Brown v. Venettozi

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JOHNNY B. BROWN,

Plaintiff, No. 18-CV-2628 (KMK)

v. OPINION & ORDER

DONALD VENETTOZI, et al.,

Defendants.

Appearances

Johnny B. Brown

Auburn, 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 Auburn Correctional Facility,

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

Officer J. Crofoot (“Crofoot”), Captain Carey (“Carey”), Commissioner’s Hearing Officer E.

Gutwein (“Gutwein”), and Sgt. R. Coccuzza (“Coccuzza”; collectively, “Defendants”). Plaintiff

alleges that Defendants violated his constitutional rights when they 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 confined in a Special Housing Unit (“SHU”) for 210 days. (See Am. Compl. (Dkt. No. 41).)

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. 51).) For the reasons stated herein, the

Motion is granted in part and denied in part.

I. Background

A. Factual Background

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

referenced therein, and Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion.

(Am. Compl.; Pl. Mem. of Law in Opp’n to Defs.’ Mot. (“Pl.’s Mem.”) (Dkt. No. 57).)1 They

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

On March 29, 2015, another inmate was attacked in the A&B Yard at Green Haven.

(Am. Compl. 3.) Plaintiff was wrongfully accused by Crofoot of fighting, and by non-party C.O.

I. Jordan (“Jordan”) of having a weapon. (Id.) After the incident, “Plaintiff was confined” in

SHU and assigned Coccuzza to assist with his defense. (Id. at 3, 32.)

Plaintiff met with Coccuzza on April 2, 2015, and requested testimony of “four inmate

witnesses”; documents, including the “A&B Yard log book, unusual incident reports, [and] any

to/from memos”; and “video surveillance from the yard at the time of [the] alleged incident.”

(Am. Compl. 3–4; Pl.’s Mem. 8.)2 Coccuzza incompletely documented these requests, failing to

note Plaintiff’s request for to/from memos and video surveillance. (Pl.’s Mem. 18; Mem. of Law

1 “[T]he mandate to read the papers of pro se litigants generously makes it appropriate to

consider [P]laintiff’s additional materials, such as his opposition memorandum.” Gadson v.

Goord, No. 96-CV-7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997) (citing Gil v.

Mooney, 824 F.2d 192, 195 (2d Cir.1987)).

2 When citing Plaintiff’s Amended Complaint and Memorandum, the Court refers to the

ECF-generated page numbers in the top right-hand corner.

in Supp. of Defs.’ Mot. (“Defs.’ Mem.”) Ex. B (“Assistance Form”) (Dkt. No. 52-2).)3 Coccuzza

filled out the assistance form, noting that three out of four witnesses agreed to testify, listing four

Corrections Officers who were working in A&B Yard at the time of the incident, and noting that

the unusual incident reports would be provided at the hearing. (Assistance Form.) Coccuzza did

not return to Plaintiff with the assistance form. (Am. Compl. 4, 26.) The assistance form does

not bear Plaintiff’s signature; instead, it states that Plaintiff refused to sign. (Assistance Form;

Pl.’s Mem. 18–19.)4 At his hearing on April 7, 2015, Plaintiff requested a new assistant, since he

had not received the requested documents. (Am. Compl. 31; Pl.’s Mem. 18; see also Compl. 3

(Dkt. No. 2) (noting that the hearing commenced on April 7, 2015).) Gutwein denied this

request, (Pl.’s Mem. 4, 6), and subsequently noted that a new assistant was “not allowed,” (Am.

Compl. 44).

At no point prior to the end of the hearing did Plaintiff receive the documents he

requested, including those listed in the assistance form. (Am. Compl. 6, 12; Pl.’s Mem. 3, 5, 18.)

The video footage requested by Plaintiff came from the two cameras in A&B Yard, one

on the tower and one on the rec door. (Am. Compl. 4, 27–28.) In addition to requesting this

footage from Coccuzza on April 2, 2015, Plaintiff requested the same from Gutwein at his April

7, 2015 hearing. (Am. Compl. 27–28.) Depending on the camera and its location, video footage

is held for 14 to 30 days. (Pl.’s Mem. 7.) Thus, at the time of his April 2, 2015 request for

footage, and also at the time of his April 7, 2015 request for both video footage and a new

assistant, the video footage of the March 29, 2015 incident allegedly still existed. (Id.) Gutwein

3 The assistance form is incorporated by reference into Plaintiff’s Amended Complaint.

(See Am. Compl. 6.)

