Booker v. Griffin

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

DATE FILED: _ 02/23/2024 _

AMIN BOOKER,

Plaintiff, No. 16 Civ. 00072 (NSR)

. OPINION & ORDER

-against-

THOMAS GRIFFIN, et al.,

Defendants.

NELSON S. ROMAN, United States District Judge

Amin Booker (‘Plaintiff’) commenced this action against Thomas Griffin, Edward

Demo, Paul Chappius, Gregory Keller, and Joseph Bellnier, (“Defendants”), asserting numerous

claims, including that: (1) Defendants Griffin and Demo violated his First and Fourteenth

Amendment rights by retaliating against him with a false Administrative Segregation □□□□

Seg.”) Recommendation because Plaintiff had made a number of complaints against Green

Haven Correctional Facility (“Green Haven”), where he was then incarcerated; (11) Defendants

Chappius and Keller denied the Plaintiff due process in connection with the Ad. Seg. hearing in

violation of the Fourteenth Amendment and the New York State Constitution; (111) Defendants

Bellnier and Keller failed to provide Plaintiff meaningful periodic reviews of the basis for his

placement in Ad. Seg. in violation of the Fourteenth Amendment and the New York State

Constitution; and (iv) the Defendants subjected Plaintiff to unconstitutional conditions of

confinement in violation of the Eighth Amendment. (Third Amended Complaint (“Compl.”),

ECF No. 228.)

Presently before the Court are (1) Defendants’ motion for summary judgment on all of

Plaintiff's claims (ECF No. 279); and (2) Plaintiff's motion for partial summary judgment on his

Fourteenth Amendment claims in connection with the Ad. Seg. hearing and the periodic reviews

regarding his placement in Ad. Seg. (ECF No. 289). Plaintiff additionally moves for summary

judgment on Defendants’ affirmative defenses of “failure to exhaust” and qualified immunity.

(Id.)

For the following reasons, the Court GRANTS in part and DENIES in part Defendants’

motion for summary judgment, and the Court GRANTS in part and DENIES in part Plaintiff’s

motion for partial summary judgment.

BACKGROUND

I. Factual Background

The parties have submitted briefs, statements of material facts pursuant to Local Civil

Rule 56.1, and the record and exhibits from discovery in the instant proceeding, which reflect the

following factual background.

A. Plaintiff’s Role on the ILC and Meeting with Defendant Griffin

In April 2015, Plaintiff was incarcerated at Green Haven. At Green Haven, Plaintiff

served as an active member of the Inmate Liaison Committee (“ILC”), a group dedicated to

recording and addressing inmates' concerns and grievances within the facility, as well as the

Green Haven anti-gang program. (Plaintiff’s Statement of Material Facts (“Pltf.’s 56.1”) ¶ 1.)

He also participated in the family reunion program, which requires inmates to be free of any

“major, severe, chronic, or excessive disciplinary problems.” (Id.)

In early April 2015, the ILC requested a meeting with the Department of Corrections and

Community Supervision (“DOCCS”) Commissioner Anthony Annucci to address inmate

complaints of excessive and arbitrary beatings by prison staff. (Declaration of Amin Booker in

Support of Motion for Summary Judgment (“Booker Decl.”), ECF No. 297 ¶¶ 21-23.) On April

21, 2015, Plaintiff and Defendant Griffin, the Superintendent of Green Haven, met in the

facility’s package room. The parties dispute what occurred during this meeting. Plaintiff claims

that Defendant Griffin pulled Plaintiff from his cell and cornered him in the facility’s package

room. (Pltf.’s 56.1 ¶ 18.) He then instructed Plaintiff to stop raising the topic of excessive and

arbitrary beatings at ILC meeting and threatened him for “trying to go above [his] head and have

[his] bosses come in [his] facility.” (Booker Decl. ¶¶ 44-47.) Defendant Griffin then threatened

to put Plaintiff in solitary confinement “with a push of a button,” and promised that Plaintiff

would be in solitary “for years.” (Pltf.’s 56.1 ¶¶ 20, 34; Booker Decl. ¶ 49.)

The Defendants instead contend that Defendant Griffin interviewed Plaintiff about a

rumored work stoppage demonstration (the “Demonstration”) at Green Haven and whether he

was currently affiliated with the Bloods gang (the “Bloods”). (Declaration of Thomas Griffin in

Support of Motion for Summary Judgment (“Griffin Decl.”), ECF No. 286, ¶ 22.) Plaintiff

denied currently being a part of the Bloods, but did admit to past involvement with them. (Id.)

Plaintiff also said he had heard about a planned demonstration and that if Defendant Griffin “let

him go to the yard that night, he could Ad. Seg.t down the demonstration.” (Id.) Based on this

purported statement, Defendant Griffin concluded that Plaintiff had “significant influence and

authority within the Bloods organization and could stop the demonstration.” (Id.)

B. Defendants’ Investigation of the Rumored Demonstration

The next day, on April 22, 2015, Plaintiff was transferred to Elmira Correctional Facility

(Elmira”) and placed into solitary confinement. (Pltf. 56.1 ¶¶ 35-38.) At the next Green Haven

ILC meeting, additional complaints about inmate beatings were raised, and Defendant Griffin

allegedly announced to the ILC Chair that he was “putting [Plaintiff] under [i.e., in the AD.

SEG.] to be an example to anyone who has that bright idea again.” (Id. ¶ 60.)

On the same day, Defendant Griffin contacted Defendant Joseph Bellnier, the Deputy

Commissioner of DOCCS, to report a potential inmate demonstration at Green Haven. (Pltf.’s

56.1 ¶ 27.) Defendant Griffin was allegedly advised based on intelligence gathered from

confidential informants that Plaintiff, among others, had been identified as a possible leader of

the planned demonstration. (Griffin Decl. ¶ 20.) Defendant Bellnier immediately authorized an

investigation into the demonstration. (Id. ¶¶ 27-29.) Defendant Edward Demo arrived as the lead

investigator, and with Defendant Griffin, conducted interviews through the end of the night. (Id.

¶ 30.)

Defendant Griffin mentioned to Defendant Demo that he had interviewed the Plaintiff in

the package room and that Plaintiff had allegedly told Griffin he could stop the demonstration.

(Declaration of Edward Demo in Support of Motion for Summary Judgment (“Demo Decl.”),

ECF No. 285 ¶ 7.) Demo also interviewed Plaintiff, though the parties’ accounts of the interview

differ. Plaintiff claims that during the interview, Demo only asked Plaintiff about a use of

excessive force incident involving an inmate named “Africa” that allegedly occurred in April

2015, and not about the alleged demonstration. (See Booker Decl. ¶¶ 58-62.) Defendants claim,

however, that Plaintiff told Defendant Demo that he had spoken to Defendant Griffin earlier that

day and he did not know about anything going on or why he was being interviewed. (Demo

Decl. ¶ 9.) He further stated that he heard that incarcerated individuals were being beat up that

day and the day before but that he had nothing to do with it. (Id.) When Demo asked Plaintiff

whether he thought there will be a problem at the facility, he said that nothing will happen. (Id.)

During the investigation, Defendant Demo never spoke to anyone who professed personal

knowledge that Plaintiff was involved in the Demonstration or that he was involved with the

Bloods—the group rumored to be involved with the Demonstration. (Pltf.’s 56.1 ¶¶ 30-32.) In

fact, inmates repeatedly named other inmates as being involved. (Id. ¶ 31.) Defendant Demo

claims that, after the investigation, an unidentified inmate told him that other, also unidentified

confidential informants (“CI”) had suggested that Plaintiff could be involved in the

Demonstration. (Id. ¶¶ 35.) Such CI intel was only ever given to Defendant Demo second-hand

as he never met the CIs and did not investigate their motives, their reliability, or whether they

had personal knowledge of Plaintiff. (Id. ¶¶ 35-36.)

On April 24, two days after Plaintiff was moved to the AD. SEG., Defendant Griffin

wrote a memorandum to his brother, Assistant Commissioner Patrick Griffin, stating that he had

interviewed Plaintiff on April 21 and concluded that Plaintiff “would pose a threat to safety and

security of any facility he would be housed.” (Id. ¶¶ 41-45.) To the memo, Defendant Griffin

attached a open letter (the “Open Letter”) purportedly circulated to prompt the Demonstration,

but did not explain how he obtained it or how it was connected to Plaintiff. (Id. ¶ 55.) The Open

Letter does not mention the Bloods, Plaintiff, or the word “demonstration.” (Id. ¶ 24.) The Open

Letter is typed in both Spanish and English. (Id. ¶ 25.)

