Shepherd v. Fischer

Full title: EON SHEPHERD, Plaintiff, v. BRIAN FISCHER, et al., Defendants.

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

Date published: Feb 23, 2015

Civil Action No. 9:10-CV-1524 (TJM/DEP) (N.D.N.Y. Feb. 23, 2015)

Opinion

Civil Action No. 9:10-CV-1524 (TJM/DEP)

02-23-2015

EON SHEPHERD, Plaintiff, v. BRIAN FISCHER, et al., Defendants.

APPEARANCES: FOR PLAINTIFF: EON SHEPHERD, Pro Se 96-A-0356 Clinton Correctional Facility P.O. Box 2002 Dannemora, NY 12929 FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: CATHY Y. SHEEHAN, ESQ. Assistant Attorney General

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

APPEARANCES: FOR PLAINTIFF: EON SHEPHERD, Pro Se
96-A-0356
Clinton Correctional Facility
P.O. Box 2002
Dannemora, NY 12929
FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: CATHY Y. SHEEHAN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Pro se plaintiff Eon Shepherd, a New York State prison inmate who has been granted in forma pauperis ("IFP") status, has brought this action against the Commissioner of the New York State Department of Corrections and Community Supervision ("DOCCS") and several DOCCS employees, pursuant 42 U.S.C. § 1983, alleging that his civil rights have been violated.¹ Plaintiff's complaint sets forth an amalgamation of seemingly unrelated claims.

1 It now appears that the plaintiff was improvidently granted IFP status because, prior to commencing this action, he had accumulated three strikes for purposes of 28 U.S.C. § 1915(g). Specifically, the following three actions filed by the plaintiff while incarcerated were dismissed on initial review pursuant to 28 U.S.C. § 1915(d), which was amended and recodified in 1996 as 28 U.S.C. § 1915(e): (1) Shepherd v. Conroy, No. 95-CV-8385, Dkt. No. 3 (S.D.N.Y. filed Oct. 2 1995); (2) Shepherd v. Fraisher, No. 96-CV-1525, Dkt. No. 3 (S.D.N.Y. filed Mar. 4, 1996); and (3) Shepherd v. Harwood, No. 96-CV-6413, Dkt. No. 3 (S.D.N.Y. filed Aug. 23, 1996). The issue, however, is now moot. Pursuant to the inmate authorization form signed by the plaintiff at the outset of the action, the full amount of the applicable filing fee has now been collected. Docket Entry Dated Aug. 30, 2011.

Currently pending before the court is a motion filed by the defendants seeking the entry of partial summary judgment dismissing certain of plaintiff's claims on the merits. For the reasons set forth below, I recommend that defendants' motion be granted, in part, and otherwise denied. I. BACKGROUND ²

2 In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

Plaintiff is an inmate currently in the custody of the DOCCS. See generally Dkt. No. 45. At various times relevant to his claims in this action, Shepherd was confined to the Upstate, Clinton, Five Points, Shawangunk, and Green Haven Correctional Facilities. Dkt. No. 45.

The claims set forth in plaintiff's complaint, as amended, are predicated upon occurrences falling into several categories, including sexual assault, excessive force, violation of plaintiff's freedom of religion, denial of access to the courts, deprivation of procedural due process, and the denial of adequate medical care. The following accounts, drawn principally from plaintiff's amended complaint, generally describe the events giving rise to his various claims.³

3 Although defendants, through their pending motion, seek wholesale dismissal of certain of plaintiff's claims, they also request dismissal of other causes of action as against several defendants based on a lack of personal involvement. For that reason, the following recitation addresses all plaintiff's claims, rather than only those of which defendants seek dismissal.

A. Sexual Assault

On November 3, 2007, while being pat frisked by defendant Corrections Officer Jones, plaintiff was subjected to touching in private areas and in a sexual manner.⁴ Dkt. No. 45 at 3. Defendant Corrections Officer Whipple observed defendant Jones' conduct, told plaintiff that Jones was permitted to search him in that manner, and did nothing to stop Jones' conduct. Id. at 4. Plaintiff was exposed to similar conduct, as well as sexual comments, while being pat frisked by defendant Corrections Officer Carlee on April 20, 2010, April 22, 2010, and in May 2010. Id. at 4, 5. Plaintiff alleges that during the pat-frisk on April 20, 2010, defendant Sergeant Barber witnessed the assault but did not reprimand defendant Carlee for his conduct. Id. at 4. During the pat-frisk by defendant Carlee on April 22, 2010, defendant Corrections Officer Bower allegedly watched the assault but did nothing to stop it. Id. Defendant Bower also allegedly grabbed plaintiff's genitals during a pat frisk on April 29, 2010. Id. at 4. On June 17, 2010, defendant Corrections Officer Prebalick, while pat frisking the plaintiff in a facility special housing unit ("SHU"), sexually accosted plaintiff in a similar manner. Id. at 4. Plaintiff complained to corrections officials concerning those incidents, and was told by defendant Corrections Officer Bower that he would be sexually molested and harassed as long as he continued to write sexual harassment grievances.⁵ Id. at 4.

4 Plaintiff's amended complaint names a "Corrections Officer Jones" and a "Sgt. Jones" as defendants. See, e.g., Dkt. No. 45 at 1, 2, 3-4, 5, 22, 29, 30. It is clear that plaintiff asserts only an excessive force claim against defendant Corrections Officer Jones (referred to as "defendant Jones" for purposes of this report) based on the alleged sexual assault during the pat frisk. See id. at 3-4, 29. Defendant Sergeant Jerry Jones (referred to as "defendant Sgt. Jones") is sued for his alleged failure to protect plaintiff from the alleged use of excessive force by defendants Prebalick, Cioffa, and Evans, as well as his involvement in providing alleged inadequate medical treatment to plaintiff. Id. at 5, 22, 30.

5 Plaintiff's amended complaint does not identify the correctional facility in which these alleged incidents occurred.

B. Excessive Force

On May 6, 2010, while being escorted back to his cell, plaintiff was assaulted by defendant Prebalick, defendants Corrections Officers Cioffa and Evans, and otherwise unidentified individuals. Dkt. No. 45 at 5. Plaintiff alleges that defendant Sgt. Jones witnessed the assault but did nothing to intervene or protect him from harm. Id. As a result of the incident, plaintiff suffered injuries to his right wrist, shoulder, low back and knees. Id. Plaintiff alleges that defendant Prebalick assaulted him out of retaliation for his filing grievances against other corrections officers. Id. at 5-6.

On several occasions throughout 2010, several defendants, including defendant Sergeant Maynard and defendants Prebalick, Carlee, Beliow, and Rozell also allegedly applied excessive force in pulling plaintiff's dreadlocks out of his head. Dkt. No. 45 at 6-10.

C. Interference with Freedom of Religion

Shepherd, a practicing Rastafarian, recounts several incidents of alleged interference with his right to freely exercise his chosen religion occurring between October 2008 and November 2010. On October 7, 2008, plaintiff was not served a religious meal associated with a religious celebration.⁶ Dkt. No. 45 at 6. On November 3, 2008, plaintiff's religious meal was served on a tray that was regularly used to serve meat in violation of plaintiff's religious beliefs. Id. On May 25, 2009, while Shepherd was confined at Clinton, an unidentified corrections officer sued as "John Doe" ordered plaintiff to dismantle his dreadlocks, which are worn to demonstrate a commitment to the god worshiped by Rastafarians, and then began pulling the dreadlocks. Id. According to plaintiff, it is against his religious beliefs to have his dreadlocks touched. Id. Similarly, plaintiff alleges that in or about November 2010, defendant Rozell touched plaintiff's dreadlocks in violation of his beliefs, and defendant Sergeant Roew, who witnessed the incident, did nothing to stop it. Id. at 10.

6 Plaintiff alleges that he informed defendant Bellnier about the missing meal, and that defendant Bellnier advised plaintiff that he would look into the matter. Plaintiff does not, however, allege that defendant Bellnier caused the meal to not be served or that he failed to take appropriate action in response to plaintiff's complaint. Dkt. No. 45 at 6.

Plaintiff further alleges that between May and December 2009, while incarcerated at Clinton and Shawangunk, he was denied the right to attend Rastafarian religious services for various reasons, including because his name was not placed on a call-out lists for religious services, he cannot walk up and down stairs to the area where the services were being held due to a physical impairment, and the facility in which he was housed did not offer Rastafarian services. Id. at 7-8. While at Clinton during this period of time, plaintiff informed defendant Superintendent Artus that he was being denied access to services, but he did not receive a response. Id. at 8.

Following plaintiff's transfer into Five Points, on or about December 3, 2009, he was verbally harassed regarding his religious preferences and his dreadlocks by unidentified corrections officers. Dkt. No. 45 at 8. Plaintiff specifically alleges that in March 2010, defendant Basket verbally harassed him regarding his religion. Id. at 9.

On or about May 5, 2010, plaintiff was denied a religious meal. Dkt. No. 45 at 9. When plaintiff complained to ZenZen, the deputy superintendent of programs at the facility in which plaintiff was confined, he was told he had not requested a religious meal and was denied access to the standards, policies, and procedures for receiving religious meals. Id.

On or about July 23, 2010, while at Upstate, plaintiff was served a religious meal on a tray in which meat is customarily served, in violation of his religious beliefs. Dkt. No. 45 at 9. As a result, plaintiff was unable to consume the religious meal. Id. On October 7, 2010, plaintiff was again denied a religious meal prepared in celebration of the Rastafarian Negust. Id. Plaintiff informed defendant Superintendent Rock about his failure to receive the religious meal, but Rock never responded. Id.

D. Court Access

Plaintiff's complaint sets forth two instances of alleged interference with his access to the courts, both involving claims that prison officials lost or misplaced his legal documents. The first incident is alleged to have occurred in December 2009, in connection with plaintiff's transfer from Clinton to Five Points. Dkt. No. 45 at 11. Plaintiff alleges that during the course of that transfer one of two draft bags containing legal documents and other property was misplaced and never recovered. Id. As a result, plaintiff lost documents pertaining to civil matters pending in the Southern and Northern Districts of New York, transcripts involving criminal matters pending in Kings and Richmond Counties, and documents concerning Article 78 proceedings. Id. Plaintiff informed defendant Superintendent Lempke and defendant Deputy Superintendent for Security Colvin of his missing legal papers, but neither of those individuals remedied the problem. Id.

