# Johnson v. Owens

> District Court, N.D. New York · March 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10314717

## Case

- **Court:** District Court, N.D. New York
- **Decided:** March 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10314717

## How later opinions describe it (automated extraction)

- noting that under “normal” SHU conditions, a 101-day confinement in SHU does not implicate a liberty interest

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
SHAKEIM JOHNSON,
Plaintiff,
-against- 9:20-CV-0982 (LEK/CFH)
ROBERT OWENS, et al.,
Defendant.

MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Shakeim Jonson (“Plaintiff”) commenced this action on August 24, 2020, alleging claims
stemming from an incident that occurred while Plaintiff was incarcerated at Great Meadow
Correctional Facility. See Dkt. No. 1 (“Complaint”). After initially ordering administrative

closure due to Plaintiff’s failure to comply with the filing fee requirement, Dkt. No. 2, the Court
granted Plaintiff’s motion to proceed in forma pauperis and reviewed his Complaint as required
under 28 U.S.C. §§ 1915(e) and 1915A, Dkt. No. 6. The Court dismissed several of Plaintiff’s
claims but allowed others to proceed. Id. Plaintiff subsequently requested to file an amended
complaint as a matter of right. Dkt. No. 18. However, after retaining Counsel, Plaintiff withdrew
his request and the parties stipulated to Plaintiff filing a second amended complaint. Dkt. No. 26.
Plaintiff’s second amended complaint was filed on April 10, 2021. Dkt. No. 29 (“Second
Amended Complaint”).
Now before the Court are two motions filed by Defendants. The first was filed by
Correctional Officer Adam Ederley and Lieutenant Robert Owens. Dkt. Nos. 31 (“Ederley &

Owens Motion”), 31-1 (“Ederley & Owens Memorandum of Law”), 31-3 (“Ederley & Owens
Statement of Material Facts”). The second was filed by Acting Commissioner Anthony Annucci
and Superintendent Christopher Miller. Dkt. Nos. 44 (“Annucci & Miller Motion”), 44-1
(“Annucci & Miller Memorandum of Law”), 44-2 (“Annucci & Miller Statement of Material
Facts”). Each motion was filed in lieu of an answer, seeking summary judgement for failure to

exhaust administrative remedies, or, in the alternative, dismissal of Plaintiff’s claims under Rule
12(b)(6) of the Federal Rules of Civil Procedure. See generally Ederley & Owens Mem. of L.;
Annucci & Miller Mem. of L. Plaintiff has filed a response, Dkt. Nos. 45 (“Response”), 45-5
(“Response Memorandum of Law”),1 45-2 pages 1–3 (“Plaintiff’s Response to Defendants’
Statement of Material Facts”), 45-2 pages 3–4 (“Plaintiff’s Statement of Material Facts”), and
Ederley and Owens have filed a reply, Dkt. No. 46 (“Reply”).
For the reasons that follow, Defendants’ motions for summary judgement are denied,
Annucci and Miller’s motion to dismiss is granted, and Ederley and Owens’ motion to dismiss is
granted with regard to Plaintiff’s claims for due process violations and intentional infliction of
emotional distress, but is otherwise denied.

II. BACKGROUND

A. Facts Relating to Plaintiff’s Claims
Because Defendants seeks dismissal of Plaintiff’s claims under Rule 12(b)(6), the Court
assumes all factual allegations contained in the Complaint are true as they relate to Plaintiff’s
claims. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 76 (2d Cir. 2015).