The same day, after Plaintiff was already in solitary, Defendant Demo was subsequently

directed to draft an Ad. Seg. Recommendation (“Recommendation”) in part because of

Defendant Griffin’s conclusion that Plaintiff posed a threat. (Id. ¶¶ 49, 57.) Defendant Demo

then contacted the gang unit of the New York City correctional department to seek information

about Plaintiff. (Id. ¶ 46.)

The parties dispute whether the DOCCS records indicated gang involvement, as Plaintiff

contends the computer system erroneously included expunged and incorrect charges. (See, e.g.,

Declaration of Paul J. Kremer in Support of Plaintiff’s Cross-Motion for Summary Judgment,

ECF No. 296, Ex. 26.) Defendant Demo, however, concluded in his Recommendation that

Plaintiff had influence in the Bloods. (Pltf.’s 56.1 ¶¶ 50-51.) Defendant Demo admits that the

only evidence he found tying Plaintiff to the Bloods was from the second- and third-hand inmate

statements. (Id. ¶ 48.)

C. The Ad. Seg. Hearing

Plaintiff was served with a copy of the Recommendation on or about April 25, 2015.

(Defendants’ Statement of Material Facts (“Defs.’ Rule 56.1”) ¶ 36.) The Recommendation is

largely a recitation of Plaintiff’s disciplinary record and allegedly expunged findings. (Pltf.’s

56.1 ¶ 50.) The Recommendation asserts that Plaintiff “had an inmate disseminate a letter to the

inmate population” and that he “had the ability to organize inmates.” (ECF No. 113-1 (copy of

Recommendation).) It does not, however, identify any inmates or groups thereof influenced by

Plaintiff or the time or place of any organizing activities. (See id.) The Recommendation

concludes by saying that Plaintiff “has proven him self [sic] to be a severe management

problem.” (Id.) No other inmate was ever disciplined regarding the purported Demonstration.

(Pltf.’s 56.1 ¶ 59.)

In May 2015, the Deputy Superintendent of Elmira Correctional Facility, Defendant

Kirkpatrick, commenced a hearing against Plaintiff to determine whether he should be placed

into Ad. Seg. (Id. ¶ 55.) At the hearing, Defendant Griffin testified first that Plaintiff was

threatening inmates in the Green Haven yard within the week before his transfer to Ad. Seg. (Id.

¶¶ 63-65.) Before the hearing was concluded, however, Kirkpatrick was promoted to be

Superintendent of Clinton Correctional Facility. (Defs.’ 56.1 ¶ 38.) Because Defendant

Kirkpatrick could no longer serve as the hearing officer, on June 30, 2015, Superintendent

Chappius appointed Defendant Captain Gregory Keller to take his place. (Id.)

At the new hearing (the “Hearing”) beginning July 7, 2025, the testimony given at the

hearings before Defendant Kirkpatrick was thrown out. (Id.) At the outset of the hearing,

Defendant Keller dismissed Plaintiff’s argument that it was improper to start the hearing over,

rather than continuing from where the first hearing ended. (See Declaration of Gregory Keller in

Support of Defendants’ Motion for Summary Judgment (“Keller Decl.”), ECF No. 283 ¶ 14.)

Defendant Keller informed Plaintiff instead that all the testimony would be retaken so that

Defendant Keller could assess the evidence for himself. (Id.; ECF No. 283-4 (Hearing

Transcript) at 11-12, 17, and 20.)

A reading of the Recommendation was used as the notice of charges against Plaintiff.

(Pltf.’s 56.1 ¶ 65.) Plaintiff was never shown the Open Letter. (Id. ¶ 22.) According to Plaintiff,

without hearing the key allegations against him, he purportedly believed that Defendant Griffin’s

allegation lodged during the first hearing—that Plaintiff threatened inmates in the Green Haven

yard—was still the main assertion against him in the Hearing before Defendant Keller. (Id. ¶ 81.)

Accordingly, Plaintiff allegedly focused his defense on disproving that he threatened inmates in

the yard. (Id.)

Plaintiff presented evidence and witnesses to show that Plaintiff was not in the yard

during the time that Defendant Griffin claimed he was. (See ECF No. 296-2 (Hearing Transcript)

at 109; ECF No. 296-37 (Hearing Determination Appeal Record) at 232-45.) For example,

Plaintiff solicited questionnaires from inmates in his block and the adjacent cell block at Green

Haven to verify that Plaintiff never asked nor threatened the inmates to refuse work or to not

attend programs. (Pltf.’s 56.1 ¶ 79.) On July 21 and 22, eight witnesses, five of whom were

inmates from Green Haven, testified in Plaintiff’s defense. (ECF No. 296-2 at 88-96, 106-127,

134-142.) The inmates claimed that they were never approached by Plaintiff nor had heard of

him approaching anyone else to participate in the rumored Demonstration.) (Id. at 106-140;

Pltf.’s 56.1 ¶ 83.)

During the Hearing, Defendant Keller denied some of Plaintiff's requests for documents

and to call certain witnesses from DOCCS staff and inmates who were also alleged to have

participated in planning the Demonstration. (Id. ¶ 72.) Defendant Keller also excluded a witness

who could speak to Plaintiff's involvement in the anti-gang program at Green Haven on the basis

that such witness was “irrelevant.” (Id. ¶ 86.) Defendant Keller also frequently interrupted

Plaintiff’s questioning of witnesses to rephrase questions or strike questions. (Id. ¶¶ 67, 77, 86.)

Defendant Keller alleges that this only occurred when he determined certain questions were

inappropriate, such as those pertaining to testimony given at the first hearing before Defendant

Griffin. (Keller Decl. ¶ 17.)

Defendant Keller excluded Plaintiff from hearing the “confidential” testimony against

him even though no CI testified or was identified at the Hearing. (Pltf.’s 56.1 ¶¶ 69-76.) The

testimony in question relayed that an unspecified number of unidentified CIs linked Plaintiff to

the Demonstration, (id. ¶ 71), and that a high-ranking Blood member in another facility stated

that if anything happened in Green Haven, Plaintiff “would have something to do with it.” (ECF

No. 296-2 at 328.) Defendant Keller did not speak to any of the CI sources’ himself. (Pltf.’s 56.1

¶¶ 70-73.)

Defendant Keller reached a disposition on August 21, 2015, agreeing with Defendant

Demo’s recommendation and sentencing Plaintiff to indefinite placement in Ad. Seg. (Id. ¶ 74.)

Plaintiff voiced concern about potential due process violations in the Hearing to Defendant

Chappius, Superintendent at Elmira, but Chappius took no action in response to Plaintiff’s

complaints. (Id. ¶ 82.) Plaintiff then appealed the disposition of the Hearing to the DOCCS

Director of Special Housing, Donald Venettozzi, who affirmed the disposition on November 6,

2015. (Id. ¶ 83.)

D. Periodic Reviews and Plaintiff’s Conditions in Ad. Seg.

After his conviction, under DOCCS regulations, Plaintiff was entitled to a three-tiered

review of his solitary confinement every 60 days (a period that was shortened to 30 days in

December 2020). (Id. ¶¶ 149-50.) Defendant Keller personally authored and approved some of

Plaintiff’s initial Level One reviews, and Defendant Bellnier, as the Level Three reviewer,

approved the reviews. (Id. ¶¶ 151, 156-67.)

While in solitary, Plaintiff filed multiple grievances about his conditions of confinement,

which were responded to, though not, in Plaintiff’s version of events, adequately addressed.

(Defs.’ Rule 56.1 ¶ 59; Pltf.’s 56.1 ¶ 142.) For example, Plaintiff claims that he suffered sleep

deprivation because of his placement in cells next to inmates who were suffering from

psychological or mental illnesses; the inmates created a persistent, deafening clamor that kept

Plaintiff awake at night. (Pltf.’s 56.1 ¶ 136.) These inmates also started fires, urinated in their

cells, and threw feces at Plaintiff, which left a pervasive smell in his block and cell. (Id.)