4 Plaintiff was only provided with the assistance form during discovery after he sought

review of his guilty determination in state court. (Am. Compl. 6; Pl.’s Mem. 7.)

only requested the video footage on June 4, 2015, (Pl.’s Mem. 5, 7), at which point he stated that

“none exists,” (Am. Compl. 13, 19, 44). Plaintiff alleges that this video footage “would have had

a significant bearing on the outcome of [the] hearing.” (Pl.’s Mem. 8.)

While the assistance form completed by Coccuzza notes that only three out of four

inmate witnesses agreed to testify, (Assistance Form), all four eventually testified on Plaintiff’s

behalf at his hearing on April 9, 2015, (Am. Compl. 34–42; Pl.’s Mem. 3, 7–8, 22). Coccuzza

did not interview these witnesses before they testified. (Pl.’s Mem. 3, 7–9.) At his hearing on

June 1, 2015, Plaintiff separately requested testimony from the four witnesses that were listed on

the assistance form as working in A&B Yard at the time of the incident, as well as from Jordan.

(Am. Compl. 63; see also id. at 61 (noting the hearing date).) Gutwein denied his request. (Pl.’s

Mem. 13.)5

During the pendency of the hearing, Gutwein had ex parte communications with both

Carey and Crofoot. (Am. Compl. 9.) When Plaintiff attempted to elicit testimony from Crofoot

regarding these ex parte conversations, Gutwein directed Crofoot not to answer. (Id. at 9, 56,

62.) Gutwein did not allow Carey to testify, even though he “gave off-the-record advice . . .

throughout the duration of the hearing.” (Id. at 7–8.) Plaintiff requested video of the hearing

room, which Gutwein denied as “not relevant.” (Id. at 44.)

After the hearing concluded on June 3, 2015, Gutwein found Plaintiff guilty of all

charges in Crofoot’s report, but dismissed the weapons charge in Jordan’s report. (Am. Compl.

4.) Gutwein on the same date prepared a statement of evidence relied upon in his decision.

5 The record does not identify Gutwein’s reasons for denying Plaintiff’s request.

(Defs.’ Mem. Ex. C (“Hearing Disposition”) (Dkt. No. 52-3).)6 Gutwein imposed a penalty of

210 days SHU; loss of commissary, phone, and package privileges; and loss of seven months of

good time. (Am. Compl. 4–5.)

Plaintiff appealed the disposition to Venettozi on June 4, 2015. (Id. at 5.) Venettozi

affirmed the decision in August 2015. (Id.) Plaintiff requested reconsideration; Venettozi

summarily denied the request. (Id. at 5, 51.) On January 28, 2016, Plaintiff filed a petition in

Albany County Supreme Court pursuant to New York Civil Practice Law & Rules Article 78.

(Id. at 5.) Plaintiff’s petition was transferred to the Third Department. (Id.) Prior to an

adjudication on the merits, the New York Department of Corrections and Community

Supervision (“DOCCS”) administratively reversed the decision at the recommendation of the

New York Attorney General, and expunged all references to the alleged misconduct from

Plaintiff’s records. (Id. at 5, 52.) By the time DOCCS reversed its ruling, Plaintiff had already

served his full 210-day SHU penalty. (Id. at 5.)

While he was in SHU, Plaintiff was allowed just two showers per week and kept in

solitary confinement for 23 hours per day. (Id. at 17.) In addition, Plaintiff had no control over

the light in his cell, and cockroaches and rodents kept him up all night involuntarily. (Id. at 18.)

For the hour that he was allowed out of solitary confinement, Plaintiff was in full restraints,

including handcuffs with a waist chain, which made it impossible to exercise. (Id.) He was

deprived of all hygiene, property, meals, and programing opportunities. (Id.) Confinement in

these conditions caused Plaintiff severe and prolonged mental, physical, and emotional pain, and

6 The hearing disposition is incorporated by reference into the Amended Complaint,

which discusses Gutwein’s findings. (See Am. Compl. 10–11.)

contributed to his divorce from his wife and broken bond with his daughter. (Id. at 19; Pl.’s

Mem. 16, 18.)

