Foster v. Donahue

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ANTHONY FOSTER,

Plaintiff,

DECISION AND ORDER

v.

13-CV-1177S

LT. DONAHUE, C.O. J. MURRAY, C.O. E.

THATCHER, C.O. G. CLEVELAND, and D.

VENETOZZI,

Defendants.

I. INTRODUCTION

In this action, Plaintiff Anthony Foster alleges that various defendants, all of whom

are employees of the New York Department of Corrections and Community Supervision

(“DOCCS”), violated his constitutional rights by using excessive force against him, failing

to protect him again the use of excessive force, denying him his right to due process at a

disciplinary hearing, and affirming the decision that resulted from that hearing. Before this

Court is Defendants’ Motion for Summary Judgment pursuant to Rule 56 of the Federal

Rules of Civil Procedure, which Foster opposes. (Docket Nos. 36, 42-48). For the

following reasons, Defendants’ motion for summary judgment is granted.

II. BACKGROUND

Unless otherwise noted, the following facts are not disputed for purposes of the

motion for summary judgment. This Court takes the facts in the light most favorable to

Foster, the non-moving party. See Mitchell v. City of New York, 841 F.3d 72, 75 (2d Cir.

2016) (at summary judgment, a court “views the evidentiary record in the light most

favorable to ... the non-moving party”).

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At all relevant times, Plaintiff Anthony Foster was an inmate at Southport

Correctional facility, under the care and custody of DOCCS. (Defendants’ Statement of

Undisputed Facts, Docket No. 36-2, ¶ 15; Plaintiff’s Statement of Undisputed Facts,

Docket No. 41, ¶ 15.) Defendant Donald Venetozzi was the Acting Director of the Special

Housing/Inmate Disciplinary Program for DOCCS. (Venetozzi Declaration, Docket No.

36-10, ¶¶ 1-2.) The other defendants were corrections officers employed by DOCCS and

assigned to Southport. Defendant Richard Donahue was a lieutenant.

A. The Use-of-Force Incident

On December 30, 2010, Foster was participating in Southport’s shower program

on C block, where he was housed. (Docket No. 36-2, ¶¶17-19; Docket No. 41, ¶¶17-19.)

It was standard for inmates to be handcuffed before and after showering. (Docket No. 43,

¶ 4.) According to Foster, all the groups before his received 10-minute showers. (Docket

No. 43, ¶ 12.) Before entering the shower, Foster asked that his group receive the 10-

minute shower they were entitled to. (Id., ¶ 11.) Foster asserts that his group received

only a 6-minute shower. (Id., ¶ 12.)

During Foster’s shower, defendant Murray was either escorting inmates to and

from the showers, or exchanging the buckets in the shower area. (Docket No. 36-8, ¶ 5;

Docket No. 20-1 at p. 100.) Defendants Thatcher and Cleveland were transporting

inmates from their cells to the showers, guarding them while they showered, and

escorting inmates back to their cells. (Docket No. 36-9, ¶ 5.)

At approximately 10:50 a.m., when his shower ended, Foster was handcuffed and

ordered to exit shower 1 walking backwards. (Docket No. 36-2, ¶ 19; Docket No. 41, ¶

18.) What happened next is in dispute. According to Defendants, Foster then turned “in

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an aggressive manner” toward Murray and “attempted to strike him with his head and

right shoulder.” (Docket No. 36-2, ¶ 19.) Murray “pushed [Foster] against shower number

2,” but Foster “continued to struggle violently.” (Id., 20.) Murray then placed Foster in a

bear hug and forced him to the floor. (Id.) Thatcher helped control Foster’s legs until

Cleveland could apply mechanical restraints to his legs. (Id., ¶ 21.)

According to Foster, as he exited the shower, “Defendant Murray ran behind [him]

and punch[ed] [him] in the back of his head.” (Docket No. 41, ¶ 19.) Foster agrees that

Murray then pushed him against shower number 2 and placed him in a bear hug, but

claims that Murray then “slam[med] [him] to the ground.” (Id., ¶ 20.) Foster states that,

once he was on the ground, Thatcher joined Murray in “punching, kneeing and kicking

[him] while he was handcuff[ed] from behind on the ground,” after which Thatcher and

Cleveland placed mechanical restraints on his legs. (Id., ¶ 21.)

Foster was escorted from the showers to the C-block dayroom, where nurse

Kathleen Walsh examined him. (Docket No. 36-2, ¶¶ 25-26; Docket No. 41, ¶¶ 25-26.)