Plaintiff’s cell also allegedly suffered from infestations of cockroaches and other insects on

several occasions during his confinement. (Id. ¶¶ 127-131.)

On or about March 19, 2020, Plaintiff was transferred to Attica Correctional Facility.

(Defs.’ Rule 56.1 ¶ 60.) On or about December 22, 2020, Plaintiff began the process of

transitioning from Ad. Seg. to a step-down program. (Id. ¶ 61.) As a result, Plaintiff was no

longer entitled to periodic reviews pursuant. (Id.) On or about January 7, 2021, Plaintiff was

transferred to Midstate Correctional Facility where he was placed into another step-down

program as the first step toward transitioning back into the general population. (Id. ¶ 62.) On or

about November 5, 2021, Plaintiff transferred to Five Points Correctional Facility where he was

placed into general population. (Id. ¶ 63.) Plaintiff ultimately remained in Ad. Seg. for more than

six and a half years.

II. Procedural History

On January 4, 2016, Plaintiff commenced the present action pursuant to 42 U.S.C. §

1983, alleging, inter alia, various violations of his First, Eighth, and Fourteenth Amendment

rights by officials at Green Haven and Elmira. (ECF No. 2.) Defendants filed a motion to dismiss

Plaintiff's complaint on January 06, 2017. (ECF No. 46.) Plaintiff opposed Defendants’ motion

to dismiss and filed a cross-motion for summary judgment on his due process claims. (ECF No.

52.) The Court granted the Defendants’ motion to dismiss in part and denied in part, and denied

Plaintiff’s cross-motion for summary judgment. (ECF No. 80.)

On March 17, 2021, Plaintiff filed the operative complaint. (ECF No. 228.) Defendants

filed a motion for summary judgment on all remaining claims (ECF No. 279) and a

memorandum of law in support thereof (“Defs.’ MOL”, ECF No. 280). In response, Plaintiff

opposed Defendants’ motion for summary judgment. (“Pltf.’s Opp.”, ECF No. 300.) Plaintiff

also filed a cross-motion for partial summary judgment on his Fourteenth Amendment due

process claims, as well as Defendants’ affirmative defenses of “failure to exhaust” and qualified

immunity (ECF No. 289), as well a memorandum of law in support thereof (“Pltf.’s MOL”, ECF

No. 290). Defendants filed a reply in further support of their motion for summary judgment as

well as an opposition to Plaintiff’s cross-motion for partial summary judgment. (“Defs.’ Reply”,

ECF No. 292.) Plaintiff also filed a reply in further support of his cross-motion for partial

summary judgment. (“Pltf.’s Reply”, ECF No. 302.)

LEGAL STANDARDS

Under Federal Rule of Civil Procedure 56(c), summary judgment must be granted if

“there is no genuine issue of material fact and ... the moving party is entitled to a judgment as a

matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4 (1986). “[G]enuineness runs to

whether disputed factual issues can reasonably be resolved in favor of either party, [while]

materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the

outcome under the applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190

F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a

genuine issue of material fact exists, a plaintiff “may not rest upon the mere allegations or

denials of the pleading[s],” but must by affidavit or otherwise “set forth specific facts showing

that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). “Conclusory statements, conjecture

or speculation by the party resisting the motion will not defeat summary judgment.” Kulak v.

City of New York, 88 F.3d 63, 71 (2d Cir. 1996).

Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of

the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736,

742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of

genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997).

If the initial burden is met, the non-moving party “must produce specific facts indicating that a

genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely

colorable, or is not significantly probative, summary judgment may be granted.” Scotto v.

Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration

in original).

The same standard of review applies when the Court is faced with cross-motions for

summary judgment, as here. See Lauria v. Heffernan, 607 F. Supp. 2d 403, 407 (E.D.N.Y. 2009)

(citations omitted). When evaluating cross-motions for summary judgment, the Court reviews

each party’s motion on its own merits, and draws all reasonable inferences against the party

whose motion is under consideration. Morales v. Quintel Entm’t, Inc., 249 F.3d 115, 121 (2d Cir.

2001).

DISCUSSION

I. Fourteenth Amendment Due Process Claims

The Fourteenth Amendment to the Constitution provides that “[n]o State shall ... deprive

any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, §

1. “Although prison inmates necessarily have their liberty severely curtailed while incarcerated,

they are nevertheless entitled to certain procedural protections when disciplinary actions subject

them to further liberty deprivations such as loss of good-time credit or special confinement that

imposes an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004). Plaintiff’s

confinement, which includes both his initial placement in administrative segregation following

the Ad. Seg. Hearing and his continuous placement there for six years – is an example of such

hardship.

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. Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017). This is the relevant test for both

of the Fourteenth Amendment due process claims Plaintiff asserts. The Court considers each

claim in turn.

Ad. Seg. Hearing

Plaintiff alleges that his right to due process was violated during the Hearing because: (1)

he received insufficient notice of the allegations against him; (2) he was deprived of a reasonable

ability to call witnesses and present a defense; (3) the Hearing was overseen by an allegedly

biased hearing officer who predetermined Plaintiff’s guilt; and (4) the Hearing disposition

entirely lacked in reliable evidence. (Pltf.’s MOL at 9.) Defendants argue that Plaintiff is

mistaken as to each of these allegations and the evidence demonstrates that his due process rights

were not violated. (Defs.’ MOL at 17.) Plaintiff, however, contends that there is no dispute that

Defendants Chappius and Keller failed to provide Plaintiff due process in connection with the

Hearing. (Pltf.’s MOL at 8.) Accordingly, both parties move for summary judgment on this

claim.

This Court has already held that Plaintiff had a liberty interest based on the length of his

confinement, satisfying the first element of the Proctor test. (See ECF No. 80.)

As to the second element of the Proctor test – namely, whether Defendants deprived

Plaintiff of his liberty interest in violation of due process – due process dictates that, in

connection with a disciplinary hearing, “an inmate is entitled to [1] advance written notice of the

charges against him; [2] a hearing affording him a reasonable opportunity to call witnesses and

present documentary evidence; [3] a fair and impartial hearing officer, and [4] a written

statement of the disposition; including the evidence relied upon and the reasons for the

disciplinary actions taken.” Sira, 380 F.3d at 69.

The notice requirement of due process does not demand “notice that painstakingly details

all facts relevant to the date, place, and manner of charged inmate misconduct.” Id. at 72. It does,

however, require notice with “sufficient factual specificity to permit a reasonable person to

understand what conduct is at issue so that he may identify relevant evidence and present a

defense.” Id. Accordingly, a vague notice that does not clearly delineate “the evidence upon

which a discipline ruling is based” and afford an inmate the “reasonable opportunity to explain

his actions and to alert officials to possible defects in the evidence” is constitutionally deficient.

See id. at 71. For example, in Sira, an inmate was charged with urging, organizing, and

threatening other inmates to participate in a work stoppage demonstration. Id. at 62. The

misbehavior report received by the inmate in advance of his hearing, however, “provide[d] no

notice as to the specific site or sites of his misconduct; it [did] not indicate the words or actions

[the inmate] employed in purportedly urging, organizing, or threatening inmates to participate in

the Y2K strike; and it identifie[d] no inmates toward whom his actions were directed.” Id. at 71.

The Second Circuit accordingly found that the inmate had “presented a viable due process claim

of inadequate notice.” Id. at 72.

Likewise, in Taylor v. Rodriguez, the Second Circuit rejected as “vague or conclusory” a

notice that informed an inmate that he was being considered for special confinement based on

past acknowledged membership in the “Latin Kings” gang, “recent tension in B–Unit involving

gang activity,” and unspecified “statements by independent confidential informants.” 238 F.3d

188, 193 (2d Cir. 2001). Such notice left the inmate “hav[ing] to guess what conduct forms the

basis for the charges against him,” and therefore “was too vague to allow [the inmate] to prepare

an adequate defense,” in violation of due process. Id.

Here, the notice received by Plaintiff – namely, the Recommendation – was similarly

constitutionally deficient. The Recommendation contains reference to Plaintiff’s past gang-

related activity, his alleged concession to Defendant Griffin that he carried significant influence

and authority in the Bloods, and a recitation of his history of organizing prison demonstrations.