The second incident occurred in June 2010, in connection with plaintiff's transfer into another prison facility. Dkt. No. 45 at 11-12. Plaintiff completed the necessary paperwork to arrange for a bag of active legal documents to be shipped to the next prison facility. Id. at 11-12. The bag was mailed instead to the plaintiff's home, however, and upon its return to the plaintiff, some of the documents were missing. Id. at 12. Plaintiff alleges that the missing documents were intentionally destroyed in retaliation for his filing of complaints and grievance while confined at Five Points. Id. As a result of the loss of legal documents, plaintiff contends he was unable to appeal a civil matter pending in the Northern District of New York, file Article 78 proceedings pursuant to state law, and file post-conviction motions in Richmond and Kings Counties. Id.

E. Procedural Due Process

Plaintiff's complaint, as amended, alleges two separate instances involving the denial of procedural due process. The first involves a disciplinary hearing conducted on April 26, 2008, by defendant Deputy Superintendent of Programs Cunningham, resulting in a finding of guilt and a penalty of 180 days in disciplinary SHU confinement, with a corresponding loss of packages, telephone, and commissary privileges, and a recommended forfeiture of good time credits. Dkt. No. 45 at 12-13. Plaintiff claims that he was deprived of (1) effective assistance in preparation for the hearing, (2) an impartial hearing officer, and (3) access to witnesses and documents. Id.

The second due process violation alleged stems from a misbehavior report issued on January 28, 2010, resulting in a disciplinary hearing commenced by defendant Ramus on February 2, 2010. Dkt. No. 45 at 14. At the hearing, plaintiff raised objections to alleged procedural violations and evidence and witnesses presented, and also protested defendant Ramus' refusal to call plaintiff's neurologist as a witness. Id. at 13-14. Plaintiff alleges that defendant Ramus' bias is reflected in the guilty determination and resulting penalty that included ten months of disciplinary confinement, a corresponding loss of privileges, and a recommended loss of good time credits. Id. at 14. Although defendant Bezio affirmed the determination, it was later administratively reversed on October 28, 2010. Id.

F. Deliberate Medical Indifference

The vast majority of plaintiff's amended complaint addresses medical care provided to him at the various facilities in which he was housed at the relevant times. Plaintiff's complaints center upon a chronic lumbar back condition, a right knee condition, chronic migraine headaches, asthma, numbness in his right wrist and shoulder, "blurry double vision," and a urology condition. Dkt. No. 45 at 14. Plaintiff claims that at various times during his incarceration, he was (1) denied adequate pain medication, knee and back braces and a cane, (2) confined in a facility requiring him to navigate stairs, and (3) deprived of requested medical care. Id. at 14-28.

II. PROCEDURAL HISTORY

This action has an extensive procedural history. The suit was filed in the Southern District of New York in October 2010, but was subsequently transferred to this district by order issued by Chief District Judge Loretta A. Preska on December 10, 2010. Dkt. Nos. 1, 3. Upon transfer to this district, on May 11, 2011, Senior District Judge Thomas J. McAvoy issued a decision, following an initial review of plaintiff's original complaint, dismissing certain of his claims and otherwise directing service of the summons and complaint. Dkt. No. 5. Since that time, plaintiff has filed an amended complaint in the action, which was submitted on August 17, 2011, and accepted for filing by the court in its entirety. Dkt. Nos. 45, 78. In addition, four separate motions for preliminary injunctive relief have been filed by the plaintiff and denied by the court. Dkt. Nos. 49, 78, 159, 161, 163, 168, 189, 192.

In his amended complaint, the currently operative pleading, plaintiff identifies numerous defendants by name and others as "Doe" defendants. Dkt. No. 45 at 2-3. Plaintiff's amended complaint asserts the following causes of action: (1) excessive force against defendants Jones, Carlee, Bower, Prebalick, Cioffa, Evans, John Doe, Maynard, Beliow, Rozell, Cambria, Colvin, and Lempke;⁷ (2) due process against defendants Cunningham, Ramus, Bezio, and Fischer;⁸ (3) verbal harassment against defendants Bower, Prebalick, John Doe, Maynard, and Basket; (4) deliberate medical indifference against defendants Holmes, Parmer, Smith, Weissman, Chesbrough, Bellnier, Rock, Lashaway, John Doe, Cusack, Johnson, Weinstock, Lempke, Colvin, Sgt. Jones, Atkinson, Fairchild, Hawthorne, Roew, Thomas, Perez, Bellamy, Fischer, Wright, Amatucci, Artus, Clemons, Prebalick;⁹ (5) retaliation against defendants Prebalick, Lempke, Colvin, Carlee, Atkinson, Chesbrough, Fairchild, Holmes, and Bower;¹⁰ (6) free exercise and Religious Land Use and Institutionalized Persons Act ("RLUIPA") claims against defendants John Doe, Evans, Artus, Rock, Bellnier, Fischer, Lempke, Colvin, Maynard, Carlee, Prebalick, Beliow, Rozell, and Basket;¹¹ and (7) denial of access to the courts against defendants Prebalick, Lempke, and Colvin;¹² (8) failure to protect plaintiff from harm against defendants Whipple, Barber, Bower, Roew, Lempke, Colvin, and Sgt. Jones.¹³ As relief plaintiff seeks compensatory and punitive damages in the amounts of $200,000 and $100,000, respectively, from each defendant. Dkt. No. 45 at 34.

7 Plaintiff asserts the excessive force claims against defendants Colvin and Lempke based on their roles as supervisors.

8 Plaintiff asserts the due process claims against defendants Bezio and Fischer based on their roles as supervisors.

9 Plaintiff asserts the deliberate medical indifference claims against defendants Bellnier, Rock, Lempke, Colvin, Bellamy, Fischer, Wright, and Artus based on their roles as supervisors. In addition, plaintiff asserts the deliberate medical indifference claims against defendants Johnson, Weinstock, Weissman, Hawthorne, and Smith based on their capacities as supervisors, as well as their direct role in treating plaintiff.

10 Plaintiff asserts the retaliation claims against defendants Lempke and Colvin based on their roles as supervisors.

11 Plaintiff asserts the free exercise and RLUIPA claims against defendants Artus, Rock, Bellnier, Fischer, Lempke, and Colvin based on their roles as supervisors.

12 Plaintiff asserts the denial of access to the courts claims against defendants Lempke and Colvin based on their capacities as supervisors.

13 Plaintiff's amended complaint explicitly sets forth twenty-nine causes of action. Dkt. No. 45 at 29-33. Those causes of action, however, are not organized in any meaningful or logical manner. Accordingly, the eight categories of claims listed above are intended to consolidate plaintiff's causes of action as they are asserted in the amended complaint. In addition, based on my review of the pleading, and mindful of my obligation to extend special solicitude to pro se litigants, I have construed the amended complaint to assert additional causes of action not expressly identified by the plaintiff. By way of example, although none of the twenty-nine listed causes of action assert an excessive force claim against defendants Cioffa and Evans, in the body of the complaint, specifically paragraph twenty, plaintiff alleges that defendants Prebalick, Cioffa, and Evans used force against him after he fell by slamming him on the ground, picking him up off of the ground, and throwing him into his cell. Dkt. No. 45 at 5.

On May 10, 2014, following service of process and completion of discovery, defendants moved for the entry of partial summary judgment.¹⁴ Dkt. No. 174. In their motion, defendants argue that (1) the damage claims against the defendants in their official capacities are barred by the Eleventh Amendment; (2) plaintiff's verbal harassment claims are not cognizable; (3) plaintiff's deliberate medical indifference claims are deficient based upon his failure to meet either the objective or subjective elements of such a claim; (4) plaintiff's denial of access to the courts cause of action is subject to dismissal for failure to allege specific injury resulting from the loss or misplacement of his legal records; (5) plaintiff's due process claims are legally deficient based upon his failure to establish that he was deprived of a cognizable liberty interest; (6) plaintiff's claims against defendants Amatucci, Artus, Bellnier, Colvin, Fischer, Johnson, Lempke, Rock, Jones, and Wright are subject to dismissal based upon lack of personal involvement; and (7) defendants are entitled to qualified immunity from suit with respect to plaintiff's deliberate medical indifference claims. Id. Plaintiff has since responded, on May 14, 2014, urging the court to deny defendant's motion in its entirety.¹⁵ Dkt. No. 179.

14 There is no indication in the court's records that defendants Whipple, Jones, Basket, or Cusack were served with the summons and complaint or otherwise appeared in the action. For this reason, and as is discussed more completely below in Part III.H. of this report, I recommend that plaintiff's claims against those defendants be dismissed.

15 Plaintiff's opposition papers include a response to defendants' statement of material facts not in dispute, submitted pursuant to rule 7.1(a)(3) of the local rules of practice for this court. Dkt. No. 179. That response, however, fails to comply with the governing local rule because it contains only blanket denials of certain of the facts alleged by the defendants not to be controverted. See N.D.N.Y. L.R. 7.1(a)(3) ("Each denial [in the non-moving party's response] shall set forth a specific citation to the record where the factual issue arises."). Under these circumstances, where plaintiff was notified both by the court and defendants of the consequences of failing to properly respond to defendants' motion, Dkt. Nos. 174-1, 176, the court could deem those facts that are only subject to a blanket denial to be admitted by the plaintiff. Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn J.) (listing cases); see also Monahan v. N.Y. City Dep't of Corrs., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district courts' discretion to adopt local rule 7.1(a)(3); Ketchuck v. Boyer, No. 10-CV-0870, 2011 WL 5080404, at *2 (N.D.N.Y. Oct. 25, 2011) (McAvoy, J.) ("[T]he responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly." (listing cases)).

Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.

A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").