B. Procedural Background

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

on March 23, 2018. (Compl; Dkt. No. 1.) The Court granted Plaintiff’s IFP Application on May

3, 2018. (Dkt. No. 7.) On May 11, 2018, the Court issued an Order directing service on

Defendants. (Dkt. No. 9.) On September 3, 2019, the Court granted Defendants’ Motion To

Dismiss, and ordered Plaintiff to file an amended complaint, if he wished to do so, within 30

days. (Op. & Order (“2019 Op.”) (Dkt. No. 37).) Plaintiff requested appointment of counsel on

September 16, 2019. (Dkt. No. 38.) On September 30, 2019, the Court denied his request. (Dkt.

No. 39.) On November 6, 2019, the Court issued an Order To Show Cause by December 6, 2019

as to why the case should not be dismissed for failure to prosecute. (Dkt. No. 40.) On

November 12, 2019, Plaintiff’s Amended Complaint was filed. (Am. Compl.) The Amended

Complaint is dated October 22, 2019. (Id. at 21.) On December 6, 2019, Defendant requested

an extension of time to February 6, 2020 to submit its Answer, in part so that Coccuzza, who was

newly added as a Defendant to the Amended Complaint, could be served. (Dkt. No. 44.) The

Court granted this request on December 10, 2019. (Dkt. No. 45.) The Court ordered service of

Coccuzza on December 26, 2019. (Dkt. No. 47.)7 On February 3, 2020, Defendants submitted a

letter proposing a motion to dismiss. (Dkt. No. 49.) On February 13, 2020, the Court set a

briefing schedule. (Dkt. No. 50.) Defendants filed the instant Motion on March 13, 2020. (Not.

of Mot.; Defs.’ Mem.) Plaintiff’s response in opposition is dated May 13, 2020. (Pl.’s Mem.)

7 Coccuzza was served via mail on May 28, 2020. (Dkt. No. 56.)

Defendants filed a reply on May 29, 2020. (Reply in Supp. of Defs.’ Mot. (“Defs.’ Reply”) (Dkt.

No. 55).)

II. Discussion

Defendants argue that Plaintiff’s Amended Complaint should be dismissed based on law

of the case, (Defs.’ Mem. 5–7); because Plaintiff does not allege that Gutwein, Carey, Crofoot,

or Coccuzza violated his due process rights, (id. at 8–16); because Plaintiff does not allege that

Venettozi was personally involved, (id. at 16–18); and because Defendants are entitled to

qualified immunity, (id. at 18–20). The Court will address each argument to the extent

necessary.

A. Standard of Review

The Supreme Court has held that although 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)

(alteration and quotation marks 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) (quotation marks omitted). “Nor does a complaint suffice if it

tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation

marks omitted). Instead, 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 must 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] claims

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 Defendants’ Motion, the Court is required to “accept as true all of the

factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court

must “draw[] 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 Court must “construe[]

[his complaint] liberally and interpret[] [it] 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 procedure and substantive law.” Bell v. Jendell, 980 F. Supp.

2d 555, 559 (S.D.N.Y. 2013) (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 omitted). However, when the complaint is drafted by a pro se plaintiff, 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, “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), statements by the plaintiff “submitted in

response to [a] defendant’s request for a pre-motion conference,” Jones v. Fed. Bureau of

Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), “his opposition

memorandum,” Gadson, 1997 WL 714878, at *1 n.2, and “documents either in [the] plaintiff[’]s

possession or of which [the] plaintiff[] had knowledge and relied on in bringing suit,” Chambers

v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation marks omitted).

