothing could be done on the facility level. (Pl. Resp. Ex. J) DOCS ultimately did instruct its IGP Supervisors that they might considerPorter as a mitigating circumstance for untimely claims, (Eagen Aff., Def. Ex. E, at 1), but defendants have presented no evidence showing that either this policy change, or its cancellation a year later (Id. at 2), were communicated to plaintiff or any other inmate. Plaintiff certainly did not know that he would not be able to rely on Porter as a mitigating circumstance once the decision was no longer new law, even though it had been decided after his federal cases were filed. See Def. Mem. at 14; Eagen Aff., Def. Ex. E, at 1. So far as Rivera knew when he filed his federal claims, there was no use in filing his grievances, because they would be rejected as untimely: His hope was that this court would not applyPorter retroactively to his claims but would consider them exempt from the exhaustion requirement, or that it would direct the IGP to accept his untimely grievances.

This court dismissed Rivera's action without prejudice on June 25, 2003, applying Porter retroactively and requiring plaintiff to exhaust his claims. Based on the court's opinion, Rivera immediately filed 15 grievances comprising his unexhausted claims. Because Rivera knew that "referral back to the IGP from the courts" was a stated mitigating circumstance for late filing of grievances, he expected that these untimely grievances would be accepted. However, they were not, and plaintiff was prevented from exhausting any of his claims.

Defendants argue that Rivera should have filed his grievances soon after June 12, 2002, when he received defendants' brief supporting their motion to dismiss in the first action in this case, which mentioned thePorter holding. (Def. Mem. at 14) Indeed, plaintiff knew about Porter even earlier than June, 2002, as evidenced by his April, 2002, grievance about the effect the decision might have on pending § 1983 suits. (Pl. Resp. Ex. J) However, Rivera did not know that DOCS had decided to treatPorter as a mitigating circumstance, he did not know that this policy would last for only a year, and he did not know that the holding inPorter would be applied retroactively in his case until he received this court's opinion in June 2003. Therefore, plaintiff had no way of knowing until he received this court's opinion in July, 2003 that he could and should have filed grievances for his unexhausted claims.

Porter was later found retroactive by the Second Circuit, see Webb v. Goord, 340 F.3d 105, 112 (2d Cir. 2003), although the Circuit itself has not uniformly applied this rule, see Rodriguez v. Westchester County Jail, 372 F.3d 485, 487 (2d Cir. 2004) (holding that a prisoner was excused from exhausting his remedies when he filed his case before the Supreme Court's decision in Porter).

Defendants cite Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2003), for the principle that so long as an inmate is in custody, failure to exhaust administrative remedies within the time they are available precludes a federal lawsuit. However, as our Circuit noted in Rodriguez v.Westchester County Jail, 372 F.3d 485, 487 (2d Cir. 2004) (quotingBerry, 366 F.3d at 88), the Berry Court simply required exhaustion "in the absence of any justification" for an inmate's failure to do so. TheRodriguez Court held than an inmate's interpretation of § 1997(e), later determined to be erroneous in Porter, was a justification for his failure to exhaust. Id.

Rivera did his best to preserve his claims in this case. His reasonable interpretations of DOCS regulations, applicable law, and this court's previous opinion, justify his untimely grievance filings. As his filings indicate, Rivera was much more sophisticated than an ordinary "uncounseled prisoner," Giano, 380 F.3d at 678, and still he was unable to find a way to pursue his unexhausted claims. Had Rivera known that all he had to do to preserve his claims of assault at Green Haven was to file grievances about those claims at some point in 2002, it is obvious that he would have done so. However, the evolving legal framework was so complex that Rivera was unaware that such a filing would be helpful to him. Rivera's interpretation of the regulations and statutes at issue was "hardly unreasonable." Giano, 380 F.3d at 679.

Rivera's failure to exhaust is excused both because defendants are estopped to assert that defense, and because Rivera's interpretation of the applicable regulations and laws was reasonable.

e. Subject of the Grievances

Neither Rivera nor defendants allege with precision which claims were contained in the 15 grievances Rivera attempted to file in July 2003. All agree that the Cayuga, Great Meadow, and Mt. McGregor claims were exhausted before Rivera commenced this action. Rivera's DOCS record indicates that he filed no grievances relating to his alleged mistreatment at Green Haven from November 1999 through January 2000, his denial of medical treatment at Eastern in January 2000, or his "red-tagging" at Auburn in 2000 and 2001. See Eagen Aff., Def. Ex. C. The court will assume that the 15 grievances Rivera attempted to file in July 2003 contained those claims, because they are the unexhausted claims contained in plaintiff's complaint. Defendants have not argued to the contrary in this motion, but if they can show in a subsequent filing that plaintiff is bringing in this lawsuit new claims that he did not attempt to exhaust in July 2003, those new claims will be dismissed for failure to exhaust.

3. Total Exhaustion

Defendants argue that even though some of plaintiff's claims have been exhausted, his entire complaint must be dismissed because a complaint containing a mixture of exhausted and unexhausted claims must be dismissed. (Defendants' Reply Memorandum, at 6-8) Indeed, this court dismissed plaintiff's previous action in this case on that basis, because his Great Meadow claims had not been exhausted at the time he had filed his complaint. Rivera, 2003 U.S. Dist. LEXIS 11266, at *29.

However, in the period between the court's first decision in this case and the current opinion, our Circuit decided Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004), which held that dismissal of an action containing both unexhausted and exhausted claims is not required. Id. at 663. Courts in this District subsequently have declined to dismiss such actions in their entirety, and have considered only the exhausted claims in complaints containing both exhausted and unexhausted claims. See, e.g., Madison v.Mazzuca, No. 02 Civ. 10299, 2004 U.S. Dist. LEXIS 26137, at *3-*4 (S.D.N.Y. Dec. 30, 2004); Degrafinreid v. Ricks, No. 03 Civ. 6645, 2004 U.S. Dist. LEXIS 24448, at *46 (S.D.N.Y. Dec. 6, 2004); Scott v. Goord, No. 01 Civ. 847, 2004 U.S. Dist. LEXIS 21663, at *26-*27 (S.D.N.Y. Oct. 25, 2004).

Defendants argue that following the Second Circuit holding in Ortiz will encourage inmates to bring unrelated claims in single lawsuits, as they allege Rivera has done in this case, joining frivolous with nonfrivolous claims, evading multiple filing fees, and creating more work for the courts. Defendants may have a point, but they cite no case law to support their assertions. Additionally, as the Ortiz court noted (and as defendants acknowledge), a rule of total exhaustion would not necessarily ease the burden on district courts; rather, it likely would cause inmates to bring a greater number of lawsuits. Ortiz, 380 F.3d at 658; Def. Reply Mem., at 7-8.

Moreover, because the court has found plaintiff to be excused from the exhaustion requirement for all of his unexhausted claims, the total exhaustion question is moot, and the court need not decide whether that doctrine should be applied here.

B. Statute of Limitations

1. Delayed Service

Defendants move to dismiss plaintiff's Green Haven, Eastern, and Auburn claims also because they are barred by the statute of limitations. When Rivera's initial complaint was dismissed without prejudice in June, 2003, I noted that the three-year statute of limitations had run on his § 1983 claims arising from events occurring between November 1999 and January 2000. Rivera, 2003 U.S. Dist. LEXIS 11266, at *31 (citing Owens v. Okure, 488 U.S. 235, 251 (1989)). I also explained, however, that Rivera had the benefit of section 205(a) of New York's Civil Practice Law and Rules (CPLR), which gave him a six-month grace period in which to file and serve a new complaint containing claims asserted and dismissed in his previous action, provided those claims were exhausted when the new complaint was filed. Id. at *32. In that opinion, I quoted section 205(a), which reads:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

N.Y.C.P.L.R. § 205(a); see also Bd. of Regents v. Tomanio, 446 U.S. 478, 484 (1980) (holding that federal courts should borrow analogous state law statues of limitation for § 1983 actions).