1 While it is somewhat ambiguous which motion(s) Plaintiff is responding to, he
explicitly argues that certain claims should not be dismissed against any of the four defendants.
See Resp. at 6. As such, the Court will interpret Plaintiff’s filing as a response to both of
Defendants’ motions.
On August 25, 2020, at about 8:00 PM, Plaintiff—then an inmate at Great Meadow
Correctional Facility—was using the telephone in the facility’s “Big Yard.” Sec. Am. Compl. ¶
9. Three corrections officers ordered him to hang up the phone and escorted him to another area
of the facility where Owens awaited. Id. Plaintiff was strip searched and his cell was also

searched but no contraband was found. Id. ¶¶ 10–11. Defendant Owens then ordered the
corrections officers to place Plaintiff in a contraband observation room. Id. ¶ 12. Once in the
observation room, Plaintiff was not allowed to wear anything except for a paper gown and was
watched by corrections officers 24 hours a day. Id. ¶¶ 13–14.
Defendant Owens ordered that Plaintiff be deprived of food and water. Id. ¶ 15. After five
days of such deprivation, Plaintiff, suffering from extreme dehydration and nutrient deprivation,
lost consciousness and was taken to a hospital emergency room. Id. When Plaintiff was returned
to Great Meadow, he was again placed in the observation room and was not provided with food
or water until the following day. Id. ¶ 16.
When Plaintiff finally received food, he was not allowed to wash his hands prior to

eating, despite the fact that there was fecal matter smeared on the walls of the room. Id. ¶ 18.
Plaintiff is a devout Rastafarian and follows Christian dietary laws that require the washing of
one’s hand prior to consuming food. Id. ¶ 17. Plaintiff was only allowed to use the bathroom
approximately 8 times during his detention in the observation room and was never allowed to
wash his hands. Id. ¶ 19.
On or about September 3, 2019, Plaintiff was moved to a different observation room and
was subjected to X-rays, which showed that there was no contraband inside of him. Id. ¶ 20.
However, on September 5, 2019, Plaintiff was issued misbehavior reports by Owens and
Ederley. Id. ¶ 21. Ederley’s report claimed that contraband was discovered in the observation
room after Plaintiff had been moved to a different room. Id. ¶ 22. Owens’ report claimed that
Owens was now able to identify Plaintiff as having been involved in a drug exchange 8 months
earlier. Id. ¶ 23. Despite a lack of evidence, a superintendent’s designee found Plaintiff guilty of
violating facility rules based on the two reports. Id. ¶ 24.

B. Facts Relating to Procedural Exhaustion
Because Defendants seek summary judgement based on failure to exhaust administrative
remedies, the Court here considers facts that are undisputed except where otherwise noted.
On October 1, 2019, Plaintiff was transferred to Five Points correctional facility via
Downstate Correctional Facility, arriving at Five Points on October 3, 2019. Def.s’ SMF ¶ 9;
Pl.’s Resp. to Def.s’ SMF ¶ 9. Plaintiff remained at Five Points until December 24, 2019, when
he was transferred to Attica Correctional Facility. Def.s’ SMF ¶ 9; Pl.’s Resp. to Def.s’ SMF ¶ 9.
Plaintiff attended an orientation program at Great Meadow that included instructions on
how to use the inmate grievance process from February 5, 2018, to February 11, 2018. Def.s’
SMF ¶ 11; Pl.’s Resp. to Def.s’ SMF ¶ 11. However, Plaintiff contends that he was told that he

was not required to file a grievance for “any complaint where the facility could not provide a
[sic] relief.” Dkt. No. 45-3 ¶ 6; see also Pl.’s SMF ¶ 3. Defendants contend that “during all
relevant times, Great Meadow, Downstate, and Five Points had fully functioning inmate
grievance processes available to incarcerated individuals,” Def.s’ SMF ¶ 10, and that Plaintiff
never filed any grievance related to the claims at issue in this case at Great Meadow, Downstate,
or Five Points, nor filed any extension request or appeal related to those claims, Id. ¶¶ 12–22.
However, Plaintiff disputes these assertions, stating that on September 9, 2019, while still at
Great Meadow, he “handwrote two identical letters to the Inmate Grievance Unit and complained
about being deprived of food, water and other essentials.” Pl.’s SMF ¶ 3. Plaintiff further attests
that he placed that grievance “in an envelope addressed to the Inmate Grievance Unit and placed
it on his cell gate, per facility policy, for the correction officer to take and place in the mailbox.”
Id. ¶ 4. Plaintiff states that he repeated this process on September 20, 2019, and that he also
submitted grievances while at Downstate Correctional Facility. Id. ¶¶ 5–6. Finally, Plaintiff