Nurse Walsh recorded that Foster complained of tenderness on the back of his head, but

she noted “no swelling or injury” there; he also complained of back pain, but Walsh noted

“no deformity or swelling.” (Docket No. 42-1 at p. 142.) Walsh noted a 3 mm area of

minor abrasion on his left clavicle. (Id.) Foster contends that Walsh’s report did not

document the full extent of his injuries. (Docket No. 43, ¶ 27.) Nonparty corrections officer

Wheaton took photographs of Foster documenting the use of force. (Docket No. 30-8 at

p. 5.) A video was made of Foster’s escort from the shower, medical examination, and

use-of-force photograph procedures. (Docket No. 37.)

At 4:00 p.m. on the same day, Nurse William West observed Foster in his cell.

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(Docket No. 42-1 at p. 143.) He noted that Foster’s wrists appeared “slightly swollen,” and

that Foster had a “slightly raised area approximately one fourth inch high and approx. the

size of a half dollar coin on the left back area” of his head. (Id.) At 7:30 PM, Nurse Aln1

noted a “small raised area on back of head” but “no open wounds.” (Id.)

B. Initial Orders

Immediately following the December 30, 2010, incident, Foster was issued

deprivation and restraint orders, which deprived him of showers, haircuts, cell cleanup,

and recreation, and caused him to be fully restrained outside his cell. (Docket No. 36-2,

¶ 60; see Docket No. 42-1 at pp. 145-148.) These orders were in effect at least until

January 21, 2011; Foster alleges they lasted “almost two months.” (Docket No. 42 at p.

17.) After these orders were lifted, Defendants assert that Foster “faced no more than

ordinary SHU conditions.” (Docket No. 36-2, 60). Foster had served as an inmate porter

at Southport before the December 30 incident, but after it, he was unable to regain this

position. (Docket No. 41, ¶¶ 57, 60.)

C. The Tier III Hearing

On January 1, 2011, Foster was served with a misbehavior report based on the

December 30 incident. (Docket No. 36-2, ¶ 39). Lieutenant Donahue held a Tier III hearing

on the misbehavior report beginning on January 11, 2011. (Docket No. 36-2, ¶ 40; hearing

transcript at Docket No. 20-1, pp. 80-104.) Foster called six witnesses: three officers who

were present (Defendants Cleveland, Thatcher and Murray) and three inmates who

observed the incident.2 (Docket No. 36-2, ¶ 44.) The officers all testified that Foster

1 The spelling of this nurse’s name is difficult to discern from the treatment note.

2 Defendants assert that Donahue called seven witnesses in addition to Foster (Docket No. 36-2, ¶ 43), but

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attacked Murray; the inmates all testified that Murray attacked Foster. (See Docket No.

20-1, pp. 91-92, 96, 100, 85, 87, 88.)

Foster attempted to call three additional witnesses: Nurse West, an unnamed

“nurse administrator,” and corrections officer Sandroni, who was operating the gate

between the cells and the showers at the time of the incident. (Docket No. 20-1 at pp.

84, 89-90, 94.)

Defendant Donahue denied these three witnesses “as not having direct, material

testimony to [the] incident of misbehavior.” (Docket No. 36-2, ¶ 45.) Donahue denied West

because he was not present at the use of force, and did not examine Foster directly after

the use of force. (Id., ¶ 46.) Donahue denied the nurse administrator for the same

reasons. (Id., ¶ 47.) Donahue denied Sandroni because she was “not present there on

the gallery at the time of the incident.” (Docket No. 20-1 at p. 94.) During his hearing,

Foster stated that Sandroni could “clearly look down the company,” and “had a clear

view.” (Docket No. 20-1 at p. 96.) Foster continues to maintain that Sandroni was 10-12

feet away from the showers at the time of the incident, and had a “plain view of the whole

incident.” (Docket No. 41, ¶ 45; Docket No. 43, ¶ 35.)

At the close of the Tier III hearing, Donahue found Foster guilty of misbehavior on

December 30, and sentenced him to a term of nine months in the Special Housing Unit

(“SHU”), with three months suspended. (Docket No. 36-2, ¶ 50.) “Mental health staff” at

Southport further cut Foster’s SHU penalty. (Id., ¶ 58.) Foster began serving his SHU

sentence on October 16, 2011. (Id., ¶ 61.) At his deposition, Foster recalled that he served

for approximately 100 days in SHU. (Id., ¶ 59.) DOCCS records reflect that Foster served

the record shows that Donahue only called six besides Foster.

