Brown v. Venettozi

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JOHNNY B. BROWN,

Plaintiff,

v. No. 18-CV-2628 (KMK)

DONALD VENETTOZZI, et al., OPINION & ORDER

Defendants.

Appearances:

Johnny B. Brown

Malone, NY

Pro Se Plaintiff

Jennifer Rose Gashi, Esq.

State of New York Office of the Attorney General

White Plains, NY

Counsel for Defendants

KENNETH M. KARAS, United States District Judge:

Johnny B. Brown (“Plaintiff”), currently incarcerated at Upstate Correctional Facility,

brings this Action under 42 U.S.C. § 1983 against Donald Venettozzi (“Venettozzi”), C.O.

Crofoot (“Crofoot”), Captain Carey (“Carey”), and Commissioner’s Hearing Officer (“CHO”)

Gutwein (“Gutwein”) (collectively, “Defendants”). Plaintiff alleges that Defendants violated his

constitutional rights when they falsely accused Plaintiff of instigating a fight with another inmate

at Green Haven Correctional Facility (“Green Haven”), found Plaintiff guilty of the offense at a

subsequent disciplinary hearing, and directed Plaintiff to be sent to a Special Housing Unit

(“SHU”) for 210 days. (See Compl. 1, 5–6 (Dkt. No. 2).) Before the Court is Defendants’

Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (See

Not. of Mot. (Dkt. No. 28).) For the reasons stated herein, the Motion is granted.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff’s Complaint and exhibits referenced therein

and are taken as true for the purpose of resolving the instant Motion.1

Plaintiff alleges that he was falsely accused of causing a violent incident against another

inmate named Hendricks. (Compl. 2–3.)2 The incident occurred on March 29, 2015 in the A&B

Yard in Green Haven. (Id.) Following the incident, Defendant Crofoot and another, non-party

correction officer allegedly filed false inmate misbehavior reports against Plaintiff. (Id.) The

first misbehavior report, filed by Crofoot, accused Plaintiff of fighting Hendricks and creating a

disturbance, and the second, filed by the non-party correction officer, accused Plaintiff of

carrying a weapon. (Id. at 2.) Both reports were served on Plaintiff on April 1, 2015. (See

Compl. Exs. 5.) Plaintiff alleges that, although Hendricks was attacked with a weapon during

the incident in question, Plaintiff did not commit “the charged conduct.” (Compl. 3.)

Subsequently, Plaintiff was subject to a disciplinary hearing, which began on April 7,

2015. (Id.) Plaintiff was provided with an assistant, and they met to discuss the hearing on April

2, 2015. (See Compl. 3; Compl. Exs. 6.) Plaintiff informed his assistant that he wanted to call

four inmate witnesses. (Compl. 3.) Three of them testified at the hearing; the fourth did not

1 Plaintiff did not file the exhibits he cited in the Complaint with the Complaint.

Defendants later asked Plaintiff to send them a copy of the exhibits. Plaintiff sent Defendants a

letter with the relevant attachments, and Defendants subsequently filed them with the Court.

(See Letter from Jennifer Gashi, Esq. to Court (“Compl. Exs.”) (Dkt. No. 26).)

2 To avoid confusion, the Court cites to the ECF-generated page numbers at the top right

corner of the relevant page throughout the Opinion.

agree to testify. (Id.; see also Compl. Exs. 6.) Plaintiff also requested the A&B Yard Log Book

and a packet of unusual incident reports, along with video surveillance of the yard at the time of

the incident. (Compl. 3; see also Compl. Exs. 6.) Plaintiff was provided with the A&B Yard

Log Book and the unusual incident reports, but not the surveillance footage. (Compl. 3; see also

Compl. Exs. 6.) Defendant Gutwein wrote that the video was not available “as none exists” and

denied the request on June 3, 2015. (Compl. Exs. 10; see also Compl. 4.) Plaintiff

acknowledges that prison policies only require video footage to be retained for 10 to 30 days.

(Pl.’s Mem. of Law in Opp’n to Mot. 3 (“Pl.’s Mem.”) 3 (Dkt. No. 33).)

Plaintiff also alleges that the assistant assigned to his hearing provided inadequate

assistance by failing to “obtain requested documentary and video evidence” before it was

destroyed, including the surveillance video footage discussed above. (Compl. 4.) When Plaintiff

asked for a new assistant, Gutwein denied it because such a request was “not allowed.” (Id.; see

also Compl. Exs. 10.)