contends that he wrote a letter to the Commissioner of Corrections complaining that he never
received a response to the grievances he filed at Great Meadow.2 Id. ¶ 4.
III. LEGAL STANDARD
A. Summary Judgement
Federal Rule of Civil Procedure 56 instructs courts to grant summary judgment if “there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under
the governing law,” and a dispute is “‘genuine’ . . . if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). Thus, while “[f]actual disputes that are irrelevant or unnecessary” will not preclude

summary judgment, “summary judgment will not lie if . . . the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d
43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the
nonmoving party should summary judgment be granted.”).
The party seeking summary judgment bears the burden of informing the court of the basis
for the motion and identifying those portions of the record that the moving party claims will
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

2 Plaintiff refers to “Comstock Correctional Facility.” However, based on Dkt. No. 45-3
at 8, it is clear that Plaintiff intends to refer to Great Meadow Correctional Facility, which is
located in Comstock, New York.
317, 323 (1986). Similarly, a party is entitled to summary judgment when the nonmoving party
has failed “to establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Id. at 322.
In attempting to repel a motion for summary judgment after the moving party has met its

initial burden, the nonmoving party “must 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). At the same time, a court must resolve all ambiguities and draw all
reasonable inferences in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 150 (2000). Thus, a court’s duty in reviewing a motion for summary
judgment is “carefully limited” to finding genuine disputes of fact, “not to deciding them.” Gallo
v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
“‘Although a motion for summary judgment may be filed at any time until 30 days after
the close of all discovery, Fed. R. Civ. P. 56(b), summary judgment is generally not appropriate
until after some discovery has occurred.’ . . . ‘[O]nly in the rarest of cases may summary

judgment be granted against a plaintiff who has not been afforded the opportunity to conduct
discovery.’” James v. Mosko, No. 13-CV-5, 2016 WL 8671478, at *4 (W.D.N.Y. July 22, 2016),
report and recommendation adopted, 2017 WL 397474 (W.D.N.Y. Jan. 30, 2017) (quoting
Houston v. Sheahan, No. 13-CV-6594, 2016 WL 554849, at *1 (W.D.N.Y. Feb. 10, 2016), and
then quoting Hellstrom v. U.S. Dep’t of Veterans Affs., 201 F.3d 94, 97 (2d Cir. 2000)).
B. Motion to Dismiss
To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a “complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court must accept
as true the factual allegations contained in a complaint and draw all inferences in favor of the
plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006). Plausibility, however,
requires “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of

[the alleged misconduct].” Twombly, 550 U.S. at 556. The plausibility standard “asks for more
than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct.
1937 (citing Twombly, 550 U.S. at 556). “[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555). Where a court is
unable to infer more than the mere possibility of the alleged misconduct based on the pleaded
facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to
dismissal. See id. at 678–79.
IV. DISCUSSION
A. Summary Judgement

1. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) requires that incarcerated individuals
exhaust available administrative remedies before bringing a court action challenging prison
conditions under federal law. See 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516,
532 (2002) (“[T]he PLRA’s exhaustion requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular episodes.”). Defendants explain the
established inmate grievance programs that exist at the facilities in which Plaintiff was
incarcerated and argue that Plaintiff failed to utilize those procedures. See Ederley & Owens
Mem. of L. at 5–9; Annucci & Miller Mem. of L. at 8–10. In particular, Defendants note that
incarcerated individuals confined in a New York State Department of Corrections and
Community Supervision (“DOCCS”) facility must properly exhaust three levels of review
including (1) filing a grievance with the Inmate Grievance Program clerk at his or her
correctional facility, (2) appealing any unfavorable ruling to the facility superintendent, and (3)