The activity with which Plaintiff was presently being charged—organizing an impending

demonstration against the Green Haven administration—however, is not outlined with any

specificity in the Recommendation. Setting aside the lengthy recitation of Plaintiff’s disciplinary

history and Plaintiff’s purported confession to Defendant Griffin that he was once a member of

the Bloods and “could shut down the demonstration” (a disputed fact that the Court will not

consider in resolving cross-motions for summary judgment), the Recommendation contains only

one specific allegation: that at some unspecified date, time, and place within Green Haven,

Plaintiff “had an inmate disseminate a letter to the inmate population for a call to inmates for

‘Solidarity.’” (See ECF No. 113-1.) This sole allegation, however, does not identify when or

where Plaintiff allegedly engaged in misconduct, leaving him unable to determine “whether his

conduct allegedly occurred on a specific day in . . . or over the course of several weeks; and

whether he had to defend against misconduct in the mess, the prison yard, his cell block, or some

other location.” Sira, 380 F.3d at 71-72. A notice which lacks reference to date, time, and place

of accused misconduct is plainly insufficient. Cf. Williams v. Korines, 966 F.3d 133, 144 (2d Cir.

2020) (holding that misbehavior report which contained “the names of the guards who conducted

the search, the date and time of the search, and an explanation that the guards determined that

sixteen of [inmate’s] photographs depicted hand signs that were associated with the Crips”

constituted adequate notice).

In addition, the Recommendation does not identify any specific words or actions that

connect Plaintiff with the Open Letter he allegedly had disseminated, nor does it identify any

specific inmates Plaintiff was allegedly trying to organize. This type of notice impermissibly

leaves a defendant guessing what conduct of his was at issue. Cf. Samuels v. Selsky, 166 F. App'x

552, 554 (2d Cir. 2006) (finding that a misbehavior report that advised an inmate of the date,

time, and place of the alleged misbehavior, as well as the conduct at issue satisfied due process).

In fact, the record indicates that Plaintiff positively misunderstood the charges against him, and

instead believed that he was being accused of intimidating inmates in the Green Haven yard and

therefore presented evidence to that end. (See Pltf.’s 56.1 ¶ 63; see also Taylor, 238 F.3d at 193

(“we have no doubt that plaintiff misunderstood what charges were leveled against him. For

example, the plaintiff testified, and introduced witness testimony, on matters concerning a

wholly unrelated disciplinary incident.”).)

Under the standard applied by the Second Circuit in Sira and Taylor, the notice supplied

by the Recommendation was plainly insufficient. As drafted, the Recommendation did not

permit Plaintiff to adequately present a defense. Where, as here, “a defendant is provided with no

specific facts relating to conclusory charges that he violated prison rules prohibiting inmates

from urging or threatening others to cause prison disruptions, he has no more ability to identify

the conduct at issue and to muster a defense than if he had been given no notice at all.” Sira, 380

F.3d at 72 (2d Cir. 2004).

Accordingly, the Court holds that Plaintiff was denied due process in connection with the

Ad. Seg. hearing because he did not receive adequate written notice of the charges against him.

Because the contents of the Recommendation are not in dispute, the Court awards summary

judgment on this issue in Plaintiff’s favor.

Periodic Reviews

Plaintiff asserts that his due process rights were violated by Defendants Keller, Chappius,

and Bellnier because they failed to provide him with meaningful periodic reviews of his Ad. Seg.

status, which lead to his continued placement on Ad. Seg. (Pltf.’s MOL at 19.) Defendants

disagree, arguing that Plaintiff received sufficient process in connection with his reviews. (Defs.’

MOL at 24.) Both parties move for summary judgment on this claim.

The Second Circuit has recognized the due process right to be free from pretextual

administrative confinement. Soto v. Walker, 44 F.3d 169, 173 n.4 (2d Cir. 1995); see also Pusepa

v. Annucci, No. 17-CV-1765 (RA), 2019 WL 690678, at *12 (S.D.N.Y. Feb. 19, 2019 (“A

‘pretextual’ administrative confinement may be raised as a separate constitutional violation.”)

(quoting Proctor v. Kelly, No. 05-CV-0692, 2008 WL 5243925, at *12 (N.D.N.Y. Dec. 16,

2008)). To comport with due process, the placement of an inmate in Ad. Seg. “must be

periodically reviewed to ensure that it ‘is not used as a pretext for indefinite confinement.’”

Colon v. Annucci, No. 17-CV-04445 (PMH), 2021 WL 3774115, at *7 (S.D.N.Y. Aug. 24, 2021)

(quoting Zimmerman v. Seyfert, No. 03-CV-01389, 2007 WL 2080517, at *19 (N.D.N.Y. July

19, 2007)). As with Plaintiff’s due process claim in connection with the Hearing, because the

Court has already found that Plaintiff had a liberty interest in being free from confinement (see

ECF No. 80), the sole issue before the Court on this claim is whether Defendants afforded

Plaintiff sufficient process.

When an inmate is confined to Ad. Seg., due process requires that prison officials

periodically review the confinement to ensure that the state’s justification for the confinement

“has not grown stale and that prison officials are not using Ad. Seg. as ‘a pretext for indefinite

confinement of an inmate.’” Proctor, 846 F.3d at 609 (citation omitted). In other words, “a

prisoner who is confined to administrative segregation for an extended period of time must

receive ‘some sort of periodic review’ to verify that they ‘remain[] a security risk’.” Hewitt v.

Helms, 459 U.S. 460, 4777 n.9 (1983). Under the relevant regulations, Defendants Bellnier and

Keller were required to give Plaintiff a meaningful review of his solitary confinement every 60

days (later shortened to every 30 days). N.Y. Comp. Codes R. & Regs. tit. 7, § 301.4(d) (2015

version); N.Y. Comp. Codes R. & Regs. tit. 7, § 301.4(c) (2020 version). The periodic reviews

were to consist of three levels of review: first, by a committee of three officials from the facility

where Plaintiff was housed (the “Facility Committee”), which in some instances included

Defendant Keller; next, by a committee of three officials from the DOCCS central office in

Albany (the “Central Office Committee”); and finally, by the Deputy Commissioner for

Correctional Facilities – in this case, Defendant Bellnier. (Pltf.’s 56.1 ¶¶ 149-51, 158.)

The Second Circuit requires that prison officials satisfy three criteria when conducting

periodic reviews: the officials must (1) “actually evaluate whether the continued confinement is

justified rather than [being] guided by a preordained outcome”; (2) “evaluate whether the

justification [for Ad. Seg.] exists at the time of review or will exist in the future”; and (3)

advance the purpose of “maintaining institutional safety and security or another valid reason

rather than the desire to impose punishment on the inmate.” H’Shaka v. O’Gorman, 444 F. Supp.

3d 355, 372 (N.D.N.Y. 2020) (citing Proctor, 846 F.3d at 610-11). “Procedural due process does

not permit a court to review the substance of DOCCS’s decision to confine a defendant in Ad.

Seg.…The Due Process Clause permits only an evaluation of whether Defendants’ method for

coming to their Ad. Seg. determinations is sufficient.” H'Shaka v. O'Gorman, 758 Fed. Appx.

196, 199 (2d Cir. 2019) (internal citations omitted) (emphasis added). Furthermore, regarding

method, “[t]he periodic review can be informal and non-adversarial. These reviews do not

require the presence of the accused and do not require the reviewer to ‘always consider new

information, since the original reasons for placing the inmate in [Ad. Seg.] may continue to be

compelling.’” Giano v. Selsky, No. 91 Civ. 166, 2002 WL 31002803, at *7 (N.D.N.Y. Sept. 5,

2002) (internal quotation marks and citation omitted). Finally, failing to satisfy even one of the

Second Circuit’s three criteria for periodic reviews, H’Shaka, 444 F. Supp. 3d at 372, constitutes

a due process violation, Proctor, 846 F.3d at 610.

