Thomas v. Connolly

Full title: BERNARD THOMAS, Plaintiff, v. WILLIAM CONNOLLY, et al., Defendants.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Apr 9, 2012

10 Civ. 2401 (PAC)(MHD) (S.D.N.Y. Apr. 9, 2012)

Opinion

10 Civ. 2401 (PAC)(MHD)

04-09-2012

BERNARD THOMAS, Plaintiff, v. WILLIAM CONNOLLY, et al., Defendants.

Mr. Bernard Thomas #99-A-2204 Woodbourne Correctional Facility 99 Prison Road P.O. Box 1000 Woodbourne, New York 12788-1000 Inna Reznik, Esq. Assistant Attorney General for the State of New York 120 Broadway, 24th Floor New York, New York 10271

MICHAEL H. DOLINGER UNITED STATES MAGISTRATE JUDGE

REPORT & RECOMMENDATION

TO THE HONORABLE PAUL A. CROTTY, U.S.D.J.:

Pro se plaintiff Bernard Thomas, an inmate in the New York State correctional system, commenced this section 1983 lawsuit against eight employees of the Fishkill Correctional Facility ("Fishkill") and an official of the New York State Department of Correctional Services ("DOCS"). He sues them in their individual and official capacities, asserting that on several occasions some of the defendants denied him his First Amendment right to practice his religion while housed at Fishkill, that another defendant denied him his due-process rights in connection with a disciplinary proceeding that left him in the Special Housing Unit ("SHU") of another State facility for several months, and that still others violated his Eighth Amendment rights by ordering his transfer from Fishkill to the Upstate Correctional Facility ("Upstate") -- a journey of fourteen hours -- in contravention of a medical directive that he not be exposed to such extended travel. For relief he seeks both compensatory and punitive damages from all of the defendants.

At the conclusion of discovery, defendants have moved for summary judgment on all four of plaintiff's sets of claims. They assert that plaintiff's claim for deliberate indifference to his medical condition is barred by his failure to exhaust his prison administrative remedies (Mem. of Law in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Mem.") 5-7), that all of his constitutional claims are meritless as a matter of law (id. at 8-26), that two of the defendants named in his deliberate-indifference claim had no involvement in the events at issue (id. at 26-30), that defendants are entitled to immunity under the Eleventh Amendment insofar as plaintiff sues them in their official capacities (id. at 30), and that all of the defendants are entitled to qualified immunity from personal liability. (Id. at 30-35). Plaintiff has submitted voluminous papers in opposition.

For the reasons that follow, we recommend that defendants' motion be granted.¹

1 As we discuss below, plaintiff's deliberate-indifference claim should be dismissed for failure to exhaust administrative remedies. In the event that the court declines to dismiss on that ground, we recommend that the claim survive summary judgment as against one defendant, Joy Albright. See infra pp. 81-86.

I. Plaintiff's Claims

Plaintiff asserts four separate claims, each targeting a discrete set of events. We summarize each in turn.

A. The Zakat-ul-Fitr Claim

Thomas is a practicing adherent of the Muslim faith. (Compl. ¶ 3). Among the mandated observances of his religion, at the conclusion of Ramadan members of the faith are required to participate in a day-long set of prayers, consumption of meals to break the Ramadan fast and gift-giving. (Id. ¶ 15). This event is referred to as Eid-ul-Fitr. (Id.). The gift-giving involves an act of charity, which is to be performed before the prayers and is known as Zakat-ul-Fitr or Sadaqat-ul-Fitr. (Id. ¶¶ 14-15).

Plaintiff alleges that on "approximately" October 6, 2007, "several correctional officers" denied him and others the opportunity to engage in the Zakat-ul-Fitr, assertedly at the direction of defendants William Connolly, the facility Superintendent, and Charles Kelly, the Deputy Superintendent of Security. (Id. ¶ 15). According to Thomas, he and other inmates filed a grievance on October 15, 2007, which the Superintendent upheld in part on November 1, 2007, stating that "zakat-ul-fitr" had in fact been distributed. (Id. ¶¶ 16-17). The complaint goes on to note, in quoting the grievance, that the request from the prison Imam, Mr. Muhammad, to arrange the Zakat-ul-Fitr was not provided to Deputy Superintendent Kelly until the "week of 10/7/07," that the Superintendent in fact approved the distribution of food -- as requested by the Imam -- to satisfy the Zakat-ul-Fitr requirement, and that this ceremony took place under the supervision of the Imam. (Id.).

Plaintiff seems to imply that this event was improperly delayed until after Ramadan. (Id. ¶¶ 16-18, 20). In addition to allegedly being denied the opportunity to participate on a timely basis in the required acts of charity, Thomas alleges that he was also denied participation in the Eid-ul-Fitr prayers at that same time. (Id. ¶¶ 15, 18, 20). He again targets defendants Connolly and Kelly for this violation of his First Amendment rights. (Id. ¶¶ 15, 18).

B. The Tenth-Day-of-Muharram Claim

Plaintiff's second claim also concerns an alleged denial of the opportunity to participate in a required religious observance, this time on the first and last days of the so-called Ten Days of Muharram Festival, on January 10 and 19, 2008. (Id. ¶¶ 21-25). The four defendants against whom he presses this claim are Deputy Superintendent Kelly; Fedele Fiore, the Assistant Deputy Superintendent of Programs; Deputy Superintendent for Programs Roland Larkin; and Corrections Officer Thomas Rough. (Id. ¶ 21).

As explained in the complaint, the celebration of Muharram involves ten days of fasting, with the last day of the process -- involving ceremonies and a breaking of the fast -- viewed as the most important. (Id. ¶¶ 23, 31). According to plaintiff, the prison arranged for ten Muslim inmates -- including Thomas -- to attend daily prayers and other forms of celebration from January 11 to 18, 2008, and he did participate. (Id. ¶ 22). He alleges, however, that on January 10 and 19, 2008, the first and last days of Muharram, the facility failed to include these inmates on the general sign-out list that is daily circulated in the prison to allow listed inmates to be released from their ordinary locations for participation in specified events, including Muharram. (Id. ¶¶ 22- 23). He reports that on January 19, 2008 he was nonetheless released and went to the site of the planned activities, only to find that no other inmates were there. (Id. ¶¶ 23-24). He recounts that Officer Rough was present and told him that he had cancelled the event because most of the inmates scheduled to attend had not come. (Id. ¶ 24). He reports that Rough told him that three other inmates had shown up earlier, but the one in charge had left for a scheduled visit and that he (Rough) had cancelled the food for the event, as a result of which the other two had left in apparent frustration. (Id. ¶ 25; see also Opp'n to the Defs.['] Undisputed Material Facts[] Local Rule 56.1(b)(E) ("Pl.'s Rule 56.1 Statement") ¶ 39). As a result, plaintiff alleges, he returned to his housing unit and was unable to participate in the last day of Muharram proceedings. (Compl. ¶ 25).

Plaintiff alleges that the failure to hold the January 19, 2008 event was attributable to two oversights. The first, he says, was that the prison callout list for that day did not include the ten inmates who were celebrating the Muharram Festival -- an omission that he characterizes as a "willful and deliberate failure" of defendants Kelly, Fiore, and Rough. (Id. ¶ 30).² Second, although it became necessary for Officer Rough to call the various housing units on the morning of January 19 to ensure that those inmates would be included in the callout, he failed to do so. (Id. ¶¶ 30-31). He also complains that Rough canceled the events scheduled for January 19 without proper approval or authorization. (Id. ¶ 30).

2 Although plaintiff also names defendant Roland Larkin, the Fishkill Deputy Superintendent of Security, on this claim, he does not allege the basis for Larkin's personal responsibility.

C. The Due-Process Claim

Plaintiff alleges that on January 17, 2008 he was removed from the general prison population at Fishkill and "placed in solitary confinement and punitive segregation" in the SHU, (Id. ¶ 34).³ He asserts that he was finally given a misbehavior report on March 20, 2008 for the improper use of a third-party phone on an occasion when he purportedly telephoned a prison chaplain at a DOCS Harlem office. (Id.). Plaintiff asserts that the charges included communicating by phone with a DOCS employee without authorization, use of a third-party phone, false statements and impersonation. (Id.).

3 This aspect of plaintiff's pleading is apparently in error. The pertinent documentation reflects that Thomas was confined on March 17, not January 17, 2008. (Decl. of Stephen Roberts in Supp. of Defs.' Mot. for Summ. J. ("Roberts Decl.") ¶ 9 & Ex. A).

According to an investigative report prepared by the Inspector General's Office, the chaplain reported the incident and assertedly said that he had recognized the voice on the other end of the phone as plaintiff's. (Id.). The investigator is also said to have determined that phone records showed that plaintiff was using someone else's phone at the time when the chaplain received the call. (Id. (quoting Inmate Misbehavior Report); see also Roberts Decl. Ex. A).

As a result of the charges, Thomas was subjected to a March 25, 2008 hearing at which the hearing officer, defendant Stephen Roberts, allegedly denied his request to call the chaplain as a witness and to give a reason for that denial. (Compl. ¶¶ 35-36). At the conclusion of the hearing, Roberts found Thomas guilty and imposed penalties of six months in SHU, and six-months loss of packages, commissary and phone privileges. (Id. ¶ 37; see also Roberts Decl. Ex. D, at 763). Plaintiff appealed the conviction, arguing that the delay between his initial confinement in isolation and the start of the hearing was a violation of DOCS rules, and that the hearing officer's refusal to call the chaplain as a witness had also violated his rights. (Compl. ¶ 38; see also Roberts Decl. Ex. E). Plaintiff recounts that the DOCS Director of Special Housing/Inmate Disciplinary Program, Norman Bezio, reversed the conviction, but did not do so until May 13, 2008. (Compl. ¶ 38).

Thomas asserts that the hearing officer violated his rights in two respects. First, he did not conduct the hearing until eight days after plaintiff was first confined, one day more than DOCS regulations permitted absent an extension, which was never shown to plaintiff. (Id. ¶ 39). Second, the denial, without stated reasons, of plaintiff's request for the chaplain to appear as a witness assertedly violated plaintiff's due-process rights. (Id.). He further alleges that as a result of this wrongful conviction, he was left in confinement for a number of months (until June 6, 2008), and during that period he lost program privileges, the ability to participate in religious services with other prisoners and access to family visits. (Id. ¶¶ 40-44). He also reports that his transfer to Upstate, which was solely as a result of the conviction, inflicted considerable physical hardship on him. (Id. ¶ 45).

D. The Deliberate-Indifference Claim

Plaintiff's last claim is based on his transfer to the Upstate Correctional Facility. He alleges that as a result of previously diagnosed spinal problems, his medical file contained a physician-ordained restriction precluding his being forced to travel by bus for more than two hours. (E.g., Id. ¶¶ 45, 48-53, 61-62). Notwithstanding that restriction, he alleges that, following his disciplinary conviction he was obliged to ride for fourteen hours from Fishkill to Upstate, causing him considerable physical hardship and necessitating treatment upon his arrival at Upstate. (Id. ¶¶ 56-58). He goes on to allege that he believes that three of the defendants -- in this case Elizabeth Ritter,⁴ the Fishkill Deputy Superintendent of Health; Joy Albright, the Fishkill Nurse Administrator; and Theresa Knapp-David, the DOCS Associate Commissioner of Population Management -- were aware of that restriction and disregarded it in ordering his transfer, or alternatively that someone removed the document containing the restriction from his medical file. (Id. ¶¶ 61-66).

4 Plaintiff sues Dr. Ritter as Elizabeth Williams.

ANALYSIS

We address each of defendants' arguments more or less in the order in which they present them. Before doing so, we summarize the standards that govern the assessment of summary-judgment motions.

I. Rule 56 Standards

The court may enter summary judgment only if it concludes that there is no genuine dispute as to the material facts and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004). "An issue of fact is 'material' for these purposes if it 'might affect the outcome of the suit under the governing law . . .' [while] [a]n issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Shade v. Hous. Auth. of New Haven, 251 F.3d 307, 314 (2d Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). It is axiomatic that the responsibility of the court in deciding a summary-judgment motion "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F. 2d 9, 11 (2d Cir. 1986); see, e.g., Anderson, 477 U.S. at 255; Howley v. Town of Stratford, 217 F.3d 141, 150-51 (2d Cir. 2000).

The party moving for summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the "materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials" that demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. Pro. 56(c); see, e.g., Celotex, 477 U.S. at 323; Koch v. Town of Brattleboro, Vt., 287 F.3d 162, 165 (2d Cir. 2002). If the non-moving party has the burden of proof on a specific issue, the movant may satisfy his initial burden by demonstrating the absence of evidence in support of an essential element of the non-moving party's claim. See, e.g., Celotex, 477 U.S. at 322-23, 325; PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). If the movant fails to meet his initial burden, however, the motion will fail even if the opponent does not submit any evidentiary materials to establish a genuine factual issue for trial. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Giannullo v. City of N.Y., 322 F.3d 139, 140-41 (2d Cir. 2003). If the moving party carries his initial burden, the opposing party must then shoulder the burden of demonstrating a genuine issue of material fact on any such challenged element of its claim. See, e.g., Beard v. Banks, 548 U.S. 521, 529 (2006); Celotex, 477 U.S. at 323-24; Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001). In do opposing party may not rest on "mere allegations or denials" of the factual assertions of the movant, see, e.g., Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d 56, 59-60 (2d Cir. 2004), nor may he rely on his pleadings or on merely conclusory factual allegations. See, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). He must also "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005). Rather, he must present specific evidence in support of his contention that there is a genuine dispute as to the material facts. See, e.g., Celotex, 477 U.S. at 324; Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2d Cir. 1994).