B. Analysis

1. Law of the Case

Plaintiff’s Amended Complaint fails to cure many of the deficiencies identified in the

2019 Opinion. For example, with respect to Carey’s alleged conversations with Gutwein, the

Court noted that the Complaint did not “articulate above a ‘speculative level’ the nature of the

commentary or how such commentary improperly biased Defendant Gutwein,” particularly

because Gutwein dismissed the weapons charge against Plaintiff. (2019 Op. 14–15.) With

respect to Crofoot’s alleged false misbehavior report and testimony, the Court noted that “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.” (Id. at 12 (citation and quotation marks omitted).)

Finally, with respect to Venettozi’s alleged summary affirmation of Plaintiff’s discipline, the

Court concluded that he “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 15.) The allegations in the Amended Complaint have the same flaws.

“The mere filing of an Amended Complaint does not entitle Plaintiff to relitigate his

claims absent new factual allegations. Because the Amended Complaint . . . is in large part

identical to Plaintiff[’s] first Complaint, the law of the case doctrine counsels against

reconsideration of the Court’s . . . dismissal of the first Complaint.” Weslowksi v. Zugibe, 96 F.

Supp. 3d 308, 316 (S.D.N.Y. 2015), aff’d, 626 F. App’x 20 (2d Cir. 2015). Accordingly,

Plaintiff’s claims against Carey, Crofoot, and Venettozi are dismissed for the same reasons they

were dismissed in the 2019 Opinion. See Perkins v. Perez, No. 17-CV-1341, 2020 WL 248686,

at *4–5 (S.D.N.Y. Jan. 16, 2020) (applying the law-of-the-case doctrine to dismiss portions of a

pro se complaint where the two pleadings at issue were “substantially identical”); Mateo v.

Dawn, No. 14-CV-2620, 2016 WL 5478431, at *4 (S.D.N.Y. Sept. 28, 2016) (same); Guttilla v.

City of New York, No. 14-CV-156, 2016 WL 1255737, at *3 (S.D.N.Y. Mar. 29, 2016) (same).

Plaintiff makes two new claims, one against Crofoot and Gutwein, and another against

Venettozi. First, Plaintiff alleges that Crofoot had an off-the-record conversation with Gutwein,

and that Gutwein refused to allow Crofoot to testify regarding these conversations. (Am. Compl.

9.) As with his claims against Carey, Plaintiff’s allusions to a conspiracy involving Crofoot and

Gutwein fail to pass the “speculative level.” (2019 Op. 14 (collecting cases).) Thus, this claim

is dismissed. Second, in discussing his claims against Venettozi, Plaintiff refers to supervisory

liability. (Pl.’s Mem. 24.) “[A] plaintiff may not rely on a special test for supervisory liability.”

Tangreti v. Bachmann, 983 F.3d 609, 616 (2d Cir. 2020). Instead, “a plaintiff must plead and

prove the elements of the underlying constitutional violation directly against the official.” Id.

Apart from improperly handling his appeal—conduct for which Venettozi is entitled to qualified

immunity—Plaintiff makes no allegations about Venettozi’s role in Green Haven’s disciplinary

process. (See generally Am. Compl.; Pl.’s Mem.) Thus, despite his discussion of supervisory

liability, Plaintiff has not alleged any conduct by Venettozi for which he may be held liable. See

Stancati v. County of Nassau, No. 14-CV-2694, 2015 WL 1529859, at *3 (E.D.N.Y. Mar. 31,

2015) (dismissing supervisory liability claim “because the [c]omplaint does not allege any facts,

other than [the p]laintiff’s isolated constitutional violation, that create an inference that the

[defendant’s d]epartment maintained a policy” of acting consistent with the alleged violation);

Pierce v. Chautauqua County, No. 06-CV-644, 2007 WL 2902954, at *4 (W.D.N.Y. Sept. 28,

2007) (dismissing claims against a defendant because “[the] plaintiffs have not alleged factual

evidence, outside of this isolated incident, which would create an inference of a custom or policy

created by [the defendant]”).8

2. Due Process Claim Against Gutwein and Coccuzza

“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) (alteration omitted). The Court

considers these two requirements in turn.