B. Eleventh Amendment

Plaintiff's amended complaint recites that the defendants are being sued in both their personal and official capacities. Dkt. No. 45 at 1. In their motion, defendants contend that any damage claims brought against them in their official capacities are precluded by the Eleventh Amendment. Dkt. No. 174-4 at 4-6.

The Eleventh Amendment protects a state against suits brought in federal court by "private parties seeking to impose a liability which must be paid from public funds in the state treasury." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Cory v. White, 457 U.S. 85, 90-91 (1982); Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993). This absolute immunity, which states enjoy under the Eleventh Amendment, extends to both state agencies and state officials sued for damages in their official capacities when the essence of the plaintiff's claim seeks recovery from the state as the real party in interest. See, e.g., Daisernia v. State of N.Y., 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.) ("[A] suit which seeks a money judgment 'which must be paid from the state treasury is barred by the Eleventh Amendment,' even though it is nominally asserted against an individual official." (quoting Edelman, 415 U.S. at 663)); see also Richards v. State of N.Y. App. Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing, inter alia, Cory v. White, 457 U.S. 85, 89-91, (1982)). "To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan, 996 F.2d at 529; see also Hafer v. Melo, 502 U.S. 21, 25 (1991) ("Suits against state officials in their official capacity therefore should be treated as suits against the State.").

Plaintiff's damage claims in this action against the named defendants in their official capacities are, in reality, claims against the State of New York, and therefore are subject to dismissal. Daisernia, 582 F. Supp. at 798-99. Accordingly, I recommend that, to the extent that the damage claims raised in plaintiff's amended complaint are asserted against any of the named defendants in their official capacities, those claims be dismissed with prejudice.¹⁶

16 Plaintiff's complaint requests only monetary relief, and specifically does not seek declaratory or injunctive relief.

C. Claims of Verbal Harassment

Many of the claims set forth in plaintiff's amended complaint appear to be predicated upon allegations of threats and verbal harassment directed toward him by various defendants.¹⁷ To the extent those threats and comments may form the basis for any of plaintiff's claims, defendants seek dismissal of those claims. Dkt. No. 174-4 at 7. In response to defendants' motion, plaintiff argues that he is not asserting any cause of action based solely on verbal harassment, threats, or abuse. Dkt. No. 179-1 at 5. Because it is well-established that claims of verbal abuse or harassment, standing alone, are not cognizable under 42 U.S.C. § 1983, I recommend that plaintiff's claims of verbal harassment, to the extent the amended complaint is construed as asserting them, be dismissed. See, e.g., Jermosen v. Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995) (McAvoy, J.) ("Although indefensible and unprofessional, verbal threats or abuse are not sufficient to state a constitutional violation cognizable under [section] 1983." (citing cases)).

17 Some of the specific allegations set forth in the amended complaint regarding verbal harassment include the following: (1) defendant Bower told plaintiff he would be sexually harassed if he continued writing grievances, Dkt. No. 45. at 4; (2) defendant Prebalick told plaintiff that he was making things harder on himself by writing grievances, made a derogatory statement regarding his hair, and spread rumors throughout the prison that he was a child molester, id. at 5, 9-10; (3) defendant Maynard threatened to "beat [plaintiff] up" if he did not provide requested information, id at 7; (4) defendant Carlee used profane language toward plaintiff, id. at 8; (5) defendant Holmes threatened to issue a misbehavior report to plaintiff if he requested sick call for non-emergency purposes, id. at 15; and (6) defendant Atkinson told the plaintiff that he would receive minimal to no medical care, id. at 23.

D. Procedural Due Process

Defendants next seek dismissal of plaintiff's procedural due process causes of action. Dkt. No. 174-4 at 17-18. To establish a claim under 42 U.S.C. § 1983 for the denial of due process arising out of a disciplinary hearing, a plaintiff must show that he both (1) possessed an actual liberty interest and (2) was deprived of that interest without being afforded sufficient process. Tellier v. Fields, 260 F.3d 69, 79-80 (2d Cir. 2000) (citations omitted); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996). While defendants' motion does not address plaintiff's allegations concerning the specific procedural rights that are alleged to have been denied him during the two disciplinary hearings at issue, they contend that, as a threshold matter, plaintiff cannot establish that he possessed and was denied a constitutionally significant interest.¹⁸

18 The procedural safeguards to which a prison inmate is entitled before being deprived of a constitutionally cognizable liberty interest are well established under Wolff v. McDonnell, 418 U.S. 539 (1974). Specifically, under Wolff, the constitutionally mandated due process requirements include (1) written notice of the charges to the inmate; (2) the opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses and evidence in support of his defense, subject to a prison facility's legitimate safety and penological concerns; (3) a written statement by the hearing officer explaining his decision and the reasons for the action being taken; and (4) in some circumstances, the right to assistance in preparing a defense. Wolff v. McDonnell, 418 U.S. 539, 564-69 (1974); see also Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). To pass muster under the Fourteenth Amendment, a hearing officer's disciplinary determination must garner the support of at least "some evidence." Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985); Luna, 356 F.3d at 487-88. In addition, the due process clause of the Fourteenth Amendment also guarantees that "[a]n inmate subject to a disciplinary hearing is entitled to. . . an impartial hearing officer." Allen v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing Wolff, 418 U.S. at 570-71).

In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court determined that, to establish a liberty interest in the context of a prison disciplinary proceeding resulting in removal of an inmate from the general prison population, a plaintiff must demonstrate that (1) the state actually created a protected liberty interest in being free from segregation, and (2) the segregation would impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; Tellier, 280 F.3d at 79-80; Hynes, 143 F.3d at 658. The prevailing view in this circuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement, thus satisfying the first Sandin factor. See, e.g., LaBounty v. Coombe, No. 95-CV-2617, 2001 WL 1658245, at *6 (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94-CV-0985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.). Accordingly, to avoid the entry of summary judgment, plaintiff must have proffered evidence from which a reasonable factfinder could conclude that the conditions of his disciplinary confinement rose to the level of an atypical and significant hardship under Sandin.¹⁹ See, e.g., Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) ("[W]here the nonmoving party bears the burden of proof at trial. . . it is [his] burden to come forward to demonstrate that there are issues that must be decided by the factfinder because they may reasonably be decided in favor of either party." (citations omitted)).

19 Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.

Atypicality in a Sandin inquiry is normally a question of law.²⁰ Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). When analyzing the conditions of an inmate's disciplinary confinement, the relevant factors for consideration include "'the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions' and 'the duration of the disciplinary segregation imposed[.]'" Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009) (quoting Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998)). As to the duration of the disciplinary segregation, restrictive confinement of less than 101 days, on its own, does not generally rise to the level of an atypical and significant hardship. Davis, 576 F.3d at 133 (citing Colon v. Howard, 215 F.3d 227 (2d Cir. 2000)). Accordingly, when the duration of restrictive confinement is less than 101 days, proof of "conditions more onerous than usual" is required. Davis, 576 F.3d at 133 (citing Colon, 215 F.3d at 232-33 n.5). The court must examine "the [actual] conditions of [the plaintiff's] confinement 'in comparison to the hardships endured by prisoners in general population, as well as prisoners in administrative and protective confinement, assuming such confinements are imposed in the ordinary course of prison administration.'" Davis, 576 F.3d at 134 (quoting Welch v. Bartlett, 196 F.3d 389, 392-93 (2d Cir.1999)). On the other hand, the Second Circuit has suggested that disciplinary segregation under ordinary conditions of more than 305 days rises to the level of atypicality. See Colon, 215 F.3d at 231 ("Confinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.").

20 In cases where there is factual dispute concerning the conditions or duration of confinement, however, it may nonetheless be appropriate to submit those disputes to a jury for resolution. Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999).

The Second Circuit has stated that disputes regarding the conditions of a plaintiff's confinement may not be resolved on summary judgment. Davis, 576 F.3d at 134 (quoting Palmer v. Richards, 364 F.3d 60, 65 (2d Cir. 2004). "Only when the conditions are uncontested may a district court resolve the issue of a typicality of confinement as a matter of law." Id.

In this instance, plaintiff's amended complaint, at a minimum, raises a genuine dispute of fact regarding whether he was deprived of a cognizable liberty interest in connection with the two disciplinary hearings at issue. While there is no record evidence disclosing the amount of time he actually spent in disciplinary SHU confinement, the April 26, 2008 hearing resulted in a sanction that included 180 days of SHU confinement, with no indication that the sanction was ever reversed.²¹ Dkt. No. 45 at 13. The disciplinary hearing conducted by defendant Ramus on February 2, 2010, resulted in a penalty that included ten months of disciplinary SHU confinement. Dkt. No. 45 at 14. While the record, once again, does not disclose how much time plaintiff actually served in the SHU as a result of the sanction, defendant Ramus' determination was administratively reversed on October 28, 2010, nearly nine months after the conclusion of the hearing. Id. Under these circumstances, when drawing all inferences and resolving any ambiguities in plaintiff's favor, it appears that both of the hearings at issue resulted in SHU confinement of more than 180 days. A genuine dispute of material fact therefore exists with respect to whether plaintiff suffered the deprivation of a constitutionally significant liberty interest as a result of those two hearings, thereby precluding the entry of summary judgment dismissing plaintiff's due process claims.²² See Kalwasinski v. Morse, 201 F.3d 103, 106-08 (2d Cir. 1999) (finding that SHU confinement for 180 days may impose an atypical and significant hardship); accord, Johnson v. Fernandez, No. 09-CV-0626, 2011 WL 7629513, at *8 (N.D.N.Y. Mar. 1, 2011) (Baxter, M.J.), report and recommendation adopted by 2012 WL 1033652 (N.D.N.Y. Mar. 27, 2012) (Scullin, J.). For that reason, I recommend defendants' motion concerning plaintiff's due process claims be denied.