II. Exhaustion of Administrative Remedies: The Deliberate-Indifference Claim

Defendants first target plaintiff's fourth claim, which in substance is premised on the notion that defendants Ritter, David and Albright violated Thomas's Eighth Amendment rights by subjecting him to a fourteen-hour journey to the Upstate Correctional Facility after his disciplinary conviction at Fishkill, a trip that assertedly was ordered in contradiction to a documented medical restriction limiting his ground travel to two hours. Defendants assert that although plaintiff filed a grievance about this journey when he was at Upstate, he never pursued that grievance through all of the required steps, including specifically an appeal to the Central Office Review Committee ("CORC"), and that as a result his claim is barred from consideration here. (Defs.' Mem. 5-7; Reply Mem. of Law in Supp. of Defs.' Mot. for Summ. J. ("Defs.' Reply Mem.") 2-4).

Plaintiff appears to argue that he satisfied the exhaustion requirement by virtue of a grievance that he filed in the wake of his disciplinary conviction but before his transfer, a grievance in which he (1) asserted that the disciplinary charges and his conviction and punishment were in retaliation for his previously filing a lawsuit against two prison medical personnel and (2) warned against the possible lifting of the medical restriction on ground travel. (Reply Mem. of Law in Opp'n to Def. Summ. J. Mot ("Pl.'s Opp'n"), "REPLY Point # 1 Exhaustion" ("Point I"), 2-4). He also suggests that his post-transfer grievance may have been consolidated for appeal purposes with the appeal of this pre- transfer grievance. (Id. at 2) Finally, he implies that he should be excused from fully complying with the exhaustion requirement because he was effectively prevented from appealing the denial of his Upstate grievance. (Id. at 3-4).

A. The Exhaustion Requirement

The Prison Litigation Reform Act ("PLRA") prohibits a prisoner from bringing a prison-condition claim under 42 U.S.C. § 1983 "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). The goal of this requirement is "'to reduce the quantity and improve the quality of prisoner suits . . . [and to afford] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.'" Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 524-25 (2002))). The PLRA requires "proper exhaustion," which the Supreme Court has characterized as "'using all the steps that the agency holds out, and doing so properly.'" Woodford v. Ngo, 548 U.S. 81, 90 (2006) (emphasis in original) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002)); accord, e.g., Amador, 655 F.3d at 96.

The route to exhaustion is presumptively that laid out by the pertinent prison system in its applicable regulations. See, e.g., Jones v. Bock, 549 U.S. 199, 219 (2007). Of particular note, "an untimely or otherwise procedurally defective" use of the grievance procedure does not satisfy the exhaustion requirement. Woodford, 548 U.S. at 83-84. The defense of failure to exhaust is treated as an affirmative defense, and hence the defendants must prove its factual basis. Jones, 549 U.S. at 216-17.

Under DOCS regulations, in most circumstances inmates must pursue a three-tiered administrative review and appeals system. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2012). The first step for the inmate is to file a grievance complaint form or written grievance with the Inmate Grievance Resolution Committee ("IGRC") within 21 days of the incident that is the subject of the complaint, including a concise description of the problem and any steps taken prior to filing to address it. See id. § 701.5(a).⁵

5 Grievances for strip frisks or searches, harassment, or discrimination are processed according to a similar but somewhat expedited procedure. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(2).

Members of the IGRC have sixteen days after the filing of the grievance to resolve it informally. Id. § 701.5(b). If it is not resolved, the committee must conduct a hearing, at which the inmate may appear if he is not specially confined. Id. After the hearing, the committee must return a decision in writing within two business days or orally immediately following its deliberations. Id. If an inmate is not satisfied with the decision, he may appeal it to the superintendent, a process that requires him to complete and sign the appeal section of the IGRC response form and submit it to the grievance clerk within seven days after receipt of the decision. Id. § 701.5(c). The superintendent must return a decision within twenty days of receipt of the appeal unless the matter concerns revision of a departmental policy, in which case he must forward it to CORC. Id. The final step available to prisoners is an appeal to the CORC. Id. § 701.5(d). In order to appeal to the CORC, an inmate must complete and sign another form and submit it to the grievance clerk within seven days after receipt of the superintendent's decision. Id. The CORC must render a decision within thirty calendar days of receiving the appeal. Id.; see generally Amador, 655 F.3d at 96-97.

The regulations specify a somewhat more expedited process for claims of harassment of prisoners by DOCS employees. In that circumstance, the superintendent must respond to a bona fide harassment grievance by initiating or requesting an investigation and rendering a decision within twenty-five days. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8 (2012). If the superintendent finds that the grievance does not raise a bona fide issue, he must return it to the IGRC for normal processing. Id. § 701.8(c). Finally, an inmate may appeal the superintendent's decision within seven days of receiving it, or may assert the grievance on appeal to the CORC if the superintendent does not respond within the allotted time frame. Id. § 701.8(g) & (h). The CORC then must issue a decision within 30 days of receipt of the appeal. Id. § 701.5(d).

Finally, complaints about the handling of a disciplinary hearing must be addressed by an appeal of the hearing officer's decision rather than through the grievance process. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.3(e)(2). Tier III hearings, such as plaintiff's disciplinary hearing, may be appealed to the Commissioner within thirty days of receipt of the disposition. Id. § 254.8.

Under the PLRA, if an inmate fails to exhaust all applicable prison remedies with respect to a claim, the federal court is barred from considering that claim when asserted under section 1983. Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009) (quoting, inter alia, Jones, 549 U.S. at 211); Torres v. Carry, 672 F. Supp.2d 338, 342-43 (S.D.N.Y. 2009). The Second Circuit has, however, recognized three exceptions to the PLRA's exhaustion requirements. A prisoner may proceed with a prison-conditions claim even where he has not exhausted his administrative remedies if "(1) administrative remedies are not available to the prisoner; (2) defendants have either waived the defense of failure to exhaust or acted in such as way as to estop them from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement." Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).

The Second Circuit has not yet definitively stated whether a successful invocation of any of these exceptions would survive the Supreme Court's decision in Woodford v. Ngo, which requires that prisoners properly exhaust their administrative remedies by "using all steps that the agency holds out, and doing so properly." Woodford, 548 U.S. at 90 (emphasis in original) (quoting Pozo, 286 F.3d at 1024). Nonetheless, courts within the circuit have continued to apply the three-exception analysis to prison-condition claims where the prisoner is alleged to have failed to properly exhaust his remedies. Compare, e.g., Amador, 655 F.3d at 102-03 (invoking Macias v. Zenk, 495 F.3d 37, 43 n.1 (2d Cir. 2007), which declined to "decide what effect Woodford has on Hemphill's" three-exception rule), and Ruggiero, 467 F.3d at 176, with Vogelfang v. Riverhead Cnty. Jail Officers, 2009 WL 230132, at *2 (2d Cir. Feb. 2, 2009) (remanding a summary-judgment decision to the district court, which had failed to "consider whether [plaintiff's] failure . . . to exhaust administrative remedies should be excused under the Hemphill line of cases"), Jones v. Allen, 2010 WL 3260081, at *3 (S.D.N.Y. Aug. 9, 2010) (suggesting that at least the first two exceptions to the exhaustion requirement remain valid post-Woodford), and Partee v. Goord, 2007 WL 2164529, at *4 (S.D.N.Y. July 25, 2007) (concluding that plaintiff was justified in failing to exhaust his claim with CORC where the IGRC decision declared his grievance to be outside its purview).

B. Assessing Defendants' Exhaustion Defense

Defendants note that on May 22, 2008 plaintiff filed a grievance at the Upstate Correctional Facility concerning his April 30, 2008 transfer to that facility from Fishkill. (Defs.' Mem. 7 (citing Decl. of Inna Reznik ("Reznik Decl.") Ex. B)). In support of that grievance, he argued that the transfer had been in violation of a medical hold that was documented in his file. (Reznik Decl. Ex. B).⁶ The IGRC rejected that grievance on June 4, 2008, based on its finding that his medical file contained no such hold. (Reznik Decl. Ex. C). The record does not reflect whether plaintiff appealed that denial to the facility Superintendent. According to defendants, however, DOCS conducted a search through CORC's files for all grievance appeals to CORC made by Thomas, and that search established that plaintiff had never filed an appeal to CORC in connection with his May 22 grievance (Decl. of Karen Bellamy ("Bellamy Decl.") ¶¶ 2-11 & Ex. A), an omission that demonstrates a fatal failure to exhaust administrative remedies. (See Defs.' Mem. 7).

6 We note that the relevant medical hold did not expire until July 7, 2008. (See Pl.'s Opp'n "'Point II, 'D' REPLY" ("Point II(D)") Ex. C).

Plaintiff does not directly dispute these factual assertions. Rather, he seems to say that his appeal of this grievance was somehow consolidated with the appeal of one of his earlier grievances, or else that his appeal of that earlier complaint somehow excused him from appealing the one that he had filed at Upstate. (Pl.'s Opp'n Point # 1, 2-4). Neither argument is sustainable.

The earlier grievance to which plaintiff apparently points was dated April 4, 2008 and filed at the Fishkill facility, before he was transferred to Upstate. (Pl.'s Opp'n Point I 2 & Ex. A). In that grievance plaintiff observed that he had been the subject of disciplinary charges of which he had been convicted on March 25, 2008. (Id. Ex. A). He accused the Fishkill medical staff of instigating the filing of those charges and his resultant conviction, and claimed that they had done so because of retaliatory animus against him. (Id. at 707-10). According to Thomas, the trigger for that animus was his filing earlier in March 2008 of a lawsuit against two Fishkill medical staffers, identified as "Ms. Stone" and "Dr. Mamis," who he claimed were served with his lawsuit papers on March 17, 2008, the date on which he was confined on disciplinary charges.⁷ (Id. at 707). As part of his April 4 grievance, he also speculated in vague terms that the prison staff might be considering lifting a medical hold that assertedly prevented his transfer to a distant prison, and he warned that if this occurred, he would sue. (Id. at 709-10, 712-14).

7 In plaintiff's grievance he also mentioned another form of alleged retaliation, stating that on March 17, 2008, he had been called down to the medical unit, and upon his arrival, he had been promptly sent away after being told by the "steady officer" "[n]evermind, I just wanted to see which '[T]homas' it was!!!" (Pl.'s Opp'n Point I Ex. A, at 707-08). He goes on to note that this was the day on which Ms. Stone and Dr. Mamis were served with his civil complaint, seemingly implying that his brief trip to the medical unit somehow involved a form of retaliation. (Id.). Perhaps the inference that plaintiff attempts to invite is that the staff wanted to discover which inmate named "Thomas" they were to direct their retaliation efforts against. However, one of the officers present, Mr. Picard, responded to plaintiff's grievance in a letter to defendant Fiore, and explained that he had "mistakenly" called plaintiff from his housing unit when he had needed to speak with a different inmate named Mr. Thomas. (Id. at 720). In any event, Thomas does not explain how this apparent inconsequential error constituted any form of adverse action.

The Superintendent investigated the April 4 grievance, treating it as a claim for retaliation in the form of being placed in SHU, and rejected the grievance on April 24, 2008. (Pl.'s Opp'n Point I Ex. A, at 723). In doing so, Superintendent Connolly noted that Ms. Stone had denied any animus and had had no involvement in the filing of disciplinary charges against Thomas. (Id.). As for Dr. Mamis, he advised that he was not plaintiff's treating doctor and would therefore not have been in a position to place or remove any medical hold on him. (Id.).

Plaintiff appealed this decision to the CORC on April 28, 2008. (Id.). CORC then denied the grievance appeal on June 11, 2008. (Id. at 724). In doing so CORC found no reason to question the outcome of the Superintendent's investigation of Thomas's complaint and observed that his disciplinary conviction was attributable to his own misconduct rather than animus by prison staff. (Id.).

Plaintiff's proffer does not create a triable dispute regarding whether he satisfied the exhaustion requirement for his deliberate-indifference claim. He offers no evidence at all that CORC consolidated two grievances or even considered the challenge that he had made in his May 22 grievance when it upheld the rejection of his earlier, April 4 grievance.

The April 4 grievance was centered on plaintiff's contention that the medical staff, specifically Ms. Stone and Dr. Mamis, had arranged for the filing of disciplinary charges against him and that they might also alter his medical status in retaliation for his prior institution of a civil suit against them. At the time that he filed that grievance on April 4, he had been convicted of disciplinary violations, but he had not yet been transferred to Upstate. In contrast, the May 22 grievance was focused solely on his transfer to Upstate, which had required that he undergo a fourteen-hour trip between prisons, and he targeted defendants Ritter and Albright (the Fishkill Nurse Administrator) for having supposedly approved the transfer in the face of an alleged medical hold in his file. (Reznik Decl. Ex. B). The June 11 decision by CORC on the April 4 grievance offers no indication that CORC was aware of the actual transfer to which he had been subjected, much less assessed its significance in rejecting the earlier grievance. (Pl.'s Opp'n Point I Ex. A, at 724). Indeed, absent an appeal by plaintiff from the denial of the May 22 grievance, there is no basis to infer that CORC would have known of the facts underlying that second grievance, including the transfer and claimed resultant back pain. (Cf., e.g., Reznik Decl. Ex. C (IGRC rejection of May 22 grievance)).