The Court finds that Plaintiff has raised triable question of fact as to whether Defendants’

periodic reviews were constitutionally meaningful. In particular, a reasonable fact finder could

conclude that Defendants conducted their reviews by going through the procedural motions

guided by a preordained outcome, thereby failing to satisfy the first Proctor factor requiring

prison officials to “actually evaluate whether the continued confinement is justified.” H’Shaka,

444 F. Supp. at 372. For example, for several extended periods of time, “the first and third

paragraphs of the Facility Committee’s reviews were copied and pasted verbatim,” and “[t]he

reviews are replete with identical typos.” (Pltf.’s Reply at 8, n. 4, 5.) These nearly identical

reviews may be indicative of a sham review process and “suggest to a reasonable jury that

[Plaintiff’s] reviewers treated the process as satisfied by boilerplate explanations instead of a

forthright review.” Proctor, 846 F.3d at 613. Additionally troubling is Defendant Bellnier’s

admission that at his level of review, he would not consult Plaintiff’s previous reviews as

reference points, (ECF No. 296-54 at 149:12-15), and relied completely on the information given

to him by the Facility and Central Office Committees, (id. at 213:10-15), because he believed

that he was not required to conduct independent investigations of people that were “assigned to

do the work for me,” (id. at 237). As a result, “DOCCS officials’ own statements raise serious

doubts about whether they have conducted [the Plaintiff’s] periodic reviews with the outcomes

pre-ordained" and “may raise questions in a reasonable jury's mind about whether that process

has been meaningful as it relates to [Plaintiff].” Proctor, 846 F.3d at 612.

The Court also questions whether Defendants violated the second Proctor factor, which

required them to genuinely evaluate whether the justification for Plaintiff’s continued placement

in Ad. Seg. existed at the time of each review or would exist in the future. The main explanation

repeated throughout reviews for why Plaintiff should remain in Ad. Seg. was because “[h]e has a

charismatic personality that he uses this [sic] to manipulate others, particular other inmates.”

(See ECF No. 303-1 at 643, 650, 653, 656, 659, 663.) The Second Circuit has explained,

however, that “[r]eviews must take into account prison conditions and inmate behavior as they

change over time.” Proctor, 846 F.3d at 611 (emphasis added). Focusing on an immutable trait

like an inmate’s personality undermines the purpose of this review, which is to track changes

which “may modify the calculus of whether the inmate presents a current threat to the safety of

the facility.” Id. The Court notes that even consistent praise throughout 2018 and 2019 by the

Central Review Committee that Plaintiff was cordial with staff (ECF No. 303-1 at 626), polite

and respectful (id. at 650), and displayed appropriate behavior and attitude (id. at 666, 672, 695)

did not “modify the calculus” of whether Plaintiff posed a threat. His charismatic personality

instead served as an apparently iron-clad justification for indefinite confinement.

Finally, a reasonable fact finder could also find that Defendants violated the third Proctor

factor, which requires that an inmate’s continued placement in Ad. Seg. advance the purpose of

“maintaining institutional safety and security or another valid reason rather than the desire to

impose punishment on the inmate.” Proctor, 846 F.3d at 610-11. Plaintiff’s reviews repeatedly

reference his past indiscretions, even though these incidents were all remote in time and had no

apparent connection to his behavior in Ad. Seg. (See, e.g. ECF No. 303-2 at 672, 674, 677, 681,

684.) Conversely, Plaintiff’s good behavior while in Ad. Seg. did not appear to move the needle,

so to speak, on Defendants’ evaluation of his continued confinement. (See, e.g. 303-1 at 626,

650, 666, 672, 695.) Defendant Bellnier even specifically admitted that he had no process for

determining when the information contained within Plaintiff’s reviews became stale, (Pltf.’s 56.1

¶ 164 (when asked “When would information become stale or too old to include in future

reviews?” he replied “I have no way of answering that question.”)), nor did he read previous

reviews to track any positive trends in Plaintiff’s behavior, (ECF No. 296-54 at 149:15).

The Court is therefore “troubled by the complete absence of any meaningful indication

by DOCCS of when and under what circumstances Plaintiff might be released from Ad. Seg.”

See H'Shaka, 444 F. Supp. 3d at 374. The Second Circuit has made clear that “[t]he state may not

use Ad. Seg. as a charade in the name of prison security to mask indefinite punishment for past

transgressions.” Proctor, 846 F.3d at 611. “Based on the current record, a reasonable fact finder

could conclude that Defendants used Plaintiff's remote violent conduct prior to being placed in

Ad. Seg. (and his sporadic, relatively minor non-violent incidents while in Ad. Seg.) as a pretext

for their desire to keep him in Ad. Seg. in order to punish him for past conduct,” in violation of

the third Proctor factor. H'Shaka, 444 F. Supp. 3d at 374. A reasonable jury may conclude that

the Defendants “use[d] past events alone to justify indefinite confinement” in violation of due

process. Proctor, 846 F.3d at 611.

“It is important to recognize that not all of the evidence points in favor of [Plaintiff].

Some of the evidence could lead a reasonable jury to conclude, as Defendants urge, that DOCCS

officials have analyzed Plaintiff’s good behavior in their section 301.4(d) reviews and ‘found it

to be outweighed by other facts.’” Id. at 614 (citation omitted). The reviews and evidence

proffered by Defendants suggests that there were times when Plaintiff followed the rules, and

there were other times when he committed infractions and received inmate misbehavior reports,

undermining his record of good behavior. (See ECF No. 287-3 at 612-614.) Moreover,

Defendants dispute Plaintiff’s contention that Defendant Keller coerced another committee

member to blindly sign off on continuing Plaintiff’s Ad. Seg. without properly reviewing the

information, and whether Bellnier merely rubber-stamped the recommendations from his

subordinates. (See Defs.’ Reply at 23.) A reasonable jury may still conclude that DOCCS

officials had a methodical approach to conducting periodic Ad. Seg. reviews. Because of these

factual disputes, the Court cannot grant Plaintiff summary judgment on this claim.

Likewise, however, the Court cannot grant Defendants summary judgment on this claim

either. Given all the admissible evidence of Defendants’ statements and Plaintiff's disciplinary

history, there is a genuine dispute of material fact regarding whether Defendants engaged in a

meaningful review of Plaintiff’s continued Ad. Seg. status. Plaintiff has presented triable factual

questions as to whether his reviews have been constitutionally meaningful. On that basis, the

Court denies both parties’ motion for summary judgment as to this claim.

II. Qualified Immunity

Defendants argue they are entitled to qualified immunity with respect to Plaintiff’s claim

that his rights under the First, Eighth, and Fourteenth Amendments were violated. (Defs.’ MOL

at 29.) Plaintiff, by contrast, argues that Defendants cannot meet the high bar for proving the

affirmative defense of qualified immunity, and therefore the Court should grant summary

judgment for him on this issue. (Pltf.’s Opp. at 23.)

The Court can afford a defendant summary judgment as to qualified immunity if the

Court finds: “[1] the asserted rights were not clearly established, or [2] if the evidence is such

that, even when it is viewed in the light most favorable to the plaintiff[] and with all permissible

inferences drawn in [his] favor, no rational jury could fail to conclude that it was objectively

reasonable for the defendants to believe that they were acting in a fashion that did not violate a

clearly established right.” Williams v. Greifinger, 97 F.3d 699, 703 (2d Cir. 1996) (citations

omitted). If the asserted right was clearly established, however, then “the immunity defense

ordinarily should fail, since a reasonably competent public official should know the law

governing his conduct,” with the exception “if the official pleading the defense…can prove that

he neither knew nor should have known of the relevant legal standard.” Harlow v. Fitzgerald,

457 U.S. 800, 818-19 (1982). This exception is known as the extraordinary circumstances

exception because it requires “extraordinary circumstances…and is generally predicated upon

the defendant relying upon advice of legal counsel.” Walker v. Schult, 463 F. Supp. 3d 323, 338

(N.D.N.Y. 2020), rev’d and remanded on other grounds, 45 F.4th 598 (2d Cir. 2022). For this

reason, the extraordinary circumstances exception “applies only rarely.” Id. (quoting Wyo., Dep't

of Envtl. Quality, 902 F.2d 1482, 1488 (10th Cir. 1990)).

As an initial matter, Plaintiff’s rights were clearly established by 2015. The Court has

previously found that “[t]here is no question” that Plaintiff’s First Amendment rights “were

clearly established at the time of Defendants’ alleged retaliation.” (See ECF No. 80 at 26.)