Plaintiff further alleges that Defendant Carey repeatedly engaged in “off-the-record”

conversations with Gutwein, pressuring and encouraging Gutwein to find Plaintiff guilty “no

matter what the evidence showed.” (Compl. 5.) Plaintiff requested video surveillance of the

hearing itself, but Gutwein denied the request, stating that it was “not relevant.” (Compl. 5;

Compl. Exs. 10.)

Plaintiff alleges that Crofoot completely fabricated the misbehavior report and was not

even present in the A&B Yard at the time of the violent incident. (Compl. 5.) When Plaintiff

attempted to confront Crofoot about this on cross-examination, Gutwein allegedly instructed

Crofoot not to answer those questions. (Id.)

On June 3, 2015, Gutwein concluded the hearing and found Plaintiff guilty of creating a

disturbance but not of possessing a weapon. (Compl. 5; see also Compl. Exs. 8.) Plaintiff

appealed the finding, but Defendant Venettozzi affirmed Gutwein’s findings. (Compl. 6.)

Plaintiff subsequently filed an Article 78 proceeding, but prison officials reversed and dismissed

the hearing decision before the Article 78 proceeding was resolved. (Id.) By the time of the

reversal, however, Plaintiff had already served the entirety of the punishment imposed on him.

(Id. at 4.)

Plaintiff alleges that, in accordance with his punishment, he was held in SHU for 210

days. (Id. at 1, 4.) During that time, he was confined to a “small, dingy cell” and deprived

access to educational facilities and other prison programming. (Id. at 6.) He also was not

allowed to participate in social or recreational activities, had limited access to showers, and was

deprived of all privileges and most of his personal property. (Id.)

B. Procedural History

Plaintiff’s Complaint and Application to Proceed In Forma Pauperis (“IFP”) were filed

on March 23, 2018. (Dkt. Nos. 1, 2.) The Court granted Plaintiff’s IFP Application on May 3,

2018. (Dkt. No. 7.) On May 14, 2018, the Court issued an Order directing service on

Defendants. (Dkt. No. 9.) On November 2, 2018, Defendants filed a letter requesting a pre-

motion conference in anticipation of filing a Motion To Dismiss. (Dkt. No. 24.) The Court

granted the request and set a briefing schedule on November 13, 2018. (Dkt. No. 25.)

On December 13, 2018, Defendants filed the instant Motion to Dismiss and

accompanying papers. (Not. of Mot.; Defs.’ Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”)

(Dkt. No. 29).) Plaintiff filed a response in opposition to the Motion on February 12, 2019.

(Pl.’s Mem.) On February 28, 2019, Defendants filed a reply. (Reply in Supp. of Mot. (“Defs.’

Reply”) (Dkt. No. 34).) Plaintiff responded again on March 13, 2019. (Reply to Mot. (“Pl.’s

Reply”) (Dkt. No. 35).)

II. Discussion

Defendants argue that Plaintiff fails to state a Fourteenth Amendment due process claim

as to any Defendant and fails to sufficiently allege the personal involvement of Venettozzi in any

constitutional violation. (Defs.’ Mem. 10–19.) Defendants also argue that they are entitled to

qualified immunity. (Id. at 19–21.) The Court will address each argument to the extent

necessary.

A. Standard of Review

The Supreme Court has held that, while a complaint “does not need detailed factual

allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his

entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations, quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil

Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked

assertions devoid of further factual enhancement.” Id. (quotation marks and alteration omitted).

Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated

adequately, it may be supported by showing any set of facts consistent with the allegations in the

complaint,” id. at 563, and a plaintiff need allege “only enough facts to state a claim to relief that

is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the

line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556

U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on its judicial experience and

common sense. But where the well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the

pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.

Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the

hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery

for a plaintiff armed with nothing more than conclusions.”).

In considering a motion to dismiss, the Court “must accept as true all of the factual

allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency

of a complaint we accept as true all factual allegations . . . . ” (quotation marks omitted)).

Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all

reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d

302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.

2012)). Where, as here, a plaintiff proceeds pro se, the “complaint[] must be construed liberally

and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723

F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal

treatment afforded to pro se litigants does not exempt a pro se party from compliance with

relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559

(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,

605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding

procedural rules and to comply with them.” (italics and quotation marks omitted)).

Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its

consideration to facts stated on the face of the complaint, in documents appended to the

complaint or incorporated in the complaint by reference, and to matters of which judicial notice

may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation

marks and citation omitted). When a plaintiff proceeds pro se, however, the Court

may consider “materials outside the complaint to the extent that they are consistent with the

allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4

n.3 (S.D.N.Y. Aug. 2, 2013) (quotation marks omitted), including, as relevant here, “documents

that a pro se litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL

5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted).

B. Analysis

1. Fourteenth Amendment Procedural Due Process Claims

The Court construes Plaintiff’s Complaint, which raises allegations relating to his

disciplinary hearing, (Compl. 7), to allege a Fourteenth Amendment procedural due process

violation against Defendants. Defendants argue that Plaintiff fails to “articulate any liberty

interest that he was deprived of by any of the named defendants.” (Defs.’ Mem. 11.) “To

present a due process claim, a plaintiff must establish (1) that he possessed a liberty interest and

(2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Ortiz v.

McBride, 380 F.3d 649, 654 (2d Cir. 2004) (citation, alterations, and quotation marks omitted).

The Supreme Court has held that inmates retain due process rights in prison disciplinary

proceedings. See Wolff v. McDonnell, 418 U.S. 539, 563–72 (1974) (describing the procedural

protections that inmates are to receive when subject to significant disciplinary punishment).

However, the Supreme Court has clarified that “[p]rison discipline implicates a liberty interest

[only] when it ‘imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.’” Ortiz, 380 F.3d at 654 (quoting Sandin v. Conner, 515 U.S. 472, 484

(1995)).

The Second Circuit has explained that “[t]he length of disciplinary confinement is one of

the guiding factors in applying Sandin’s ‘atypical and significant hardship’ test.” Hanrahan v.

Doling, 331 F.3d 93, 97 (2d Cir. 2003) (citation omitted). The duration of disciplinary

confinement, however, is “not the only relevant factor,” and the Second Circuit has “explicitly

avoided a bright line rule that a certain period of SHU confinement automatically fails to

implicate due process rights.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (citations and

quotation marks omitted). As a guidepost to determine whether due process protections are

required in the prison context, the Second Circuit has instructed that “[w]here the plaintiff was

confined for an intermediate duration—between 101 and 305 days—development of a detailed

record of the conditions of the confinement relative to ordinary prison conditions is required.”

Id. at 64–65 (citation and quotation marks omitted); see also Abdur-Raheem v. Caffery, No. 13-

CV-6315, 2015 WL 667528, at *5 (S.D.N.Y. Feb. 17, 2015) (same). Even a confinement period

of 280 days is not necessarily evidence of deprivation of a liberty interest if the detainee fails to

make specific allegations about the nature of the confinement, including time spent “within the

cell, hygienic conditions, access to programs, as well as other conditions.” See Dawkins v.

Gonyea, 646 F. Supp. 2d 594, 607 (S.D.N.Y. 2009). The Second Circuit has also suggested that

“evidence of the psychological effects of prolonged confinement in isolation” may be helpful in

developing the necessary record. Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000).

Regarding the process an inmate is due, a disciplinary hearing comports with due process

when an inmate receives “advance written notice of the charges; a fair and impartial hearing

officer; a reasonable opportunity to call witnesses and present documentary evidence; and a

written statement of the disposition, including supporting facts and reasons for the action taken.”

Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004) (citation omitted). “In the context of prison

disciplinary hearings, the Second Circuit has said that its ‘conception of an impartial

decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say, with

utter certainty, how he would assess evidence he has not yet seen.’” Rahman v. Acevedo, No.

08-CV-4368, 2011 WL 6028212, at *7 (S.D.N.Y. Dec. 5, 2011) (italics and alterations omitted)

(quoting Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990)). Ultimately, a guilty finding

in an inmate disciplinary hearing only needs to be supported by “some evidence from which the

conclusion . . . could be deduced.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.

445, 455–56 (1985).

No party has discussed the factor of the length of disciplinary confinement, but the Court

addresses it briefly here. The Complaint alleges that Plaintiff was subject to 210 days of

confinement in SHU as a result of the disciplinary hearing at issue. (Compl. 1.) This is an

“intermediate duration,” one that requires the “development of a detailed record of the conditions

of the confinement relative to ordinary prison conditions” for a district court to properly

determine whether the confinement was “atypical.” Palmer, 364 F.3d at 65 (citation and

quotation marks omitted). Here, Plaintiff has alleged several specific deprivations he faced in

SHU. For example, Plaintiff alleges that he was confined in a “small, dingy cell” at all times

except for one hour of “exercise” that occurred in a “slightly larger cage with no equipment.”