Plaintiff's § 205(a) six-month grace period was to expire on January 3, 2004 — six months after judgment was entered on the court's previous opinion. Plaintiff unsuccessfully attempted to exhaust his unexhausted claims within the grace period before he filed his second complaint, but the CORC on October 23, 2003 denied plaintiff's final appeal to enforce his right to file grievances. See supra, Part III.A.2. On December 8, 2003, Rivera filed a new complaint with this court containing his exhausted claims, the claims he had tried to exhaust, and his new claim that he had been denied access to the courts. Plaintiff's complaint was received by the Pro Se office on December 10, 2003, and filed in the clerk's office on February 17, 2004. The first defendants in the case were served on March 18, 2004 (Dkt. Nos. 5-6), and the last defendant was served on May 3, 2004 (Dkt. No. 48). Defendants argue that because plaintiff did not serve any of the defendants in this action before the § 205(a) grace period concluded, all of his 1999 and 2000 claims are now barred by the statute of limitations.

See Yates v. Genesee County Hospice Found., 299 A.D.2d 900, 901, 750 N.Y.S.2d 727, 728 (4th Dep't 2002) (holding that the § 205(a) six-month grace period begins to run on the day the order dismissing plaintiff's claims is entered); Shulman Decl., Ex. A (showing entry of judgment in Rivera's earlier case on July 3, 2003).

Because § 1983 does not provide a statute of limitations, federal courts borrow state statutes of limitation and tolling rules in § 1983 actions. Hardin v. Straub, 490 U.S. 536, 538-39 (1989); see also Wilson v. Garcia, 471 U.S. 261, 269 (1985) (federal courts are obliged to follow state law on "closely related questions of tolling and application" in § 1983 actions). However, where "the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary to borrow a limitations period from another statute, the action is not barred if it has been 'commenced' in compliance with [Fed.R.Civ.P.] 3 within the borrowed period." West v.Conrail, 481 U.S. 35, 39 (1987); see also LaBounty v. Coombe, No. 95 Civ. 2617, 2004 U.S. Dist. LEXIS 6593, at *9 (S.D.N.Y. Apr. 13, 2004). According to Fed.R.Civ.P. 3, a civil action is commenced when a complaint is filed with the court, and a pro se prisoner's complaint "is deemed filed, for statute of limitations purposes, when it is delivered to prison officials."Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999); see also Shulman Decl., Ex. C (showing that Rivera delivered his complaint to officials at Mt. McGregor Correctional Facility on December 8, 2003).

Defendants argue that the requirement in § 205(a) that service be effected within six months is a "condition" for the six-month toll to operate, not a signal that the action has been commenced. (Def. Reply Mem. at 10) However, West explicitly held where the underlying cause of action is based on federal law, Fed.R.Civ.P. 3 determines when service must be effected. Only when an action is solely based on diversity do state service rules apply. West, 481 U.S. at 39 n. 4; see also id. at 39-40 (holding that because state law is borrowed in federal actions only to "close interstices in federal law[,] . . . when it is necessary for us to borrow a statute of limitations for a federal cause of action, we borrow no more than necessary. Here, because of the availability of Rule 3, there is no lacuna as to whether the action was brought within the borrowed limitations period.") (footnotes omitted).

Rivera delivered his complaint to prison officials on December 8, 2003, almost a month before the § 205(a) tolled period was to expire. Therefore, his action was timely under Fed.R.Civ.P. 3, and is not barred by the statute of limitations.

2. Unserved Defendants and Deceased Defendant

According to the docket sheet in this case, the Marshals Service attempted but was unable to serve plaintiff's complaint on Green Haven supervisory defendants Dennis Bliden and George Schneider, and Correction Officers Schihl, Graziano, Hafford, and Miller (Dkt. Nos. 14, 15, 32, 35, 36, 38). Additionally, according to the docket sheet, it appears that no attempt was made to serve defendants Tammy Haights and Alexander C. Miller. Defendant and former DOCS Inspector General Brian Malone was served in this case, but is now deceased. See Schulman Decl. ¶ 4; Dkt. No. 8. Defendants argue that plaintiff's claims should be dismissed as to the unserved defendants, the deceased defendant, and as to John and Jane Does 1-10, who are not identified in plaintiff's papers. (Def. Mem. at 1 n. 1)

Defendants state that to their knowledge, only defendants Bliden, Schihl, and Graziano have not yet been served. (Def. Mem. at 1 n. 1) The court has no documentary evidence that defendants Schneider, Hafford, Miller, Haights, and Alexander C. Miller were served. However, because plaintiff is not held responsible for the Marshals' inability to serve these defendants, the discrepancy between the court's and defendants' records is immaterial.

As to the named unserved defendants, as discussed above, see supra Part III.B.2, Rivera's action was commenced upon the filing of his complaint on December 8, 2003. Rivera was entitled to rely on the Marshals for service, and bears no blame that several defendants may not yet have been served. As our Circuit has held, "[T]he interests of justice, informed by a liberal interpretation of Rule 4, are best served by allowing [incarcerated litigants] to rely on the personal service, albeit untimely, ultimately effected by the Marshal's Service." Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986); see also McCoy v. Goord, 255 F. Supp. 2d 233, 263 (S.D.N.Y. 2003) (citing Romandette, 807 F.2d at 311); Ellis v. Guarino, No. 03 Civ. 6562, 2004 U.S. Dist. LEXIS 16748, at *43 (S.D.N.Y. Aug. 24, 2004) (extending pro se inmate's time for service because he "entitled to assistance from the district court" in effecting service). Once plaintiff provided the Marshal's Service with the information required to serve his complaint, he was absolved of further responsibility for service. The Marshal's Service is directed to effect service on whichever defendants have yet to be served, and defendants' motion to dismiss the complaint against those defendants is denied.

Numerous Circuit Courts have held that as long as the inmate provides the information necessary to identify the defendant, the Marshals' failure to effect service on behalf of the inmate constitutes good cause to extend the time for service under Fed.R.Civ.P. 4(m). See Moore v. Ernest-Jackson, 123 F.3d 1082, 1085-86 (8th Cir. 1997); Puett v. Blandford, 912 F.2d 270, 276 (9th Cir. 1990); Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990). Our Circuit noted its support for this principle in an unpublished and nonprecedential opinion. See Ruddock v. Reno, No. 00 Civ. 179, 104 Fed. Appx. 204, 206-07 (2d Cir. 2004).

The complaint is dismissed, however, as to John and Jane Doe defendants 1-10, because plaintiff has made no effort to identify those parties, and the Marshal's Service had no way to serve them.

As to deceased defendant Brian Malone, pursuant to Fed.R.Civ.P. 25(a)(1), "[i]f a party dies and the claim is not thereby extinguished," then a motion for substitution must be made within 90 days after "the death is suggested upon the record by service of a statement of the fact of the death . . ." Defendants noted in their motion to dismiss filed on August 17, 2004 that defendant Malone was deceased. (Def. Mem. at 1, n. 1) More than 90 days have elapsed since plaintiff received defendants' motion, and no motion for substitution has been made. All of plaintiff's claims against defendant Brian Malone are dismissed.

Plaintiff sues all defendants in their "personal and individual capacities," (Compl. ¶ 10), therefore Fed.R.Civ.P. 25(d), which automatically substitutes the successor to a party holding public office as a party when the named defendant ceases to hold office, does not apply.

3. Additional Defendants

Plaintiff adds several new defendants to his complaint in this case, none of whom were defendants in plaintiff's previous action before this court. The new defendants are: Correctional Officers Erns and Graziano, Auburn Correctional Facility Superintendent John W. Burge, Kenny Marks and Harris, both nurses at Great Meadow Correctional Facility, Mt. McGregor Correctional Facility Superintendent Harold McKinney, DOCS Assistant Commissioners Edward McSweeney and Richard Roy, Deputy DOCS Commissioner Lucien Leclaire, Mt. McGregor IGP Supervisor Gwen Duncan, and DOCS IGP Coordinator Peter Berezny.