8 Because the Court dismisses Plaintiff’s claims against Venettozi on qualified immunity

grounds, the Court does not consider Venettozi’s personal involvement. (Defs.’ Mem. 16–18.)

a. Deprivation of a Liberty Interest

“Prison discipline implicates a liberty interest when it ‘imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents of prison life.’” Id. (quoting Sandin

v. Conner, 515 U.S. 472, 484 (1995)). In evaluating whether the length and conditions of

disciplinary confinement create an atypical and significant hardship, the Second Circuit has

advised that “[w]here the plaintiff was confined for . . . between 101 and 305 days . . .

development of a detailed record of the conditions of the confinement relative to ordinary prison

conditions is required.” Palmer v. Richards, 364 F.3d 60, 64–65 (2d Cir. 2004) (quotation marks

omitted). The Second Circuit has concluded that a plaintiff sufficiently alleges an infringed

liberty interest, for example, where he alleges “beyond the normal SHU conditions . . . that he

endured far inferior hygienic conditions in SHU.” Id. at 66 (quotation marks omitted). The

Second Circuit stated that normal SHU conditions include confinement for 23 hours per day,

permitted exercise in the prison yard for one hour per day, two showers per week, denial of

privileges such as work and out-of-cell schooling, restricted visitors, and a limited number of

books in the cell. Id. at 65 n.3.

Here, Plaintiff adequately alleges atypical and significant hardship beyond normal SHU

conditions. First, Plaintiff alleges far inferior hygienic conditions, including “huge cockroaches

and rodents,” (Am. Compl. 18), and “inmates spitting on each other, [and] throwing feces,” (Pl.’s

Mem. 16). See Palmer, 364 F.3d at 66. Second, beyond typical SHU restrictions on visitors and

the number of books, Plaintiff’s disciplinary confinement involved deprivation of property,

pictures, reading materials, hygienic products and materials, and “being out of communication

with family and friends.” (Pl.’s Mem. 16, 18.) See Palmer, 364 F.3d at 66 (finding that an

affidavit attesting to similar deprivations “raises genuine questions of material fact as to . . . how

those conditions compared to the conditions imposed on the general prison population”). Third,

Plaintiff alleges that he was not permitted an hour of exercise per day, but, instead, he was made

to spend this hour “in full restraints (handcuffs with waist chain)[,] which made it impossible to

exercise,” (Am. Compl. 18; see also Pl.’s Mem. 16), and he was “denied [r]ec. whenever [the]

[o]fficer felt like it,” (Pl.’s Mem. 18). Cf. McCray v. Lee, 963 F.3d 110, 117 (2d Cir. 2020)

(“Courts have recognized that some opportunity for exercise must be afforded to prisoners.”

(quoting Anderson v. Coughlin, 757 F.2d 33, 34–35 (2d Cir. 1985) (collecting cases)). Plaintiff

alleges that these conditions existed in addition to the typical SHU conditions—23 hours of

confinement per day and two showers per week. (Am. Compl. 17.)

Plaintiff further alleges that he suffered a variety of mental, physical, and emotional

ailments as a result of his disciplinary confinement. (Id. at 19.) These ailments caused Plaintiff

to “suffer[] through a divorce and [a] broken bond with [his d]aughter.” (Pl.’s Mem. 18.) These

allegations make Plaintiff’s claim plausible, because “evidence of the psychological effects of

prolonged confinement in isolation” contribute to comparing disciplinary conditions to those of

normal prison life. Colon v. Howard, 215 F.3d 227, 232 (2d Cir. 2000). Thus, Plaintiff

adequately alleges that he was deprived of a protected liberty interest.

b. Sufficiency of Process

“Inmates are entitled to 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). Here, Plaintiff does not allege that Defendants

failed to provide him with written notice of the charges, (see Am. Compl. 31 (“All I got is the

ticket.”); see also Am. Compl. 24), or a written statement of the disposition, (see Hearing

Disposition). And, as discussed, Plaintiff’s allegations of bias are implausible. Further, Gutwein

satisfied the constitutional requirement to base his ruling on “some evidence.” (2019 Op. 14–

15.) See Superintendent v. Hill, 472 U.S. 445, 454 (1985) (“[R]evocation of good time does not

comport with ‘the minimum requirements of procedural due process’ unless the findings of the

prison disciplinary board are supported by some evidence in the record.” (citation omitted)).