appealing any adverse superintendent decision to the Central Office Review Committee. Ederley
& Owens Mem. of L. at 5–7.
Plaintiff responds that while he may not have completed each step of the three-step
review process, he exhausted the grievance process to the extent it was available. See Resp.
Mem. of L. at 3–4. He alleges that he attempted multiple times to file grievances, but that they
were apparently never delivered. Pl’s SMF ¶¶ 3–7. He further seeks to present evidence that his
grievances were systematically destroyed. See Resp. Mem. of L. at 4; Dkt. No 45-4.
Because Plaintiff has not yet had an opportunity to conduct discovery to support his
exhaustion theory, the Court finds Defendants’ request for summary judgment premature.
“[O]nly in the rarest of cases may summary judgment be granted against a plaintiff who has not

been afforded the opportunity to conduct discovery,” Hellstrom, 201 F.3d at 97, and this is not
the rarest of cases, see Young-Flynn v. Wright, No. 05-CV-1488, 2007 WL 241332, at *13
(S.D.N.Y. Jan. 26, 2007) (finding summary judgement premature even where the “Court ha[d]
some doubt that Plaintiff’s only described efforts toward exhaustion could ultimately be found
sufficient to overcome the exhaustion requirement” because discovery had not yet been
conducted); James, 2016 WL 8671478, at *4 (finding defendants’ summary judgment motion
premature for lack of discovery); Blackhawk v. Hughes, No. 920-CV-0241, 2021 WL 862257, at
*4 (N.D.N.Y. Jan. 19, 2021) (denying motion for summary judgement and noting that while
exhaustion of administrative remedies is a question of law, and hence appropriate for
consideration on a motion for summary judgement in lieu of an answer, “[o]nly in the rarest of
cases may summary judgment be granted against a plaintiff who has not been afforded the
opportunity to conduct discovery”) (quoting Hellstrom, 201 F.3d at 97), report and
recommendation adopted, 2021 WL 752838 (N.D.N.Y. Feb. 26, 2021) (Kahn, J.).

B. Motion to Dismiss
1. Intentional Infliction of Emotional Distress
In order to state a claim for intentional infliction of emotional distress (“IIED”) a Plaintiff
must allege four elements: “(1) extreme and outrageous conduct, (2) intent to cause severe
emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe
emotional distress.” Bender v. City of New York, 78 F.3d 787, 790 (2d Cir.1996). Defendants
raise several arguments in support of their motion to dismiss Plaintiff’s claim for IIED. First,
Defendants argue that “[i]t is well-settled that public policy bars claims sounding in intentional
infliction of emotional distress against a government entity.” Ederley & Owens Mem. of L. at 10;
Annucci & Miller Mem. of L. at 16–17. However, as Plaintiff points out in his Response, this

argument is irrelevant because Plaintiff has brought his claim against government employees and
not a government entity. Resp. Mem. of L. at 6.
Next, Defendants argue that the claim is untimely because the Second Amended
Complaint was filed after the one-year statute of limitations for intentional torts had expired.
Ederley & Owens Mem. of L. at 11; Annucci & Miller Mem. of L. at 17. This argument too is
unavailing because the Second Amended Complaint relates back to the original complaint, which
was filed within the statutory window. “For an amended complaint to ‘relate back’ to an original
complaint under Rule 15(c)(1)(C), it must meet four criteria: (i) any new claim ‘must have arisen
out of conduct set out in the original pleading’; (ii) any newly named defendant ‘must have
received such notice that it will not be prejudiced in maintaining its defense’; (iii) any newly
named defendant must have known that ‘but for a mistake of identity, the original action would
have been brought against [him]’; and (iv) ‘the second and third criteria [must be] fulfilled
within [the period provided by Rule 4(m) for serving the summons and complaint], and . . . the