Defendants erroneously claim that defendant Speed was also not named in plaintiff's previous action (Def. Mem. at 17). However, defendants' own exhibits, the docket sheet in case no. 01 Civ. 5179, and the court's opinion in that case show that Officer Speed was indeed a named defendant in the previous action. See Schulman Decl., Def. Ex. A;Rivera, 2003 U.S. Dist. LEXIS, at *1 n. 1. Additionally, according to defendants, Erns and Speed were the only two new defendants as to whom the statute of limitations has expired. The Court finds that this holding applies also to new defendants Graziano, Burge, and Roy, see supra, and that it does not apply to Speed.

Plaintiff filed his complaint on December 8, 2003. All claims against new defendants that accrued after December 8, 2000 are within the three-year statute of limitations of § 1983 actions. Plaintiff's claims against the Mt. McGregor defendants concern events in 2003, and his claims against the Great Meadow defendants and against DOCS Deputy Commissioner Leclaire concern events in 2001. Therefore plaintiff's actions against Harris, McKinney, McSweeney, Gwen Duncan, Berezny, and Leclaire are not time-barred.

However, plaintiff's claims against new defendants Erns, Graziano, Burge, and Roy concern conduct before December 8, 2000, and therefore are dismissed. Defendants correctly argue that CPLR § 205(a) does not apply to defendants over whom plaintiff did not have jurisdiction in his previous case. (Def. Mem. at 17)

New York CPLR § 205(a) provides that after a plaintiff's previous action has been dismissed, he may file within six months "a new action upon the same transaction or occurrence or series of transactions or occurrences . . .", but not if the prior action is terminated by a "failure to obtain personal jurisdiction over the defendant." Federal and New York State courts have interpreted § 205(a) to mean that a time-barred claim may be filed within six months of dismissal "only if the original court had personal jurisdiction over the same defendant as in the second case."Rayo v. State of N.Y., 882 F. Supp. 37, 39 (N.D.N.Y. 1995); see also Parker v. Mack, 61 N.Y.2d 114, 118-19, 472 N.Y.S.2d 882, 884 (1984) (noting the "fatal consequence" of lack of personal jurisdiction to the applicability of § 205(a), and holding that personal jurisdiction over the original defendant is required even if the defendant had actual notice of the previous action); Cazsador by Cazsador v. Greene Cent. Sch., 243 A.D.2d 867, 868-69, 663 N.Y.S.2d 310, 311 (3d Dep't 1997) ("[B]ecause plaintiff never obtained jurisdiction over [defendant] in the prior action (and in fact made no attempt to interpose a claim against that party), CPLR 205(a) has no application in this case."); cf. George v. Mt. Sinai Hosp., 47 N.Y.2d 170, 180, 417 N.Y.S.2d 231, 237 (1979) (noting that § 205(a) was "created to serve in those cases in which the prior action was defective and so had to be dismissed.").

Because defendants Erns, Graziano, Burge, and Roy were not named in plaintiff's initial action before this court, the court did not have personal jurisdiction over them. Therefore plaintiff may not receive the benefit of § 205(a) as to these defendants. The claims against them are time-barred, and are dismissed.

4. Previously Unserved Defendants

In his complaint in the instant lawsuit, plaintiff names six defendants who were named as defendants in his previous action before this court, but never served in that action: Inspector General Malone, Lieutenant Michael Nagy, Tammy Haights, Deputy Superintendent Phillips, and Correctional Officers Schihl and Miller. (Schulman Decl., Def. Ex. A) Defendants claim that § 205(a) does not apply to these defendants, because they were never served in the initial action. (Def. Mem. at 17)

Indeed, the New York Court of Appeals has held that § 205(a) is not applicable where service was defective in the prior action. George, 47 N.Y.2d at 179, 417 N.Y.S.2d at 237 (1979); see also Mohammed v.Elassal, 226 A.D.2d 509, 510, 640 N.Y.S.2d 608, 609 (2d Dep't 1996);Hertz v. Schiller, 239 A.D.2d 240, 241, 657 N.Y.S.2d 652, 653-54 (1st Dep't 1997). However, as explained above, this court must apply Fed.R.Civ.P. 3 when assessing the adequacy of service in this case, see supra Part III.B.2, and according to federal law, plaintiff was entitled to rely on the Marshals for service of his complaint. Romandette, 807 F.2d at 311 (2d Cir. 1986); cf. Meneely v. Hitachi Seiki USA, 175 A.D.2d 111, 112-13, 571 N.Y.S.2d 809, 810-11 (2d Dep't 1991) (applying the federal service of process rules to a CPLR § 205(a) tolling question where the underlying claim was based upon federal law). Any defect in service in plaintiff's prior action would not have been grounds for dismissal of that action, therefore any such defect is not grounds for dismissal in the instant action. Plaintiff's claims against previously unserved defendants are not dismissed.

C. Denial of Access to the Courts

Defendants move to dismiss plaintiff's claim that he was denied access to the courts when officials at Mt. McGregor Correctional Facility prevented him from exhausting his unexhausted claims. (Def. Mem. at 19-21)

The First and Fourteenth Amendments guarantee all prisoners "'the fundamental constitutional right of access to the courts.'" Lewis v.Casey, 518 U.S. 343, 346 (1996) (quoting Bounds v. Smith, 430 U.S. 817, 828 (1977)); see also Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). To state a claim for denial of access to the courts, plaintiff must allege that defendants "took or [were] responsible for actions that hindered [plaintiff's] efforts to pursue a legal claim." Davis, 320 F.3d at 351 (internal quotation marks omitted). More specifically, plaintiff must allege "'not only that the defendant[s'] alleged conduct was deliberate and malicious, but also that the defendant[s'] actions resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim.'" Id. (quoting Cancel v. Goord, No. 00 Civ. 2042, 2001 U.S. Dist. LEXIS 3440, at *12 (S.D.N.Y. Mar. 21, 2001)).

Defendants have been found estopped to argue that plaintiff has not exhausted his administrative remedies, and special circumstances have been held to excuse plaintiff from having to do so. See supra, Part III.A.2.b-c. Plaintiff has thereby been granted access to the courts. His underlying allegations of mistreatment will be considered in a judicial forum, and he suffered no actual injury when the Mt. McGregor defendants refused to let him file untimely grievances. Therefore, plaintiff's claims against defendants McKinney, McSweeney, Gwen Duncan, and Berezny are dismissed for failure to state a claim. Plaintiff's claims against defendants Goord and Pataki, insofar as they relate to his access to courts claim, are dismissed as well.

D. Allegedly Frivolous Claims

Defendants move to dismiss several of plaintiff's claims on the grounds that they are frivolous, and invalid on their face under governing law.

1. Legal Mail

First, defendants argue that plaintiff's claim that he was prevented from mailing legal documents to the court should be dismissed because plaintiff does not allege any actual injury. Def. Mem. at 21. Indeed, plaintiff does not specify any injury, and his lawsuit before Judge Chin did eventually progress to the summary judgment stage. See Rivera, 253 F. Supp. 2d at 757. Therefore plaintiff's claims against defendants Keyser, McCabe, Malone, Goord, Artuz, Bliden, and Haights based upon denial of access to the courts are dismissed.

All of plaintiff's claims against defendant Malone, including any claims relating to plaintiff's legal mailings, are dismissed also because Malone is deceased and no motion was made to substitute another defendant in his place. See supra Part III.B.2.