Apart from the absence of any evidence of consolidation of appeals, Thomas's assertion is belied by the timing of the two proceedings. If IGRC's denial of his May 22, 2008 grievance did not issue until June 4, 2008 (see id.), presumably the next step at that point would have been an appeal to the Superintendent, a process that would inevitably have taken some number of days for issuance of a decision, followed by an appeal to CORC. Yet by that time plaintiff's appeal from the denial of his April 4, 2008 grievance had been pending before CORC for more than a month, and it issued its decision only one week later. (See Pl.'s Opp'n Point I Ex. A, at 724). Moreover, CORC issued that decision on a form that specified the grievance that it was reviewing, and the only grievance that it listed was that which Thomas had filed in Fishkill on April 4. (Id. at 707 (plaintiff's April 4, 2008 grievance filed April 8 and identified by stamp as "30949-08"), 724 (referencing only Grievance Number "FCF-30949-08" filed April 8, 2008)).⁸

8 We note that, pursuant to DOCS regulations, "like grievances" are normally consolidated at the IGRC level, although the timing of plaintiff's grievances would have precluded such IGRC consolidation. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(3) ("'Like grievances' may be consolidated at the option of the IGP supervisor or IGRC and assigned one grievance calendar number."). These regulations also suggest that if plaintiff's grievances had been consolidated, he would have received notice of that fact because he was the only "named" inmate on those grievances. Id. (grievant(s) of record receive notice of all activity in consolidated grievances).

These circumstances also preclude deeming plaintiff to have exhausted his remedies on the possible basis that both grievances touched upon the treatment of the alleged medical hold. As noted, the essence of plaintiff's second grievance concerned the specifics of his being compelled to travel fourteen hours, in violation of that asserted hold, a circumstance never presented in connection with the earlier grievance or its appeal. Moreover, plaintiff obviously understood that distinction since he chose to file the May 22 grievance rather than rest on his allegations from the earlier grievance, the appeal of which was still pending as of May 22. To allow an inmate to ignore the requirement of complete exhaustion in these circumstances would substantially undercut the premise for the complete-exhaustion rule emphasized in Ngo.

Summary judgment on this defense may also not be withheld on the basis that plaintiff might be able to fit himself within one of the exceptions to complete exhaustion recognized by the Second Circuit in Hemphill and related decisions, although plaintiff makes an effort to invoke one of those three exceptions.

It cannot be said that plaintiff reasonably misunderstood the necessity of appealing an adverse decision on a grievance to preserve the claim. As reflected in Exhibit A to the Bellamy Declaration, he is an experienced grievant, and plainly was well aware of the procedural requirements. Furthermore, defendants have not waived the exhaustion defense, having asserted it in their answers (see Answer by Defs. to the Compl. ¶ 82; Answer by Def. Albright to the Compl. ¶ 82), and then moved for summary judgment on it.

The one exception that plaintiff invites us to consider pertains to the availability of the full panoply of grievance procedures. According to plaintiff, he filed the pertinent May 22 grievance at the Upstate Correctional Facility while in punitive segregation. (Pl.'s Opp'n Point I 3). He reports that on or about May 22, 2008,⁹ he received two memoranda from the Upstate IGRC. (Id.). The first advised that the IGRC had determined that a grievance dated May 28 (presumably the one at issue here) was untimely, because the pertinent events had occurred on March 17, 2008 and he had filed his grievance well past the twenty-one-day deadline. The memorandum went on to say that his grievance was therefore being returned to him. (Id. at 3 & Ex. C). He then received a second memorandum from IGRC, also dated May 28, reciting that it had received two grievances from him, one of which (UST-35600-08) concerned his transfer from Fishkill. (Id. at 3 & Ex. D). This second memorandum stated that the IGRC would consider both grievances and send him a copy of its decision when rendered. (Id.). Plaintiff represents that, while at Upstate, he never received the June 4 IGRC decision rejecting his transfer grievance, that he was subsequently transferred to another facility (presumably Woodbourne Correctional Facility), and that he never learned of the June 4 decision until he obtained discovery in this litigation. (Id. at 3-4).

9 Plaintiff misstates the date of the correspondence -- it is dated May 28, 2008. (See Pl.'s Opp'n Point I Ex. C).

This argument is not responded to by defendants in their reply, but even so it is legally insufficient to justify possible invocation of the unavailability exception under Hemphill and its progeny. The DOCS regulations specify a deadline for the IGRC to decide a grievance, and they provide that if the IGRC fails to respond within the time limits, the inmate may move to the next stage of the grievance process. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(g)(2). Given this provision, the courts have consistently held that a failure by the IGRC to respond timely does not excuse the inmate from pursuing all further stages of the grievance process. See, e.g., Pacheco v. Drown, 2010 WL 144400, at *19 & n.21 (N.D.N.Y. Jan. 11, 2010) (citing cases); Banks v. Stewart, 2010 WL 2697075, at *8 (S.D.N.Y. July 6, 2010); Torres v. Carry, 672 F. Supp.2d 338, 343 (S.D.N.Y. 2009); Veloz v. New York, 339 F. Sup.2d 505, 515-17 (S.D.N.Y. 2004), aff'd, 178 F. App'x 39 (2d Cir. 2006).¹⁰ Moreover, as an experienced grievant plaintiff may certainly be charged with knowledge of these requirements.¹¹

10 It bears mention that in recognizing in general terms the exception to exhaustion for unavailable remedies, the Second Circuit in Hemphill noted in passing the possibility that if no response at all was received from the prison authorities, the unavailability exception might apply, but it also seemed to suggest that this might occur only if the grievance authorities did not record the grievance as required by DOCS regulations. See Hemphill, 380 F.3d at 686 n.6. Subsequent decisions have indicated that this distinction may be the pertinent one in these circumstances, e.g., Randolph v. City of N.Y. Dep't of Corrs., 2007 WL 2660282, at *9 n.10 (S.D.N.Y. Sept. 7, 2007) (citing cases), and in this case there is no question that the prison grievance system took account of plaintiff's May 22 grievance and even promised a decision, as reflected in the two May 28, 2008 memoranda proffered by plaintiff.

11 If the IGRC had not considered plaintiff's grievance because it was untimely (as represented in one of the May 28 memoranda), it is clear that plaintiff still could not have claimed that he exhausted his administrative remedies. Ngo, 548 U.S. 81, 83-84; accord Ruggiero, 467 F.3d at 176.

In sum, the deliberate-indifference claim is barred by plaintiff's failure to exhaust his administrative remedies.

II. The Merits of Plaintiff's Free-Exercise Claims

Plaintiff's first two claims target events in October 2007 and January 2008 that, according to plaintiff, interfered with his ability to practice his religion in two specific respects. He thus asserts that certain of the named defendants should be held liable to him on the premise that they were responsible for the apparent errors that led to his claimed injury.

Defendants acknowledge that in one, and possibly two, discrete respects the prison failed to follow the entirety of its own plans to enable Muslim inmates to celebrate with complete fidelity one set of Muslim holiday rites -- those occurring in January 2008 -- but they argue that the record reflects that these omissions were isolated and unintended errors and that they did not substantially burden plaintiff's exercise of his right to practice his religion. (Defs.' Mem. 13-19). They further assert that plaintiff and his fellow Muslim inmates were afforded a fully adequate means of participating in their religious rites in October 2007. (Defs.' Mem. 8-13). Alternatively, defendants argue that the named defendants on these claims are entitled to qualified immunity from liability. (Defs.' Mem. 30-33).

We conclude that the undisputed facts demonstrate that plaintiff cannot sustain his burden on either of his First Amendment claims.

A. Free-Exercise Standards in a Prison Setting

We start with the basic standards that govern First Amendment claims of the sort that plaintiff is pressing here. It is well-settled that inmates are entitled to practice their religion and must be offered "reasonable opportunities" by their jailers to do so. See, e.g., Hudson v. Palmer, 468 U.S. 517, 523 (1984) (quoting Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam)). To justify restrictions on a prisoner's religious observances, prison officials must demonstrate that the restrictions are "'reasonably related to legitimate penological interests.'" O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)); see also Pugh v. Goord, 571 F. Supp.2d 477, 497 (S.D.N.Y. 2008) (noting that the reasonableness test applied to inmates' free-exercise claims is less stringent than standard for non-inmate claims).

To establish a free-exercise claim, an incarcerated plaintiff must first demonstrate that the targeted policy or practice constitutes a burden on his religious beliefs, although the extent of the burden that must be shown is a matter of some uncertainty within this Circuit. See id. at 497 & n.10. The Second Circuit has stated that in order to prevail on a free-exercise claim "[t]he prisoner must show at the threshold that the disputed conduct substantially burdens his sincerely held religious beliefs." Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006); accord Skoros v. City of N.Y., 437 F.3d 1, 39 (2d Cir. 2006). This "substantial-burden" standard has its roots in the Supreme Court's decision in Sherbert v. Verner, which held that, to prevail on a constitutional claim, a plaintiff must establish that a challenged policy represents a substantial burden on his religious exercise. 374 U.S. 398, 402-06 (1963). However, the Circuit has avoided addressing the question of whether an inmate must still establish a "substantial burden" on his rights in order to prevail on a free-exercise claim in light of the Supreme Court's invalidation of the Religious Freedom Restoration Act of 1993 ("RFRA") in City of Boerne v. Flores, 521 U.S. 507, 536 (1997). See, e.g., Salahuddin, 467 F.3d at 275 n.5; see generally Ford v. McGinnis, 352 F.3d 582, 591-92 (2d Cir. 2003) (noting circuit split as to the applicability of the "substantial-burden" standard following the City of Boerne decision, but applying test absent briefing by parties as to its continuing viability). That Act had mandated the application of the Sherbert standard to all free-exercise claims following the Supreme Court's invalidation of the Sherbert test in certain instances in Emp't Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990). See Ford, 352 F.3d at 592.¹²

12 It bears mention that to the extent that plaintiff may be asserting claims under section 3 of the Religious Land Use and Institutionalized Persons Act, § 2000cc-1, the pertinent standard is also "substantial burden". See, e.g., Salahuddin, 467 F.3d at 273. That provision requires the State to justify any such substantial burden by showing that that burden furthers a "compelling governmental interest" by the "least restrictive means." 42 U.S.C. § 2000cc-1(a).

Here, defendants assert that the "substantial-burden" standard applies (see Defs.' Mem. 9), and plaintiff does not argue otherwise. Therefore, following the lead of the Second Circuit, we assume that a plaintiff must initially establish that the policies or practices about which he complains impose a substantial burden on his religious exercise. See Ford, 352 F.3d at 592; accord Salahuddin, 467 F. 3d at 274-75 & n.5; Pugh, 571 F. Supp.2d at 497 n.10 (assuming that the substantial-burden test applied to plaintiffs' free-exercise claims because plaintiffs introduced sufficient evidence of the burden of the challenged practices to satisfy the test). A substantial burden is imposed on a plaintiff when "the state 'put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (quoting Thomas v. Review Bd. of the Ind. Emp't Sec. Div., 450 U.S. 707, 718 (1981))¹³; accord McEachin v. McGuinnis, 357 F.3d 197, 202 n.4 (2d Cir. 2004); Tafari v. Annets, 2008 WL 2413995, at *14 n.32 (S.D.N.Y. June 12, 2008).

13 We note that the court in Jolly was defining the concept of a substantial burden in the context of a claim under RFRA, which has since been invalidated, as we discussed above. However, the court's definition was drawn from cases, including Sherbert, that discussed generally the concept of a substantial burden as it applied to a First Amendment free-exercise claim. See Jolly, 76 F.3d at 477.

Once an incarcerated plaintiff has established that his religious exercise has been substantially burdened, the court evaluates the reasonableness of the challenged act or policy under a four-factor test. The considerations include "whether the challenged regulation or official action has a valid, rational connection to a legitimate governmental objective; whether prisoners have alternative means of exercising the burdened right; the impact on guards, inmates, and prison resources of accommodating the right; and the existence of alternative means of facilitating exercise of the right that have only a de minimis adverse effect on valid penological interests." Salahuddin, 467 F.3d at 274 (citing Turner, 482 U.S. at 90-91); accord Zargary v. City of N.Y., 607 F. Supp.2d 609, 612 (S.D.N.Y. 2009); Bush v. Goord, 2009 WL 790358, at *2 (W.D.N.Y. Mar. 25, 2009). We note that the first factor must be satisfied by the defendant -- that is, the defendant must show that the challenged action or policy bears a rational connection to a legitimate governmental objective and that that objective actually motivated the challenged conduct -- in order for it to prevail. Salahuddin, 467 F.3d at 274, 276-77 (citing, inter alia, O'Lone, 482 U.S. at 350-51, 353).

The foregoing form of analysis will not assist a plaintiff who does not demonstrate that the challenged actions of the defendants constituted a prison policy or practice. If the conduct about which the plaintiff complains involves an isolated departure from otherwise proper procedures, the court will not find that it imposed a severe burden on the inmate's religious exercise. E.g., Ford, 352 F.3d at 594 n.12; Smith v. Graziano, 2010 WL 1330019, at *7-9 (N.D.N.Y. Mar. 16, 2010) (denial of Protestant service on two occasions de minimis) (citing cases); Tafari, 2008 WL 2413995, at *16-17 (denial of Kosher meals on four occasions only de minimis burden on plaintiff's religious exercise); Thomas v. Picio, 2008 WL 820740, at *6 & n.8 (S.D.N.Y. Mar. 26, 2008) (denial of Kosher meals for one day is not substantial burden on inmate's religious exercise).