21 Plaintiff's amended complaint also alleges that, as a result of the determination from the disciplinary hearing on April 26, 2008, defendant Cunningham, the hearing officer, recommended that plaintiff lose good time credits. Dkt. No. 45 at 13. Because there is no record evidence to suggest that the determination was reversed, it is not clear that plaintiff's due process claim is viable absent a waiver, pursuant to Peralta v. Vasquez, 467 F.3d 98 (2d Cir. 2006), relinquishing any claims affecting the length of his confinement, including the loss of good time credits associated with the disciplinary hearing on April 26, 2008. Because defendants have not addressed this in their motion, however, plaintiff was not on notice of this issue and, consequently, not provided an opportunity to respond. Accordingly, I make no any finding with respect to whether plaintiff must first relinquish any claims affecting the length of his sentence before proceeding with his due process claim regarding the hearing on April 26, 2008.

22 In addition, in plaintiff's opposition to defendants' motion for summary judgment, he contends that, as a result of the disciplinary SHU confinement, he

lost amenity in his living conditions, being confined 23 hhours [sic] a day, deprived of his personal property, the liberty to attend threaputic [sic] programs, work, attend out door [sic] recreation in a congreated [sic] setting with the ability to engage in recreational activities, attend religious services and family celebration, attend religious services as well [as] access the law library and unable to participate in the family reunion programs.

Dkt. No. 179-1 at 23. These allegations, which describe the specific conditions of plaintiff's SHU confinement, only bolster those contained in plaintiff's amended complaint regarding whether plaintiff was deprived a sufficient liberty interest under Sandin, and defendants have not challenged them by way of a reply to plaintiff's opposition to the pending motion. Although the allegations are contained in plaintiff's unsworn memorandum of law in support of his opposition, courts in this circuit routinely consider such statements in connection with a motion for summary judgment where the proponent of the statements is a pro se litigant, mindful of the duty to extend special solicitude to those individuals. See, e.g., Riehl v. Martin, No. 13-CV-0439, 2014 WL 1289601, at *6 (N.D.N.Y Mar. 31, 2014) (Sharpe, J., adopting report and recommendation by Dancks, M.J.) (citing cases).

E. Personal Involvement

In their motion, defendants contend that several of them, including defendants Amatucci, Artus, Bellnier, Colvin, Fischer, Johnson, Lempke, Rock, Sgt. Jones, and Wright, are subject to dismissal in this action because they had no personal involvement in any of the constitutional deprivations alleged in plaintiff's amended complaint. Dkt. No. 174-4 at 18-19.

"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977)). As the Supreme Court has noted, a defendant may only be held accountable for his actions under section 1983. See Iqbal, 556 U.S. at 683 ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).

Certain of the defendants implicated in this portion of the pending motion served in supervisory roles, including, though not limited to, defendants Fischer, Wright, Lempke, Artus, Rock, and Bellnier. It is well-established that a supervisor cannot be liable for damages under section 1983 solely by virtue of being a supervisor, "and [liability] cannot rest on respondeat superior." Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, 556 U.S. 554 (2009); see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501. Below, I have addressed the personal involvement of each of the defendants implicated in defendants' motion.

1. Defendant Amatucci ²³

23 The correct spelling of this individual's name is unknown. Plaintiff's amended complaint refers to him as "Anuntic," "Annutice," "Annutcie," and "Annuci." Dkt. No. 45 at 1, 19, 26, 31. In their motion, defendants refer to this individual as "Amatucci." Dkt. No. 174-4 at 18. In his response to the defendants' motion, plaintiff also refers to this individual as "Amatucci." Dkt. No. 179-1 at 23. Because the parties apparently agree on this last spelling, I have adopted it for purposes of this report and recommendation.

Plaintiff has asserted a deliberate medical indifference claim against defendant Amatucci, who is referenced in only three paragraphs of plaintiff's amended complaint, recited below. Dkt. No. 45 at 19, 26, 31.

78. My health care provider was able to get approval for the urology nasal medication that was

initially denied by defendant Annuci (sic) who prescribed a treatment that was inconsistent with my urology problem. I was also prescribed a more effective pain medication in September 2009, and when I was move[d] to Down State C.F., on or about 10/9/09, where I stayed until 10/13/09, I was denied my asthma, migraine and pain medications as well [as] urology medication. I experienced breathing complaications [sic] as well [as] urology and left in excruciating pain for several days. I made numerous request[s] for medical treatment from the officers (john does) and was denied.



103. A consultation form was submitted for plaintiff to receive a new ACL knee brace as well [as] the urology medication (Nasal Spray) by N.P. Lashway, who informed me that defendant Annutice (sic) denied the urology medication and ordered an alarm clock that had nothing to do with my urology problems and the ACL brace was denied as well. Defendant Annutcie (sic) never spoke to, saw or examined me and denied me medical care. I forward Annutcie (sic) a letter dated 6/12/09, informing him that the treatment he (Annutcie) ordered had nothing to do with my urology problems explaining that I was not receiving adequate, meaningful, and effective medical care for my chronic lower back pain, migraine headaches, and I requested the reason as to why the request for a new ACL brace was denied. Plaintiff never received a response form [sic] Annutcie (sic). Moreover, plaintiff was never examined by Dr. Johnson or N.P. Lashway.




TWENTIETH CAUSE OF ACTION
The actions/inactions of defendants Dr. Weissman, Dr. Weinstock, Dr. Johnson, Dr. Hawthorne, N.P. Lashway, N.P. Parmer, N.A. Smith, N.A. Clemans, Dr. Annutcie (sic), R.N. Fairchild, R.N. Chesbrough, R.N. Holmes, and R.N. Atkinson, acting alone

and/or in conjunction with each other, did aggravate plaintiff's medical conditions (Lower back pain & Spasms, right wrist, elbow & shoulder pain & numbness migraine headaches, light hurting eyes, blurry double vision, right knee ins[t]ability swelling & pain, asthma condition) and were deliberately indifferent to plaintiff's medical needs by practicing a custom of providing low ineffective standard of care less efficacious treatment, causing plaintiff needless suffering.

Id.

Liberally construing these allegations, I find they suffice to give rise to a genuine dispute of material fact regarding whether defendant Amatucci was personally involved in the deliberate medical indifference claim asserted by plaintiff. Plaintiff alleges that defendant Amatucci denied him medication, did not examine him, and failed to remedy the continuing problems once he learned of them through a letter from plaintiff dated June 12, 2009. Accordingly, I recommend defendants' motion be denied with respect to the personal involvement of defendant Amatucci.

2. Defendant Artus

As was described above in Part II. of this report, plaintiff has asserted deliberate medical indifference and free exercise and RLUIPA claims against defendant Artus based on his role as the superintendent in one of the facilities in which plaintiff was confined at the relevant times. His amended complaint references defendant Artus in eleven paragraphs, including paragraphs numbered 3, 31, 104, 105, 108, and 109, as well as the fifth, sixteenth, seventeenth, twenty-eighth, and twenty-ninth identified causes of action. Dkt. No. 45 at 2, 7-8, 27, 28, 29, 31, 33.

With respect to plaintiff's free exercise and RLUIPA claims, he alleges that, between October and December 2009, he verbally notified defendant Artus in person that he was regularly being denied access to religious services and his dreadlocks were being pulled out by corrections officers. Dkt. No. 45 at 7-8. Plaintiff contends that defendant Artus responded by advising plaintiff he would look into the matters and report his findings, but plaintiff "never heard anything" in response. Id. at 8. Similarly, plaintiff complained directly to defendant Artus while he was making rounds at the prison facility about being denied medical care and his need to not be "housed on a company where [he] ha[s] to walk up and down numerous stairs" due to his physical impairments. Id. at 27. According to plaintiff, defendant Artus "took no corrective actions to ensure that [he] received meaningful, adequate, and effective medical care." Id. These allegations, which form the basis of plaintiff's claims against defendant Artus, are sufficient under Colon, if proven, to establish personal involvement.

3. Defendant Bellnier ²⁴

24 The correct spelling of this individual's name is unknown. Plaintiff's amended complaint refers to him as "Bellinier," "Bellinuer," "Bellniuer," "Bellnuer," and "Bellinner." Dkt. No. 45 at 1, 2, 6, 8, 18, 27, 29, 33. In their motion, defendants refer to this individual as "Bellnier." Dkt. No. 174-4 at 18. In his response to the pending motion, plaintiff also refers to this individual as "Bellnier" and "Belliner." Dkt. No. 179-1 at 23. Because the parties apparently agree on "Bellnier," I have adopted it for purposes of this report and recommendation.

Like defendant Artus, plaintiff has asserted deliberate medical indifference, as well as free religious exercise and RULIPA claims against defendant Bellnier in his capacity as a supervisor. Defendant Bellnier is the subject of allegations contained in paragraphs numbered 3, 25, 72, 104, 108, and 109, as well as the fourth, twenty-eighth, and twenty-ninth causes of action identified in the amended complaint. Dkt. No. 45 at 6, 18, 27, 28, 29, 33. Only paragraph 72 sets forth non-conclusory allegations regarding plaintiff's claim of deliberate medical indifference asserted against defendant Bellnier. In that paragraph, plaintiff contends that, on several occasions while defendant Bellnier was making rounds at the prison facility, Shepherd directly informed defendant Bellnier that he was being denied adequate medical care. Id. at 18. Plaintiff alleges that the Legal Aid Society also alerted Bellnier concerning his inadequate medical treatment. Id. These allegations are sufficient to give rise to a dispute of fact regarding whether defendant Bellnier deprived plaintiff adequate medical care in his capacity as a supervisor.

Otherwise, plaintiff's amended complaint sets forth only vague and conclusory allegations intending to implicate defendant Bellnier in his free exercise and RULIPA claims. By way of example, plaintiff alleges that, "[o]n or about 10/07/08, there was a Negust Religious celebration where a religious meal is served. I never received my religious meal and when defendant Bellinuer (sic) made his rounds, I made him aware that I never received my religious meal. Bellinuer (sic) advised me that the matter would be looked into." Dkt. No. 45 at 6. Even liberally construed, however, this is insufficient to establish the personal involvement of defendant Bellnier in the conduct forming the basis for plaintiff's free exercise and RLUIPA claims because plaintiff does not contend that defendant Bellnier failed to remedy plaintiff's problem. Moreover, there is nothing in the record evidence to suggest that, with respect to plaintiff's religious deprivation claims, defendant Bellnier ignored any of plaintiff's complaints. Accordingly, I recommend that the defendants' motion be granted with respect to the personal involvement of defendant Bellnier in plaintiff's free exercise and RLUIPA claims.