Thus, only Plaintiff’s reasonable opportunity to call witnesses and present documentary

evidence remains at issue. These rights are qualified, as “[p]rison 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.” Wolff v. McDonnell,

418 U.S. 539, 566 (1974). This right “can be denied on the basis of irrelevance or lack of

necessity.” Jackson v. Prack, No. 16-CV-7561, 2019 WL 6119010, at *7 (S.D.N.Y. Nov. 18,

2019) (citing Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991)). It is similarly

“circumscribed by the penological need to provide swift discipline in individual cases.” Id.

(citing Ponte v. Real, 471 U.S. 491, 495 (1985)). “[T]he due process clause does not require

prison officials to state on the record their reasons for denying an inmate’s request to confront a

particular witness.” Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir. 1986). However, in the

absence of such an explanation, “defendants cannot justify a Rule 12(b)(6) dismissal for failure

to state a claim.” Thomas v. Calero, 824 F. Supp. 2d 488, 502 (S.D.N.Y. 2011); see also Rossi v.

Stevens, No. 04-CV-1836, 2005 WL 8146896, at *12 (S.D.N.Y. May 2, 2005) (report and

recommendation) (finding that the plaintiff states a claim where his requests for documents were

“denied without explanation”).

In addition, Plaintiff has a similar limited right to an assistant. See Fox v. Coughlin, 893

F.2d 475, 478 (2d Cir. 1990) (“[A] failure to provide an inmate assistance in preparing a defense

or interview an inmate’s requested witnesses without assigning a valid reason may in the future

provide a sufficient basis for a viable § 1983 action.”). The assistant “is not obliged to go

beyond the specific instructions of the inmate.” Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993).

“The total failure to provide the required assistance may be a ‘structural’ error not susceptible to

harmless error analysis.” Louis v. Ricks, No. 01-CV-9368, 2002 WL 31051633, at *15 n.28

(S.D.N.Y. Sept. 13, 2002). However, where an inmate is assisted, but the “assistant performed

certain tasks inadequately,” a plaintiff’s claim is “subject to harmless error analysis.” Id.

Here, the Court finds that the following allegations are sufficient to state a due process

violation: (1) Coccuzza’s and Gutwein’s failure to provide Plaintiff with video footage of A&M

Yard at the time of the incident; (2) Coccuzza’s and Gutwein’s failure to provide Plaintiff with

requested documents, including the A&M Yard staff log book, unusual incident reports, and

to/from memos; and (3) Gutwein’s failure to collect testimony from four COs who were on duty

in A&B Yard at the time of the incident.

Regarding the video footage, Plaintiff alleges that he requested it in early April, shortly

after the incident, (Am. Compl. 4, 27–28), that it was available at the time of his request, (Pl.’s

Mem. 7), that Coccuzza and Gutwein did not attempt to retrieve the video until June 4, 2015, at

which point it no longer existed, (Pl.’s Mem. 5, 7, 13, 19), and that the failure to find this video

prejudiced Plaintiff’s defense, (Pl.’s Mem. 8). There is no basis on the record to conclude at this

stage that the failure to retain this video footage was harmless error. Cf. Tafari v. Rock, No. 10-

CV-0729, 2012 WL 1340799, at *6 (W.D.N.Y. Apr. 18, 2012) (dismissing the plaintiff’s

complaint where it “contain[ed] no hint as to the contents of the videotape or how the tape would

have been relevant and material to his defense”). The video may have supported Plaintiff’s

position that he was not guilty of misconduct. Unlike prior cases dismissing at summary

judgment constitutional challenges based on similar denial of access to videotapes, there is no

indication in the record that the tape did not exist at the time of Plaintiff’s request. See Molano

v. Bezio, 42 F. Supp. 3d 465, 468–69 (W.D.N.Y. 2012) (“There is no proof that a surveillance

videotape of the holding pen existed at the time plaintiff requested it.”); see also Barnes v.