B. The Zakat-ul-Fitr Claim

Plaintiff's first claim is that defendants Kelly and Connolly interfered with his right to the free exercise of religion in connection with their handling of one aspect of the ceremonies required to be performed by adherents of the Muslim religion at the end of Ramadan. (See Pl.'s Opp'n "Point II. 'A'" ("Point II(A)") 1). We conclude that this claim is baseless.

According to both plaintiff and defendants, at the end of the period of Ramadan, which involves daytime fasting and prayers for forty days, devout Muslims are to undertake certain prayers, on a day known as Eid-ul-Fitr. (Compl. ¶¶ 14-15; Decl. of Charles Kelly in Supp. of Defs.' Mot. for Summ. J. ("Kelly Decl.") Ex. D; Decl. of Imam Salahuddin M. Muhammad ("Muhammad Decl.") ¶ 10). They are also expected, prior to offering the prayers, to participate in what is known as "Zakat-ul-Fitr" or "Sadaqat-ul-Fitr." This obligation involves an act of charity, typically, the provision of money or (more traditionally) food to someone indigent or otherwise in need, as a means of purifying the giver for the sins that he has committed during the preceding year. (Muhammad Decl. ¶¶ 5-10). According to the Imam of the Fishkill facility, the performance of this act of charity is permissible either on the day of Eid or prior to it. (Id. ¶ 9). In 2007 the Eid occurred on October 13. (Id.). Plaintiff appears to complain that the Zakat-ul-Fitr ceremony was untimely in 2007. (Compl. ¶¶ 18, 20).¹⁴

14 In plaintiff's complaint he also alleges in passing that he was denied his rights in connection with the prayers required on Eid-ul-Fitr. (Compl. ¶¶ 15, 18, 20). His grievance pertaining to the events at issue in October 2007, however, does not mention such a denial (Decl. of William Connolly in Supp. of Defs.' Mot. for Summ. J. ("Connolly Decl.") ¶¶ 4, 7 & Ex. A (referring only to obligation to perform Zakat-ul-Fitr)), and hence any such claim would be barred. In any event the record does not reflect any such denial of a right to pray.

The pertinent events may be briefly summarized. In a prison setting, the Imam believed, the fulfilment of the Zakat-ul-Fitr obligation is more readily achieved through the donation of food, since foodstuffs are readily available to the inmates. (Muhammad Decl. ¶ 8). In order to ensure the availability of this form of observance to Muslim inmates, the Imam sent a memorandum to the Assistant Deputy Superintendent for Programs, Mr. George Jessen, discussing how to provide an opportunity for the Ramadan ceremonies and the fulfilment of the obligation for Zakat-ul-Fitr. (Id. ¶ 10; Kelly Decl. Ex. C; Connolly Decl. Ex. C). In that memorandum, the Imam anticipated that the Eid prayer would be scheduled for October 11 or 12. (Muhammad Decl. ¶ 10; Kelly Decl. Ex. C; Connolly Decl. Ex. C).

The question as to how to arrange the Zakat-ul-Fitr was initially addressed by Deputy Superintendent of Security Charles Kelly, who opted for an exchange of money rather than, as the Imam had suggested, the distribution of food. (Kelly Decl. ¶¶ 7, 11-12). Thus he indicated that participating inmates could withdraw $3.50 from their commissary accounts -- what he estimated to be the equivalent of one full meal -- for this purpose. (Id. ¶¶ 7, 9, 11). According to Kelly, he made this decision both because prison policy did not permit inmates to carry food items throughout the facility unless returning to their units from the commissary and because the DOCS Standards of Inmate Behavior prohibited inmates from buying, selling, giving or loaning personal property without authorization. (Id. ¶ 11). Kelly was also concerned that, absent supervision, food exchanges could lead to fights or other security threats within the prison, and that rules against SHU-confined inmates participating in food-giving or -receiving might lead to complaints of discrimination. (Id. ¶¶ 9-14 & Ex. B).¹⁵

15 Plaintiff says that these stated grounds are baseless because inmates routinely transport food items through the prison. (Pl.'s Rule 56.1 Statement ¶¶ 15-18). This dispute is immaterial since the Superintendent overruled Kelly and allowed the use of food to fulfill the Zakat-ul-Fitr requirement.

Plaintiff filed a grievance in advance of the Eid ceremonies, asking that he be allowed to give the Zakat-ul-Fitr. (Id. Ex. A). That grievance was filed on October 10, 2007, three days before Eid. (Id.). In the meantime, Superintendent Connolly modified Deputy Kelly's decision so as to permit the use of food as a means of undertaking the charitable acts required of Muslim inmates. (Connolly Decl. ¶ 5). He did so in part because the Imam had agreed to undertake the food distribution, thus alleviating the concern of Kelly that the process could disintegrate into a "food grab." (Id. ¶ 6). He also scheduled the Zakat-ul-Fitr to take place on October 12, one day before Eid. (Id. ¶ 5). That distribution did in fact take place on schedule, with the Imam presiding. (Id. ¶ 8; Kelly Decl. ¶ 15 & Ex. E).

Superintendent Connolly substantially denied plaintiff's grievance on November 1, 2007, because the charitable offerings had in fact already been distributed. (Connolly Decl. ¶¶ 9-10 & Ex. B). Plaintiff appealed that denial, complaining that the exchange was late (id. Ex. B), but since Eid occurred that year on October 13, there was nothing in the record to suggest that this complaint had any basis. (Muhammad Decl. ¶ 9; Connolly Decl. ¶ 10).

In view of this record of events that are not in genuine dispute, a trier of fact could not reasonably find liability. The prison made reasonable accommodations for the Muslim inmates to perform their Zakat-ul-Fitr obligations, and it cannot be said that those accommodations substantially burdened the plaintiff's exercise of his right to practice his religion. Moreover, even if plaintiff might contend that the event should have been arranged differently, he fails to show that the way in which the matter was handled contravened the precepts of his religion or substantially burdened his exercise of his religious obligations, much less show that this one event reflects a policy or practice of the institution to violate his First Amendment rights.¹⁶

16 Plaintiff spends much briefing space arguing that defendant Kelly's decision to require the Zakat-ul-Fitr ceremony to utilize money rather than food was theologically impermissible. (Pl.'s Rule 56.1 Statement ¶ 7; Pl.'s Opp'n Part II(A) 1-3, 6-7 & Exs. A, G). As noted, however, the Superintendent authorized the use of food. Moreover, although the memorandum that the Imam sent to Mr. Jessen regarding Zakat-ul-Fitr only mentioned the gifting of food specifically (see Kelly Decl. Ex. C), the Imam indicates that either approach was permitted (Muhammad Decl. ¶¶ 7-8), and defendants would have been justified in relying on his interpretation of religious requirements.

Finally, it is possible that Thomas means to argue that the conclusion of Ramadan fell on a date earlier than October 13, the date specified by the Imam. (See Pl.'s Rule 56.1 Statement ¶ 10 (stating that Eid-ul-Fitr should have occurred on October 11, 2007)). Even if he does so contend, it is obvious that the facility personnel handling the scheduling and details of the events in question were entitled to rely on the Imam's representation that the correct date was October 13, 2007. (Muhammad Decl. ¶ 9; Kelly Decl. Ex. C).

Given these conclusions, we need not address defendants' alternative argument that they are protected by qualified immunity. That said, it is apparent that defendants Kelly and Connolly had ample reason to believe that their actions in regard to the conducting of these religious ceremonies did not violate any constitutional right of the plaintiff. That being the case, they would in any event be immunized from liability for damages to the plaintiff. Cf. Barnes v. Fedele, 760 F. Supp.2d 296, 303, 305 (W.D.N.Y. 2011) (stating that it was "possible, if not probable" that defendant DOCS employee was entitled to qualified immunity for his written responses to plaintiff prisoner's letters concerning the alleged wrongful confiscation of his religious head wear based on defendant's reliance on a DOCS directive and on the advice of the New York State Board of Rabbis in drafting his responses; court compares Ford, 352 F.3d at 597-98, reversing district court's grant of summary judgment for prison authorities on qualified-immunity grounds based on district court's finding that it was objectively reasonable for defendants to rely on advice of DOCS religious authorities in concluding that certain feast was without religious significance because the proper inquiry was whether plaintiff's belief was sincerely held and religious in plaintiff's "own scheme of things"); Johnson v. Rock, 2010 WL 3910153, at *3 (N.D.N.Y. Sept. 30, 2010) (granting summary judgment based on qualified immunity for defendant Superintendent of correctional facility where court found that a reasonable official in defendant's position would have no reason to suspect the restricted diet that defendant was provided during Ramadan impinged on his Muslim beliefs; court relied in part on declaration of facility Imam); Koehl v. Greene, 2008 WL 4822520, at *9 (N.D.N.Y. Oct. 31, 2008) (qualified immunity justified based on defendants' deference to Rabbi's determination).

C. The Muharram Claim

Plaintiff's next claim concerns the handling of a set of ceremonies known as the Ten Days of Muharram Festival or Ashura. In 2008 those days encompassed January 10 through 19. (Pl.'s Opp'n "REPLY Point II, 'B'" ("Point II(B)") 1; Compl. ¶¶ 22-23). In plaintiff's complaint he asserts that although services were scheduled for each day through January 18 in the prison mosque, the prison failed to arrange a general callout on January 10 and 19 for the ten Muslim inmates who had signed up to participate. (Compl. ¶¶ 22-23). He names defendants Kelly, Fiore, Larkin and Rough as the prison officials responsible for the problems encountered on January 10 and 19. (Id. ¶ 21).

The procedure for arranging religious observances for Muslim inmates starts with the Imam, who is to prepare requests for prisoner releases, scheduling and other logistical matters that are needed to ensure that celebrants are able to carry out their religious obligations. (Decl. of Roland Larkin in Supp. of Defs.' Mot. for Summ. J. ("Larkin Decl.") ¶ 5). The Imam, like other religious chaplains assigned to the prison, would prepare a memorandum and event packet and submit them to Deputy Superintendent Larkin. (Id.). The Imam would also prepare a list of inmates who were to participate and were therefore to be called out from their regular locations to attend services. (Id.). Larkin's staff would then review these materials to ensure compliance with DOCS guidelines and to confirm that the listed inmates were appropriate participants. (Id.). The Imam, like other prison chaplains, would then be responsible for transmitting the approved list of inmates to the callout office for inclusion in the master list of prisoners to be called out for the specific dates from each housing unit. (Id.; Decl. of Thomas Rough in Supp. of Defs.' Mot. for Summ. J. ("Rough Decl.") ¶ 6; Decl. of Fedele Fiore in Supp. of Defs.' Mot. for Summ. J. ("Fiore Decl.") ¶ 7).

On January 3, 2008 the Imam wrote to Larkin by memorandum, requesting approval for the Ten Days of Muharram festival. (Larkin Decl. ¶ 6 & Ex. A). That same day Larkin received a Special Events Final Coordination and Approval Package from the Imam. (Id. ¶ 7 & Ex. B). This submission included a list of inmate participants, approved menus for breakfast, lunch and dessert, and program specifics. (Id.). Although the Imam's memorandum had listed the pertinent dates as running from January 10 though 19, the packet -- apparently erroneously -- listed the end date as January 18 and included specific logistical requests, including food menus, only for January 10 through 18. (Id. ¶ 8 & Exs. A-B).

On January 10, the first day of the Muharram Festival, there was what defendants describe as some confusion about the callout of inmates for the first day of Muharram, and they all profess no certainty about whether there was such a callout that day. (Fiore Decl. ¶ 8; Kelly Decl. ¶ 21). For present purposes, we must therefore assume that there was none, as plaintiff contends. It is not genuinely disputed, however, that none of the named defendants was responsible for submission of the callout list to the facility's callout office. (Fiore Decl. ¶ 7; Larkin Decl. ¶ 5; Kelly Decl. ¶ 22; Rough Decl. ¶ 8). Moreover, plaintiff offers no competent evidence that this omission was intentional rather than a bureaucratic oversight. In contrast, the Imam reports, based on 26 years of arranging services at the prison, that occasionally the callout lists have been submitted late or misplaced, but he and the prison staff exert themselves to ensure that eligible inmates are released to participate in religious services. (Muhammad Decl. ¶¶ 1, 12).

There is also no dispute that callouts were properly made for the Muharram services on January 11 through January 18. (Kelly Decl. ¶ 21). As for the events of January 19, it is conceded that they did not go according to plan. (E.g., Kelly Decl. ¶¶ 21-22; Rough Decl. ¶¶ 7, 9-16). That last day was intended to include prayers, an address by the Imam and a meal, with activities to start at about 8:15 a.m. (Fiore Decl. Ex. C).

It appears that the Imam did not correct the dating error from the original packet until as late as January 18. (Fiore Decl. ¶ 8 & Ex. C). On that date, the Imam sent defendant Fiore, the Assistant Deputy Superintendent of Programs, a memorandum mentioning that January 19 was to be last day of the Muharram Festival. (Id.). Fiore approved this request (id.), but it apparently remained the Imam's obligation to submit the list of participating inmates to the callout office. (Id. ¶ 7).