4. Defendant Colvin

Plaintiff has asserted six claims against defendant Colvin, the deputy superintendent of security at one of the prisons in which plaintiff was held at the relevant times, including (1) deliberate medical indifference, (2) retaliation, (3), denial of access to courts, (4) excessive force, (5) deprivation of his rights to free exercise and under the RLUIPA, and (6) failure to protect plaintiff from harm. Defendant Colvin is sued based on his capacity as a supervisor in connection with the deliberate medical indifference, retaliation, denial of access to courts, excessive force, and free exercise and RLUIPA claims. Plaintiff's amended complaint references defendant Colvin in paragraphs numbered 4, 49, 86, 105, and 108, as well as the seventh and sixteenth causes of action listed in plaintiff's amended complaint. Dkt. No. 45 at 2, 11, 21-22, 27-28, 29, 31. Only paragraph 86 sets forth sufficient allegations to establish personal involvement in some, but not all, of the claims asserted against defendant Colvin. In particular, plaintiff alleges that "[d]efendant Lempke and Colvin were informed by plaintiff numerous times when they were making their rounds in 'SHU', [sic] that [he] was being denied effective, adequate medical care, and sexually assaulted, religious discrimination, harassment, and retaliation due to [his] filing grievances and complaints against officials, requesting action be taken against the officials who committed the violations, and . . . [n]othing was done by defendant Lempke and Colvin to refrain their subordinates from violating his rights[.]" Id. at 21-22. Because this allegation suggests defendant Colvin knew about the alleged continuing inadequate medical care, sexual harassment, religious discrimination, and retaliation but did nothing to address those concerns, I find there exists a dispute of fact with respect to the personal involvement of that defendant in connection with plaintiff's claims of deliberate medical indifference, excessive force, free exercise and RLUIPA, and retaliation claims.

Similarly, plaintiff alleges that he informed defendant Colvin regarding his missing legal paperwork, but that Colvin did nothing to help plaintiff. Dkt. No. 45 at 11. This is sufficient to implicate Colvin in plaintiff's denial of access to the courts cause of action.

Turning now to the failure to protect claim asserted against Colvin, the only allegation in the plaintiff's complaint related to this cause of action states, "Defendants C.O. Whipple, superintendent Lempke, Sgt. Barber, Colvin, C.O. Bower as well as unidentified officials, failed to stop their subordinates from sexually molesting/assaulting and harassing plaintiff as well [as] failing to ensure their subordinates were properly and adequately trained in pat frisk procedures." Dkt. No. 45 at 29. This type of vague and conclusory allegation, however, is not sufficient to satisfy the personal involvement requirement of a section 1983 claim. Moreover, there is nothing in the record, aside from this allegation, to suggest that defendant Colvin failed to protect plaintiff from any use of force. Accordingly, I recommend that defendants' motion be granted to the extent it seeks dismissal of plaintiff's failure to protect claim asserted against defendant Colvin.

5. Defendant Fischer

Plaintiff asserts the following claims against defendant Fischer based on his capacity as a supervisor: (1) excessive force, (2) deprivation of due process, (3) deliberate medical indifference, and (4) free exercise and RLUIPA violations. Defendant Fischer is mentioned throughout the amended complaint, including in paragraphs numbered 2, 27, 98, 99, 100, 101, 105, 107, 108, and 109, as well as in the sixteenth, seventeenth, twenty-eighth, and twenty-ninth identified causes of action. Dkt. No. 45 at 2, 6, 25, 26, 27, 28, 30, 31, 33. Plaintiff's claim asserting a due process violation against defendant Fischer arises from the allegation that, although plaintiff appealed the disciplinary determinations by defendants Cunningham and Ramus to defendant Fischer based on the alleged due process violations, Fischer affirmed the determinations. Merely affirming the denial of an inmate's appeal of a disciplinary sanction, however, is insufficient, on its own, to establish personal involvement. Long v. Crowley, No. 09-CV-0456, 2010 WL 5129102, at *1 (W.D.N.Y. Dec. 10, 2010); Tafari v. McCarthy, 714 F. Supp. 2d 317, 383 (N.D.N.Y. 2010) (Suddaby, J.). Plaintiff's allegations regarding the other causes of action asserted against defendant Fischer either appear to assert a non-cognizable constitutional claim or are vague and conclusory. See, e.g., Dkt. No. 45 at 25 ("Supervisor Bellamy and defendant Fischer were aware of the systematic gross deficiecious [sic] and inadequate training and supervision of the inmate grievance program, for other prisoners also had problems with their grievances being filed and processed for many prisoners complained to the grievance supervisor as well as the superintendents and defendant Fischer, and nothing was done to ensure that my grievance filing process was not hindered, no corrective measures were taken."), 31 ("Defendants Artus, Lempke and Fischer, acting alone and/or in conjunction with each other were aware of there being a systematic, gross inadequacies in training as well [as] supervision of subordinates in the use of force, and further failed to take corrective as well as preventative measures, which caused the violation of plaintiff's rights."). Accordingly, I recommend that defendants' motion for summary judgment based on the lack of personal involvement of defendant Fischer be granted.

6. Defendant Johnson

Plaintiff asserts only a deliberate medical indifference claim against defendant Johnson. Liberally construed, the claim is asserted against Johnson based both on her direct involvement in treating plaintiff, as well as based on her role as supervisor. Plaintiff's amended complaint references defendant Johnson in paragraphs numbered 76, 80, 102, 103, 106, and 108, as well as the nineteenth and twentieth identified causes of action. Dkt. No. 45 at 19, 20, 26, 27, 31. The allegations regarding the treatment received by defendant Johnson are sufficient to give rise to a dispute of material fact as to whether she was personally involved in the alleged deliberate medical indifference. Dkt. No. 45 at 19, 20. The allegations giving rise to the claim based on defendant Johnson's role as a supervisor, however, are vague and conclusory, id. at 26, 31, and no reasonable factfinder could conclude, based on the record, that defendant Johnson was personally involved in her role as a supervisor under Colon. Accordingly, I recommend that defendants' motion based on the personal involvement of defendant Johnson be granted with respect to the deliberate medical indifference claim asserted against that defendant based on her role as a supervisor.

7. Defendant Lempke

Plaintiff asserts six claims against defendant Lempke, including (1) deliberate medical indifference, (2) retaliation, (3) violation of his free exercise and RLUIPA rights, (4) denial of access to the courts,(5) failure to protect plaintiff from harm, and (6) excessive force. Plaintiff asserts the deliberate medical indifference, retaliation, free exercise and RLUIPA, and denial of court access causes of action based on defendant Lempke's capacity as a supervisor. The amended complaint references defendant Lempke in paragraphs numbered 3, 49, 86, 104, 105, 108, and 109, as well as in the fourth, seventh, sixteenth, seventeenth, twenty-eighth, and twenty-ninth identified causes of action. Dkt. No. 45 at 2, 11, 21-22, 27-8, 29, 31, 33.

Plaintiff's allegations giving rise to the denial of access to courts claim is sufficient to implicate defendant Lempke. Specifically, plaintiff alleges that he directly informed defendant Lempke that some of his legal paperwork became misplaced, but that Lempke did nothing to help plaintiff. Dkt. No. 45 at 11. Under Colon, this is enough to raise a dispute of fact regarding defendant Lempke's personal involvement in the denial of access to courts cause of action.

Similarly, the allegation that defendant Lempke did nothing to help plaintiff after he learned that plaintiff was continuously being denied adequate medical care, sexually assaulted, discriminated based on his religion, and retaliated against for filing grievances is sufficient to establish personal involvement in light of the record evidence. Dkt. No. 45 at 21-22.

As for the failure to protect claim, the only allegation in the amended complaint related to this cause of action states, "Defendants C.O. Whipple, superintendent Lempke, Sgt. Barber, Colvin, C.O. Bower as well as unidentified officials, failed to stop their subordinates from sexually molesting/assaulting and harassing plaintiff as well [as] failing to ensure their subordinates were properly and adequately trained in pat frisk procedures." Dkt. No. 45 at 29. This type of vague and conclusory allegation, however, is not sufficient to satisfy the personal involvement requirement of a section 1983 claim. Moreover, there is nothing in the record, aside from this allegation, to suggest that defendant Lempke failed to protect plaintiff from any use of force. Accordingly, I recommend that defendants' motion be granted to the extent it seeks dismissal of plaintiff's failure to protect claim asserted against defendant Lempke.

8. Sgt. Jones

As was noted above, plaintiff asserts a deliberate medical indifference and failure to protect claim against defendant Sgt. Jones. With respect to the first cause of action, plaintiff alleges as follows:

On or about 6/27/10, plaintiff was moved to UpState C.F., before leaving Five Points and being placed on a bus, he spoke to defendant Sgt. Jones, requesting that his ACL right knee brace be returned to him, requesting the medical department be called, since it was medical who had my original ACL knee brace, I requested my back brace be returned and Sgt. Jones stated that, he was not calling medical for any brace.

Dkt. No. 45 at 22. This allegation is sufficient to give rise to a dispute of material fact regarding whether defendant Sgt. Jones was personally involved in denying plaintiff adequate medical care.

Turning to plaintiff's allegation that defendant Sgt. Jones failed to protect him from harm, plaintiff alleges that, during the assault by defendants Prebalick, Cioffa, and Evans on or about May 6, 2010, defendant Sgt. Jones witnessed the incident and "did nothing to intervene or refrain his officers from assaulting [him]." Dkt. No. 45 at 5. This is sufficient to establish defendant Sgt. Jones' personal involvement in the alleged assault.

Accordingly, I recommend that defendants' motion be denied with respect to defendant Sgt Jones' personal involvement in the claims asserted against him.