Likewise, it is well-established that prison inmates have a right to due process at prison

disciplinary hearings, Sira, 380 F.3d at 69, and through Ad. Seg. reviews, Proctor, 846 F.3d at

608. The right to be free from inhumane and unjustified solitary confinement was also clearly

established by 2015. H’Shaka, 444 F. Supp. 3d at 390 (“[T]he Supreme Court indicated in 2002

(well before [p]laintiff was placed in Ad. Seg.) that the Eighth Amendment is violated by

conditions that are totally without penological justification.”) Accordingly, the First, Eighth, and

Fourteenth Amendment rights asserted by Plaintiff were clearly established before the events at

issue.

Because the relevant law was clearly established, Defendants are not entitled to a

qualified immunity defense. See Harlow, 457 U.S. at 818–19. “Prison officials are charged with

knowledge of relevant decisional law, especially the decisions of the circuit in which they

perform their official duties.” Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989). The law in

this Circuit was clear. In fact, the law of qualified immunity does not even “require a case on

point concerning the exact permutation of facts that state actors confront in order to establish a

clear standard for their behavior,” and yet Sira, Proctor, and H’Shaka share factual similarities

(and, in the case of Proctor, even the same defendant) as this case, such that Defendants should

have been aware of Second Circuit case law that had clearly established the rights advanced by

the Plaintiff. See Hancock v. County of Rensselaer, 882 F.3d 58, 69 (2d Cir. 2018).

Because Defendants are charged with knowledge of the law, the Court disagrees with the

Defendants’ contention that it was objectively reasonable for them to believe that their actions

did not violate clearly established law. The Defendants contend that “Griffin and Demo were

justified in investigating the impending II demonstration due to the extreme security risk it would

create for the facility.” (Defs. MOL at 30.) But, for the purposes of a qualified immunity

analysis, it does not matter if investigating a rumored prisoner demonstration was “justified.”

Rather, Defendants should have been aware that investigating an inmate as pretext to retaliate

against the inmate for exercising his First Amendment rights was not justified. (See ECF No. 80

at 26.) Likewise, Defendants claim that Keller and Bellnier, respectively, acted reasonably in

conducting the Hearing and reviewing the periodic reviews because they acted in accordance

with DOCCS rules and regulations. But “the fact that there may have been a policy that

promoted or allowed [unlawful] conditions does not constitute [the] exceptional circumstances”

required to sustain a defense of qualified immunity. Walker, 463 F. Supp. 3d at 338 (citation

omitted). Finally, Defendants have also not established extraordinary circumstances based on

reliance on the advice of counsel. See id.

Accordingly, Defendants cannot rely on the defense of qualified immunity against

Plaintiff’s claims. The Court therefore awards the Plaintiff summary judgment on this issue.

III. Exhaustion

In their answer to the operative complaint, Defendants asserted the defense of exhaustion,

contending that Plaintiff “may have failed to exhaust his available administrative remedies as to

some or all of his claims.” (ECF No. 220 ¶ 151.) Plaintiff moves for summary judgment on this

defense on the grounds that Defendants cannot produce any evidence that Plaintiff failed to

administratively exhaust any of his claims. (Pltf.’s MOL at 24.)

The Defendants failed to respond to Plaintiff’s arguments concerning the defense of

exhaustion in their opposition papers. “[I]n the case of a counseled party, a court may, when

appropriate, infer from a party’s partial opposition [to summary judgment] that relevant claims or

defenses that are not defended have been abandoned.” Jackson v. Fed. Exp., 766 F.3d 189, 198

(2d Cir. 2014); see also Spagnuolo v. Howell, 814 F. App'x 614, 618–19 (2d Cir. 2020)

(affirming trial court’s dismissal at summary judgment of a party’s claims based on the party’s

failing to respond to the opposition’s argument for their dismissal).

Accordingly, the Court finds that Defendants have abandoned the defense of exhaustion

and awards Plaintiff summary judgment on this issue.

IV. Unconstitutional Conditions of Confinement

Defendants seek summary judgment on Plaintiff’s claim that Defendants Keller,

Chappius, and Bellnier violated his Eighth Amendment rights by subjecting him to more than six

years of solitary confinement without any legitimate penological justification. (Defs.’ MOL at

19.) Plaintiff opposes and argues that he “has adduced evidence sufficient to support both of the

findings necessary for this claim,” and therefore defeat summary judgment. (Pltf.’s Opp. at 7.)

The Supreme Court has held that “[c]onfinement in a prison or in an isolation cell,” such

as Ad. Seg., “is a form of punishment subject to scrutiny under Eighth Amendment standards.”

Hutto v. Finney, 437 U.S. 678, 685 (1978). “The conditions of special housing units,” however,

“do not per se constitute cruel and unusual punishment in violation of the Eighth Amendment.”

Dixon v. Goord, 224 F. Supp. 2d 739, 748 (S.D.N.Y. 2002) (citing Anderson v. Coughlin, 757

F.2d 33 (2d Cir. 1985)); see also Madison v. Crowley, No. 19-CV-6554 FPG, 2020 WL

2542636, at *13 (W.D.N.Y. May 19, 2020) (“Generally speaking, confining an inmate in SHU

[special housing units], without more, and notwithstanding the restrictions that such confinement

imposes on inmate life, does not constitute cruel and unusual punishment.”) Rather, “whether

incarceration in the SHU violates the Eighth Amendment…depends on the duration and

conditions of the confinement.” Gonzalez v. Hasty, 802 F.3d 212, 224 (2d Cir. 2015). In order to

establish an Eighth Amendment violation, an inmate must demonstrate that (1) the conditions of

his confinement in Ad. Seg. “result[ed] in unquestioned and serious deprivations of basic human

needs such that the conditions pose[d] an unreasonable risk of serious damage to his health” (the

“Objective Test”); and (2) “the defendants imposed the conditions with deliberate indifference,

meaning that the defendants knew of, and disregarded, an excessive risk to the plaintiff's health

or safety” (the “Subjective Test”). Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013); Jolly v.

Coughlin, 76 F.3d 468, 480 (2d Cir. 1996).

Regarding the Objective Test, to defeat summary judgment, the undisputed facts on the

record must show “objectively, sufficiently, serious...denial of the minimal civilized measure of

life's necessities.” Willey v. Kirkpatrick, 801 F.3d 51, 66 (2d Cir. 2015). The Objective Test can

be satisfied based on the length of the confinement, such that the effects are “grossly

disproportionate” to the reasons for the isolation. Peoples v. Fischer, 898 F. Supp. 2d 618, 621

(S.D.N.Y. 2012) (“Numerous courts have found that long stretches of segregation can constitute

cruel and unusual punishment.”); H’Shaka, 444 F. Supp. 3d at 379 (finding the discrepancy

between length of time in solitary confinement and severity of infractions raises a genuine

question of fact under Objective Test). As for the Subjective Test, keeping an inmate in solitary

confinement without sufficient “penological justification” can alone demonstrate deliberate

indifference. H’Shaka, 444 F. Supp. 3d at 380. This is in part because of “the fact that the risk of

harm is obvious” when an inmate is kept in solitary confinement for extended periods of time.

Hope v. Pelzer, 536 U.S. 730, 738 (2002); see also Davis v. Ayala, 135 S.Ct. 2187, 2210 (2015)

(“But research still confirms what this Court suggested over a century ago: Years on end of near-

total isolation exact a terrible price,” including common side effects of anxiety, panic,

withdrawal, hallucinations, self-mutilation, and suicidal thoughts and behaviors); Peoples v.

Annucci, 180 F. Supp. 3d 294, 299 (S.D.N.Y. 2016) (“the deleterious effects of isolated housing

on inmates—especially to those assigned to long-term solitary confinement—are well-known

and amply documented,” including the fact that prolonged solitary confinement “can and does

lead to significant psychological harm”).

Here, Plaintiff was held for over six years in solitary confinement because of his alleged

attempt to organize a prisoner demonstration and his “charismatic personality.” (See ECF No.

303-1 at 643, 650, 653, 656, 659, 663.) DOCCS’s own guidelines, however, recommend limiting

“keeplock admission”, such as Ad. Seg., to 30 days. N.Y. Comp. Codes R. & Regs. tit. 7, §

270.2;4. Plaintiff “was in solitary for 2,387 days—more than 79 times longer than the guidelines

sentence.” (Pltf.’s Opp. at 8. (emphasis omitted).) A reasonable jury could therefore find that

Plaintiff’s lengthy confinement was “grossly disproportionate” to the reasons for the isolation.