The ten Muslim inmates who had signed up for the ceremony were not included on the prison's master callout list for January 19, presumably because their names had not been sent in time to the callout office. (Rough Decl. ¶¶ 6-7). The record does not explicitly disclose why the Muharram prisoner list for that date was not timely sent to the callout office or who was responsible for this error, though it is undisputed that the four defendants named in this claim were not involved in the transmission of the list to the callout office, and, as noted, it was the Imam's role to communicate with that office.¹⁷ In any event, Officer Rough, who, as Chapel Checkpoint Officer, was assigned to the prison mosque to coordinate these events, reports that he received notice late on January 18 that there was to be a last-minute callout the next day for inmates eligible to participate in the Muharram Festival. (Id. ¶¶ 5, 10).

17 Given the undisputed series of communications, it appears that the error was, at least in part, probably attributable to the fact that the Imam's special events package, which he had sent to Deputy Superintendent Larkin, erroneously listed the end-date for Muharram as January 18.

In anticipation of a potential problem with getting the eligible inmates released on time, early on January 19 Rough had the prison radio room make an announcement to officers in the various housing units to the effect that a Muslim festival was to occur that morning and that the officers should release the participating inmates to attend. (Id. ¶ 11). He also began telephoning the various housing units to tell the officers there to call out the listed inmates.¹⁸ (Id.).

18 Plaintiff disputes Rough's representations as to his efforts that morning. (Pl.'s Opp'n Part II(B) 2-5; Pl.'s Rule 56.1 Statement ¶¶ 36-37 (denying the allegations contained in paragraphs 34 and 35 of defendants' Rule 56.1 Statement)). Nonetheless, other than plaintiff's report that Rough told him on that occasion that he was uncertain how to proceed (see Pl.'s Opp'n Part II(B) 4), his denial of Rough's account is based on speculation concerning events that he did not witness, and hence his opposition is, in this respect, not based on competent evidence. (See Pl.'s Opp'n Part II(B) 2-5).

Rough was also aware that the participating inmates were to receive a special meal on the last day of the Festival. (Id. ¶ 12). Concerned that this message might not have been properly communicated, he called the mess hall before 10:00 a.m. to ask that mess trays be sent to the mosque. (Id.). The mess hall personnel advised him, however, that because of a lack of advance notice, they would be able to send only regular feed-up trays of food. (Id.).

Apparently as a result of the oversight in not timely transmitting the list of Muharram participants, and despite Rough's efforts, the listed inmates were not all released from their usual assignments. (E.g., id. ¶ 13). While Officer Rough waited at the mosque, one inmate who had signed up for Muharram appeared and reported that no callout had occurred for the event, at least in his unit. (Id.). That prisoner then left because he had a visit and chose to meet that visitor rather than wait to attend the last day of Muharram since only regular food was being served. (Id.).

Shortly thereafter -- whether as a result of Rough's efforts is not clear -- two additional inmates appeared for the service but were apparently disappointed to hear that only "regular" food was to be served rather than the special meal that had been requested by the Imam, and they soon left. (Id.).¹⁹ Ultimately the food trays were delivered to the mosque, even though Rough had called to cancel the order because he had no inmates in attendance. (Id. ¶ 14).

19 Plaintiff briefly complains that this food would have been "properly blessed" for fast-breaking purposes. (Compl. ¶ 32). However, the record does not reflect whether the special meal that had originally been expected embodied any religious requirements.

At around 10:00 a.m., plaintiff appeared, apparently because he had a law library pass for that time. (Id. ¶ 15; Compl. ¶ 23). When advised of the situation, he became angry and left without waiting for the service. (Rough Decl. ¶ 15).

In seeking summary judgment on this claim, the defendants targeted by plaintiff argue that they were not responsible for the preparation of the general callout list for the prison, on which the names of the inmates eligible to celebrate the Muharram Festival were to be included, or for transmission of the list of Muharram inmates to the callout office. They also note that, when confronted on January 19 with a circumstance for which he bore no responsibility, Officer Rough attempted to remedy the situation. In addition, defendants observe that, notwithstanding the apparent snafues of January 19, as well as the uncertainty as to what occurred on January 10, these were isolated incidents involving, at most, human error rather than a prison policy to deny Muslim inmates the opportunity to practice their religion. Consequently, they say, these events cannot form the basis for holding any defendants liable to plaintiff for a First Amendment violation. Finally, they assert in the alternative that each of the named defendants is entitled to qualified immunity. (See generally Defs.' Mem. 13-19, 30-32).

Plaintiff's claim fails for at least two reasons. First, the events, as outlined, cannot be deemed to be part of a policy or practice at the Fishkill facility to deny Muslim inmates their right to practice their religion. It is evident that for at least eight of the ten days of Muharram in January 2008, the eligible inmates, including plaintiff, were afforded the ability to participate in the celebrations attendant to the Muharram Festival, and they apparently did so. The possible failure to call out inmates on January 10, 2008 and the errors that led to a failure of the prison's efforts to hold a final-day celebration, while surely regrettable, cannot form a predicate for liability on the part of any of the defendants because these events cannot be described as anything but isolated logistical errors. Indeed, the efforts of Officer Rough attest to the commitment of the prison staff to permit inmates to honor their religious obligations. Moreover, the uncontested evidence is that the facility had in place a set of procedures to permit ceremonies such as the Muharram Festival to proceed. In this case it is evident that identifiable confusions, notably the error in the original packet prepared by the Imam, contributed to, if it did not fully account for, the difficulties encountered on January 19.

Second, apart from the isolated nature of the events that plaintiff targets, his claim fails because he offers no basis for a trier of fact to conclude that any of the named defendants were personally responsible for the alleged errors. That is plaintiff's burden, since a government employee may not be held liable under section 1983 unless he can be shown to have participated in a violation of a plaintiff's constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1945-46, 1948 (2009); Gill v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987); Lloyd v. Lee, 570 F. Supp.2d 556, 565 (S.D.N.Y. 2008) (citing Jones v. Westchester Cnty. Dep't of Corrs. Med. Dep't, 557 F. Supp.2d 408, 413-14 (S.D.N.Y. 2008)). In this case there is no evidence in the record suggesting that any defendant had any hand in a possible failure to call out the inmates on January 10, and equally no showing of a link between these individuals and the apparent problems in organizing the last day of the Festival for January 19. Indeed, we note that it is undisputed that insofar as the list of inmates eligible to attend that day was apparently not timely supplied to the prison callout office, that appears to have been the responsibility of the Imam. Moreover, the failure of timely preparation for that day's events may also be attributable to the dating error found in the festival package, which was prepared by the Imam and sent to the office of Deputy Superintendent Larkin. In any event, plaintiff cannot meet his burden here on pure speculation as to who was responsible for the errors, and that is all that he offers.

In short, summary judgment should be granted for defendants on this claim.

III. The Due-Process Claim

On March 17, 2008, plaintiff was placed in administrative confinement pending an investigation of possible disciplinary violations. (Compl. ¶ 34 (quoting Inmate Misbehavior Report); Roberts Decl. ¶¶ 7-9). DOCS Captain L. Fields and Inspector General Investigator Pinze conducted an investigation, and on March 19 Fields prepared an Inmate Misbehavior Report concerning the plaintiff. (Roberts Decl. ¶¶ 7-8 & Ex. A). In that report he recounted that a DOCS Muslim chaplain named Abdul Mubdi had advised that on March 13, 2008, while in a DOCS Harlem office, he had received a telephone call from someone purporting to be "Abdul Jabbar," and that during the conversation he in fact recognized the voice of the caller as that of plaintiff Thomas. (Id. Ex. A). He knew that Thomas was then confined at Fishkill and that the phone number on his readout was not a prison number. (Id.). He therefore wrote down the phone number and ended the call. (Id.). According to Fields' report, Investigator Pinze verified that the call had been made through a third-party phone, and in fact plaintiff's phone log confirmed that he had placed a telephone call at the time that the chaplain received the call in question. (Id.). Based on these events, Fields preferred four charges: (1) communicating by phone with a DOCS employee without authorization, (2) making a third-party phone call, (3) making false statements, and (4) impersonation. (Id. ¶ 7 & Ex. A).

Under DOCS regulations, a disciplinary hearing must be conducted within seven days of the inmate's pre-hearing confinement, unless an extension is obtained. N.Y. Comp. Codes R. & Regs. tit. 7, § 251-5.1(a); see Roberts Decl. ¶ 10. In this case the prison staff applied on March 21, 2008 for an adjournment of the hearing, an application that was granted until March 25, 2008. (Roberts Decl. ¶ 10 & Ex. B). The hearing took place, as scheduled, on March 25, with plaintiff pleading not guilty. (Id. ¶ 11 & Ex. C). At the conclusion of the hearing the hearing officer, defendant Stephen Roberts, found plaintiff guilty on all charges. (Id. ¶ 13 & Ex. D). He sentenced plaintiff to six months of keeplock and six months loss of package, commissary and phone privileges. (Id.).

Plaintiff appealed his conviction on March 28, 2008. (Id. ¶ 14 & Ex. E). He asserted a variety of challenges to the manner in which the hearing had been conducted. (Id. Ex. E). Thus he complained that the misbehavior report and hearing were untimely, in violation of DOCS regulations. (Id.). He further asserted that he had requested what he referred to as "a Chapter 5" from "the Assistance" and that it had not been produced. (Id.). Plaintiff also stated that he had requested the appearance of the chaplain as a witness, and although he had then waived that appearance, he asserted that the hearing officer had been required, and had failed, to prepare a written statement of refusal. (Id.). He also complained that no evidence had been produced at the hearing and, finally, that his sentence was "excessive and too harsh." (Id.).

While plaintiff's appeal was pending, DOCS transferred him from Fishkill to the Upstate Correctional Facility to serve his six-month sentence, which was set to expire on September 13, 2008, approximately six months after his initial confinement. (Id. Ex. D). On May 13, 2008 Norman Bezio, the DOCS Director of Special Housing/Inmate Discipline, reversed the conviction because the original misbehavior report had been based on an investigation, a circumstance that required the hearing officer to call in the reporting official (presumably Captain Fields) to testify at the hearing. According to Bezio, since Fields had not appeared at the hearing, the conviction could not stand. (Id. ¶¶ 15, 17 & Ex. F). Plaintiff was held in SHU for twenty-four days after his conviction was reversed, until June 6, 2008 (for a total of almost three months in punitive confinement). (Compl. ¶ 44).

Based on this series of events, plaintiff asserts a claim against defendant Roberts, Deputy Superintendent for Administrative Affairs, for his role as hearing officer at his disciplinary hearing. (Compl. ¶ 33). Plaintiff specifically claims only that the disciplinary hearing, held eight days after his initial confinement, was untimely, and that he was denied his right to due process because Roberts did not call the chaplain as a witness. (Id. ¶¶ 35-36, 39).²⁰

20 In order to qualify his sentence as triggering due-process protections, plaintiff contends that his sentence and subsequent confinement at SHU caused him to suffer "an atypical and significant hardship," notably because that confinement precluded his full participation in religious and social activities. (Compl. ¶¶ 40-41, 43-44).

In response defendants argue that the hearing was timely since an adjournment was requested by the prison and granted by the hearing officer. (Defs.' Mem. 21-22). As for the purported denial of plaintiff's request for an appearance by the chaplain, defendants note that although plaintiff initially requested that he testify, he subsequently waived the chaplain's presence (id. at 22), a waiver documented in the hearing form prepared by Roberts and apparently initialed by plaintiff. (Robert Decl. ¶ 11 & Ex. C). They also note that although DOCS later reversed the conviction, it did so on an entirely different ground, that is, the hearing officer's failure to call the reporting officer who had summarized the investigation that had led to the charges being filed against Thomas. (Id. ¶¶ 15-16 & Ex. F). Moreover, they point out that this ground was not even asserted by Thomas on his appeal from his disciplinary conviction. (See id. ¶ 16 & Ex. E).

In plaintiff's response he does not deny that he waived his request for an appearance by the chaplain. (Pl.'s Opp'n "REARGUMENT POINT II(c)" ("Point II(c)") Ex. B). He seems to argue, nonetheless, that he was deprived of his rights because the hearing officer did not articulate a reason for the chaplain not being called. (Id.). In addition, he asserts for the first time in this case that the hearing officer failed to provide due process because he convicted plaintiff in the absence of any evidence of guilt and because he failed to articulate the reasons for his verdict. (Id. at ¶¶ 9(A)-(B)).

We start with some basic principles governing an assessment of prisoner claims arising from the conduct of disciplinary hearings. Plaintiff claims that Deputy Superintendent Roberts deprived him of his due-process rights during his disciplinary hearing. (Compl. ¶ 33). To establish this claim, plaintiff must show: "'(1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.'" Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001) (quoting Giano v. Selsky, 37 F. Supp.2d 162, 167 (N.D.N.Y. 1999)); Joseph v. Fischer, 2009 WL 3321011, at *11 (S.D.N.Y. Oct. 8, 2009).

To pursue a due-process claim, the inmate must first establish that he possessed a liberty interest. Frazier v. Coughlin, 81 F.3d 313, 317 (2d Cir. 1996); Joseph, 2009 WL 3321011, at *11. A prisoner's liberty interest is implicated by SHU confinement only if the discipline "'imposes [an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.'" Palmer, 364 F.3d at 64 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).²¹ Following Sandin and Palmer, a court must look to the actual punishment in making its determination. Palmer, 364 F.3d at 64 (citing Scott v. Albury, 156 F.3d 283, 287 (2d Cir. 1998)). Factors to aid in determining whether the plaintiff endured an "atypical and significant hardship" 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 compared to discretionary confinement." Id. (quoting Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir. 1998)).