9. Defendant Rock

Plaintiff asserts two claims against defendant Rock, alleging a violation of his free exercise and RULIPA rights and deliberate medical indifference. Both of these causes of action are asserted against defendant Rock based on his role as a supervisor. The amended complaint references defendant Rock in paragraphs numbered 31, 40, 73, 104, 108, and 109, as well as in the fourth cause of action. Dkt. No. 45 at 2, 9, 18, 27, 28, 29.

With respect to the free exercise and RULIPA claim, plaintiff contends that he informed defendant Rock about not receiving a single missed religious meal on or about October 7, 2010, and that Rock did not take any steps to remedy the issue. Dkt. No. 45 at 9. It is well settled that this type of allegation regarding a past constitutional violation is not sufficient to establish defendant Rock's personal involvement based on his role as a supervisor. See Platt v. Inc. Vill. Southampton, 391 F. A'ppx 62, 65 (2d Cir. 2010) ("[A]n allegation that a supervisory official ignored a letter protesting past unconstitutional conduct is, without more, [insufficient] to state a claim that the official was 'personally involved' in the unconstitutional conduct."). Plaintiff further alleges, however, that defendant Rock was notified on several occasions of ongoing violations regarding the denial of adequate medical care. Dkt. No. 45 at 18. Such an allegation, if proven, could suffice to establish liability on the part of defendant Rock. Accordingly, I recommend that defendants' motion be granted with respect to plaintiff's free exercise and RLUIPA claim against defendant Rock, but otherwise be denied.

10. Defendant Wright

Plaintiff has asserted a deliberate medical indifference claim against defendant Wright based on his role as the DOCCS Deputy Commissioner. Defendant Wright is referenced in paragraphs numbered 6, 100, 101, and 108, as well as the twenty-eighth and twenty-ninth causes of action identified in the amended complaint. Dkt. No. 45 at 3, 26, 27, 33. Plaintiff alleges that he notified defendant Wright of the continuing denial of adequate medical care through "numerous complaints written from 2008, through 2010[.]" Id. at 26. In response, defendant Wright referred the matter to "his subordinates," who, plaintiff alleges, "did nothing more than advise [him] that the division of health services conducted an investigation[], and suggested that [he] continue to bring [his] medical concerns to the attention of the health care staff[.]" Id. Without more, these contentions do not establish defendant Wright's personal involvement in plaintiff's deliberate medical indifference cause of action. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (affirming the district court's grant of summary judgment where the defendant-commissioner referred the plaintiff's letter to the prison superintendent); accord, Grullon v. City of New Haven, 720 F.3d 133, 140-41 (2d Cir. 2013). Similarly, plaintiff's other allegations, as well as the record evidence as a whole, do not reflect the personal involvement of defendant Wright in plaintiff's alleged inadequate medical care. Accordingly, I recommend defendants' motion with respect to defendant Wright be granted.

F. Denial of Access to the Courts

In their motion, defendants also seek dismissal of plaintiff's denial of access to the courts cause of action. Dkt. No. 174-4 at 16-17. Defendants contend that plaintiff has failed to establish either that he suffered any prejudice from the loss of his legal materials or the personal involvement of the defendants alleged to be responsible for the loss of his materials. Id.

It is well-established that prison inmates have a constitutional right to meaningful access to the courts. Bounds v. Smith, 430 U.S. 817, 824 (1977); accord, Lewis v. Casey, 518 U.S. 343, 350 (1996) ("The right that Bounds acknowledged was the (already well-established) right of access to the courts." (emphasis in original)). This right is implicated when prison officials "actively interfer[e] with inmates' attempts to prepare legal documents, or file them[.]" Lewis, 518 U.S. at 350 (citations omitted). A plaintiff asserting a denial of access to courts claim must allege that the defendant was "responsible for actions that hindered his efforts to pursue a legal claim." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (quotation marks omitted). To establish a denial of access to courts claim, a plaintiff must satisfy two elements. First, he must show that the defendant acted deliberately and maliciously. Davis, 320 F.3d at 351. Second, plaintiff must demonstrate that he suffered an actual injury. Id.

In this instance, plaintiff has failed to adduce any evidence that defendant Prebalick was personally involved in the alleged loss of his legal papers. Personal involvement in the context of the court access claim, as with any other constitutional deprivation, is a prerequisite to the finding of liability. See Livingston v. Escrow, 08-CV-6576, 2013 WL 5603870, at *6 (W.D.N.Y. Oct. 11, 2013) (dismissing the plaintiff's court access claim on summary judgment because the plaintiff had failed to establish the personal involvement of the defendant). Plaintiff alleges that, with respect to the incident in or about February 2010 regarding his missing papers, he informed defendant Prebalick "of the missing legal documents," and Prebalick responded by telling plaintiff "it would be hard for [him] to sue officers without legal documents, and plaintiff's law suit [sic] was in the garbage, along with his other documents." Dkt. No. 45 at 11. Even liberally construed, this allegation does not suggest that defendant Prebalick was responsible for discarding or otherwise losing plaintiff's legal papers. In his response to the pending motion, plaintiff admits that defendant Prebalick was only present when plaintiff was returned his property, and he does not contend that Prebalick was involved in the papers being misplaced in the first instance. Accordingly, I recommend dismissal of this claim against defendant Prebalick.

Turning to defendants Lempke and Colvin, plaintiff alleges that he informed those individuals that his legal papers were missing after the first incident in December 2009. Dkt. No. 45 at 11. Plaintiff contends that defendants Lempke and Colvin failed to address his complaints, but there is nothing in the record to suggest that they deliberately or maliciously ignored plaintiff. Instead, plaintiff merely states that he "requested Colvin and Lempke return the missing legal documents" and certain documents were never returned to him. Id.; see also Dkt. No. 179-1 at 21-22. Without more, the court determines that no reasonable factfinder could conclude that defendants Lempke and Colvin acted deliberately or maliciously in addressing plaintiff's complaint. Accordingly, I recommend dismissal of this claim against those individuals.

G. Deliberate Medical Indifference

A significant portion of plaintiff's amended complaint is dedicated to his complaints regarding the treatment he received for his medical conditions at the various prison facilities in which he was confined. In their motion, defendants contend plaintiff's medical records reveal that he consistently received extensive and proper care and treatment for his various conditions, and that plaintiff's medical indifference claim does not satisfy either the objective or subjective requirements for proving such cause of action under the Eighth Amendment.²⁵ Dkt. No. 174-4 at 7-14.

25 Defendants specifically seek dismissal of plaintiff's deliberate medical indifference claim as against defendants Atkinson, Bellnier, Chesbrough, Clemons, Colvin, Fairchild, Fischer, Holmes, Johnson, Lempke, Parmer, Perez, Prebalick, Rock, Roew, Smith, Thomas, Weinstock, and Weissman. Dkt. No. 174-4 at 7. As was noted above in Part II. of this report, the court has construed plaintiff's amended complaint as asserting a deliberate medical indifference claim against all of the individuals identified by defendants in their motion, plus defendants Lashaway, Cusack, Sgt. Jones, Hawthorne, Wright, Amatucci, and Artus. In Part III.E., above, the court concluded that the record evidence does not disclose a genuine dispute of material fact regarding whether defendants Fischer and Wright were personally involved in the alleged inadequate treatment received by plaintiff. For this reason, I have not analyzed the merits of that claim as it relates to defendants Fischer and Wright. In addition, because defendants do not seek dismissal of the deliberate medical indifference claim asserted against defendants Lashaway, Cusack, Sgt. Jones, Hawthorne, Amatucci, and Artus, I have not analyzed the merits of that claim to the extent it is asserted against those individuals.

1. Legal Standard

The Eighth Amendment prohibits punishment that is "incompatible with 'the evolving standards of decency that mark the progress of a maturing society[,]' or which 'involve the unnecessary and wanton infliction of pain[.]'" Estelle v. Gamble, 429 U.S. 97, 102-03 (1976) (quoting Trop v. Dulles, 356 U.S. 86, 100-01 (1958) and Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (citations omitted)). While the Eighth Amendment "'does not mandate comfortable prisons,' neither does it permit inhumane ones." Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). "These elementary principles establish the government's obligation to provide medical care for those whom it is punishing by incarceration." Estelle, 429 U.S. at 103. Failure to provide inmates with medical care, "[i]n the worst cases, . . . may actually produce physical torture or lingering death, [and] . . . [i]n less serious cases, . . . may result in pain and suffering no one suggests would serve any penological purpose." Id.

A claim alleging that prison officials have violated an inmate's Eighth Amendment rights by neglecting to provide adequate medical care must satisfy both objective and subjective requirements. Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009); Price v. Reilly, 697 F. Supp. 2d 344, 356 (E.D.N.Y. 2010). To satisfy the objective requirement, the Second Circuit has said that

[d]etermining whether a deprivation is an objectively serious deprivation entails two inquiries. The first inquiry is whether the prisoner was actually deprived of adequate medical care. As the Supreme Court has noted, the prison official's duty is only to provide reasonable medical care . . . . Second, the objective test asks whether the inadequacy in medical care is sufficiently serious. This inquiry requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner.

Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006) (citations omitted).

The second inquiry of the objective test requires a court to look at the seriousness of the inmate's medical condition if the plaintiff alleges a complete failure to provide treatment. Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir. 2003). "Factors relevant to the seriousness of a medical condition include whether a reasonable doctor or patient would find it important and worthy of comment, whether the condition significantly affects an individual's daily activities, and whether it causes chronic and substantial pain." Salahuddin, 467 F.3d at 280 (quotation marks and alterations omitted).

If, on the other hand, a plaintiff's complaint alleges that treatment was provided but was inadequate, the second inquiry of the objective test is narrowly confined to that specific alleged inadequacy, rather than focusing upon the seriousness of the prisoner's medical condition. Salahuddin, 467 F.3d at 280. "For example, if the prisoner is receiving ongoing treatment and the offending conduct is an unreasonable delay or interruption in that treatment, [the focus of the] inquiry [is] on the challenged delay or interruption in treatment, rather than the prisoner's underlying medical condition alone." Id. (quotations marks omitted).

