McGriff v. Superintendent Keyser

USDC SDNY

MEMORANDUM ENDORSEMENT DOCUMENT

McGriff v. Superintendent Keyser et al. BLED DSO BLED

DOC #:

7:17-cv-07307-NSR-PED DATE FILED: _10/12/2021

The Court has reviewed Defendants’ request for leave to file a motion for summary

judgment (ECF No. 98), Plaintiff's letter requesting that the Court wait to address the

request until Plaintiff was released on September 23, 2021 and could procure an

attorney (ECF No. 99), and Plaintiffs letter notifying the Court of his new address

(ECF No. 100).

The Court waives the pre-motion conference requirement and grants Defendants leave

to file their proposed motion for summary judgment as follows: moving papers shall

be served (not filed) on December 15, 2021; opposition papers shall be served (not

filed) on January 14, 2022; reply papers shall be served on January 31, 2022. All

motion papers shall be filed on the reply date, January 31, 2022. If Plaintiff has not

obtained counsel by the reply date, Defendants shall file all motion papers, including

Plaintiff's opposition papers. If Plaintiff has obtained counsel by the reply date,

parties shall file their own papers. The parties shall provide two hard courtesy copies

of all motion papers to Chambers as they are served.

The Court has set the briefing schedule to afford Plaintiff time to find counsel. If

Plaintiff is unable to comply with the current briefing schedule, he must timely seek

an extension of his deadline to serve his opposition papers.

The Clerk of Court is directed to terminate the motions at ECF No. 98 and 93, to mail

a copy of this order to pro se Plaintiff at the address on ECF, and to show service on

the docket.

Dated: October 12, 2021 SO ORDERED:

White Plains, NY ee

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HON-NECSONS. ROMAN

UNITED STATES DISTRICT JUDGE

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STATE OF NEW YORK

OFFICE OF THE ATTORNEY GENERAL

LETITIA JAMES DIVISION OF STATE COUNSEL

ATTORNEY GENERAL LITIGATION BUREAU

DIRECT DIAL: (212) 416-6551

September 15, 2021

Via ECF

Honorable Nelson S. Roman

United States District Judge

Southern District of New York

300 Quarropas Street

White Plains, New York 10601

Re: McGriff v. Keyser, No. 17 Civ. 7307 (NSR)

Dear Judge Roman:

This Office represents defendants William Keyser, Anthony Polizzi, and Stephen Keyser,

(collectively “Defendants”) in the above-referenced matter. Pursuant to Judge Davison’s Order

on August 4, 2021, and Your Honor’s Individual Practices, I write to respectfully request that the

Court schedule a pre-motion conference in order to discuss the Defendants’ anticipated motion for

summary judgment.

Plaintiff, an inmate at Sullivan Correctional Facility (“Sullivan”), alleges that on October

19, 2015, Defendant Keyser wrote a misbehavior report charging him with drug possession and

smuggling contraband. (Dkt. No. 32, | 8,12). Plaintiff was placed in SHU pending a hearing before

Defendant Hearing Officer Polizzi, who found Plaintiff guilty and sentenced him to 45 days

keeplock. Plaintiff contends that he did not receive due process at his disciplinary hearing, and that

the conditions in SHU, where there was ongoing construction during the day, violated the Eighth

Amendment. The sole claims remaining in this case are due process claims concerning the conduct

of the disciplinary hearing against Defendants Polizzi and Keyser, and an Eight Amendment claim

concerning the conditions in SHU against Defendant Superintendent Keyser. These claims are all

meritless.

1. Plaintiff’?s Eighth Amendment Claim Fails Because He Failed to Exhaust his

Administrative Remedies Prior to Filing this Action

The Second Circuit has expressly held that the clear language of § 1997e(a) requires that

exhaustion be completed prior to commencement of an action in court. Neal v. Goord, 267 F.3d

116, 123 (2d Cir. 2001). Exhaustion requirement “applies to all inmate suits about prison life,

whether they involve general circumstances or particular episodes.” Porter _v. Nussle, 534 U.S.

516, 532 (2002). Compliance with the particular prison’s administrative grievance procedure

“define[s] the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). The

exhaustion must be “[p]roper,” meaning that it must “compl[y] with an agency’s deadlines and

28 LIBERTY ST., NEW YORK N.Y. 10005 * PHONE (212) 416-8610 * FAX (212) 416-6075 *NOT FOR SERVICE OF PAPERS

HTTP://WWW.AG.NY.GOV

imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81,

90-91 (2006). An inmate grievance procedure pursuant to DOCCS Directive 4040 requires an

inmates to follow a three-step process (§ 701.5(a)-(b); 7 N.Y.C.R.R. § 701.5 (a)-(b). Plaintiff

admits that he did not file a grievance concerning the noise while in SHU, and alleges that he

grieved regarding the dusty food but did not receive any response at the time he commenced this

action. Plaintiff thus failed to exhaust his Eighth Amendment claims, and they should be dismissed.