Plaintiff alleges also that defendants' actions in the legal mail incidents were committed in retaliation for plaintiff's pending federal lawsuit against 38 Green Haven employees (Compl. ¶ 15). No actual injury is required in order to state a First Amendment claim for retaliation. In order to state a First Amendment claim for retaliation, plaintiff must "advance non-conclusory allegations establishing: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001). Prisoner retaliation claims are viewed "with skepticism and particular care," because "virtually any adverse action taken against a prisoner by a prison official — even those not otherwise rising to the level of a constitutional violation — can be characterized as a constitutionally proscribed retaliatory act." Id. at 491.

As explained above, see supra, Part III.C, access to the courts is constitutionally protected. Adverse action is described as conduct "that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights . . .," Dawes, 239 F.3d at 493, and the adverse action must be "motivated at least in part by the plaintiff's protected conduct." Thaddeus-X v. Blatter, 175 F.3d 378, 394 (2d Cir. 1999). Additionally, "[p]risoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before [retaliatory] action taken against them is considered adverse." Id. at 398.

Plaintiff's legal mail retaliatory claims against defendants Keyser, McCabe, Quackenbush, Malone, Goord, Artuz, Bliden, and Haights are dismissed. Defendants Quackenbush, Malone, Goord, Artuz, Bliden, and Haights never took adverse action against plaintiff; rather, they "refused" to respond to his complaints about his inability to mail his documents. (Compl. ¶¶ 14-15). A retaliatory adverse action must be serious enough to deter an individual of ordinary firmness from exercising his constitutional rights, and refusal to take action in response to Rivera's complaints does not meet this standard.

Defendants Keyser and McCabe allegedly actively prevented Rivera from mailing his documents, and Rivera claims that Keyser ordered nine other correction officers to deny Rivera access to the mail. However, Rivera has not demonstrated that this conduct was sufficiently serious to constitute adverse retaliatory action. Rivera himself states that in the weeks following the legal mail incidents, he filed six separate complaints concerning this "harassment," including one such letter addressed to Judge Chin (id. ¶ 15), not to mention the instant lawsuit and its predecessor. The legal mail incidents thus do not appear to have deterred Rivera from using the mails, or from exercising his constitutional rights to file grievances or lawsuits. The actions allegedly taken by defendants Keyser and Malone did not constitute adverse action serious enough to deter an individual of ordinary firmness — or Rivera himself — from exercising his constitutional rights, therefore Rivera has no claim for retaliation against either of these individuals.

Additionally, plaintiff's conspiracy claims against all defendants based on 42 U.S.C. §§ 1985 and 1986 are dismissed. Plaintiff has not alleged any conspiracy that is motivated "by some racial or perhaps otherwise class-based invidious discriminatory action," therefore his claims under those statutes are not cognizable. Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Wahad v. FBI, 813 F. Supp. 224, 231 (S.D.N.Y. 1993).

All of Rivera's legal mail claims are dismissed.

2. Lost, Stolen, or Destroyed Property

Defendants move to dismiss plaintiff's claims regarding his lost, stolen or destroyed property. See Def. Mem. at 21; Compl. ¶¶ 16, 23, 29 (a)*, 30.

A claim for deprivation of personal property cannot lie in federal court if state courts can provide plaintiff with an adequate remedy for his loss. Parratt v. Taylor, 451 U.S. 527, 542-43 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31 (1986); see also Hudson v. Palmer, 468 U.S. 517, 533 (1984) (noting that the same standard applies even where plaintiff alleges intentional destruction of property). New York provides such an alternative remedy: Inmates may pursue their property claims against the State of New York in the New York Court of Claims, as provided by § 9 of the New York Court of Claims Act. N.Y. Ct. Cl. Act. § 9 (McKinney 2004); see also Smith v. O'Connor, 901 F. Supp. 644, 647 (S.D.N.Y. 1995). Additionally, plaintiff was not deprived of his property without due process of law, because an adequate remedy for the vindication of his constitutional rights was available to him in the New York Court of Claims. "[S]ection 1983 [can]not be made a vehicle for transforming mere civil tort claims into constitutional injuries." Morello v. James, 810 F.2d 344, 347 (2d Cir. 1987).

Therefore no remedy in federal court is available to Rivera as to the property claims he makes against defendants Haponik, Pataki, Goord, Selsky, Malone, Artuz, Bliden, George Schneider, McKoy, Gwen Schneider, and Gotsch. Any retaliation claim plaintiff has against these defendants regarding his property also fails because he has not alleged that any of the defendants have committed actions "that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. . . ." Dawes, 239 F.3d at 493.

All of plaintiff's claims against defendant Malone, including any claims relating to plaintiff's personal property, are also dismissed because Malone is deceased and no motion was made to substitute another defendant in his place. See supra Part III.B.2.

3. Exposure to Cold

Defendants move to dismiss plaintiff's claims that he was exposed to extreme cold, arguing that plaintiff's alleged injuries are de minimis.See Def. Mem. at 21, Compl. ¶¶ 24-25.

Our Circuit has held that prolonged exposure to "bitter cold" can constitute an Eighth Amendment violation. See Gaston v. Coughlin, 249 F.3d 156, 164-65 (2d Cir. 2001) (broken windows in inmate's cell block all winter); Corselli v. Coughlin, 842 F.2d 23, 27 (2d Cir. 1988) (freezing temperatures in prisoner's cell for three months). However, Rivera's allegations are not nearly serious enough to constitute Eighth Amendment violations. He claims that he was strip frisked on two occasions in unheated areas. These allegations do not constitute prolonged exposure to cold. See Trammell v. Keane, 338 F.3d 155, 164-65 (2d Cir. 2003) (denying prisoner's Eighth Amendment claim because the cold conditions in plaintiff's cell did not present a threat to the prisoner's "health or safety"). Restrictive and harsh conditions in prison are "part of the penalty that criminal offenders pay for their offenses against society." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Additionally, plaintiff has no retaliation claim against these defendants, because such brief and limited exposure to cold would not be sufficient "to deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. . . ." Dawes, 239 F.3d at 493.

Plaintiff's claims of exposure to cold against Correction Officers Miller, Erns, Ward, and against supervisory defendants Artuz, Goord, and Pataki therefore are dismissed.

See supra note 6.

Plaintiff's claims against defendant Erns are dismissed also because they are time-barred. See supra Part III.B.3.

4. "Disappearing" Misbehavior Reports

Defendants move to dismiss Rivera's claims that two false misbehavior reports were filed against him and later "disappeared" "as part of the retaliatory conspiracy" against him. See Def. Mem. at 21-22; Compl. ¶¶ 26, 28(d). One of these reports allegedly was filed on January 1, 2000, the other on January 4, 2000. (Compl. ¶¶ 26, 28(d))

"An allegation that a prison official filed false disciplinary charges in retaliation for the exercise of a constitutionally protected right, such as the filing of a grievance, states a claim under § 1983." Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (citing Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir. 1988)). In order to properly support such an allegation, a plaintiff "'bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff.'" Id. (quoting Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). If the plaintiff can make this showing, the burden shifts to the defendant to show that the plaintiff would have received the same punishment absent the retaliatory motivation. Id.

The January 1, 2000 misbehavior report alleged that plaintiff had participated in a planned work stoppage, (Pl. Ex. D), and plaintiff claims Officer Graziano issued this report as part of the conspiracy among Green Haven employees to retaliate against him for having filed a lawsuit in this District against 38 Green Haven employees. (Compl. ¶ 26) However, plaintiff's claim against defendant Graziano is time-barred, because Graziano was not a defendant in plaintiff's previous action before this court, and the six-month statute of limitations grace period provided by N.Y.C.P.L.R. § 205(a) does not apply to defendants who were not included in the previous action. See supra Part III.B.3. Plaintiff's claim against Graziano is dismissed.