original complaint [must have been] filed within the limitations period.’” Liverpool v. Davis, 442
F. Supp. 3d 714, 725 (S.D.N.Y. 2020) (quoting Barrow v. Wethersfield Police Dept., 66 F.3d
466, 468–69 (2d Cir. 1995). Here, only the first criterion is relevant—as the same four
defendants were named in the original complaint—and there is no question that the IIED claim
arises from the same conduct set out in the original pleading, namely Plaintiff’s deprivation of
food and water for five days. See generally Compl; Sec. Am. Compl. As such, the Second
Amended Complaint relates back to the original complaint and the IIED claim is not untimely.
Finally, Defendants contend that Plaintiff’s claim should be dismissed on the merits
because “Plaintiff failed to meet the extremely high threshold established under New York law
for maintenance of an intentional infliction of emotional distress claim . . . [and] fail[ed] to

articulate Defendants’ intent to cause severe emotional distress.” Ederley & Owens Mem. of L.
at 11; Annucci & Miller Mem. of L. at 18. While depriving Plaintiff of food and water for five
days may well qualify as extreme and outrageous conduct under New York Law, Defendants are
correct that Plaintiff has failed to allege Defendants acted with intent to cause severe emotional
distress. See generally Sec Am. Compl. Because courts require this element of an IIED claim to
be explicitly articulated, Plaintiff’s claim must be dismissed.3 See, e.g., Ortiz v. Lasker, 590 F.

3 The Court notes that, while Defendants failed to raise the issue, even if Plaintiff had
alleged intent or had attempted to state a claim for negligent infliction of emotional distress
rather than IIED, his claim would be barred by New York Correction Law § 24. New York
Correction Law § 24 deprives both state and federal courts of jurisdiction over state law claims
Supp. 2d 423, 425–26 (W.D.N.Y. 2008) (declining to enter default judgement on IIED claim
based on forcible rape because Plaintiff failed to allege intent to cause severe emotional distress).
2. Free Exercise
“To state a First Amendment Free Exercise claim, a plaintiff must allege that (1) the

practice asserted is religious in the person’s scheme of beliefs, and that the belief is sincerely
held; (2) the challenged practice of the prison officials infringes upon the religious belief; and (3)
the challenged practice of the prison officials does not further some legitimate penological
objective.” Burroughs v. Mitchell, 325 F. Supp. 3d 249, 279 (N.D.N.Y. 2018). “A prisoner ‘must
show at the threshold that the disputed conduct substantially burdens his sincerely held religious
beliefs.’” Id. (quoting Salahuddin v. Goord, 467 F.3d 263, 274–75 (2d Cir. 2006)). “A religious
belief is ‘sincerely held’ when the plaintiff subjectively, sincerely holds a particular belief that is
religious in nature.” Id. “A prisoner’s sincerely held religious belief is ‘substantially burdened’
where ‘the state puts substantial pressure on an adherent to modify his behavior and to violate his
beliefs.’” Id. at 280 (quoting Jolly v. Coughlin, 76 F.3d 468, 476–77 (2d Cir.1996)).

Here Plaintiff alleges that he is Rastafarian, that his religion requires him to wash his
hands before and after eating, and that he was prevented from doing so from the time he returned
from the hospital until the time he was removed from the observation room on September 3,
2019. See Sec. Am. Compl. ¶¶ 17–19. Defendants argue that Plaintiff’s Second Amended
Complaint “lacks allegations specifying the nature of Plaintiff’s religious beliefs and thus fails to
plausibly suggest that those beliefs were ‘sincerely held’ or ‘substantially burdened.’” Ederley &
Owens Mem. of L. at 12; Annucci & Miller Mem. of L. at 19. They further contend that

