# Brown v. Venettozi

> District Court, S.D. New York · February 1, 2021

URL: https://www.frixlaw.com/law-library/cases/10329363

## Case

- **Court:** District Court, S.D. New York
- **Decided:** February 1, 2021
- **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/10329363

## How later opinions describe it (automated extraction)

- 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”
- holding that, in the harmless error inquiry on habeas review, “[t]he burden of persuasion is on the government”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10329363. Public record. Not legal advice.