Defendant Correctional Officer Eaton filed the January 4, 2000 misbehavior report, which alleged that plaintiff had lied when he reported to a sergeant that Eaton had assaulted him that morning. See Pl. Ex. E; Compl. ¶ 28(d). Plaintiff alleges that this report was made "in order to cover-up the assault." When Rivera reported the assault to Sergeant Hann immediately after it occurred on the morning of January 4, this act constituted the first step in the expedited grievance process.See supra note 23. That process was not set into motion, and Rivera was transferred from Green Haven later that evening. But so far as Officer Eaton knew, Rivera had begun the process of filing an expedited grievance against him. See Compl. ¶ 29(a) (alleging that Eaton informed Rivera that due to his complaint to Sergeant Hann about the assault, he was being transferred out of Green Haven). The filing of an inmate grievance complaint is a constitutionally protected right, Franco, 854 F.2d at 589-90, and "the temporal proximity of an allegedly retaliatory misbehavior report to a grievance may serve as circumstantial evidence of retaliation." Gayle, 313 F.3d at 683 (citingColon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)). Because Eaton allegedly was involved in the assault the morning the report was filed, (Compl. ¶¶ 28(a)-(b)), plaintiff has set forth sufficient facts to make out a claim that the grievance report was a retaliatory action.

Defendants argue (Def. Mem. at 22), that because the "disappearing" inmate misbehavior reports were never acted upon, they never caused Rivera any harm, and therefore would have been insufficient to "deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Dawes, 239 F.3d at 493. This inquiry is moot as to the claim against defendant Graziano for the January 1, 2000 report, which has been dismissed. As to the January 4, 2000 report, defendants' argument is unpersuasive. Our Circuit has held that the filing of a false disciplinary report is a serious enough action that temporal proximity between an inmate grievance and the filing of a report is enough to state a retaliation claim. Gayle, 313 F.3d at 683. No proof of the deterrent effect of such a report or its consequences is required.

Rivera has stated a retaliation claim against Officer Eaton, and the motion to dismiss that claim is denied.

E. Supervisory Defendants

1. Supervisory Immunity

Defendants move to dismiss plaintiff's complaint against supervisory defendants Governor George Pataki, DOCS Commissioner Glenn Goord, Disciplinary Director Donald Selsky, Inspector General Brian Malone, Green Haven Superintendent Christopher Artuz, Green Haven Deputy Superintendents Dennis Bliden, George Schneider, Gayle Haponik, and J. McKoy, Green Haven Lieutenants Gwen Schneider and Michael Nagy, Inspector Tammy Haights, Eastern Superintendent David Miller, Cayuga Superintendent Jordan Ryan, and Auburn Superintendent John Burge. (Def. Mem. at 22-23) Defendants claim that these defendants for the most part lacked personal involvement in any of plaintiff's alleged claims, and where personal involvement existed, it did not meet the Dawes standard for a retaliation claim.

All of plaintiff's claims against defendant Malone, including any claims relating to his status as a supervisory defendant, are dismissed because Malone is deceased and no motion was made to substitute another defendant in his place. See supra Part III.B.2.

The court has only considered dismissal as to the supervisory defendants named in defendants' memorandum to dismiss. Plaintiff's complaint lists several other supervisory defendants whom defendants apparently concede did have personal involvement in his case and are not entitled to dismissal solely on the basis of supervisory immunity, namely Lieutenant T. Gotsch, Great Meadow Superintendent George Duncan, Great Meadow Deputy Superintendent Phillips, Assistant DOCS Commissioner Richard Roy, and Deputy DOCS Commissioner Lucien Leclaire.

Damages may not be awarded under § 1983 unless plaintiff can prove the personal involvement of defendants in the alleged constitutional deprivations. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Personal involvement of a supervisory defendant may be shown by evidence that:

(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. Plaintiff's claim for monetary damages against supervisory defendants therefore "requires a showing of more than the linkage in the prison chain of command; the doctrine of respondeat superior does not apply." Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).

In plaintiff's response, he argues that he repeatedly wrote to the above-named supervisory defendants, notifying them about the unconstitutional acts that were occurring. (Pl. Resp. at 13-15) Simply because Rivera wrote to these supervisory officials complaining of mistreatment does not justify holding them liable under § 1983. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (two letters of appeal sent to prison official followed by a referral and a brief response that a decision had been rendered were not sufficient to constitute the official's personal involvement). More proof of personal involvement is required: "[T]o allow a mere letter to an official to impose supervisory liability would permit an inmate to place liability on individuals who had no authority over the situation complained of merely by sending letters." Johnson v. Wright, 234 F. Supp. 2d 352, 363 (S.D.N.Y. 2002); see also id. (collecting cases from this District holding that an official may not be held liable for ignoring an inmate's letter of complaint); Rivera, 119 F. Supp. 2d at 344 (same).

However, "personal involvement will be found . . . where a supervisory official receives and acts on a prisoner's grievance or otherwise reviews and responds to a prisoner's complaint." Johnson, 234 F. Supp. 2d at 363-64; see also Ramos v. Artuz, No. 00 Civ. 149, 2001 U.S. Dist. LEXIS 10327, at *24-*28 (S.D.N.Y. July 19, 2001) (finding personal involvement where supervisory official's involvement "went beyond merely the receipt of complaint letters" and where letters contained detailed information that should have been acted upon); James v. Artuz, No. 93 Civ. 2056, 1994 U.S. Dist. LEXIS 5708, at *25-*26 (S.D.N.Y. May 2, 1994) (finding personal involvement where supervisory official conducted de novo review of inmate's disciplinary hearing); cf. Colon, 58 F.3d at 873 (noting that personal involvement might be found if the letter of complaint contained information that "reasonably should have prompted [the supervisory defendant] to investigate.").

Given these considerations, the court will evaluate the personal involvement of each supervisory defendant in turn.

Rivera wrote defendant Pataki on at least two separate occasions, once to complain about his treatment at Great Meadow (Pl. Resp. Ex. T, at 188-92), and once to complain about the denial of his right to file grievances at Mt. McGregor (Pl. Ex. M). Rivera's sister also wrote Pataki about Rivera's treatment at Great Meadow. Pl. Resp. Ex. R, at 148-50. Defendant Pataki referred both issues to subordinates, both of whom responded to Rivera. Assistant DOCS Commissioner Edward McSweeney responded to Rivera regarding his Mt. McGregor claims, (Eagen Aff., Def. Ex. D, at 10), and DOCS Chief Medical Officer Dr. Lester N. Wright responded regarding Rivera's medical claims at Great Meadow (Pl. Resp. Ex. T, at 182). Under Sealey, 116 F.3d at 51, Pataki's referral of these matters to DOCS employees is insufficient to constitute personal involvement. Therefore, defendant Pataki has supervisory immunity from Rivera's claims, and all claims against him are dismissed.

In his Response, plaintiff cites several exhibits containing letters written to Pataki and other defendants in the spring and summer of 1999. (Pl. Resp. at 13-14, citing Pl. Resp. Exs. K, L, M, N, O, and P). This correspondence does not relate to any of the claims in this lawsuit and is therefore irrelevant.

Rivera wrote defendant Goord on several occasions, complaining about his treatment at Green Haven, Great Meadow, and Mt. McGregor Correctional Facilities. See Pl. Ex. F (Green Haven claims); Pl. Resp. Ex. T, at 183-87 (Great Meadow claims); Pl. Ex. M (Mt. McGregor claims). Rivera's sister wrote Goord regarding the Great Meadow claims as well. (Pl. Resp. Ex. S, at 152-56) Goord never responded directly to any of plaintiff's claims; like Pataki, he referred them to DOCS subordinates. These subordinates responded in the letters described above from DOCS Chief Medical Officer Wright and Assistant Commissioner McSweeney. See Pl. Resp. Ex. T, at 182; Eagen Aff., Def. Exh. D, at 10. For the same reasons as applied to defendant Pataki, defendant Goord lacked personal involvement in Rivera's claims. All claims against Goord are dismissed.