(Compl. 6.) Additionally, Plaintiff alleges he did not have access to typical opportunities

available to inmates, such as prison programming activities, socialization, recreational activities,

and “most of his personal property.” (Id.) Plaintiff was also limited to two showers per week,

and in those showers, was allegedly completely restrained. (Id.) These allegations support the

plausibility of the Plaintiff’s due process claim because they meet the Sandin standard of

“atypical” punishment. See Dawkins, 646 F. Supp. 2d at 607 (suggesting that, for periods above

101 days in SHU, articulating details such as time spent within the cell, “hygienic conditions,

access to programs, as well as other conditions” would “support a finding of atypical and

significant hardship”).

Overall, however, these allegations still fall short of alleging conditions involving “more

onerous” or “atypical” conditions of confinement. While the Second Circuit has declined to

“delineate the precise contours of ‘normal’ SHU confinement . . . it is sufficient to note that,

ordinarily, SHU prisoners are kept in solitary confinement for twenty-three hours a day, provided

one hour of exercise in the prison yard per day, and permitted two showers per week.” Ortiz v.

McBride, 380 F.3d 649, 655 (2d Cir. 2004) (ultimately citing 7 N.Y.C.R.R. § 304.1–.14).

Although Plaintiff notes that he was kept in SHU conditions for the “intermediate” period of 210

days, none of his allegations notes particularly “atypical and significant” conditions relative to

the Second Circuit’s understanding of “normal” SHU confinement. Id.; Thomas v. DeCastro,

No. 14-CV-6409, 2019 WL 1428365, at *6 (S.D.N.Y. Mar. 29, 2019) (collecting cases

dismissing procedural due process claims where the plaintiff failed to show the confinement

imposed an atypical or onerous hardship); Branch v. Goord, No. 05-CV-6495, 2006 WL

2807168, at *4 (S.D.N.Y. Sept. 28, 2006) (“Plaintiff’s privileges were withheld during

confinement, but lost privileges do not constitute an atypical and significant hardship because

they are within the expected parameters of the sentence imposed by a court of law.” (citation and

quotation marks omitted)).

Moreover, the length and severity of the punishment is not the only factor in determining

whether Plaintiff’s right to due process under the Fourteenth Amendment was violated. Even if

Plaintiff’s Complaint did plausibly allege “atypical and significant” hardship, his claims

regarding the disciplinary hearing must nevertheless be dismissed because Plaintiff received due

process.

Plaintiff alleges several potential grounds for denial of due process involving the

remaining Defendants: Crofoot filed a false misbehavior report against Plaintiff and lied at

Plaintiff’s disciplinary hearing, Gutwein denied Plaintiff’s request for a new assistant after the

assistant failed to obtain video evidence for Plaintiff, Casey improperly influenced Gutwein

through “off-the-record” commentary during Plaintiff’s hearing, Gutwein denied Plaintiff’s

request for video evidence of the incident and of the hearing itself, Gutwein found Plaintiff guilty

of the charges without sufficient evidence to support his decision, and Defendant Venettozzi

summarily affirmed Gutwein’s finding. (Compl. 3–6.) The Court addresses these issues as

needed below.

Based on Plaintiff’s allegations and the exhibits attached to his Complaint, Plaintiff was

afforded the process he was due. See Luna, 356 F.3d at 487 (listing the characteristics of due

process for inmate disciplinary hearings). For example, Plaintiff received copies of the two

misbehavior reports 6 days in advance of the hearing. (Compl. 2–3; Compl. Exs. 4–5.) Plaintiff

also received an assistant to help him prepare for the hearing, and the assistant helped Plaintiff

obtain the Log Book and the unusual incidents report. (Compl. Exs. 6.) Plaintiff was able to call

three out of four of his desired witnesses, and the fourth witness refused to testify. (Compl. 3;

Compl. Exs. 6.) Plaintiff received a written statement of the disposition, articulating over a

dozen grounds to support the actions taken by the deciding officer. (See Compl. 5; Compl. Exs.

8.)