Peoples, 898 F. Supp. 2d at 621. “[E]ven if Plaintiff's past violent behavior provides a possible

penological justification, there is a point at which circumstances (i.e., the amount of time in Ad.

Seg. and the inmate's behavior during that time) reasonably suggest that such justification is no

longer legitimate.” H'Shaka, 444 F. Supp. at 380. Accordingly, if Plaintiff’s continued

confinement in Ad. Seg. was based on past violent conduct alone and Defendants failed to take

into account the lack of more-recent serious disciplinary infractions, Plaintiff could succeed on

his Eighth Amendment claim.

Regarding the Subjective Test, as discussed earlier in this opinion, there is a genuine

dispute of material fact regarding whether the Defendants were relying solely on Plaintiff's past

conduct when deciding to hold him in Ad. Seg. As a result, there is also a genuine dispute of

material fact as to whether the Defendants had a legitimate penological justification for holding

Plaintiff in Ad. Seg. for the purposes of the Eighth Amendment. See id. Plaintiff’s Eighth

Amendment claim is thus “intertwined with his procedural due process claims”—in other words,

if Defendants failed to provide meaningful review of Plaintiff’s status for more than six years

and instead retained him in solitary “for solely punitive reasons, his right to due process and his

right to be free from cruel and unusual punishment are both implicated.” Smith v. Annucci, No.

6:18-CV-06261 EAW, 2019 WL 539935, at *7 (W.D.N.Y. Feb. 11, 2019). Conversely, if

Defendants meaningfully reviewed Plaintiff’s continued confinement and “reached the

conclusion that Plaintiff [could not] be released from administrative segregation for reasons of

institutional safety, Plaintiff cannot succeed on either of his claims.” Id. Plaintiff’s Eighth

Amendment claim therefore turns on an unresolved question of fact – namely, whether the

Defendants have put forth a sufficient penological justification for Plaintiff’s years-long

confinement. As a result, Defendants’ motion for summary judgment as to this claim is denied.

V. Retaliation

Plaintiff claims that Defendants Griffin and Demo violated his First and Fourteenth

Amendment rights by transferring him to a different facility and subjecting him to indefinite

solitary confinement in retaliation for raising grievances as a member of the ILC. (Pltf.’s Opp. at

15.) Defendants dispute their involvement in the actions taken against Plaintiff, and,

alternatively, argue that DOCCS had a legitimate basis to put Plaintiff in solitary confinement.

(Defs.’ MOL at 22-23.) Defendants seek summary judgment on Plaintiff’s First and Fourteenth

Amendment claim for retaliation. (Id. at 23.) Plaintiff opposes, contending that “Defendants’

assertions are not undisputed, and even if DOCCS did have a legitimate penological basis to

confine [Plaintiff], that would not necessarily rule out unlawful retaliation.” (Pltf’s Opp. at 15.)

To prevail on a retaliation claim, an inmate must show first that he engaged in (1)

constitutionally protected conduct, (2) that prison officials took adverse action against the

plaintiff, and (3) that there was a causal connection between the protected speech and the adverse

action such that the protected conduct was a substantial or motivating factor for the adverse

action. See Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009). Regarding the second prong of

the Espinal test, “[w]hile...the scope of conduct that can constitute actionable retaliation in the

prison setting it is broad, it is not true that every response to a prisoner's exercise of a

constitutional right gives rise to a retaliation claim.” Dawes v. Walker 239 F.3d 489, 492-93 (2d

Cir. 2001), overruled on other grounds by Swierkiewciz v. Sorema N.A., 534 U.S. 506, 508

(2002). Rather, “[o]nly retaliatory conduct that would deter a similarly situated individual of

ordinary firmness from exercising his or her constitutional rights constitutes an adverse action

for a claim of retaliation.” Id. at 493. Regarding the third prong of the Espinal test, several

factors may be used to determine whether a causal connection exists, including: "(1) the temporal

proximity between the plaintiff's protected activity and the defendant's adverse action, (2) the

prior disciplinary record of the inmate, (3) the outcomes of any hearings regarding the allegedly

retaliatory charges, and (4) any statements defendant makes concerning his motive.” Davidson v.

Bartholome, 460 F. Supp. 2d 436, 444 (S.D.N.Y. 2006) (citation omitted). Finally,

“circumstantial evidence alone can be sufficient to meet th[e] burden of proof” for a retaliation

claim. Rodriguez v. McClenning, 399 F. Supp. 2d 228, 236 (S.D.N.Y. Apr. 22, 2005).

Defendants do not dispute that Plaintiff can meet the first prong of the Espinal test –

namely, that Plaintiff engaged in constitutionally protected conduct by raising inmate grievances

through his role on the ILC. (See Defs.’ MOL at 22.) The Second Circuit has specifically found

that “retaliation against a prisoner for filing or voicing grievances on behalf of a prison

population as a member of an inmate grievance body, such as the ILC, ‘violates the right to

petition government for the redress of grievances guaranteed by the First and Fourteenth

Amendments.’” Dolan v. Connolly, 794 F.3d 290, 294–95 (2d Cir. 2015) (quoting Graham v.

Henderson, 89 F.3d 75, 80 (2d Cir. 1996)); see also Franco v. Kelly, 854 F.2d 584, 589 (2d Cir.

1988) (“The right to petition government for redress of grievances—in both judicial and

administrative forums—is ‘among the most precious of the liberties safeguarded by the Bill of

Rights.’”) (quoting United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222 (1967)

(emphasis in original)). Plaintiff's claimed conduct is therefore clearly a protected right of redress

under the First and Fourteenth Amendments, and he has met the first prong of the Espinal test.

The Court finds that Plaintiff has also presented sufficient evidence to demonstrate

adverse action, satisfying the second prong of the Espinal test. The Second Circuit and lower

courts therein have consistently found that being placed in segregated confinement, as Plaintiff

undisputedly was for over six years, is a form of adverse action. See Gill v. Pidlypchak, 389 F.3d

379, 384 (2d Cir. 2004) (finding that a false misbehavior report that resulted in the plaintiff's

placement in keeplock confinement constituted adverse action); Gayle v. Gonyea, 313 F.3d 677,

682 (2d Cir. 2002) (“An allegation that a prison official filed false disciplinary charges in

retaliation for the exercise of a constitutionally protected right, such as the filing of a grievance,

states a claim under § 1983.”); Flood v. Cappelli, No. 18-CV-3897 (KMK), 2019 WL 3778736,

at *7 (S.D.N.Y. Aug. 12, 2019) (holding that placing plaintiff in keeplock confinement for six

days constituted an adverse action); Lugo v. Van Orden, No. 07-CV-879, 2008 WL 2884925, at

*4–5 (S.D.N.Y. July 23, 2008) (assuming that placing plaintiff in keeplock confinement for five

days constitutes an adverse action and even “less adverse” action such as being moved to a

different housing unit have been held to be sufficient to state a claim for retaliation).

That Defendants contest the reason why Plaintiff was investigated and placed in the Ad.

Seg. does not alter this analysis. (See Defs.’ MOL at 22-23; Defs.’ Reply at 30-31.) All that is

required to meet this prong at this stage is sufficient evidence demonstrating that Defendants’

investigation and subsequent placement of Plaintiff into Ad. Seg. is the type of conduct “that

would deter a similarly situated individual of ordinary firmness from exercising his or her

constitutional rights,” Dawes, 239 F.3d at 493. Plaintiff has done so. Defendants’ only response

is to deny having played a role in making the determination to issue the Adm. Seg.

Recommendation (see Griffin Decl. ¶ 42; Demo Decl. ¶ 14), or investigate and place Plaintiff in

Ad. Seg. on the basis of unreliable evidence (see Demo. Decl. ¶¶ 9-19). But because Plaintiff

disputes these determinations, (see Pltf.’s 56.1 ¶¶ 28-38; 41-49), this is precisely the sort of

factual dispute that cannot be resolved at summary judgment. See Graham v. Henderson, 89 F.3d

75, 80–81 (2d Cir. 1996) (reversing district court’s grant of summary judgment where inmate

“succeed[ed] in creating a genuine issue of fact over whether he was, as he claim[ed], collecting

names of possible representatives in the grievance process, or, as the defendants argue[d],

circulating a petition and organizing a work slowdown).