21 Apart from the atypicality showing, the plaintiff must also establish that the state regulations impose certain substantive predicates to punishment in order to trigger due-process protections. See, e.g., Sealey v. Giltner, 197 F.3d 578, 584 (2d Cir. 1999) (explaining that the substantive-predicate analysis found in Hewitt v. Helms, 459 U.S. 460 (1983), and later cases was not abolished by the Supreme Court's decision in Sandin v. Conner, 515 U.S. 472 (1995), but was "only limited to those instances where a finding of such a predicate results in confinement to conditions of atypical and significant hardship"). The Second Circuit has long recognized, however, that the disciplinary regulations enacted by DOCS do impose such prerequisites to punishment. See, e.g., Gittens v. Lefevre, 891 F.2d 38, 40 (2d Cir. 1989) (quoting N.Y. Comp. Codes R. & Regs. tit. 7, § 251-1.6) (finding that New York prison regulations require specific substantive predicates for placing inmates in keeplock); Matiyn v. Henderson, 841 F.2d 31, 35-36 (2d Cir. 1988) (finding that New York prison regulations governing protective admission to the SHU specify substantive predicates); Silva v. Sanford, 1998 WL 205326, at *18 & n.22 (S.D.N.Y. Apr. 24, 1998) (citing cases where courts had found that discipline-related prison regulations created certain due-process rights pre-Sandin); Edmonson v. Coughlin, 21 F. Supp.2d 242, 248 (W.D.N.Y. 1998).

In the present case, defendants have not challenged plaintiff's claim insofar as he is alleging that he was exposed to an atypical and significant hardship. Rather, they assert that the plaintiff's challenges to the manner in which the hearing was conducted are either meritless or unpreserved, and that in any event the hearing officer did not transgress any of plaintiff's constitutionally mandated procedural rights. (Defs.' Mem. 19, 22-23).

Accordingly, we now look to whether the manner in which the hearing was conducted failed to meet due-process standards. See Giano, 238 F.3d at 225. We start with the two criticisms that plaintiff included in his complaint and further elaborated on in his motion papers -- that the hearing was improperly delayed and that defendant Roberts did not call the chaplain or explain his reasons for not doing so.

The timeliness argument is plainly meritless for two reasons. First, the requirements governing the timing of the hearing are functions of a state agency regulation, in this case promulgated by DOCS. Even if the hearing officer had violated a DOCS procedural requirement, that would not, in itself, trigger a due-process violation. See, e.g., Russell v. Coughlin, 910 F.2d 75, 78 n.1 (2d Cir. 1990) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)); Rodriguez v. Diaz, 2010 WL 1838814, at *8 (S.D.N.Y. May 5, 2010); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 n.6 (S.D.N.Y. 1995). Second, in any event the record reflects no such state-law violation. It is not genuinely disputed that the prison was granted a brief extension from March 21 to 25 for the hearing, and that the proceeding took place on that adjourn date. Since the DOCS regulation cited by plaintiff makes provision for such adjournments to be granted, the hearing officer acted consistently with the pertinent requirements.²²

22 Plaintiff appears to complain that he did not receive a copy of the adjournment order. (Pl.'s Opp'n Point II(C) ¶¶ 8-9). Whether that be the case is irrelevant for our purposes since (1) the DOCS regulations do not require that the prisoner receive a copy of such an order and (2) in any event neither the adjournment nor the alleged failure to provide written notice to plaintiff amounts to a due-process violation.

We turn therefore to plaintiff's complaint that he was denied a witness at the hearing as well as the two criticisms that were not included in his original pleading but are asserted on the current motion. We first summarize the pertinent constitutional standards.

Essential to due process is freedom from arbitrary governmental action. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). Nonetheless, "[p]rison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply." Id. at 556. Among the protections that an inmate does retain in this context, as summarized in Wolff, are advance written notice of the charges, a qualified opportunity to call witnesses and a written decision explaining the basis for the decision. See id. at 563-67. Additionally the hearing officer must be unbiased, see, e.g., Edwards v. Balisok, 520 U.S. 641, 647 (1997), and his decision must be based on at least "some evidence." See, e.g., Superintendent v. Hill, 472 U.S. 445, 455 (1982); Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004). Of particular relevance here, the Supreme Court has noted that "[c]hief among the due process minima outlined in Wolff was the right of an inmate to call and present witnesses and documentary evidence in his defense before the disciplinary board." Ponte v. Real, 471 U.S. 491, 495 (1985). That said, both Wolff and Baxter v. Palmigiano, 425 U.S. 308, 320-21 (1976), have held that "ordinarily the right to present evidence is basic to a fair hearing, but the inmate's right to present witnesses is necessarily circumscribed by the penological need to provide swift discipline in individual cases." Ponte, 471 U.S. at 495. The Court in Ponte emphasized that "[t]his right is additionally circumscribed by the very real dangers in prison life which may result from violence or intimidation directed at either other inmates or staff." Id.

The Supreme Court has consistently held that prison officials must be accorded the discretion necessary to keep a hearing within reasonable limits and to refuse to call witnesses when summoning them may create a risk of reprisal or undermine authority. Wolff, 418 U.S. at 566 ("Prison officials must have the necessary discretion to keep the hearing within reasonable limits and to refuse to call witnesses that may create a risk of reprisal or undermine authority, as well as to limit access to other inmates to collect statements or to compile other documentary evidence."). Additionally, a hearing officer may deny a prisoner's request to call a witness "on the basis of irrelevance or lack of necessity." Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991).

It would aid reviewing courts if prison disciplinary officers gave their reasons for denying an inmate's request for witnesses, but "nowhere in Wolff or Baxter did [the Supreme Court] require the disciplinary board to explain why it denied the prisoner's request, nor did [the Court] require that those reasons otherwise appear in the administrative record." Ponte, 471 U.S. at 496. Accordingly, the Supreme Court in Ponte refused to "prescribe" that the reasons for refusing to call a witness be stated in writing. Id. The Court also declined to hold that the Due Process Clause required the administrative record to include the board's justifications or reasons for denying the witness. Id.

Plaintiff's claim about the denial of a witness, as articulated in his complaint, plainly fails because, although he initially requested the appearance of the chaplain, he subsequently waived that appearance. Indeed, not only is that waiver reflected in the hearing sheet at a section that plaintiff initialed, but he also does not deny this waiver in his responsive papers. (Roberts Decl. Ex. C; Pl.'s Opp'n Point II(C) Ex. B; see also "Second[ Reply] Opp'n Mot. to the Defs.['] Summ. J. Mot." ("Pl.'s Sur-Reply") "Reply#2 Point II,(C)" ("Point II(C)") 7 (plaintiff admits that he did not call any witnesses at the hearing)). Moreover, as defendant Roberts asserts without contradiction in his declaration on the current motion, if plaintiff had not waived the chaplain's appearance, he would have honored that request. (Roberts Decl. ¶ 12).

Under these circumstances, plaintiff's claim, however phrased, is necessarily meritless. The pertinent constitutional right of the inmate is to have his request for a witness seriously considered by the hearing officer and for that request not to be denied without a colorable reason. An inmate's waiver of a request for a witness obviously leaves the hearing officer with no obligation either to call the witness or to offer a rationale for having not called him. In short, by virtue of plaintiff's waiver of an appearance by the chaplain, he surrendered any potential claim based on the failure of the hearing officer to call that individual.

As for plaintiff's two newly articulated attacks on the hearing officer's conduct of the hearing, neither survives scrutiny. In this respect we assess the merits of these arguments despite plaintiff's failure to plead them, choosing in this case to do so in view of plaintiff's status as a more or less untutored pro se litigant. That liberality, however, does not save these claims.

Insofar as plaintiff argues that the hearing officer failed to explain his decision, the claim is factually flawed. The hearing disposition sheet includes a statement by the hearing officer in which he explicitly invokes the findings of the investigators, as summarized by Captain Fields in the misbehavior report, and also explains the severity of the punishment that he was meting out. Thus the hearing officer recited:

A. STATEMENT OF EVIDENCE RELIED UPON: MISBEHAVIOR REPORT DATED 3/13/08 SIGNED BY CAPT. FIELDS SUMMARIZING AN INVESTIGATION WHICH VERIFIED A 3^RD PARTY CALL MADE BY YOU TO A DEPARTMENT EMPLOYEE.

B. REASONS FOR DISPOSITION: PHONE VIOLATIONS ARE SERIOUS[,] MADE MORE SERIOUS IN THIS CASE DUE TO THE FACT THAT AN EMPLOYEE WAS THE TARGET OF THE CALL. THIS IS GIVEN TO DISCOURAGE SUCH IN THE FUTURE.

(Roberts Decl. Ex. D). This summary is plainly adequate to satisfy the constitutional requirement of an explanation, particularly in view of the detail provided in the Misbehavior Report that the hearing officer invoked. (See id. Ex. A).²³

23 It necessarily also follows that the hearing officer is protected in any event by qualified immunity since it would have been perfectly reasonable for him to assume that his explanation was constitutionally adequate.

As for plaintiff's remaining complaint -- that the hearing officer's decision was not supported by any evidence -- it is equally groundless. The hearing officer relied on the report of the investigative officer, a report that included his findings from an interview with the chaplain whom plaintiff had telephoned. (See id.). That report was admissible and sufficient for purposes of a prison disciplinary hearing, since the inmate does not have a right of confrontation, and hearsay evidence is permitted. See, e.g., Baxter, 425 U.S. at 322-23; Wolff, 418 U.S. at 567-68; Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993) ("an inmate has no constitutional right of confrontation"); Louis v. Ricks, 2002 WL 31051633, at *13 n.25 (S.D.N.Y. Sept. 13, 2002) (gathering cases).

Finally, we note that plaintiff cannot rescue his claim based on the DOCS determination that the hearing officer should have called the reporting officer to testify. This ruling appears to be a product solely of DOCS policy, rather than a constitutional mandate, and requirements of state law are not automatically incorporated into due-process jurisprudence. Russell, 910 F.2d at 78 n.1. In any event plaintiff neither pleaded such a claim nor even asserted it in his motion papers in opposition to the current motion.

In sum, plaintiff's due-process claim is meritless.

IV. The Eighth Amendment Claim

As we have noted, plaintiff failed to pursue to completion the available DOCS grievance procedures with regard to his Eighth Amendment claim, which is based on his transfer to the Upstate Correctional Facility. If that failure to exhaust were ignored or excused, we would be compelled to address the merits of the underlying claim. For the guidance of the District Court, we address the merits in the alternative and conclude that if plaintiff had properly exhausted this claim, it would fail with respect to defendants Elizabeth Ritter and Theresa Knapp-David, but would survive summary judgment with respect to defendant Joy Albright.²⁴

24 Plaintiff submits an affirmation and a declaration in support of his opposition, both of which are endorsed under penalty of perjury. In his affirmation, he states that he has "personal knowledge" of the facts that "bear on" this motion, but does not assert any of the facts in that document. (See Affirmation in Opp'n to Defs.['] Summ. J. Mot., Nov. 1, 2011). Similarly, in plaintiff's declaration, he explains that he is "fully familiar" with the facts in the case and has "personal knowledge of this action," but only attaches exhibits to that declaration. (Decl. of Bernard Thomas Pro-Se Pl., Nov. 1, 2011). It appears that plaintiff is attempting to swear to the truth of all of the factual assertions he makes in connection with this motion under penalty of perjury. Plaintiff being pro se, for purposes of this motion we will consider any facts asserted in plaintiff's moving papers about which he would clearly have personal knowledge to be the equivalent of facts asserted in a testimonial submission.

A. Standard of Review

To establish a constitutional claim for denial of rights based on the medical care provided by the defendants, an inmate plaintiff must demonstrate "'deliberate indifference to [his] serious medical needs.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (alteration in original) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The physical condition of the plaintiff must be sufficiently serious and the failure to render proper care must result from "a sufficiently culpable state of mind." Id. (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)); accord Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). This two-part test embodies both an objective and a subjective component.

The Second Circuit has commented favorably on defining a serious medical condition as a situation in which "'the failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.'" Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)) (internal quotation marks omitted). As more recently described, the deprivation must be "'sufficiently serious,'" that is, "'one that may produce death, degeneration, or extreme pain.'" Johnson v. Wright, 412 F.3d 398, 403 (2d Cir. 2005) (quoting Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998)). Among the relevant factors in what is a fact-intensive inquiry, are "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (alteration in original) (quoting McGuckin v. Smith, 974 F.3d 1050, 1059-60 (9th Cir. 1992)). "The Second Circuit, along with other circuits, has interpreted this standard as signifying that a defendant's act of deliberate indifference may form the basis of an Eighth Amendment claim based on a plaintiff's pain and suffering, even when the severity of a plaintiff's condition is not necessarily worsened by the act." Stevens v. Goord, 535 F. Supp.2d 373, 384 (S.D.N.Y. 2008). "[I]t's the particular risk of harm faced by a prisoner due to the challenged deprivation of care, rather than the severity of the prisoner's underlying medical condition, considered in the abstract, that is relevant for Eighth Amendment purposes." Smith v. Carpenter, 316 F.3d 178, 186 (2d Cir. 2003) (citing Chance, 143 F.3d at 702-03).