The record shows also that Rivera contacted defendants Goord and Pataki in spring 2000, alleging that he had been transferred from Green Haven for retaliatory reasons. Goord and Pataki both referred this claim to defendants Richard Roy and Lucien Leclaire, Assistant and Deputy DOCS Commissioners, respectively, and Roy and Leclaire contacted Rivera in response to his claims. Pl. Exh. J-2. Following the above reasoning, these referrals are not sufficient to constitute supervisory liability for Goord or Pataki on plaintiff's retaliatory transfer claim.

Plaintiff never contacted defendant Selsky, but Selsky was tangentially involved in several of plaintiff's claims. First, Selsky denied Rivera's appeal of his November 19, 1999 disciplinary hearing before defendant Frank Meeuwisse, Pl. Ex. B, in which Meeuwisse allegedly informed Rivera of the ongoing conspiracy against him. (Compl. ¶ 22) A review of an inmate's case does constitute personal involvement, see James, 1994 U.S. Dist. LEXIS 5708, at *25-*26. However, at the hearing before Meeuwisse, plaintiff was found guilty of possessing extra bedding; there is no reference in the record to a conspiracy against plaintiff. Pl. Ex. B. Selsky's review was ostensibly limited to the extra bedding issue, which is not being contested by plaintiff, and therefore his review did not involve any of plaintiff's claims in this lawsuit and does not constitute personal involvement. Selsky also extended the time limit for disciplinary hearings following a lockdown at Green Haven in 1999. (Pl. Resp. Ex. Q, at 140) However this extension was not specifically directed at Rivera, and brought about no deprivation of his constitutional rights. Rivera received a hearing within the time period provided by the extension. Id. at 135. Plaintiff's claims against Selsky related to loss of property have already been dismissed, see supra Part III.D.2. Plaintiff's remaining claims against Selsky for retaliatory transfer and red-tagging (Compl. ¶¶ 29(a), 31), have no basis in the record and plaintiff has not alleged any specific personal involvement justifying Selsky's supervisory liability. All claims as to defendant Selsky therefore are dismissed.

Plaintiff contacted defendant Artuz at least three times regarding his treatment at Green Haven. See Pl. Resp. Ex. Q, at 121-28 136-38; Pl. Ex. F. The record contains no evidence that Artuz ever responded to these claims. Additionally, Rivera presents no specific evidence of how Artuz was involved in the alleged retaliatory conspiracy against him. Therefore Artuz has supervisory immunity: He had no personal involvement in Rivera's case, and all claims against him are dismissed.

Plaintiff contacted defendant Bliden at least twice regarding his claims of mistreatment at Green Haven. He protested the result of his December 2, 1999 disciplinary hearing in front of defendant Michael Nagy, and he complained of the abuse he allegedly suffered at Green Haven in November and December 1999. See Pl. Resp. Ex. Q; Pl. Ex. F. Bliden never responded to Rivera's allegations regarding assault and sexual abuse, destruction of property, and exposure to cold, and therefore lacked personal involvement on those claims. Additionally, plaintiff does not set forth any facts that show Bliden's personal involvement in his claim of red-tagging, (Compl. ¶ 30), and his claims against Bliden relating to lost property and legal mail have already been dismissed, see supra Parts III.D.1-2. However, Bliden did review and respond to Rivera's appeal regarding his disciplinary hearing before defendant Michael Nagy (Pl. Resp. Ex. Q, at 143), therefore he was personally involved in Rivera's claim as to that event. All claims against defendant Bliden are dismissed except those relating to his review of Rivera's December 2, 1999 disciplinary hearing.

The record also indicates that Rivera contacted Bliden on July 5, 1999 in regards to claims unrelated to this lawsuit. This correspondence is irrelevant and will not be considered.
(Pl. Resp. Ex. N, at 111).

But see infra Part III.E.3; the claim against Bliden regarding the December 2, 1999 hearing is dismissed on principles of qualified immunity.

There is no record that plaintiff ever contacted defendant George Schneider about any of his claims in this case, or that Schneider ever communicated with plaintiff. Plaintiff alleges that Schneider was involved in the retaliatory conspiracy against him at Green Haven (Compl. ¶¶ 17, 29(a), 30, 31), but provides no evidence or details as to the extent or nature of Schneider's involvement. These allegations are insufficient to suggest Schneider's involvement in this case, and all claims against him are dismissed.

Lieutenant T. Gotsch did notify plaintiff that Schneider had ordered him to investigate the assault alleged in plaintiff's January 4, 2000 letter to various DOCS officials. (Pl. Ex. F) However, as explained above, such a referral is not sufficient to constitute personal involvement.

Plaintiff provides evidence that he contacted Schneider in spring 1999 regarding claims not related to this case. (Pl. Resp. Exs. K, L, M) This evidence is irrelevant and has no bearing on any of the allegations in the complaint.

Plaintiff's property-related claims against defendant Gayle Haponik have already been dismissed. See supra, Part III.D.2. His remaining claim against her alleges that she was involved in the November 15, 1999 conspiracy to endanger plaintiff and then punish him for refusing to comply with a direct order. (Compl. ¶ 17) Plaintiff makes no specific allegations as to how defendant Haponik was involved in this conspiracy, and the record contains no evidence that plaintiff ever contacted her in reference to his allegations against her. Because plaintiff has not set forth sufficient evidence of personal involvement, and because plaintiff's property claims have already been dismissed, all claims against defendant Haponik are dismissed.

The record contains no evidence that plaintiff contacted defendant McKoy regarding his claims in this lawsuit, and no evidence shows that McKoy had personal involvement in any of plaintiff's claims. All claims against defendant McKoy therefore are dismissed.

The record shows that plaintiff contacted defendant McKoy on July 5, 1999 regarding claims unrelated to this lawsuit. (Pl. Resp. Ex. O, at 114-17).

Plaintiff's claims against Correctional Lieutenant Gwen Schneider regarding her involvement the loss of his property have already been dismissed, see supra Part III.D.2. However, Rivera's claims relating to her involvement in his retaliatory transfer and red-tagging (Compl. ¶¶ 29(a), 31), are not dismissed. The record contains evidence that Schneider signed as a witness on the allegedly false misbehavior report filed against plaintiff on January 5, 2000. (Pl. Ex. G) This report accused Rivera of participating in a work stoppage, and was used to justify Rivera's transfer from Green Haven. See Pl. Ex. J. Rivera later was found not guilty of the charges contained in the report (Pl. Ex. G), and Rivera alleges that he was transferred out of retaliation for his complaints of assault by Green Haven employees. Because the record contains evidence that Lieutenant Gwen Schneider was directly involved in the alleged unconstitutional conduct, she does not receive supervisory immunity, and Rivera's retaliation claims against her are not dismissed.

Correctional Lieutenant Michael Nagy, who allegedly presided over plaintiff's December 2, 1999 disciplinary hearing, does not receive supervisory immunity. Nagy's role as hearing officer constituted direct involvement in Rivera's case. Rivera claims that Nagy's disposition was influenced by his status as a defendant in Rivera's pending federal action (Compl. ¶ 18). Though there may well be little merit to Rivera's claim because he pleaded guilty to the charge of which he was accused, (Pl. Resp. Ex. Q, at 153), he appears to contest both his sentence and the fact that the hearing was held late. Nagy's participation in Rivera's case is sufficient to constitute direct involvement; Nagy does not get the benefit of supervisory immunity in this case.

But see infra Part III.E.3; claims against Nagy regarding the December 2, 1999 hearing are dismissed on principles of qualified immunity.