To satisfy the subjective requirement, a plaintiff must demonstrate that the defendant had "the necessary level of culpability, shown by actions characterized by 'wantonness.'" Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). "In medical-treatment cases . . ., the official's state of mind need not reach the level of knowing and purposeful infliction of harm; it suffices if the plaintiff proves that the official acted with deliberate indifference to inmate health." Salahuddin, 467 F.3d at 280. "Deliberate indifference," in a constitutional sense, "requires that the charged official act or fail to act while actually aware of a substantial risk that serious inmate harm will result." Id. (citing Farmer, 511 U.S. at 837); see also Leach v. Dufrain, 103 F. Supp. 2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J., adopting report and recommendation by Homer, M.J.). "Deliberate indifference is a mental state equivalent to subjective recklessness, as the term is used in criminal law." Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 839-40).

2. Analysis

i. Defendants Bellnier, Clemons, Colvin, Johnson, Lempke, Parmer, Perez, Prebalick, Rock, Roew, Smith, Thomas, Weinstock, and Weissman

After carefully reviewing the record evidence, the court determines that no reasonable factfinder could conclude that defendants Bellnier, Clemons, Colvin, Johnson, Lempke, Parmer, Perez, Prebalick, Rock, Roew, Smith, Thomas, Weinstock, and Weissman acted with the requisite mental state while treating plaintiff to satisfy the subjective element of a deliberate indifference cause of action. Plaintiff's amended complaint does not allege that these defendants acted maliciously or sadistically with respect to their treatment or care of him. See generally Dkt. No. 45. Plaintiff alleges that defendants Johnson, Weissman, and Weinstock "knowingly provided me with less effciacious [sic] and effective medical care as well [as] providing a low standard of health care as this were the defendants named herein custom and practice." Id. at 26. Similarly, in the eighteenth identified cause of action, plaintiff contends that defendant Weissman "knowingly and intentionally" discontinued certain medications. Id. at 31. Even assuming that "knowingly" or "intentionally" suffices to satisfy the mental state required in an Eighth Amendment deliberate medical indifference claim, those allegations are vague and conclusory, and plaintiff has not adduced any additional evidence to support them. Similarly, plaintiff's allegation that defendants Parmer, Johnson, and Weissman "falsified [his] medical records with malicious intent of providing a lower standard of care for [his] chronic . . . back pain" is conclusory and does not give rise to a genuine dispute of fact regarding those defendants' mental states in connection with the treatment they provided plaintiff.²⁶ Id. at 27. In addressing this element of his claim in his opposition to the defendants' motion, plaintiff states that "[t]he record of competent evidence establishes that plaintiff suffered from callous, wanton deprivation of medical services." Dkt. No. 179-1 at 18. Fatally, however, plaintiff points to no record evidence to support this contention. Accordingly, because no reasonable factfinder could conclude, based on the record now before the court, that any of the above-listed defendants acted maliciously or sadistically with deliberate indifference to plaintiff's health and safety, I recommend plaintiff's deliberate medical indifference claim be dismissed as against those individuals.

26 To the extent plaintiff intends to assert a separate cause of action for the alleged falsification of his medical records, in his decision and order issued on May 11, 2011, Judge McAvoy advised plaintiff that "a claim that medical records were falsified does not state a constitutional violation." Dkt. No. 5 at 14 n.5. Accordingly, insofar as plaintiff's amended complaint is construed as asserting an independent claim for falsifying medical records, I recommend it be dismissed.

ii. Defendants Atkinson, Chesbrough, Fairchild, and Holmes

Turning now to defendants Atkinson, Chesbrough, Fairchild, and Holmes, I find there is sufficient record evidence to give rise to a genuine dispute of fact with respect to whether those individuals acted maliciously and sadistically for the purpose of causing harm to plaintiff because he contends that these individuals provided him with inadequate care in retaliation for him filing grievances against them. See, e.g., Dkt. No. 45 at 24, 32. Thus, I now turn my attention to whether a reasonable factfinder could conclude defendants Atkinson, Chesbrough, Fairchild, and Holmes provided plaintiff with objectively inadequate care under the Eighth Amendment.

a. Defendant Atkinson

Plaintiff's contentions with respect to defendant Atkinson are non-specific. He alleges that defendant Atkinson returned plaintiff to his cell on August 17, 2010, without first permitting Shepherd to see his healthcare provider, defendant Parmer. Dkt. No. 45 at 23. Plaintiff does not, however, explain his reasons for needing to see defendant Parmer at that particular time, nor does he provide any indication that he was suffering from a sufficiently serious condition requiring treatment from defendant Parmer directly. Id.

Similarly, plaintiff contends that, on one occasion, defendant Atkinson came to plaintiff's cell to take his vital signs and directed him to "put [his] arm through the slot" to facilitate the process. Dkt. No. 45 at 23. Plaintiff alleges that, although he explained to defendant Atkinson that placing his arm in the slot causes him pain and back spasms because it requires him to bend over, Atkinson required him to comply with the order. Id. Plaintiff neglects to allege, and the record does not reflect, however, that he suffered any injury as a result of complying with defendant Atkinson's order, or that plaintiff, in fact, suffered pain or back spasms as a result of the incident. Id.

Finally, plaintiff generally contends that defendant Atkinson (1) denied him medical care "[n]umerous times from August 2010, until November 2010"; (2) aggravated his medical conditions; (3) permitted corrections officers to overhear his confidential medical complaints; (4) failed to document his complaints; (5) denied him access to his healthcare provider; and (6) falsified his medical records. Dkt. No. 45 at 31; Dkt. No. 179-1 at 11-12; Dkt. No. 179-2 at 46. Plaintiff fails, however, to adduce any evidentiary support for these allegations. Without more, the bare contentions are not sufficient to give rise to a dispute of material fact with respect to whether defendant Atkinson provided plaintiff inadequate medical care in violation of the Eighth Amendment. Accordingly, I recommend that defendants' motion be granted insofar as it seeks dismissal of the deliberate medical indifference claim against defendant Atkinson.

b. Defendant Chesbrough

Plaintiff accuses defendant Chesbrough of permitting corrections officers to overhear his confidential medical complaints, falsifying medical records, and refusing to document his complaints. Dkt. No. 45 at 17; Dkt. No. 179 at 5; Dkt. No. 179-2 at 48. Plaintiff does not, however, explain the medical condition from which he was suffering at the times defendant Chesbrough allegedly failed to document his complaints or approximately when this occurred. Without this information, the court cannot make a determination regarding whether the failure to document a complaint was sufficiently serious or whether the condition itself was sufficiently serious such that it required documentation or treatment.

Plaintiff alleges that, on February 5, 2009, defendant Chesbrough denied him access to his healthcare provider. Dkt. No. 179 at 5. Again, however, plaintiff does not explain the conditions from which he was suffering at the time that required additional treatment from his healthcare provider. Id. Moreover, a review of the record reflects a letter written by plaintiff to defendant Weissman on February 27, 2009, regarding defendant Chesbrough's conduct, which repeats the allegations of permitting corrections officials to overhear his confidential medical complaints and falsifying medical records. Dkt. No. 179-3 at 45. The letter, however, does not explain how plaintiff suffered any harm as a result of defendant Chesbrough's conduct.

Even considering all of the record evidence in the light most favorable to plaintiff, I find that no reasonable factfinder could conclude that defendant Chesbrough provided plaintiff with inadequate medical treatment in violation of the Eighth Amendment. Accordingly, I recommend that defendants' motion be granted with respect to the deliberate medical indifference claim asserted against defendant Chesbrough.

c. Defendant Fairchild

Plaintiff accuses defendant Fairchild of ignoring his sick call request on July 8, 2010. Dkt. No. 45 at 23. The medical records provided in support of the defendants' motion, however, indicate that plaintiff was seen by medical staff on that date pursuant to an emergency sick call request by plaintiff. Dkt. No. 175-1 at 6. According to the medical note from that date, plaintiff complained of his chronic knee condition, but no swelling was noted. Id. The next day, plaintiff was again seen by medical staff, at which time he complained of falling on the previous day. Id. On that occasion, plaintiff was advised to increase compresses and provided pain medication. Id.

Plaintiff also generally complains that defendant Fairchild (1) aggravated his medical conditions; (2) permitted corrections officers to overhear his confidential medical complaints; (3) failed to document his complaints; and (4) falsified his medical records. Id. at 31; Dkt. No. 179-2 at 46. Plaintiff fails, however, to adduce any evidentiary support of these allegations. Without more, the bare contentions are not sufficient to give rise to a dispute of material fact with respect to whether defendant Fairchild provided plaintiff inadequate medical care in accordance with the Eighth Amendment. Accordingly, I recommend that defendants' motion be granted insofar as it seeks dismissal of the deliberate medical indifference claim against defendant Fairchild.

d. Defendant Holmes

Plaintiff alleges that, on or about August 25, 2008, while he was boarding a bus to be transferred to Upstate, he fell and injured his right knee and hip. Dkt. No. 45 at 15. Upon arriving at Upstate, he was interviewed by defendant Holmes, who, plaintiff alleges, neither documented plaintiff's complaint that he fell nor examined him. Id.; see also Dkt. No. 179-2 at 44. Plaintiff also contends that defendant Holmes confiscated his asthma medications and walking cane at that time. Dkt. No. 45 at 15; Dkt. No. 179-2 at 44. Plaintiff's medical records, however, reflect that defendant Holmes issued plaintiff a temporary permit for a knee brace and cane to be used outside of his cell, and she documented the issues plaintiff discussed with her regarding his right knee, left testicle, and asthma. Dkt. No.175-1 at 43-44, 46. In addition, she indicated plaintiff should be placed on a bottom bunk. Id. at 47.

Plaintiff contends that on August 16, 2008, and August 17, 2008, defendant Holmes responded to his sick call requests but ultimately ignored his complaints concerning his knee. Dkt. No. 45 at 15; Dkt. No. 179-2 at 44-45. Plaintiff explains that he had "injur[ed] [him]self," prompting him to make an emergency sick call, but does not give any indication of the seriousness of his injuries. Id. Plaintiff acknowledges that he was treated for his asthma on August 17, 2008, and his medical records reflect that, during an emergency sick call on that date, he was permitted to use his inhalers. Id.; Dkt. No. 175-1 at 41.