An official acts with deliberate indifference when he "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw that inference." Farmer v. Brennan, 511 U.S. 825, 837 (1994). Disagreement with a course of treatment chosen by a medical provider does not suffice to demonstrate such indifference. Indeed, even negligence tantamount to medical malpractice does not amount to an Eighth Amendment violation. Estelle, 429 U.S. at 105-06; Chance, 143 F.3d at 703. Nonetheless, an act of malpractice will amount to deliberate indifference if "the malpractice involves culpable recklessness, i.e., an act or a failure to act by the prison doctor that evinces 'a conscious disregard of a substantial risk of serious harm.'" Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (quoting Farmer, 511 U.S. at 839); accord Farid v. Ellen, 593 F.3d 233, 248 (2d Cir. 2010) (citing Salahuddin, 467 F.3d at 280); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). The subjective element requires a state of mind that is the equivalent of criminal recklessness. Hathaway, 99 F.3d at 553. This element "'entails something more than mere negligence . . . [but] something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result.'" Id. (alteration in original) (quoting Farmer, 511 U.S. at 835).

We further reiterate that proof of an individual defendant's involvement in the alleged violation is a prerequisite to finding liability on a claim for damages brought under § 1983. Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001); cf. Iqbal, 556 U.S. at ___, 129 S. Ct. at 1940 ("Because vicarious liability is inapplicable to . . . § 1983 suits, the plaintiff in a suit such as the present one must plead that each Government-official defendant, through his own individual actions, has violated the Constitution."). "The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)).

B. Analysis

Plaintiff documents that he has had severe back problems since at least 2001. (See generally Pl.'s Opp'n Point II(D)). In June 2001, he received an MRI that showed that he was suffering from disc protrusions that resulted in "central canal stenosis" with "bilateral neural foraminal stenosis."²⁵ (Id. at 3 & Ex. B). In a physical-therapy evaluation following his MRI in July 2001, he described his pain as a seven out of ten when standing and was prescribed "nzprosen."²⁶ (Id. Ex. G). He has long received treatment for this "chronic and recurring" pain, including back-pain medication and anti-inflammatory drugs, a back brace, and regular physical therapy. (Id. at 3, 5 & Ex. A, at 0000015 (DOCS health record dated Feb. 2, 2007 stating that plaintiff "has had chronic & recurrent L-5 pain,"²⁷ "wears a Back Support," has taken "Robaxin"²⁸ since October 2006, and has had physical therapy "off & on")). On June 13, 2008, plaintiff's medical file notes that he was permitted to wear a "sacral belt" -- a back brace -- and that he was exempted for medical reasons from "HUB" bus and van trips. (Id. Ex. G, at 000048). On July 26, 2008 plaintiff complained of lower back pain with radiation down his legs. The medical consultant noted his MRI results in the appointment notes and scheduled an electromyogram ("EMG").²⁹ (Id. Ex. G, at 000019). On October 27, 2008 plaintiff submitted a request for a medical consultation because his lower back "still hurt[]." (Id. Ex. G, at 000024 (requesting that plaintiff be scheduled for physical therapy twice weekly for four weeks for his "chronic low back pain" that is "unrelieved by NSAIDS;"³⁰ consultant notes that plaintiff's earlier EMG showed "evidence of L5-S1 radiculopathy"³¹)). He anticipates surgery in the near future. (Id. at 6).

25 Narrowing of the "intervertebral foramina of the lumbar spine caused by encroachment of bone upon the space." Dorland's Illustrated Medical Dictionary, 1698 (29th ed. 2000).

26 This appears to be a reference to naproxen, "a nonsteroidal anti-inflammatory agent . . . used for treatment of osteoarthritis and rheumatoid arthritis." Dorland's, supra note 25, at 1177.

27 "L5" refers to the fifth lumbar vertebrae, located in the lower spine. Dan J. Tennenhouse, Attorneys' Medical Deskbook § 5:14 (4th ed. 2006-2011), available at Westlaw MEDDESK.

28 A muscle relaxant. Tennenhouse, supra note 27, § 26:29.

29 A record obtained by "an electrodiagnostic technique for recording the extracelluar activity . . . of skeletal muscles at rest, during voluntary contractions, and during electrical stimulation." Dorland's, supra note 25, at 576-77.

30 Nonsteroidal anti-inflammatory drugs. Dorland's, supra note 25, at 1236.

31 Radiculopathy is "[a] disease of the nerve roots." Dorland's, supra note 25, at 1511.

Plaintiff claims that in connection with his April 30, 2008 transfer to Upstate, defendants Ritter, Davis, and Albright knowingly disregarded a medical hold that limited his travel time to two hours. (See id. Ex. C ("should not travel long distance[s] for more than 2 hrs")). He further documents the presence of such a hold in his medical file for periods preceding and overlapping the time when he was transported by bus to Upstate. (See id. Ex. C, at 380 & Ex. D, at Ex. A, Medical Work Status Assignment, Jan. 22, 2007).³² Plaintiff's transfer to Upstate took approximately fourteen hours, during which time plaintiff claims that he "had to go through hell and severe[] and excruciating pain" -- he describes the trip succinctly as a "nightmare." (Id. at 5, 7). Once he arrived at Upstate, he had to be taken to the hospital for treatment of his pain and "mental anguish." (Id. at 7).³³ In his deposition, plaintiff testified that the trip had "exacerbated his condition." (Defs.' Mem. 26 & Ex. D).

32 We note that this documentation contradicts the finding of the IGRC that no such medical hold could be found. (See Reznik Decl. Ex. C).

33 No records of this medical visit are provided.

Defendants argue that plaintiff fails to meet both the objective and the subjective elements of an Eight Amendment claim against all three named defendants -- Ritter, David, and Albright. (Defs.' Mem. 24). They argue that plaintiff has had back problems since 2001 -- which he admits -- and that he has submitted no evidence that the trip to Upstate either injured him or "exacerbated" his existing condition. (Defs.' Mem. 25). Defendants also argue that there is no evidence that Ritter, Davis, and Albright knew that plaintiff faced a substantial risk of serious harm that they disregarded, and that Ritter and David were not personally involved in the alleged violation because they were not involved in the decision to transfer plaintiff to Upstate. (Defs.' Mem. 26-30 (citing Decl. of Theresa Knapp-David in Supp. of Defs.' Mot. for Summ. J. ("David Decl.") ¶ 7; Decl. of Elizabeth Ann Ritter in Supp. of Defs.' Mot. for Summ. J. ("Ritter Decl.") ¶¶ 8-9)).

1. Plaintiff's Eighth Amendment Claim: The Objective Component

Depending on the circumstances, severe back pain can rise to the level of a "serious medical condition." Flemming v. City of N.Y., 2009 WL 3174060, at *8 & n.9 (E.D.N.Y. Sept. 30, 2009); Williams v. Smith, 2009 WL 2431948, at *9 (S.D.N.Y. Aug. 10, 2009) (gathering cases); Morrison v. Mamis, 2008 WL 5451639, at *8 (S.D.N.Y. Dec. 18, 2008) (finding in summary-judgment analysis that a reasonable factfinder could consider plaintiff's diagnosed condition of degenerative disc disease a "serious medical need"); Nelson v. Rodas, 2002 WL 31075804, at *14 (S.D.N.Y. Sept. 17, 2002) (holding that "severe back pain, especially if lasting an extended period of time, can amount to a 'serious medical need' under the Eighth Amendment" but finding that plaintiff's allegations of "back spasms" without descriptions of the intensity or duration of the pain did not demonstrate such a condition); cf. Gillespie v. N.Y. State Dep't of Corr. Servs., 2010 WL 1006634, at *5 (N.D.N.Y. Feb. 22, 2010) (finding that it was "extremely questionable" that plaintiff had alleged that his "degenerative osteoarthritis of his lower back" constituted a serious medical condition where medical records documented that, over a three-year period, plaintiff "periodically" claimed to suffer pain described as "intermittent," "chronic," "increasing;" plaintiff had only once described his pain as "severe" and never used adjectives such as "extreme," "excruciating," or "unbearable"); Phillips v. Goord, 2009 WL 909593, at *6 (W.D.N.Y. Apr. 1, 2009) (complaint of "chronic" back pain without more insufficient to find a serious medical condition); Jackson v. Fairchild, 2007 WL 778133, at *2 (N.D.N.Y. Mar. 12, 2007) (finding that plaintiff did not raise an issue of fact regarding alleged severe medical impairment based on back and knee pain when he only complained about his back pain three times over the relevant period and did not request pain medication "beyond simple Ibuprofen and similar over-the-counter medications").

In this case, plaintiff claims that his transfer to Upstate, in violation of his operative medical hold, caused him "severe[] and excruciating pain" and exacerbated his existing condition. (Pl.'s Opp'n Point II(D) 5, 7; Compl. ¶ 57). Plaintiff also alleges that he was unable to sit for an extended period during the drive because of the pain, and was threatened repeatedly with a misbehavior report for standing even though "he was unable to bear the pain and had to stand for a significant period of time" including while the vehicle was moving. (Compl. ¶ 57). He states that his back condition has been well-documented, such that evidence of a "substantial risk" to his health was "longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official[s] . . . had been exposed to" that information and thus "must have known about it." (Pl.'s Mem. Part II(D) 2-3 (quoting Farmer, 511 U.S. at 842)).

In his deposition -- which occurred on December 23, 2010, almost two years and eight months after the transfer -- plaintiff testified that he had an underlying back condition and asserted that the trip had "added on to it." (Reznik Decl. Ex. D, at 64:7-9). He reported that he was "healing slowly" and that he would eventually "be all right." (Id. at 65:5-25). He explained that when he had arrived at Upstate, he was immediately taken to "the medical" and provided with muscle relaxers and "the medication that [he] was really prescribed through the admin." (Id. at 66:2-10). Plaintiff also admitted that it was not a life-threatening situation. (Id. at 66:14-15). As far as on-going treatment, plaintiff explained that he received physical therapy "recently last year" but that the physical therapy had stopped to allow him to pursue alternative treatment "avenues." (Id. at 66:17-24). He does not elaborate as to what those may be.

Defendants principally argue that plaintiff fails to show that he was injured during, or had an existing injury exacerbated by, the transfer. (See Defs.' Mem. 25-26). However, a showing of a new injury or exacerbation of an existing injury is not necessary to sustain an Eighth Amendment claim -- plaintiff can instead demonstrate that he experienced pain and suffering as a result of defendants' deliberate indifference. See Stevens, 535 F. Supp.2d at 384 (citing McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004)) (holding that "a defendant's act of deliberate indifference may form the basis of an Eighth Amendment claim based on a plaintiff's pain and suffering, even when the severity of a plaintiff's condition is not necessarily worsened by the act"). Defendants do not directly address plaintiff's testimony regarding the severe pain that he suffered during that transfer, and do not deny that plaintiff required immediate medical attention upon his arrival at Upstate. (See Defs.' Mem. 25).

Resolving all ambiguities in favor of plaintiff, we find that a factfinder could consider the severe pain that plaintiff experienced during his transfer to Upstate to rise to the level of a "serious medical need." Cf. Abdul-Matiyn v. Pataki, 2008 WL 974409, at *9 (N.D.N.Y. Apr. 8, 2008) (finding on motion to dismiss that plaintiff alleged a serious medical condition when he (1) claimed that he had a history of back pain; (2) on the date in issue, the back pain he was experiencing was so severe that it was "making it almost impossible to walk" and was not addressed for three-and-one-half hours; (3) plaintiff also alleged chest pain; and (4) the combination of pain had him "twisted over in a bending position" and made him cry).

2. Plaintiff's Eighth Amendment Claim: The Subjective Component

There remains the question of whether there is a triable issue regarding the subjective component of the deliberate-indifference test. In defendants' motion, they argue principally that two of the three defendants -- Ritter and David -- had no involvement in the decision to transfer plaintiff. (See Defs.' Mem. 25-30). If this is true, these defendants would not have harbored the requisite state of mind to expose them to liability. More generally, defendants may be heard to argue that even if one of the defendants -- impliedly Ms. Albright -- knew of the medical hold and ignored it while authorizing the fourteen-hour trip, she could not be deemed to have been deliberately indifferent to plaintiff's condition and the cited medical documentation stating that he should not be bused more than two hours. Finally, they also argue that plaintiff has not presented any evidence beyond "conclusory allegations" demonstrating that all three of the named defendants had knowledge of his medical issues that they allegedly disregarded in transferring him to Upstate. (Id. at 26).

To assess these questions, we separately address the record with respect to each of these three defendants. We conclude that if the exhaustion defense does not bar the claim at this stage, summary judgment should be denied with respect to defendant Albright and granted with respect to defendants Ritter and David.

i. Albright

Plaintiff claims that Nurse Administrator Albright knew of his medical condition and travel restrictions because she had arranged for him to appear remotely at a certain proceeding based on his back condition in a civil case that he had filed in the New York State Court of Claims. (Pl.'s Opp'n "POINT III PERSONAL INVOLVEMENT" ("Point III") 2 & Ex. D). He asserts that she received all court correspondence regarding the remote appearance, and was involved in scheduling his appearance at the Regional Medical Unit. (Id. at 2). Plaintiff also suggests more generally that because of Albright's position as Nurse Administrator, she would have been aware of plaintiff's medical condition and any related medical holds. (Id. at 2-3). To similar effect, plaintiff testified in his deposition that "they knew [he] had a bad condition." (Reznik Decl. Ex. D, at 65:4). Lastly, plaintiff claims that he attempted to inquire directly to Albright about his medical hold, as directed by Ritter, but that he received no response from her prior to his transfer. (Id. at 3).³⁴

34 Apparently plaintiff wrote a letter to Nurse Administrator N. Smith at Upstate regarding defendants' alleged disregard of his medical hold. Smith replied by letter dated May 5, 2008, explaining that plaintiff's records showed no medical hold on file and none of his medical records reflected a need for restricted travel. (Id. Ex. F). She advised him to address any medical concerns through "sick call" and "MD callouts." (Id.).