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96 days in SHU as result of discipline from the December 30, 2010 use of force. (Docket

No. 36-2, ¶ 63.) As a result of the use of force, Foster asserts that he has suffered from

nightmares and trauma, as well as migraines, backaches, and neckaches. (Amended

Complaint, Docket No. 5, ¶¶ 47-48.)

D. Foster’s Appeals

Foster appealed his Tier III hearing on January 24, 2011. (Docket No. 36-2, ¶ 52;

Docket No. 20 at pp. 63-77). On March 24, 2011, Defendant Venetozzi affirmed the

results of the hearing in a one-sentence decision. (Id., ¶ 53; see also Docket No. 20-1 at

p. 78.) Foster then filed an Article 78 proceeding in New York Supreme Court, seeking to

overturn his disciplinary penalty. (Docket No. 36-2, ¶ 55). On April 5, 2012, New York

Supreme Court Justice James Hayden found that Foster was denied a full and fair

hearing, in part because his witness requests were denied. (Docket No. 36-5 at p. 2-3.)

Justice Hayden reversed the disposition of Foster’s Tier III hearing, remanded for a new

hearing, and expunged Foster’s record regarding the hearing (Id.) On July 30, 2013,

Foster’s hearing was administratively expunged, and DOCCS determined that a

rehearing was not warranted. (Docket No. 36-2, ¶ 56; Docket No. 20-1 at p. 105.)

Foster filed a grievance against Murray and Thatcher on January 10, 2011 for their

use of force against him, but stated that Cleveland did not take part in the use of force.

(Docket No. 20-1 at pp. 114, 116, 121.)

III. DISCUSSION

Cognizant of the distinct disadvantage that pro se litigants face, federal courts

routinely read their submissions liberally, and interpret them to raise the strongest

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arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,

596, 30 L. Ed. 2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). This

is especially important when reviewing pro se complaints alleging civil rights violations.

See Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). Since Foster is proceeding

pro se, this Court has considered his submissions and arguments accordingly.

Foster raises three claims in his complaint. First, he claims that Murray and

Thatcher violated his Eighth Amendment rights by using excessive force against him on

December 30, 2010. Second, he claims that Cleveland violated his Eighth Amendment

rights by failing to protect him from Murray’s and Thatcher’s use of excessive force. Third,

he claims that Donahue and Venetozzi violated his Fourteenth Amendment rights:

Donahue by depriving him of a fair and impartial hearing by failing to call three witnesses

he requested; and Venetozzi by affirming Donahue’s decision.

Defendants move for summary judgment on the basis that Foster cannot establish

his excessive force claim against Murray and Thatcher, or his procedural due process

claims against Donahue and Venetozzi, and has failed to exhaust his failure-to-protect

claim against Cleveland.

A. Summary Judgment

Summary judgment is appropriate if “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56 (a). A fact is “material” if it “might affect the outcome of the suit under

the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,

91 L. Ed. 2d 202 (1986). An issue of material fact is “genuine” if “the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.” Id.

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In deciding a motion for summary judgment, the evidence and the inferences

drawn from the evidence must be "viewed in the light most favorable to the party opposing

the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-59, 90 S. Ct.1598, 1609,

26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import

of evidence is summary judgment proper." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.

1991). Indeed, “[i]f, as to the issue on which summary judgment is sought, there is any

evidence in the record from which a reasonable inference could be drawn in favor of the

opposing party, summary judgment is improper.” Sec. Ins. Co. of Hartford v. Old

Dominion Freight Line, Inc., 391 F.3d 77, 82–83 (2d Cir. 2004) (citations omitted).

But a “mere scintilla of evidence” in favor of the nonmoving party will not defeat

summary judgment. Anderson, 477 U.S. at 252. A nonmoving party must do more than

cast a “metaphysical doubt” as to the material facts; it must “offer some hard evidence

showing that its version of the events is not wholly fanciful.” Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986);

D’Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998). That is, there must be evidence

from which the jury could reasonably find for the non-moving party. See Anderson, 477

U.S. at 252.

As noted, “[i]t is well established that the submissions of a pro se litigant must be

construed liberally and interpreted ‘to raise the strongest arguments that they suggest.’”

Triestman v. Fed. Bur. of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Pabon v.

Wright, 459 F.3d 241, 248 (2d Cir. 2006)). “A pro se plaintiff, however, cannot defeat a

motion for summary judgment by simply relying on the allegations of his complaint; he

must present admissible evidence from which a reasonable jury could find in his favor.”

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Belpasso v. Port Auth. of NY & NJ, 400 Fed. Appx. 600, 601 (2d Cir. 2010); see Champion

v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996) (summary judgment properly entered against

pro se plaintiff who failed to oppose motion with admissible evidence after receiving

plainly worded warning of the consequences of such failure).