Finally, the Court holds that Plaintiff has demonstrated a genuine issue of material fact as

to the third prong of the Espinal test – namely, that the protected conduct was a substantial or

motivating factor in the Defendants’ decision to investigate and place Plaintiff in solitary. First,

the temporal proximity between Plaintiff’s advocacy as part of the ILC and the adverse action of

placing him in solitary confinement is circumstantial evidence of a retaliatory motive on the part

of Defendants. See Washington v. Afify, 681 F. App'x 43, 46 (2d Cir. 2017) (finding that

temporal proximity between filing of inmate grievance and allegedly false misbehavior report

was circumstantial evidence of retaliation); Espinal, 558 F.3d 119, 129 (2d Cir. 2009) (denying

summary judgment given “the passage of only six months between the dismissal of Espinal’s

lawsuit and an allegedly retaliatory beating”). Defendants placed Plaintiff in Ad. Seg.

approximately one month after “the ILC’s requests that issues be escalated to the HUB

Superintendent and Commissioner (on March 16, 2015 and April 9, 2015, respectively).” (Pltf.’s

Opp. at 17.)

Second, and perhaps more compelling, Plaintiff has proffered direct evidence of

retaliatory animus. Plaintiff contends that Defendant Griffin threatened him in the package room

for raising issues on behalf of the ILC (Pltf.’s 56.1 ¶¶ 18-20; Booker Decl. ¶¶ 44-47), in advance

of instigating an investigation against him based on allegedly false information (Pltf.’s 56.1 ¶¶

21-27). Defendant’s Griffin’s purported actions suggest retaliatory intent. See Washington, 681

F. App'x at 46 (reversing grant of summary judgment on retaliation claim where inmate alleged

that correction officers confronted him directly about his practice of filing grievances before they

issued an allegedly false misbehavior report against him) (summary order). The Court is aware

that the parties offer conflicting testimony as to what prompted the investigation into Plaintiff

and his subsequent placement in the Ad. Seg. Defendants insist that they investigated Plaintiff

based on credible information that he was organizing an unlawful Demonstration at Green

Haven, not in response to his advocacy on the ILC. (Defs.’ MOL at 22-23.) Plaintiff, by contrast,

denies there being any legitimate evidence of his involvement in a purported Demonstration.

(Pltf.’s Opp. at 18-19.) If a trier of fact were to conclude that Plaintiff is telling the truth, then the

Defendants are lying about the reasons for launching the investigation and placing Plaintiff in

solitary. Accordingly, “[a] false reason for the [investigation and placement] would support the

inference that the real reason was the improper one: retaliation.” Gayle, 313 F.3d at 683 (denying

summary judgment where fact issue existed as to whether retaliation was substantial factor in

officials' decision to charge and punish prisoner); see also Fann v. Graham, No.

915CV1339DNHCFH, 2018 WL 1399331, at *9 (N.D.N.Y. Jan. 11, 2018) (same), report and

recommendation adopted, No. 915CV1339DNHCFH, 2018 WL 1399340 (N.D.N.Y. Mar. 19,

2018). If true, the facts as Plaintiff alleges—namely, that he was not organizing any

demonstration—suggest that the Defendants disciplined him because of his leadership on the

ILC. Because a genuine issue of material fact exists with regard to Defendants’ retaliatory intent,

the Court denies summary judgment as to Plaintiff’s First Amendment claim.

VI. Injunctive Relief

Plaintiff brings multiple claims for injunctive relief, including (1) changes to Ad. Seg.

procedures, (2) his return to general population, (3) the restoration of his property, (4) the

reversal and expungement of his institutional records, and (5) prohibiting Defendants from

retaliating against him (see ECF No. 228, at Request for Relief), all of which Defendants contend

must be dismissed because he “has returned to general population,” (Defs.’ MOL at 23). Plaintiff

disagrees and asserts that he is entitled to trial on his injunctive relief claims. (Pltf.’s Opp. at 19.)

The Court agrees with Defendants that Plaintiff’s release from Ad. Seg. moots his second

request. The Second Circuit has held that an inmate’s claim for injunctive relief from solitary

confinement is moot once the period of confinement has lapsed. Ayers v. Coughlin, 780 F.2d

205, 210 (2d Cir. 1985) (per curiam); see also Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d

Cir. 1983) (“The hallmark of a moot case or controversy is that the relief sought can no longer be

given or is no longer needed”). Plaintiff’s release from Ad. Seg. likewise renders his first request

for changes to Ad. Seg. procedures moot. “Once the conduct of which a prisoner complains is no

longer directed at that prisoner, a prisoner's personal claim for injunctive relief from that conduct

is moot.” Clarkson v. Coughlin, 783 F. Supp. 789, 794–95 (S.D.N.Y. 1992). This Court has

previously found moot a plaintiff’s request for a declaration that DOCCS's treatment of deaf and

hearing-impaired inmates is unlawful, and an injunction against the officials them to provide the

requested services for the same reason. See id.

Because all Defendants have retired from DOCCS, Plaintiff’s fifth request is also moot.

(See Defs.’ 56.1 ¶¶ 3-7.) “A case is deemed moot where the problem sought to be remedied has

ceased, and where there is no reasonable expectation that the wrong will be repeated.” Prins v.

Coughlin, 76 F.3d 504, 506 (2d Cir.1996) (per curiam) (quoting Preiser v. Newkirk, 422 U.S.

395, 402 (1975) (quotation marks omitted)). Defendants are no longer DOCCS employees and

therefore cannot retaliate against Plaintiff or re-place him in Ad Seg.

To the extent that Plaintiff’s property has not been returned to him as part of his release

from Ad. Seg., his third request for injunctive relief survives. Next, because inaccuracies in his

institutional records may cause him harm in the future, Plaintiff’s fourth request for reversal and

expungement also survives. Finally, Defendants did not address why Plaintiff’s third or fourth

requests for relief should be dismissed in either their moving or reply papers. The Court thus

deems any arguments against them abandoned. See Jackson, 766 F.3d at 198.

Accordingly, the Court grants partial summary judgment to Defendants on the issue of

injunctive relief.

VII. Eleventh Amendment Damages

Defendants contend that the Eleventh Amendment bars Plaintiff’s damages claims

against Defendants in their official capacity. (Defs.’ MOL at 28) (citing Seminole Tribe of Fla.,

517 U.S. 44, 73 (1996).) Defendants are correct that sovereign immunity bars suit against a state

official sued in his official capacity, unless Congress has abrogated that immunity or the state has

consented to suit. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 & n.9

(1984). Plaintiff counters, however, that he has sued each Defendant in his individual and his

official capacity. (Pltf.’s Opp. at 22.) The Eleventh Amendment does not bar a federal court from

granting monetary relief against state officials sued in their individual capacities. Williams v.

Marinelli, 987 F.3d 188, 197 (2d Cir. 2021) (citing Hafer v. Melo, 502 U.S. 21, 31 (1991)).

Accordingly, Plaintiff can seek damages from Defendants in their individual capacity, and

Defendants’ motion on this issue is denied.

CONCLUSION

Defendants’ motion for summary judgment is DENIED in part and GRANTED in part.

The Court awards Defendants partial summary judgment on Plaintiff's request for injunctive

relief. Defendants’ motion for summary judgment is DENIED in all other respects.

Plaintiff's motion for partial summary judgment is DENIED in part and GRANTED in

part. The Court awards Plaintiff summary judgment on his Fourteenth Amendment due process

claim in connection with the Hearing, and on Defendants’ affirmative defenses of qualified

immunity and exhaustion. Plaintiff's motion for partial summary judgment is DENIED in all

other respects.

A telephonic Pretrial Conference is scheduled for March 28, 2024 at 12 pm. To access

the teleconference, please follow these directions: (1) Dial the Meeting Number: (877) 336-1839;

(2) Enter the Access Code: 1231334 #; (3) Press pound (#) to enter the teleconference as a guest.

The Clerk of Court is directed to terminate the motions at ECF Nos. 279 and 289.

Dated: February 23, 2024 SO ORDERED:

White Plains, New York

NELSON S.ROMAN

United States District Judge

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