for money damages against DOCCS employees arising from conduct within the scope of their
employment. See, e.g., Flint v. Jun, 541 F. Supp. 3d 284, 287 (W.D.N.Y. 2021).
“Plaintiff has not pled facts related to how many times he was prevented from washing his hands
or facts suggesting that the interference was anything other than de minimis.” Ederley & Owens
Mem. of L. at 12; Annucci & Miller Mem. of L. at 19. Finally, Ederley and Owens point to Sassi
v. Dutchess Cnty., No. 16-CV-1450, 2017 WL 4773320 (N.D.N.Y. Oct. 20, 2017), a case in

which the plaintiff was denied access to a Bible for a week, to argue that “Plaintiff was not
forced to alter or abandon his religious affiliation or practice at any time.” Ederley & Owens
Mem. of L. at 12.
Defendants’ arguments fail to address Plaintiff’s actual allegations. Plaintiff has clearly
articulated the nature of his belief: “Plaintiff was and is currently a devote [sic] Rastafarian
which follow the Christian dietary laws. Under these laws washing one’s hands is required
before and after consuming food.” Sec. Am. Compl. ¶ 17. This is sufficient to plausibly suggest
that Plaintiff’s beliefs are sincerely held and religious in nature. While Defendants are correct
that Plaintiff has not specified the precise number of times he was prevented from washing his
hands, he has alleged that he was not allowed to wash his hands during the several day period

between his return from the hospital and his removal from the observation room. See id. ¶¶ 9,
15–20. Contrary to Defendants’ assertions, Plaintiff has alleged that he was forced to alter or
abandon his religious practice. Specifically, he has alleged that, after being denied food for five
days, he was provided with food but denied the opportunity to wash his hands. See id. ¶¶ 15–20.
At this stage, the Court is unable to assess either the sincerity of Plaintiff’s belief or the belief’s
importance within Plaintiff’s belief system. Nonetheless, Plaintiff has pled sufficient facts to
render plausible his free exercise claim and Defendants’ motions to dismiss must be denied. See
Lloyd v. City of New York, 43 F. Supp. 3d 254, 264 (S.D.N.Y. 2014) (“I cannot say on a motion
to dismiss for failure to state a claim that the inability of a Muslim to . . . engage in ritual
ablution prior to prayer[] does not rise to the level of a substantial burden on the free exercise of
religion.”); cf. Tafari v. Annets, No. 06-CV-11360, 2008 WL 2413995, at *15–17 (S.D.N.Y.
June 12, 2008) (finding that occasional denials of kosher bag lunches during transport were a de
minimis and not a substantial interference with free exercise of religion and collecting similar

cases), report and recommendation adopted, 2008 WL 4449372 (S.D.N.Y. Oct. 2, 2008), aff’d
sub nom. Tafari v. Annetts, 363 F. App’x 80 (2d Cir. 2010).
3. Due Process
Plaintiff seeks to raise a due process claim based on false misbehavior reports and prison
disciplinary decisions allegedly made without sufficient evidence. See Sec. Am. Compl. at 7–9.
“The Second Circuit has held that the issuance of false misbehavior reports against an inmate by
corrections officers is insufficient on its own to establish a denial of due process.” Sital v.
Burgio, 592 F. Supp. 2d 355, 357 (W.D.N.Y. 2009). “Rather, to maintain an actionable claim
against correction officers for filing a false misbehavior report, a plaintiff must be able to show
either: (1) that he was disciplined without adequate due process, as a result of the report; or (2)

that the report was issued in retaliation for exercising a constitutionally protected right.” Id.
Here, Plaintiff does not contend that he faced retaliation for exercising a constitutionally
protected right. See generally Sec. Am. Compl. To the extent Plaintiff contends that he was
disciplined without adequate due process, he must demonstrate that he possessed a liberty
interest, of which he was deprived. See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004).
However, Plaintiff has failed to allege such a liberty interest. “A protected liberty interest is only
established if the deprivation imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life.” Edwards v. Mejia, No. 11-CV-9134, 2013 WL 1092978,
at *2 (S.D.N.Y. Mar. 15, 2013). Here, Plaintiff has failed to allege that he faced any punishment
at all, noting only that he was “transferred to the special housing unit where he awaited
punishment.” Sec. Am. Compl. at 57. A short stay in the special housing unit (“SHU”), without
more, does not implicate a liberty interest. See Ortiz, 380 F.3d at 654 (noting that under
“normal” SHU conditions, a 101-day confinement in SHU does not implicate a liberty interest);