In light of the evidence now before the court, I have determined that no reasonable factfinder could conclude that defendant Holmes provided plaintiff inadequate treatment in violation of the Eighth Amendment. With respect to this claim, the record is comprised of plaintiff's allegations on the one hand, and his medical records on the other. The medical records reflect that defendant Holmes interviewed plaintiff on August 15, 2008, documented his complaints, issued him a permit for a knee brace and cane, and recommended he be housed on a bottom bunk. On August 17, 2008, defendant Holmes treated plaintiff for his asthma symptoms. Although plaintiff alleges that he complained to defendant Holmes on August 16, 2008, of an injury to his knee, he does not explain the seriousness of his injury, and there is nothing in his medical records to indicate that he suffered a serious injury to his knee at or about that time. Accordingly, I recommend that defendants' motion be granted with respect to the deliberate medical indifference claim asserted against defendant Holmes.²⁷

27 Because I have recommended dismissal of the deliberate medical indifference claim as against defendants Atkinson, Bellnier, Chesbrough, Clemons, Colvin, Fairchild, Holmes, Johnson, Lempke, Parmer, Perez, Prebalick, Rock, Roew, Smith, Thomas, Weinstock, and Weissman, I have not addressed defendants' alternative argument that those individuals are entitled to qualified immunity from suit.

H. Status of Plaintiff's Claims Against Unserved Defendants

By text orders dated July 30, 2014, plaintiff was ordered to show cause why his claims against defendants Whipple, Jones, Basket, and Cusack should not be dismissed based upon the fact that those individuals were not timely served pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and rule 4.1(b) of the local rules of practice for this court. Dkt. Nos. 186, 187. Plaintiff has responded that he "has no recollection of being advised and/or informed that [defendants Whipple, Jones, Basket, and Cusack] were not served with the summons and complaints within the required time frame." Dkt. No. 188.

Rule 4(m) of the Federal Rules of Civil Procedure requires that a party be served within one hundred twenty days of issuance of the summons, absent a court order extending that period.²⁸ Fed. R. Civ. P. 4(m). In the event that a party seeks an extension of that time period, "where good cause is shown, the court has no choice but to extend the time for service, and the inquiry is ended." Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time." Panaras, 94 F.3d at 340 (citing Fed. R. Civ. P. 4(m)); see also Zapata v. City of N.Y., 502 F.3d 192, 196 (2d Cir. 2007) ("[D]istrict courts have the discretion to grant extensions of the service period even where there is no good cause shown[.]"); Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). When examining whether to extend the prescribed period for service, a district court is afforded ample discretion to weigh the "overlapping equitable considerations" involved in determining whether good cause exists, and whether an extension may be granted in its absence. Zapata, 502 F.3d at 197.

28 Specifically, Rule 4(m) provides that,

[i]f a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice . . . or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period[.]

Fed. R. Civ. P. 4(m). The court's local rules of practice shorten the time for service from the 120-day period under Rule 4(m) to sixty days. N.D.N.Y. L.R. 4.1(b).

A plaintiff's pro se status entitles him to a certain degree of leniency insofar as service of process is concerned, and courts generally favor resolution of a case on its merits rather than on the basis of a procedural technicality. Poulakis v. Amtrak, 139 F.R.D. 107, 109 (N.D. Ill. 1991). When a plaintiff proceeds in forma pauperis, as is the case in this instance, the court is obligated to issue the plaintiff's process to the United States Marshal, who must, in turn, effect service upon the defendants, thereby relieving the plaintiff of the burden to serve once reasonable steps have been taken to identify the defendants named in the complaint. Fed. R. Civ. P. 4(c)(3); 28 U.S.C. § 1915(d); see also Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996) ("[Section] 1915([d]) provides that the officers of the court 'shall issue and serve all process' when a plaintiff is proceeding in forma pauperis."). Of course, this does not mean that a pro se plaintiff may stand idle upon being notified that efforts by the U.S. Marshals Service to serve a particular defendant have been unsuccessful. VanDiver v. Martin, 304 F. Supp. 2d 934, 938-43 (E.D. Mich. 2004). A plaintiff who does so acts at his peril, and risks dismissal of his claims against an unserved defendant. As the Second Circuit has observed,

[i]f a plaintiff proceeding IFP chooses to rely on the Marshals to serve the relevant parties, and it becomes apparent that the Marshals will not accomplish by the Rule 4(m) or court-ordered deadline, she must advise the district court that she is relying on the Marshals to effect service and request a further extension of time for them to do so.

Meilleur v. Strong, 682 F.3d 56, 63 (2d Cir. 2012). Accordingly, a district court must look at the facts and circumstances surrounding each case to determine whether good cause exists. Meilleur, 682 F.3d at 63.

The fact that defendants Whipple, Jones, Basket, and Cusack have not been served or otherwise appeared in the action within the appropriate time period is well documented in the court's docket sheet, which also plainly reflects the filing of unexecuted returns of service with respect to all four of those defendants. Dkt. Nos. 39, 57, 48, 63, 64, 151. There is nothing in the record to suggest plaintiff did not receive notice that service went unexecuted as to those individuals. Moreover, on February 4, 2013, the court sent plaintiff a courtesy copy of the docket sheet, which (again) reflects the failed service on defendants Whipple, Jones, Basket, and Cusack. Dkt. No. 137. It is not the court's obligation to affirmatively notify plaintiff of such circumstances and prod him into action. Instead it is the responsibility of plaintiff, who is an experienced litigator, to keep apprised of the status of his action.

Based upon a review of the record, I am unable to find good cause justifying plaintiff's failure to effectuate timely service, and find no sufficient basis presented to exercise my discretion in favor of extending the governing period of service. Accordingly, because this court has never acquired jurisdiction over them, the complaint should be dismissed as against those defendants, without prejudice. See Miss. Publ'g Corp. v. Murphree, 326 U.S. 438, 444-45 (1946) ("[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served."); accord, Osrecovery, Inc. v. One Group Int'l, Inc., 234 F.R.D. 59, 60 (S.D.N.Y. 2005).

I. Status of the Doe Defendants

Plaintiff's amended complaint names John and Jane Does as defendants. See generally Dkt. No. 45. In his initial order addressing plaintiff's original complaint, Judge McAvoy instructed plaintiff to take reasonable steps through discovery to ascertain the names of the unidentified defendants. Dkt. No. 5 at 22. The court also warned plaintiff that the failure to ascertain the Doe defendants' identities "so as to permit the timely amendment of the Complaint and service of process" would result in dismissal of the claims asserted against those individuals. Id. at 22-23. Discovery is now closed, and plaintiff has not identified or timely served the Doe defendants. Accordingly, I recommend that plaintiff's claims asserted against those individuals be dismissed.

IV. SUMMARY AND RECOMMENDATION

The extensive allegations set forth in plaintiff's amended complaint give rise to a mixture of claims, some of which are potentially cognizable and others that are subject to dismissal at this juncture. Plaintiff's damage claims against the defendants in their official capacities are precluded by the Eleventh Amendment and should be dismissed. To the extent plaintiff's complaint asserts claims based solely upon verbal harassment and threats, those claims are also subject to dismissal. In addition, Plaintiff's denial of access to the court claims are similarly subject to dismissal based both upon his failure to establish that (1) one of the defendants was personally involved in the misplacement of his legal documents, and (2) the other two defendants acted with the requisite mental state. Further, plaintiff's claims against defendants Fischer and Wright are subject to dismissal based upon the lack of their personal involvement in the conduct forming the basis for plaintiff's claims against them. Additionally, plaintiff's deliberate medical indifference claims asserted against defendants Atkinson, Bellnier, Chesbrough, Clemons, Colvin, Fairchild, Holmes, Johnson, Lempke, Parmer, Perez, Prebalick, Rock, Roew, Smith, Thomas, Weinstock, and Weissman are subject to dismissal based upon plaintiff's failure to meet the governing standard. Plaintiff's claims against defendants Whipple, Jones, Basket, and Cusack are subject to dismissal, without prejudice, based upon the fact that those defendants have not appeared in the action and were not served within the requisite time and plaintiff has failed to show good cause to why that time, should be extended. Finally, the claims against the John Doe defendants are now subject to dismissal based on plaintiff's failure to identify and timely serve them. Defendants are not, however, entitled to summary dismissal of plaintiff's procedural due process claims at this procedural juncture. Based upon the foregoing, is it hereby respectfully

RECOMMENDED that defendants' motion for partial summary judgment (Dkt. No. 174), be GRANTED, in part, and that the following claims be dismissed, with prejudice:

(1) Plaintiff's damage claims against the defendants in their official capacities,



(2) Any cause of action based solely upon verbal harassment and threats,



(3) Plaintiff's denial of court access claims,



(4) Plaintiff's free exercise and RLUIPA claim asserted against defendant Bellnier,

(5) Plaintiff's failure to protect claim asserted against defendant Colvin,



(6) Plaintiff's failure to protect claim asserted against defendant Lempke,



(7) Plaintiff's deliberate medical indifference claims asserted against defendants Atkinson, Bellnier, Chesbrough, Clemons, Colvin, Fairchild, Holmes, Johnson, Lempke, Parmer, Perez, Prebalick, Rock, Roew, Smith, Thomas, Weinstock, and Weissman; and



(8) Plaintiff's claims against all of the John Doe defendants; and it is further

RECOMMENDED that plaintiff's claims against Whipple, Jones, Basket, and Cusack be DISMISSED, without prejudice, based upon the fact that those defendants were not served with the summons and complaint within sixty days of the filing of plaintiff's complaint; and it is further hereby

RECOMMENDED that, except as to the foregoing, defendants' motion otherwise be DENIED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).

It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.

/s/_________

David E. Peebles

U.S. Magistrate Judge
Dated: February 23, 2015

Syracuse, New York

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