The Court notes, however, that Plaintiff has identified several Defendants in the hearing

process that he alleges denied him due process. First, Plaintiff alleges that Crofoot’s

misbehavior report was false and that Crofoot lied at Plaintiff’s hearing. Even if true, such

conduct would not violate Plaintiff’s due process rights, as an inmate “has no constitutionally

guaranteed immunity from being falsely or wrongly accused of conduct which may result in the

deprivation of a protected liberty interest.” Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.

1986). False misbehavior reports may violate an inmate’s rights only when they are filed “in

retaliation for exercising a constitutionally protected right,” which Plaintiff does not allege

happened here, or when the inmate is “disciplined without adequate due process.” Willey v.

Kirkpatrick, 801 F.3d 51, 63 (2d Cir. 2015) (citations and quotation marks omitted); see also

Casanova v. Maldonado, No. 17-CV-1466, 2019 WL 3286177, at *8 (S.D.N.Y. July 22, 2019)

(“[T]he filing of false disciplinary reports is not a constitutional violation, as long as the plaintiff

was provided with all the due process rights to which he was entitled.”). “This principle extends

as well to false testimony by corrections personnel at prison disciplinary hearings.” Thomas v.

Calero, 824 F. Supp. 2d 488, 499 (S.D.N.Y. 2011) (dismissing due process claims against

correction officers for false testimony at an inmate’s disciplinary hearing). Accordingly, neither

Crofoot’s allegedly false misbehavior report nor allegedly false hearing testimony by itself

violated Plaintiff’s constitutional rights.

Second, Plaintiff alleges that Gutwein violated his constitutional rights by, among other

things, refusing to grant Plaintiff a new assistant. (Compl. 4.) Plaintiff requested a new assistant

because his original one did not locate the video surveillance that Plaintiff requested. (Id.) But

inmates have only a “limited” right to assistance at disciplinary hearings, Silva v. Casey, 992

F.2d 20, 22 (2d Cir. 1993), and Plaintiff does not plausibly allege that assistance was inadequate

here, especially when the assistant did help Plaintiff locate the A&B Yard Log Book, the unusual

incidents report, and three out of the four witnesses Plaintiff wished to call at the hearing, (see

Compl. Exs. 6). See also Grant v. Fischer, No. 14-CV-1382, 2017 WL 1180866, at *3

(N.D.N.Y. Mar. 29, 2017) (holding that assistant who provided inmate with five of ten requested

items and told inmate that some of the remaining items “did not exist” fulfilled her constitutional

obligations). Moreover, nothing suggests that, were Gutwein to grant Plaintiff a new assistant at

the time of the hearing, the outcome of the hearing would have been different, let alone that the

assistant would have been able to procure the video, which Plaintiff does not allege even existed.

This alone dooms Plaintiff’s claim. See Louis v. Ricks, No. 01-CV-9368, 2002 WL 31051633, at

*15 (S.D.N.Y. Sep. 13, 2002) (applying harmless error analysis to determine whether assistance

provided to inmate at disciplinary hearing was inadequate).

Third, Plaintiff alleges that Gutwein violated Plaintiff’s constitutional rights by refusing

to grant Plaintiff access to video footage of the surveillance camera in the area of the violent

incident or of the hearing itself. However, these two exclusions alone do not constitute a

violation of Plaintiff’s constitutional rights. Although prison inmates have the right to present

exculpatory evidence, prison officials “must have the necessary discretion to keep the hearing

within reasonable limits.” Wolff, 418 U.S. at 566. Here, Plaintiff fails to allege facts plausibly

suggesting that Gutwein improperly limited the scope of the hearing when he refused to provide

Plaintiff with footage of the hearing itself on grounds that it was not relevant to the proceedings.

(Compl. 5.) The request for the surveillance footage of the incident was denied because such

footage did not exist at the time of the request. (Id. at 4; Compl. Exs. 10). This refusal also does

not state a cognizable constitutional violation. See Brooks v. Piecuch, 245 F. Supp. 3d 431, 446–

47 (W.D.N.Y. 2017) (holding that inmate’s constitutional rights were not violated where the

prison official “ma[d]e an effort to find [the] video to which [the] [p]laintiff [was] referring,

though that effort was ultimately unfruitful”).

Fourth, Plaintiff alleges that Casey improperly swayed Gutwein through “off-the-record”

commentary, suggesting that the two were conspiring to find Plaintiff guilty. (Compl. 4–5.)