Plaintiff accuses Inspector Tammy Haights of refusing to investigate and sanction those involved in the retaliatory conspiracy against him at Green Haven (Compl. ¶¶ 15, 20), and of participating in that conspiracy (Id. ¶ 17). Plaintiff alleges that in response to one of his written complaints, Haights visited him at Green Haven at an unspecified date, at which point he informed her "of the harassment, and the assaults upon him by the other defendants in retaliation of plaintiff seeking redress." (Id. ¶ 15) Plaintiff also wrote a letter to Haights describing these abuses on January 4, 2000 (Pl. Ex. F). Haights's alleged visit to Green Haven in response to plaintiff's written complaint constitutes sufficient personal involvement in his Green Haven claims to deprive her of supervisory immunity. Plaintiff's allegation that Haights participated in the falsification of an inmate misbehavior report filed against him in November 1999, (Compl. ¶ 17), however, is unsubstantiated by any evidence in the record, and is dismissed.

But see infra Part III.E.2. Despite Haights's personal involvement in Rivera's case, all claims against Haights are dismissed because they are frivolous in nature and unsupported by evidence of conspiracy.

Rivera's claims are dismissed as to Eastern Correctional Facility Superintendent David Miller and Cayuga Superintendent Jordan Ryan. Rivera claims that Miller was involved in his retaliatory transfer from Green Haven to Eastern in January 2000, (Compl. ¶ 29(a)), and that Ryan was involved in both Rivera's retaliatory transfer from Green Haven and Rivera's red-tagging (Compl. ¶¶ 29(a), 31). However, Rivera makes no specific allegations as to how these defendants were involved in these events, and there is no record that Rivera ever notified Miller or Ryan of his complaints in this case. Rivera has not shown personal involvement in his claims against any of these defendants, and therefore Miller and Ryan have supervisory immunity.

The reasoning in this paragraph also applies to Rivera's claims against Auburn Correctional Facility Superintendent John Burge. However, Rivera's claims against Burge have already been dismissed because they are time barred. See supra Part III.B.3.

2. Baseless Allegations

Supervisory defendants Gotsch, Haights, and Leclaire all personally investigated plaintiff's claims upon receiving his complaints, and therefore do not get the benefit of supervisory immunity. However, plaintiff's allegations against these defendants have no rational basis. The PLRA mandates that a district court "shall dismiss" the action if the court determines it to be "frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B)(i). Our Circuit has held that allegations of "wide-ranging conspiracies, clearly without foundation, to violate [plaintiff's] constitutional rights" are sufficiently frivolous to merit dismissal under § 1915. Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998).

Defendant Gotsch reviewed Rivera's allegations of assault and retaliatory treatment at Green Haven. After examining Rivera's medical and disciplinary records, as well as receiving written reports from defendants Miller and Martuscello denying any harassment, Gotsch concluded that there was no evidence to support plaintiff's claim of assault. (Pl. Ex. F) Gotsch's consideration of Rivera's claims constituted personal involvement in his case, and would help provide the basis for a claim against Gotsch, were there other evidence that he acted improperly. However, plaintiff relies solely on a conclusory claim that Gotsch conspired with others, for which his only evidence is that Gotsch reviewed Rivera's file and ruled against him. That is simply not enough, absent any facts suggesting an agreement with other defendants to act in their behalf. If Rivera's bare allegations were sufficient to state a claim, he could just as easily accuse any court that ruled against him. Any retaliation claim plaintiff alleged against Gotsch is dismissed. Plaintiff also alleges that Gotsch participated in the deprivation of plaintiff's property and the red-tagging of plaintiff's records (Compl. ¶¶ 30, 31). Plaintiff's property claims have already been dismissed, see supra Part III.D.2. Plaintiff presents no evidence that Gotsch was personally involved in the red-tagging; Gotsch has supervisory immunity as to that claim. All claims against Gotsch therefore are dismissed.

Defendant Lucien Leclaire investigated plaintiff's retaliatory transfer claims on behalf of defendants Goord and Pataki. (Pl. Ex. J-2) Although Leclaire considered and responded to plaintiff's claims, thereby depriving him of supervisory immunity, Rivera presents no evidence that Leclaire was involved in a retaliatory conspiracy against him. Rivera's claim against Leclaire is baseless, and must be dismissed.

The reasoning in this section also applies to Rivera's claim against Assistant DOCS Commissioner Richard Roy. However, Rivera's claim against Roy has already been dismissed because it is time barred. See supra Part III.B.3.

The same is true for defendant Haights. Haights allegedly ignored Rivera's oral and written reports of abuse and assault in retaliation for Rivera's previous lawsuits against Green Haven officials (Compl. ¶¶ 15, 20). Haights' personal involvement in Rivera's case denies her the benefit of supervisory immunity, but Rivera's retaliation claims against her are dismissed nonetheless, because he has failed to support his claims with any evidence.

It should be noted that Rivera's retaliatory conspiracy claims against many of the supervisory defendants in this case could be dismissed on the grounds that they are frivolous and malicious; simply because the court has dismissed Rivera's case against most of the supervisory defendants on immunity grounds does not mean that his claims against them would have had merit had the defendants not been immune.

3. Qualified Immunity

All claims against supervisory defendants have been dismissed except those against Correctional Lieutenants Gwen Schneider and Michael Nagy; Green Haven Deputy Superintendent Dennis Bliden (regarding the disciplinary hearing he reviewed); Great Meadow Superintendent George Duncan; and Great Meadow Deputy Superintendent William E. Phillips. Defendants argue that these defendants are entitled to qualified immunity from suit because their conduct did not "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In evaluating a motion based on qualified immunity, the court must perform a two-part test:

We ask first whether the facts, viewed in the light most favorable to the plaintiff, establish a constitutional violation. If they do not, the plaintiff may not recover because he has suffered no wrong cognizable under § 1983. If the facts do establish a constitutional violation, however, we proceed to the second inquiry, asking 'whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.' If a reasonable officer could have believed that the challenged conduct was lawful at the time of the violation, then qualified immunity bars the claim.

Sira v. Morton, 380 F.3d 57, 68-69 (2d Cir. 2004) (quoting Saucier v.Katz, 533 U.S. 194, 202 (2001)) (citations omitted).

Plaintiff alleges that defendant Gwen Schneider was part of the retaliatory conspiracy to red-tag him and transfer him from Green Haven the day of the alleged assault against him. (Compl. ¶¶ 29(a), 31) Schneider signed as a witness to the allegedly false January 5, 2000 misbehavior report that was the justification for Rivera's transfer from Green Haven. (Pl. Ex. G) "A prisoner has no liberty interest in remaining at a particular correctional facility, but prison officials may not transfer an inmate in retaliation for the exercise of constitutionally protected rights. . . ." Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998) (citations omitted). The right to file a grievance is constitutionally protected, see Gayle, 313 F.3d at 682, as is the right of access to the courts, see Lewis, 518 U.S. at 346. Rivera appears to allege that Schneider was acting in retaliation both for Rivera's previous lawsuit against her, and for Rivera's report of the January 4, 2000 assault to a supervisor, which should have initiated an expedited grievance process. Therefore he implicates Schneider in two potential constitutional violations, satisfying the first prong of the qualified immunity test. As to the second prong, any reasonable officer should have been aware that falsifying an inmate disciplinary report was illegal and improper. Schneider does not receive the benefit of qualified immunity.

Defendants Nagy and Bliden were involved in plaintiff's December 2, 1999 disciplinary hearing, in which Rivera pleaded guilty to refusing a direct order and was sentenced to 30 days of penalties. Pl. Resp. Ex. Q, at 141-43. Rivera alleges that Nagy improperly delayed his hearing, that Bliden erred in affirming Nagy's decision, and that both defendants were acting in retaliation for Rivera's lawsuit against 38 Green Haven officials — a lawsuit in which both Nagy and Bliden were defendants. (Compl. ¶¶ 18-19) Nagy's and Bliden's alleged retaliatory actions in response to Rivera's lawsuit may have been unconstitutional, however reasonable officers would not have considered their conduct inappropriate. Rivera's hearing date was delayed pursuant to a general mandate by defendant Selsky, see Pl. Resp. Ex. Q, at 140; therefore, Nagy did not exercise any personal discretion in permitting the delay. Rivera pleaded guilty to the charged offense. Nagy's only discretionary authority related to Rivera's penalty, and Rivera does not allege any retaliation in that regard. Defendant Nagy acted in an objectively reasonable manner in presiding over Rivera's hearing, as did defendant Bliden in reviewing Nagy's decision. Both Nagy and Bliden are entitled to qualified immunity, and all of plaintiff's claims against them are dismissed.