Vasquez v. Coughlin, 2 F. Supp. 2d 255, 259 (N.D.N.Y. 1998) ((“[D]iscipline in SHU does not
automatically present the type of atypical, significant deprivation in which a state might
conceivably create a liberty interest.”) (internal quotation marks omitted)). As such, Plaintiff’s
due process claim must be dismissed.
4. Personal Involvement
In addition to their arguments for dismissing Plaintiff’s claims as against all defendants,
Annucci and Miller argue that they were not personally involved in Plaintiff’s constitutional
deprivations as required under 42 U.S.C. § 1983. See Annucci & Miller Mem. of L. at 11–15.
Here the Court considers Annucci and Miller’s argument with regard to Plaintiffs two surviving
claims—Cruel and Unusual Punishment and denial of Free Exercise—both of which stem from

Plaintiff’s treatment during his detention in the observation room.
Plaintiff’s only allegations against Annucci and Miller with regard to the alleged
constitutional violations that occurred during his time in the observation room are that they
“were responsible for the promulgation of policies and procedures of correction officers” and
that they “were both made aware of the above violations but failed to remedy them and actually
participated in the violations when they unlawfully affirmed the wrongful determination of the
prison disciplinary hearing.” Sec. Am. Compl. ¶¶ 3, 5. The first of these statements merely
demonstrates that Annucci and Miller played a supervisory role and is far from sufficient to
demonstrate personal involvement. See Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)
(“[T]here is no special rule for supervisory liability. Instead, a plaintiff must plead and prove
‘that each Government-official defendant, through the official’s own individual actions, has
violated the Constitution.’”) (quoting Iqbal, 556 U.S. at 676 (2009)).
While the second allegation comes closer to alleging personal involvement, it too falls

short. The allegation does not state when, how, or to what extent Annucci and Miller were made
aware of the violations. See Sec. Am. Compl. ¶ 3. Instead, Plaintiff states that Annucci and
Miller were personally involved because they “unlawfully affirmed the wrongful determination
of the prison disciplinary hearing,” id., suggesting that they became aware of the allegedly
unconstitutional conduct only after it had already occurred. While a prison official may be found
to have violated the Eighth Amendment where that official knew of and disregarded an excessive
risk to inmate health or safety, see Vega v. Semple, 963 F.3d 259, 273 (2d Cir. 2020), simply
stating that an official was, at some point, made aware of violations, without more, is not
sufficient to plausibly allege personal involvement. See, e.g., Gawlik v. Semple, No. 20-CV-564,
2021 WL 4430601, at *13 (D. Conn. Sept. 27, 2021) (“Gawlik alleges only that those defendants

were made aware of the confiscation of his religious items after the fact and failed to take action.
. . . [T]hose allegations are insufficient—in the aftermath of Tangreti—to support a claim for
money damages against supervisory officials.”). As such, Plaintiff’s claims against Annucci and
Miller are dismissed. However, the dismissal is without prejudice and does not preclude a motion
to amend if discovery reveals Annucci or Miller’s personal involvement. See Young Am.’s
Found. v. Stenger, No. 320-CV-0822, 2021 WL 3738005, at *9 (N.D.N.Y. Aug. 24, 2021)
(Kahn, J.).
C. Defendants’ Opportunity to Answer
Defendants request that the Court stay “their time to answer the Second Amended
Complaint until 14 days after a final determination is issued with respect to this motion in the
event that the action survives.” Ederley & Owens Mem. of L. at 1; Annucci & Miller Mem. of L.
at 2. Plaintiff opposes this request. Resp. ¶ 4. In general, filing a motion under Fed. R. Civ. P. 12