2. Defendant Superintendent Keyser was not Personally Involved in Any Constitutional

Violation

“[P]ersonal involvement of defendants in alleged constitutional deprivations is a

prerequisite to an award of damages under § 1983.” Shomo v. City of New York, 579 F.3d 176,

184 (2d Cir. 2009) (citation omitted). To hold a prison official liable under § 1983 “requires a

showing of more than the linkage in the prison chain of command.” Ayers v. Coughlin, 780 F.2d

205, 210 (2d Cir. 1985). Instead, plaintiffs must allege non-conclusory facts sufficient to establish

that “each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, the only factual

allegations in the Amended Complaint concerning Superintendent Keyser is that he was told,

during rounds and by one letter, of the dusty food and noise issues in SHU. He is sued simply

because of the high-ranking position he holds within DOCCS. This is insufficient to state a claim

as a matter of law. See Ayers, 780 F.2d at 201. Additionally, receiving a letter from an inmate does

not render the official personally involved with respect to the subject matter of the letter. Sealey

v. Giltner, 116 F.3d 47, 51 (2d Cir.1997).

3. Plaintiff Has Not Alleged a Deprivation of A Liberty Interest

The Second Circuit has instructed that “[r]estrictive confinements of less than 101 days do

not generally raise a liberty interest … .” Davis v. Barrett, 576 F.3d 129, 133- 134 (2d Cir. 2009).

Here, Plaintiff alleges that he was only sentenced to 45 days in keeplock, and there are no facts

alleged to indicate that his keeplock confinement was unusual or different from routine restrictive

confinement in keeplock or SHU. The allegations concerning dusty food and noise relate only to

the pre-hearing time spent in SHU. He has thus failed to allege a liberty interest implicating the

Due Process Clause, and the Court need proceed no further.

4. Plaintiff Received All the Process That Was Due In Any Event

The only process that an inmate is due at a disciplinary hearing is “advance written notice

of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and

present documentary evidence; a fair and impartial hearing officer; and a written statement of the

disposition, including the evidence relied upon and the reasons for the disciplinary actions taken.”

Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff v. McDonnell, 418 U.S. 539, 563-

567 (1974)). Furthermore, “judicial review of the written findings required by due process is

limited to determining whether the disposition is supported by ‘some evidence.’” Id. (citing

Superintendent v. Hill, 472 U.S. 445, 455 (1985). “This standard is extremely tolerant and is

satisfied if there is any evidence in the record that supports the disciplinary ruling.” Sira, 380 F.3d

at 69 (emphasis in original). Here, Plaintiff concedes that he was able to present witnesses and

28 LIBERTY ST., NEW YORK N.Y. 10005 • PHONE (212) 416-8610 • FAX (21 2) 416-6075 *NOT FOR SERVICE OF PAPERS

in question. Plaintiff contends only that he was denied due process during his disciplinary hearing

because Defendant Keyser was purportedly not able to specify the coded language used on

Plaintiff’s phone call that indicated he was smuggling drugs, and there was thus not “substantial

evidence” in the record to support Defendant Polizzi’s guilty verdict. But the Due Process Clause,

even if applicable, would require only that there be “some evidence” in the record to support the

disciplinary conviction. Sira, 380 F.3d at 69. Even were Keyser’s testimony to be disregarded, the

misbehavior report and testimony of other witnesses were more than sufficient to meet this

minimal standard. See Eleby v. Selsky, 682 F. Supp. 2d. 289, 293 (W.D.N.Y. 2010). Failure to

consider all plaintiff’s objections would amount to harmless error in any event. Id.

5. Defendants Are Entitled to Qualified Immunity

The Second Circuit has instructed that “[t]he issues on qualified immunity are: (1) whether

Plaintiff has shown facts making out [a] violation of a constitutional right; (2) if so, whether that

right was ‘clearly established’; and (3) even if the right was ‘clearly established,’ whether it was

‘objectively reasonable’ for the officer to believe the conduct at issue was lawful.” Gonzalez v.

City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). All Defendants are entitled to qualified

immunity because Plaintiff does not make out a claim for a due process violation, as the time

served in SHU did not implicate a liberty interest and he was afforded all process guaranteed in a

disciplinary hearing. Additionally, the conditions while in SHU, were compelled by necessity, and

a reasonable official could have believed that construction noise during the day did not implicate

the Eight Amendment. In any event, a reasonable official in Defendants positions could have

believed that the actions they are alleged to have taken did not violate the Constitution.

Respectfully submitted,

By: /s/

Jessica Acosta-Pettyjohn

Assistant Attorney General

Jessica.Acosta-Pettyjohn@ag.ny.gov

cc: Dewitt McGriff

DIN: 97-A-6773

Sullivan Correctional Facility

P.O. Box 116

325 Riverside Drive

Fallsburg, NY 12733

(Via First Class Mail)

28 LIBERTY ST., NEW YORK N.Y. 10005 • PHONE (212) 416-8610 • FAX (21 2) 416-6075 *NOT FOR SERVICE OF PAPERS

pro se P letter dated 9/20/2021re 9/23/21 release date and response to

/ 23/2021 Defendants’ letter at ECF No.98.

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1, Dewitt McGriff, certify that on 23 day of Sep tem ber 20. 21, I mailed a copy

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I certify that these documents were placed in a United States Postal Service mailbox on

the below indicated date for forwarding to the above parties by First Class Mail via U.S. Postal

Service,

I further certify under penalty of perjury that the foregoing is true and correct pursuant to

28 U.S.C, § 1746. .

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