Gwen Schneider, Nagy, and Bliden all were defendants in Rivera's action before Judge Chin — the action that Rivera claims gave rise to the retaliatory conspiracy against him. See Rivera, 119 F. Supp. 2d at 333 n. 2, 334 n. 3.

Last, defendants argue that Great Meadow Superintendent Duncan and Deputy Superintendent Phillips are entitled to qualified immunity regarding their response to plaintiff's complaints that he was being deprived of medical treatment at their facility. (Def. Mem. at 26) To establish a qualified immunity defense where deprivation of medical treatment is alleged, defendants must show that it was "'objectively reasonable' for them to believe that they had not acted with the requisite deliberate indifference [to a serious medical need]." McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004) (citation omitted); see also Estelle v. Gamble, 429 U.S. 97, 104 (1976) (establishing the standard of deliberate indifference for prisoners' Eighth Amendment denial of medical care claims). "An official acts with the requisite deliberate indifference when that official 'knows of and disregards an excessive risk to inmate health or safety; the official must both be 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.'" Chance v.Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). A serious medical need exists where there is "a condition of urgency that may result in degeneration or extreme pain."Id. at 702 (internal quotation marks omitted). Medical conditions "vary in severity" and a "decision to leave a condition untreated will be constitutional or not depending on the facts of the particular case." Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000). Our Circuit has noted that several factors are relevant in assessing the seriousness of the medical condition at issue: "'[T]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)).

In this case, plaintiff alleges that he filed a complaint against defendant Nesmith with defendant Duncan on May 2, 2001 (Compl. ¶ 32(b)), and that Duncan referred the matter to a Mr. Ebert, who later informed plaintiff of the results of his investigation (id. ¶ 32(e)). Although defendants do not so argue, Duncan is entitled to supervisory immunity in this case. As explained above, our Circuit has held that referral of a matter by a supervisory defendant to a subordinate is insufficient to constitute personal involvement. Sealey, 116 F.3d at 51. Superintendent Duncan has supervisory immunity, and plaintiff's claim against him is dismissed.

Ebert is referred to as a defendant in plaintiff's complaint, but does not appear in the caption. The court will therefore not consider Ebert as a defendant.

Plaintiff's claim against Green Haven Deputy Superintendent William Phillips, however, is not dismissed. Plaintiff claims that on May 11, 2001, after defendant Nesmith had ordered plaintiff to leave the Great Meadow clinic despite his "severe pain," plaintiff spoke with Phillips outside the clinic. (Compl. ¶ 32(i)-(j)) Plaintiff alleges that he told Phillips that since his transfer to Great Meadow at the end of April, he had been denied his prescribed medications, that he had not been examined by a doctor although he suffered from a "chronic medical condition" which caused him "severe pain," and that he had just been ordered out of the clinic without medication. (Id. ¶ 32(j)) Phillips then allegedly responded, "P.A. Nesmith is under the supervision of Dr. Paolano and there is nothing I can do." (Id.)

As defendants point out, the Circuit has held that a non-medical defendant should not intercede in the medical treatment of an inmate.See Cuoco v. Moritsuqu, 222 F.3d 99, 111 (2d Cir. 2000) ("One can imagine the repercussions if non-medical prison officials were to attempt to dictate the specific medical treatment to be given particular prisoners. . . ."); Def. Mem. at 26. However, plaintiff's claim is that he was receiving no treatment at all, not that Phillips was being asked to interfere with a prescribed course of treatment. Our Circuit has held that deliberate indifference to a serious medical need exists where an inmate is denied medical treatment and thereby experiences "extreme pain." Chance, 143 F.3d at 702; see also Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (sustaining Eight Amendment claims against two correction officers who denied inmate his prescription eyeglasses, which caused the inmate to suffer from double vision and loss of depth perception).

Rivera informed Phillips that he was suffering from severe pain due to a chronic medical condition, and that he had been denied medical attention as well as his prescription medications. (Compl. ¶ 32(j)) Upon these facts, Phillips cannot reasonably have believed that his refusal to help Rivera obtain medical treatment did not constitute deliberate indifference to a serious medical need. See McKenna, 386 F.3d at 437. Rivera informed Phillips of facts from which Phillips should have inferred a "substantial risk of serious harm" to plaintiff, Chance, 143 F.3d at 702 (quoting Farmer, 511 U.S. at 537), and Phillips allegedly disregarded this risk. Rivera has presented enough evidence to sustain his claim against Phillips at this stage; Phillips does not have qualified immunity. Plaintiff's claim against defendant Phillips is not dismissed.

Plaintiff had informed defendant Nesmith that his condition was the jaw disease known as TMJ (Compl. ¶ 32(a)), but plaintiff does not allege that he mentioned the name of his condition to Phillips.

IV.

For the foregoing reasons, defendant's motion for summary judgment is denied, except as to plaintiff's claim alleging denial of access to the courts, his claims involving legal mail, property, and exposure to cold, his claims against supervisory defendants who have the benefit of supervisory or qualified immunity, and his unsubstantiated claims of retaliatory conspiracy. Plaintiff's action is dismissed as to those claims only. Summary judgment is denied as to the rest of plaintiff's claims.

Plaintiff's action is dismissed in its entirety against the following defendants, listed in order of their appearance in the caption: George Pataki, Glenn Goord, Donald Selsky, Brian Malone, Christopher P. Artuz, Dennis Bliden, George S. Schneider, Gayle Haponik, J. McKoy, Thomas K. Quackenbush, Michael N. Nagy, T. Gotsch, William F. Keyser, Ward, Thomas P. McCabe, Erns, R. Graziano, Tammy Haights, David Miller, Jordan Ryan, George B. Duncan, Harold McKinney, Edward McSweeney, Gwen Duncan, Peter Berezny, Richard Roy, Lucien Leclaire Jr., and John W. Burge.

The claims specified above survive against the following defendants, also listed in order of their appearance in the caption: Frank Meeuwisse, Gwen S. Schneider, Alexander C. Miller, Kenneth G. Hafford, Coleman S. Wilson, Jerry W. Surber, Jr., Daniel F. Martuscello, Christopher M. Martuscello, Christopher W. Carlton, T. Schihl, Marc Speed, Miller, W. Eaton, William E. Phillips, Dr. Albert Paolano, Ted Nesmith, Harris, and Kenny Marks.

As explained above, see supra note 6, plaintiff refers in his complaint to two Green Haven correctional defendants whose last name is Miller, one, a correctional officer, and the other, a correctional sergeant. An individual with the last name Miller allegedly was involved in the November 16, 1999 ransacking of plaintiff's cell and in the subsequent filing of an allegedly false misbehavior report. (Compl. ¶¶ 21-22) "Miller" was also allegedly involved in two incidents where plaintiff was exposed to cold (Compl. ¶ 24-25) Finally, "Miller" allegedly verbally abused plaintiff, informing him that he had no rights. (Compl. ¶ 27) Plaintiff's exposure to cold claim was dismissed,see supra Part III.D.3, but the other claims still stand. The court does not know which Miller was involved in which claims. Both Millers remain defendants for now. If one of the Millers was involved solely in the exposure to cold claim, he can petition the court for dismissal in a subsequent filing.

See supra note 52.

SO ORDERED:

Rivera v. Pataki

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