In the end, the function of the court is not “to weigh the evidence and determine

the truth of the matter but to determine whether there is a genuine issue for trial."

Anderson, 477 U.S. at 249. “Assessments of credibility and choices between conflicting

versions of the events are matters for the jury, not for the court on summary judgment.”

Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996).

B. 42 U.S.C. § 1983

Civil liability is imposed under 42 U.S.C. § 1983 only upon persons who, acting

under color of state law, deprive an individual of rights, privileges, or immunities secured

by the Constitution and laws. See 42 U.S.C. § 1983. On its own, § 1983 does not provide

a source of substantive rights, but rather, a method for vindicating federal rights conferred

elsewhere in the federal statutes and Constitution. See Graham v. Connor, 490 U.S. 386,

393-94,109 S. Ct. 1865, 1870, 104 L. Ed. 2d 443 (1989) (quoting Baker v. McCollan, 443

U.S. 137, 145 n.3, 99 S. Ct. 2689, 2695, 61 L. Ed. 2d 433 (1979)). Accordingly, as a

threshold matter in reviewing claims brought pursuant to § 1983, it is necessary to

precisely identify the constitutional violations alleged. See Baker, 443 U.S. at 140. Here,

Foster’s claims are grounded in the Eighth and Fourteenth Amendments.

Personal involvement in the deprivation of a federal constitutional right is the sine

qua non of liability under § 1983. See Haygood v. City of New York, 64 F. Supp. 2d 275,

280 (S.D.N.Y. 1999). It is well settled in this circuit that personal involvement by

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defendants in cases alleging constitutional deprivations is a prerequisite to an award of

damages under § 1983. See McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977);

Richardson v. Coughlin, 101 F. Supp. 2d 127, 129 (W.D.N.Y. 2000); Pritchett v. Artuz,

No. 99 Civ. 3957 (SAS), 2000 WL 4157, at *5 (S.D.N.Y. Jan. 3, 2000).

The Second Circuit construes personal involvement in this context to mean “direct

participation, or failure to remedy the alleged wrong after learning of it, or creation of a

policy or custom under which unconstitutional practices occurred, or gross negligence in

managing subordinates.” Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); see also

Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Personal involvement need not be

active participation. It can be found “when an official has actual or constructive notice of

unconstitutional practices and demonstrates gross negligence or deliberate indifference

by failing to act.” See Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989). Thus,

personal involvement can be established by showing that

the defendant participated directly in the alleged constitutional violation; (2)

the defendant, after being informed of the violation through a report or

appeal, failed to remedy the wrong; (3) the defendant created a policy or

custom under which unconstitutional practices occurred, or allowed the

continuance of such a policy or custom; (4) the defendant was grossly

negligent in supervising subordinates who committed the wrongful acts; or

(5) the defendant exhibited deliberate indifference to others’ rights by failing

to act on information indicating that constitutional acts were occurring.

Liner v. Goord, 582 F. Supp. 2d 431, 433 (W.D.N.Y. 2008) (citing Colon v. Coughlin, 58

F.3d 865, 873 (2d Cir. 1995)); Hayut v. State Univ. of New York, 352 F.3d 733, 753 (2d

Cir. 2003).

C. Excessive Force Claim against Murray and Thatcher

Foster argues that Defendants Murray and Thatcher used excessive force against

him during the incident in the shower on December 30, 2010. Defendants argue that their

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use of force was an appropriate means of restoring prison discipline, in the face of an

attack by Foster.

1. Legal Standards

The Eighth Amendment “prohibits the infliction of ‘cruel and unusual punishments’

on those convicted of crimes.” Wilson v. Seiter, 501 U.S. 294, 297, 11 S. Ct. 2321, 2323,

115 L. Ed. 2d 271 (1991); U.S. Const. amend. VIII. “[W]hen the State takes a person into

its custody and holds him there against his will, the Constitution imposes upon it a

corresponding duty to assume some responsibility for his safety and general well being.”

Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993) (quotation

and citation omitted). Part of the state’s duty is to protect inmates from punishments that

are “totally without penological justification.” See Williams v. Fitzpatrick, No. 03 CV 11,

2006 WL 1889964, at *2 (D. Vt. July 10, 2006) (quoting Rhodes v. Chapman, 452 U.S.

337, 346, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981)).