Annucci, No. 15-CV-777, 2019 WL 1387460, at *13 (N.D.N.Y. Mar. 12, 2019) (“[T]he record is

clear that the evidence did not exist inasmuch as it had been taped over in the normal course of

business by the time the conspiracy had been uncovered.”), report and recommendation adopted,

2019 WL 1385297 (N.D.N.Y. Mar. 27, 2019), appeal docketed, No. 19-972 (2d Cir. Apr. 11,

2019).9

Regarding the documents, Plaintiff alleges that he requested them, (Am. Compl. 3–4, 27–

28; Pl.’s Mem. 8), but that they were not provided to him, (Pl.’s Mem. 14, 22). There is no

suggestion in the record that the log book and unusual incident reports did not exist. (See

Assistance Form.) While Crofoot testified that he did not recall writing any memos regarding

the incident, (Am. Compl. 55), the record does not indicate that Gutwein made a finding that

such memos did not exist. Further, the Court cannot conclude as a matter of law, based on this

record, that the failure to provide these documents was harmless error. See White v. Marinelli,

No. 17-CV-1094, 2019 WL 1090802, at *14 (N.D.N.Y. Mar. 8, 2019) (holding that, where

harmless error is an affirmative defense, “it would be incumbent on prison officials [at the

9 Plaintiff also requested video of the hearing room, (Am. Compl. 44), to serve as

evidence of Gutwein’s bias, (Pl.’s Mem. 14). Because the Court has dismissed allegations

related to Gutwein’s bias, it also dismisses allegations related to Defendants’ failure to provide

video of the hearing room.

pleadings stage] to show it clear from the face of the complaint and matters of which the court

may take judicial notice that any such errors were harmless” (citation and quotation marks

omitted)); cf. Lainfiesta v. Artuz, 253 F.3d 151, 158 (2d Cir. 2001) (holding that, in the harmless

error inquiry on habeas review, “[t]he burden of persuasion is on the government”). Unusual

incident reports and to/from memos concerning the incident likely spoke to Plaintiff’s guilt.

Giano v. Sullivan, 709 F. Supp. 1209, 1215–16 (S.D.N.Y. 1989) (“[R]eports made by corrections

officers in the immediate vicinity of the charged violations are virtually certain to be relevant to

the issue of the petitioner’s guilt of those violations.”).10 Further, the log book may have

supported Plaintiff’s theory that Crofoot was not one of the officers working in A&B Yard at the

time of the incident. (See Am. Compl. 54.) Finally, since Plaintiff was at no point provided with

these documents, (see Pl.’s Mem. 3), the Court does not at this stage hold him to an exacting

standard of alleging the prejudice caused by this denial, cf. Giano, 709 F. Supp. at 1216

(“Petitioner did not present a defense precisely because he was unconstitutionally deprived of the

tools necessary to do so.”).

That four inmate witnesses testified does not change the Court’s conclusion, based on the

pleadings, that Coccuzza’s assistance did not satisfy the constitutional minimum. “[A]n inmate’s

right to assistance is limited” because the assistant is not obligated to act as advocate or counsel.

Silva, 992 F.2d at 22. For example, the assistant need not “go beyond the specific instructions of

the inmate,” id., or “explain the charges to [the inmate],” Grant v. Fischer, No. 14-CV-1382,

10 While the court in Giano noted that documents were especially important because “no

eyewitness accounts [were] otherwise available,” 709 F. Supp. at 1216, it does not follow that

the presence of eyewitnesses reduces to zero the potential importance of documents. This is

particularly true where, as here, eyewitness accounts conflict, (see Hearing Disposition), and

Plaintiff was not permitted to call four possible eyewitnesses to testify, (Am. Compl. 63; Pl.’s

Mem. 13).

2017 WL 1180866, at *3 (N.D.N.Y. Mar. 29, 2017), aff’d, 760 F. App’x 20 (2d Cir. 2019).

However, subject to harmless error analysis, an assistant must fulfill inmate requests or explain

why he failed. See Elder v. McCarthy, 967 F.3d 113, 127 (2d Cir. 2020) (finding “a failure to

assist [the inmate] in good faith and in his best interests” where an assistant “failed to procure

[requested] documents [and] gave no reason for his failure” (alterations and quotation marks

omitted)); see also Grant, 2017 WL 1180866, at *3 (finding that an assistant fulfilled her

obligations where she returned five out of ten requested materials, and informed the inmate

plaintiff that the remaining materials were “not available, not alleged, or did not exist”). Even

assuming that he was partially successful, these successes would not nullify Coccuzza’s

unexplained failures.