Defendants assert that plaintiff has not submitted evidence beyond "conclusory allegations" to establish that defendants, including Albright, acted with deliberate indifference, because there is no evidence that Albright (or the other named defendants) knew that plaintiff faced a substantial risk of harm or disregarded that risk. (Def.'s Mem. 25-26).

a. The Existence of an Operative Medical Hold at the Time of Plaintiff's Transfer

Based on the documentary evidence, we must assume for summary-judgment purposes that plaintiff had in place a medical hold restricting his travel time to two hours on the date that he was transferred to Upstate. (Pl.'s Mem. Point II(D) Ex C ("Medical Work Status Assignment" from Fishkill stating that plaintiff "should not travel long distance[s] for more than 2 hrs")).³⁵

35 Even though the pertinent medical hold specifically concerns plaintiff's work-related limitations, it is endorsed by Fishkill medical staff, and it would be absurd to conclude that plaintiff was medically fit to travel more than two hours for non-work-related purposes.

b. Albright's Knowledge of the Operative Medical Hold at the Time of Plaintiff's Transfer

Defendants specifically address plaintiff's attempt to demonstrate Albright's knowledge of his medical hold based on her alleged involvement in coordinating a remote court appearance for plaintiff in 2007. (Defs.' Reply Mem. 12 (citing Pl.'s Mem. Point II(D) 4)). They note that the documents that plaintiff provides, including his motion to appear remotely and the court order granting that motion (see Pl.'s Mem. Point II(D) Ex. D) do not mention Albright or at all suggest her participation in scheduling the appearance. They continue that even if plaintiff had had a medical hold in place in 2007 (presumably one that Albright knew about in connection with the remote appearance), that would not necessarily mean that she would have had knowledge that either the 2007 hold or a subsequent hold was applicable as of the transfer date. (Defs.' Reply Mem. 12).³⁶

36 We note that the hold that plaintiff submitted to the court in 2007 expired in January 2008. (See Pl.'s Mem. Ex. D, Medical Work Status Assignment, Jan. 22, 2007).

However, with respect to Albright's knowledge of the medical hold in place at the time of his transfer, plaintiff asserts that Ritter approached Albright multiple times about his medical hold and his concern that the facility officials were going to transfer him out of the facility. (Pl.'s Mem. Point III 1). During his conversations with Ritter that were apparently passed on to Albright, he "stressed to her" that he did have a medical hold in place. (Id.). Plaintiff further states that "every time" that he spoke with Ritter, "she kept referring [him] to Ms. Albright [and kept] asking [him if Albright had] contact[ed] [him] in reference to [his] medical hold." (Id. at 3). Each time he replied that Albright had not yet contacted him. (Id.). He never received a response from her, because it was "not too long after inquiring" to Ritter (and/or Albright) about his medical hold that he was transferred to Upstate. (Id.).³⁷

37 Based on this statement, we can assume that the medical hold to which plaintiff is referring would have been operative both at the time of these conversations and at the stage of his transfer, since he was transferred "not too long" after the conversations had taken place, and the relevant medical hold was to remain in effect from January 7 to July 7, 2008. (Pl.'s Mem. Point II(D) Ex. C).

We also note that, according to defendant David, it was the responsibility of the transferring facility -- Fishkill -- to specify plaintiff's "transfer considerations," including any information regarding his medical condition, when it submitted its transfer request to the Office of Classification and Movement. (David Decl. ¶ 11). Based on this information, a trier of fact could reasonably infer that Albright, as Nurse Administrator at Fishkill, was required to review plaintiff's medical file, including any pertinent medical holds, in order to provide that DOCS office with any relevant information regarding plaintiff's fitness for transfer. Thus, the trier of fact could find that she reviewed, and therefore had knowledge of, plaintiff's medical history, including his operative medical hold, at the time of his transfer.

Based on the record before us, there exists a triable issue of fact regarding whether Albright had knowledge of plaintiff's 2008 medical hold.

c. Albright's Personal Involvement in the Transfer Decision

On behalf of Albright, defendants (1) submit no affidavit or declaration; (2) do not assert any undisputed facts; and (3) do not make any specific arguments concerning her involvement, or lack thereof, in plaintiff's transfer to Upstate, or her state of mind when she participated in that decision. These omissions are glaring. Thus, defendants have not met their initial burden of affirmatively demonstrating the lack of a genuine issue of fact with respect to Albright's involvement in the transfer decision.

Resolving all reasonable inferences against the movants, we find that triable issues of fact remain that preclude summary judgment on plaintiff's Eighth Amendment claim against Albright.

ii. Ritter

Plaintiff does not demonstrate facts sufficient to raise a triable issue with respect to Ritter's involvement in the decision to transfer him to Upstate.

Defendant Ritter was Deputy Superintendent of Health at the regional medical unit at Fishkill at the time that plaintiff was transferred to Upstate. (Ritter Decl. ¶ 2). In that role, she states that she made weekly rounds in the SHU at Fishkill during which she consulted with inmates. (Id. ¶¶ 3, 6). However, she did not have her own patients or routinely examine or treat patients. (Id. ¶ 3).

Plaintiff states that Ritter "knows [him] personally" through mutual attendance at "I.L.C. meetings," and that they have spoken "numerous [] times" about his health issues. (Pl.'s Opp'n Point III 1). During one such conversation regarding his back problems, plaintiff claims, he raised his concern that he would be transferred from Fishkill in apparent violation of his medical hold. (Id.). In response, plaintiff states, Ms. Ritter suggested that he raise his concerns with the Nurse Administrator, Ms. Albright. (Id.).³⁸ Although Ritter does not recall whether she spoke with plaintiff regarding his transfer or the existence of a medical hold, she was not his direct health care provider or nurse and thus was not responsible for his direct care. (Id. ¶¶ 7-9). Plaintiff submits no evidence to the contrary. He therefore fails to raise any facts suggesting that Ms. Ritter personally acted with deliberate indifference in relation to his transfer to Upstate.

38 We note that this further supports the implication that Albright played a potential role in the transfer decision.

iii. David

Plaintiff does not demonstrate facts sufficient to raise a triable issue with respect to David's asserted deliberate indifference to his fate.

David was (and is) the Associate Commissioner of Population Management at DOCS when plaintiff was transferred to Upstate. (David Decl. ¶ 3). In that role, she is responsible for overseeing DOCS Office of Classification and Movement, Temporary Release, Program Planning and Research and for managing the inmate population. (Id.). She states that in 2008 she was not responsible for the classification or approval of transfers of any individual inmate between facilities. (Id. ¶ 7). Instead, her office conducts regularly scheduled transfer reviews at three-month intervals for eligible inmates and unscheduled transfer reviews at any other time that the facility determines that a transfer might be appropriate. (Id. ¶¶ 8-9). Classification analysts in the Office of Classification and Movement review inmates' transfer files based on an inmate's records and those received from the inmate's current correctional facility. (Id. ¶ 7).

David states that Fishkill provided her office with an unscheduled transfer review regarding plaintiff on April 17, 2008. (Id. ¶¶ 10-11). However, David states that this transfer review did not list any pertinent "transfer considerations." (Id.). It is the responsibility of the transferring facility to specify an inmate's "transfer considerations," including any information regarding an inmate's medical condition and suitability for transfer. (Id. ¶ 11). David states that she personally reviewed the transfer record, and based upon her review, plaintiff was approved for transfer to Upstate because of his "unsuitable behavior" -- namely his six-month keeplock sentence that was imposed following his Tier III hearing. (Id. ¶¶ 10, 14). Although David admits that she personally reviewed plaintiff's transfer records -- based on which review he was approved for transfer -- David cannot be said to have known or disregarded any medical condition or limitation of plaintiff's when that information, if applicable, was absent from the official transfer-review records that Fishkill had provided. (See id. Ex. A).

Plaintiff also asserts that he sent David a April 6, 2008 letter regarding his imminent transfer, to which she never responded. (Pl.'s Opp'n Point III 3 & Ex. D). In that letter, he asked not to be transferred because of his serious medical conditions, and referenced the medical hold restricting his travel time to two hours. (Id. Ex. D).

While this letter may have arguably put Ms. David on notice of plaintiff's travel restrictions, it is clear that a prison official's receipt of a letter is insufficient to impute § 1983 liability. See Goris v. Breslin, 402 F. App'x 582, 584 (2d Cir. 2010) (citing Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997)); see also Voorhees v. Goord, 2006 WL 1888638, at *5 (S.D.N.Y. Feb. 24, 2006) (collecting cases) (explaining that because "high-level DOCS officials delegate the task of reading and responding to inmate mail to subordinates . . . a letter sent to such an official often does not constitute actual notice").

Thus, plaintiff fails to raise a triable issue regarding Ms. David's personal involvement in plaintiff's transfer to Upstate.

V. The Official-Capacity Issue

The foregoing analysis justifies entry of summary judgment for defendants on all claims (except to the extent that rejection of the exhaustion defense would leave the Eighth Amendment claim pending against Ms. Albright). We nonetheless' briefly address one additional argument by which defendants seek to invoke Eleventh Amendment immunity for some, or the entirety, of the plaintiff's claims.

As noted, plaintiff purports to sue each of the defendants in both their individual and their official capacities. Defendants respond by arguing that insofar as he sues them in their official capacities, the claims are barred by the Eleventh Amendment. (Defs.' Mem. 30). In this respect they are correct. A suit against a government official, if pursued against him in his official capacity, is in substance a suit against his employer -- in this case the State -- and is barred by Eleventh Amendment immunity absent waiver by Congress. See, e.g., Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989) (suit against state official in his official capacity is, in reality, suit against official's office and thus is no different from suit against State itself); Kentucky v. Graham, 473 U.S. 159, 169 (1985); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-02 (1984). Congress did not waive such state immunity by its enactment of section 1983. Will, 491 U.S. at 69-71. Hence, plaintiff's official-capacity claims, for which he seeks only damages, are barred.³⁹

39 We note a point of possible confusion in defendants' briefing of this issue. The title of the Eleventh Amendment section of their memorandum of law appears to make a different point, stating "DEFENDANTS ARE ENTITLED TO 11^TH AMENDMENT IMMUNITY FOR ANY CLAIMS AGAINST THEM FOR MONEY DAMAGES FOR ACTIONS TAKEN IN THEIR OFFICIAL CAPACITIES." (Defs.' Mem. 30). This is plainly incorrect. As noted, a claim for damages asserted against a state employee in his "official capacity" is deemed to be a claim against the state and hence barred by Eleventh Amendment immunity. If, however, the plaintiff asserts a claim for damages against a state employee in his individual capacity, it is not subject to such an immunity defense. See, e.g., Hafer v. Melo, 502 U.S. 21, 27-31 (1991). A claim for damages against a state, county or municipal employee will be viewed as one asserted against him in his individual capacity if it is the plaintiff's intent -- as manifested in the pleading or otherwise -- to seek the relief directly from that individual rather than from the employing government or agency. See, e.g., Davis v. New York, 316 F.3d 93, 101-02 (2d Cir. 2002) (citing Hafer, 502 U.S. at 27-31); Huang v. Johnson, 251 F.3d 65, 70 (2d Cir. 2001); Rodriguez v. Phillips, 66 F.3d 470, 481-82 (2d Cir. 1995); accord, e.g., Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). To assert a section 1983 claim against a government employee in his individual capacity, the plaintiff must allege (and ultimately prove) that the defendant was acting "under color of state law," that is, that he was exercising in some way the power of his office. Graham, 473 U.S. at 166 (citing Monroe v. Pape, 365 U.S. 167 (1961)). Necessarily, then, to state such a claim the plaintiff must in fact allege action by the individual defendant as a government employee or official, that is, action by him in his official capacity. See, e.g., id.; see also West v. Atkins, 487 U.S. 42, 48-50 (1988); Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006). If a claim against a state employee based on such conduct by him were barred by the Eleventh Amendment, then no claims could ever be asserted for constitutional torts committed by state agents. That is of course not the law. Cf. Hodge v. Sidorowicz, 2011 WL 1226280, at *4 (S.D.N.Y. Mar. 24, 2011). Hence even if plaintiff alleges that the defendants were acting in their official capacity, his pleading does not justify invocation of the Eleventh Amendment on that basis. --------

CONCLUSION

For the reasons stated, we recommend that defendants' motion for summary judgment be granted.

Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have fourteen days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Paul A. Crotty, Room 735, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York 10007. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e). Dated: New York, New York

April 9, 2012

RESPECTFULLY SUBMITTED,

/s/_________

MICHAEL H. DOLINGER

UNITED STATES MAGISTRATE JUDGE Copies of the foregoing Report and Recommendation have been mailed this date to: Mr. Bernard Thomas
#99-A-2204
Woodbourne Correctional Facility
99 Prison Road
P.O. Box 1000
Woodbourne, New York 12788-1000 Inna Reznik, Esq.
Assistant Attorney General

for the State of New York
120 Broadway, 24^th Floor
New York, New York 10271