Plaintiff does not, however, articulate above a “speculative level” the nature of the commentary

or how such commentary improperly biased Defendant Gutwein. Twombly, 550 U.S. at 555; see

also Walker v. Jastremski, 430 F.3d 560, 564 n.5 (2d Cir. 2005) (“[C]onclusory or general

allegations are insufficient to state a claim for conspiracy under § 1983.” (citation omitted));

Edwards v. Mejia, No. 11-CV-9134, 2013 WL 1092978, at *4 (S.D.N.Y. Mar. 15, 2013)

(dismissing claims of bias where plaintiff made conclusory allegations that disciplinary hearing

officer was biased and destroyed certain exculpatory evidence because of his alleged friendship

with the citing officer and noting that plaintiff’s ability to call witnesses was itself indicative of a

fair and impartial hearing officer); Hodges v. Jones, 873 F. Supp. 737, 744 (N.D.N.Y. 1995)

(dismissing claims of bias where plaintiff made conclusory allegations that hearing officer was

“‘pressured’ to enter a guilty disposition by his superiors” and where hearing officer found

plaintiff “not guilty on [one of the charges]”); cf. Montalvo v. Lamy, 139 F. Supp. 3d 597, 608–

09 (W.D.N.Y. 2015) (denying dismissal of bias claim where plaintiff alleged that hearing officer

did not permit plaintiff to call witnesses at disciplinary hearing).

Finally, Plaintiff alleges that Gutwein’s disposition went against the weight of the

evidence before him and that the disposition violated Plaintiff’s due process rights. But

Gutwein’s decision ultimately was based on “some evidence” as required by Hill. Hill, 472 U.S.

at 455. In particular, the decision here articulated the specific evidence that Gutwein relied on,

including the unusual incident report, the testimony of multiple inmates, including Hendricks,

and the testimony of multiple members of prison staff. (See Compl. Exs. 8.) Indeed, that

Gutwein did not prejudge the outcome of the hearing is evidenced by his conclusion that Plaintiff

was not guilty of the weapons charge. (Id.) Plaintiff thus alleges no facts plausibly suggesting

that Gutwein prejudged the evidence or otherwise acted as an “impartial decisionmaker.”

Rahman, 2011 WL 6028212, at *7.

2. Defendant Venettozzi

Plaintiff alleges that Venettozzi “summarily affirmed” Gutwein’s disposition despite

raising “these and other legitimate issues . . . in his appeal.” (Compl. 6.) The Complaint does

not allege that Venettozzi was a participant in any other aspect of the hearing. Defendants argue

that this does not plausibly allege personal involvement and that, in any event, Venettozzi should

be entitled to qualified immunity. (Defs.’ Mem. 20–21.)

As discussed at length in Colon v. Annucci, 344 F. Supp. 3d 612 (S.D.N.Y. 2018), “[i]t is

an open question in the Second Circuit whether an appeal officer may be held liable for failing to

reverse the outcome of an allegedly unconstitutional disciplinary hearing.” Id. at 630–31

(citation and quotations omitted). Consistent with Colon, the Court concludes that Venettozzi is

entitled to qualified immunity here because this area of law is “unsettled,” and it is not clear that

“every reasonable official” would have known that affirming the findings of an allegedly

procedurally defective hearing violates an inmate’s constitutional rights. Id. at 631–32. 3

3 Because the Court dismisses the claims against the Defendants other than Venettozzi on

their merits, it is not necessary to reach the questions of qualified immunity as to them. (See

Defs.’ Mem. 20.)

lil. Conclusion

For the reasons stated above, Defendants’ Motion to Dismiss is granted. Because this is

the first adjudication of Plaintiffs claims, the dismissal is without prejudice. If Plaintiff wishes

to file an amended complaint, Plaintiff must do so within 30 days of the date of this Opinion.

Plaintiff should include within that amended complaint all changes to correct the deficiencies

identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is advised that the

amended complaint will replace, not supplement, the instant Complaint. The amended complaint

must contain all of the claims, factual allegations, and exhibits that Plaintiff wishes the Court to

consider. If Plaintiff fails to abide by the 30-day deadline, his claims may be dismissed with

prejudice.

The Clerk is respectfully directed to terminate the pending Motion, (Dkt. No. 28), and

mail a copy of this Opinion to Plaintiff.

SO ORDERED.

DATED: September 2, 2019

White Plains, New York | } Y

NITED STATES-BISFTRICT JUDGE

16