Regarding the testimony of the four COs present in A&B Yard at the time of the incident,

Plaintiff alleges that he requested testimony from them, (Am. Compl. 63), and that Gutwein did

not permit them to testify, (Pl.’s Mem. 13). At this stage, as with the withheld documents, the

record contains no basis to conclude that this exclusion was harmless error as a matter of law.

This testimony may have supported Plaintiff’s claims that he did not commit the charged offense

and that Crofoot was not in A&B Yard at the time of the incident. At a minimum, the record

does not suggest a finding that it would have been futile to interview these COs. See Silva, 992

F.2d at 21–22. Thus, Plaintiff sufficiently alleges that failing to interview these witnesses

violated his right to due process. Fox, 893 F.2d at 478 (“[A]n inmate’s due process rights are

violated when a prison hearing officer refuses to interview witnesses without assigning a reason

logically related to preventing undue hazards to institutional safety or correctional goals.”

(quotation marks omitted) (citing Ponte, 471 U.S. at 497)).

Apart from Gutwein’s written statement on June 3, 2015 regarding video of A&B Yard at

the time of the incident that “none exists,” (Am. Compl. 44), the record contains no indication

that Gutwein found that the requested material or testimony did not exist, was irrelevant, or

would conflict with institutional safety or correctional goals. The Court notes that the record of

the disciplinary proceeding provided by Plaintiff is incomplete. To the extent that the missing

pages indicate Gutwein’s rationale for excluding the requested evidence, they may be introduced

at summary judgment.11

III. Conclusion

For the foregoing reasons, Defendants’ Motion To Dismiss is granted in part and denied

in part. All claims against Carey, Crofoot, and Venettozi are dismissed. Also dismissed are

Plaintiff’s claims that he was denied his right to a fair and impartial hearing officer and his right

to not be found guilty of prison disciplinary charges without some reliable evidence to support

them. Dismissal is with prejudice.12 Plaintiff may proceed on his due process claim, including

his denial of adequate assistance claim, against Gutwein and Coccuzza.

11 To the extent Gutwein and Coccuzza also make a qualified immunity argument, (see

Defs.’ Mem. 18–20), they merely recite the qualified immunity case law without meaningfully

applying it to the facts of the case. Indeed, in applying the law, Gutwein and Coccuzza merely

repeat arguments from earlier in their brief. (Id. at 19.) “The Court therefore declines to

consider at this time whether [Gutwein and Coccuzza] are protected by qualified immunity.”

Osorio v. Westchester County, No. 18-CV-5620, 2019 WL 3958443, at *1 n.2 (S.D.N.Y. Aug.

21, 2019).

12 Even pro se plaintiffs are not entitled to amend a complaint if the complaint “contains

substantive problems such that an amended pleading would be futile.” Lastra v. Barnes & Noble

Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9 (S.D.N.Y. Jan 3, 2012). Here, Plaintiff “has

already had two bites at the apple, and they have proven fruitless.” Melvin v. County of

Westchester, No. 14-CV-2995, 2016 WL 1254394, at *24 n.19 (S.D.N.Y. Mar. 29, 2016)

(alterations omitted); see also Al-Qadaffi v. Servs. for the Underserved, No. 13-CV-8193, 2015

WL 585801, at *8 (S.D.N.Y. Jan. 30, 2015) (denying leave to amend where the plaintiff “has

already had one chance to amend his [c]omplaint, and there is still no indication that a valid

The Clerk of the Court is respectfully requested to terminate the pending Motion, (Dkt.

No. 51), and to mail a copy of this Opinion & Order to Plaintiff.

The Court will hold a status conference via teleconference on March 3, 2021, at

10:30AM.

SO ORDERED.

of

DATED: January 312021 iY may

White Plains, New York

KENNETH M. KARAS

UNITED STATES DISTRICT JUDGE

claim might be stated if given a second chance”), aff'd, 632 F. App’x 31 (2d Cir. 2016). The

Court finds that further amendment on these claims would be futile.

20