has the effect of delaying the responsive pleading deadline until 14 days after the Court’s
determination but filing a motion under Fed. R. Civ. P. 56 does not have the same effect. See
Cousin v. Dodrill, No. 08-CV-0848, 2010 WL 986411, at *3 n.2 (N.D.N.Y. Feb. 25, 2010),
report and recommendation adopted, 2010 WL 986405 (N.D.N.Y. Mar. 17, 2010) (Kahn, J.); see
also Fed. R. Civ. P. 12(a)(4)(A); Fed. R. Civ. P. 56. Given that Plaintiff’s motion was filed under
both Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 56, the court doubts whether Defendants’
request is necessary. Regardless, the Court finds it appropriate to allow Defendants to answer
and grants their request. See Cousin, 2010 WL 986411, at *3 n.2; Rodriguez v. Reppert, No. 14-
CV-671, 2016 WL 11483439, at *4 (W.D.N.Y. Sept. 28, 2016) (“[D]espite Rodriguez’s request
to the contrary . . . the Court will stay defendants’ time to answer the complaint until the District

Judge renders a decision on the instant motion.”), report and recommendation adopted, 2016 WL
6993383 (W.D.N.Y. Nov. 30, 2016).
D. Evidentiary Hearing
Finally, given that summary judgement has been denied, Defendants request “a limited
opportunity to depose plaintiff on the issue of exhaustion followed by an evidentiary hearing
pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011).” Ederley & Owens Mem. of L. at10.
Plaintiff does not respond to this request. In Messa, the Second Circuit held that factual disputes
regarding exhaustion under the PLRA need not be decided by a jury, and may properly be
decided by the Court following an evidentiary hearing. Messa, 652 F.3d at 310. This Court has
endorsed such an approach on several occasions. See, e.g., McLean v. LaClair, No. 919-CV-
1227, 2021 WL 671650, at *9 (N.D.N.Y. Feb. 22, 2021) (Kahn, J.) (“In order to determine
whether Plaintiff properly exhausted administrative remedies, the Court must hold a hearing, at
which a fact-finder can assess the credibility of witnesses and the relative weight of the evidence

the parties present.”); Hudson v. Kirkey, No. 920-CV-0581, 2021 WL 1966721, at *4 (N.D.N.Y.
May 17, 2021) (Kahn, J.). However, in each of those cases, as in Messa, discovery had already
been completed. As such, here the Court finds it appropriate to allow limited discovery on the
issue of exhaustion followed by an evidentiary hearing. See Bailey v. Fortier, No. 09-CV-742,
2013 WL 310306, at *1 (N.D.N.Y. Jan. 25, 2013) (“Bailey was granted limited discovery on the
issue of exhaustion, which culminated in an evidentiary hearing.”).
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendants’ motions for summary judgment (Dkt. Nos. 31, 44) are
DENIED; and it is further

ORDERED, that Annucci and Miller’s Motion to Dismiss under 12(b)(6) (Dkt. Nos. 44)
is GRANTED and all claims against Annucci and Miller are DISMISSED without prejudice;
and it is further
ORDERED, that the Clerk of the Court shall TERMINATE from the docket Defendants
Annucci and Miller; and it is further
ORDERED, that Ederley & Owens’ Motions to Dismiss under 12(b)(6) (Dkt. Nos. 31) is
GRANTED in part and DENIED in part; and it is further
ORDERED, that Plaintiff’s claims for due process violations and intentional infliction of
emotional distress are DISMISSED without prejudice; and it is further
ORDERED, that the case be referred to the Magistrate Judge for limited discovery on
the question of administrative exhaustion and an evidentiary hearing; and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED: March 30, 2021
Albany, New York
LAWRENCE E. KAHN
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10314717. Public record. Not legal advice.