To succeed on an Eighth Amendment excessive force claim, a plaintiff must

establish (1) objectively, that the defendant’s actions violated contemporary standards of

decency, and (2) subjectively, that the defendant acted wantonly and in bad faith. See

Flynn v. Ward, 9:15-CV-1028, 2016 WL 1357737, at *8 (N.D.N.Y. Apr. 5, 2016) (quoting

Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999)).

a. The Objective Requirement

To meet the objective requirement, the alleged violation must be sufficiently

serious by objective standards, those being contemporary standards of decency. Farmer

v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994); Blyden, 186

F.3d at 263. Although the “de minimis use of force will rarely suffice to state a

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constitutional claim,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993), “the

malicious use of force to cause harm constitutes an Eighth Amendment violation per se

because in such an instance ‘contemporary standards of decency are always violated,’”

Flynn, 2016 WL 1357737, at *8 (quoting Blyden, 186 F.3d at 263). Thus, de minimis use

of force is excluded from constitutional recognition “provided that the use of force is not

of a sort repugnant to the conscience of mankind.” Green v. Morse, No. 00-CV-6533,

2005 WL 1490301, at *2 (W.D.N.Y. June 23, 2005) (quoting Hudson v. McMillian, 503

U.S. 1, 9-10, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992)).

The Second Circuit has explained an excessive force claim as follows:

The malicious use of force to cause harm constitutes an Eighth

Amendment violation per se whether or not significant injury is evident.

This result follows because when prison officials maliciously and

sadistically use force to cause harm, contemporary standards of decency

always are violated. Nevertheless, a de minimis use of force will rarely

suffice to state a constitutional claim. Not every push or shove, even if it

may later seem unnecessary in the peace of a judge’s chambers, violates

a prisoner’s constitutional rights.

Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (citations and internal quotations

omitted).

Thus, the objective prong may be satisfied without a showing of a serious or

significant injury, as long as the amount of force used is not de minimis. See United

States v. Walsh, 194 F.3d 37, 50 (2d Cir. 1999). At bottom, the key inquiry is “whether

force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm.” Hudson, 503 U.S. at 7 (citation omitted); see also Wilkins v.

Gaddy, 559 U.S. 34, 37, 130 S. Ct. 1175, 175 L. Ed. 2d 995 (2010) (per curiam)

(describing this inquiry as “the core judicial inquiry”). In other words, the key consideration

is the nature of the force rather than the extent of the injury. See Wilkins, 559 U.S. at 34.

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b. The Subjective Requirement

To meet the subjective requirement, “the inmate must show that the prison officials

involved ‘had a wanton state of mind when they engaged in the misconduct.’” See Griffin,

193 F.3d at 91 (quoting Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994)). In this context,

the test for wantonness “is whether the force was used in a good-faith effort to maintain

or restore discipline, or maliciously and sadistically to cause harm.” Scott v. Coughlin,

344 F.3d 282, 291 (2d Cir. 2003). Factors to be considered are “the extent of the injury

and the mental state of the defendant, as well as the need for the application of force; the

correlation between that need and the amount of force used; the threat reasonably

perceived by the defendants; and any efforts made by the defendants to temper the

severity of a forceful response.” Id. (citation omitted).

2. Foster’s Excessive Force Claims

Foster claims that Murray and Thatcher used excessive force against him in

violation of his Eight Amendment rights when Murray punched him, put him in a bear hug,

and threw him to the ground, and when both Defendants kicked and beat him while he

lay handcuffed on the floor. Defendants argue that any use of force was de minimis and

that they were acting in good faith to restore discipline.

Having viewed the evidence and drawn all inferences in Foster’s favor, this Court

finds that no reasonable fact-finder viewing the admissible evidence could find that

Murray and Thatcher violated Foster’s right to be free from excessive force.

First, the evidence Foster has presented belies his account of the incident and the

notion that he sustained a sufficiently serious use of force. The contemporaneous medical

examination, records, and photographs reveal only a possible 3mm area of injury on his

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clavicle. (Docket No. 42-1 at p. 142.) Nurse Walsh did not note swelling on his head or

back. (Id.) Hours later, Nurse West noted a welt “approximately the size of a half dollar

coin” on back left side of his head. (Id. at p. 143.) No nurse found bleeding, cuts, or

bruising that would correspond with his being kicked by Murray and Thatcher. These

injuries do not comport with Foster’s allegations that Murray and Thatcher kicked and

punched him while he was handcuffed on the floor. And Foster does not provide any

evidence of Murray and Thatcher kicking and punching him, beyond his bare allegations.3

This is not sufficient to defeat a motion for summary judgment. See Scotto v. Almenas,

143 F.3d 522, 525-26 (2d Cir. 1998) (conclusory allegations and unsubstantiated

speculation cannot defeat summary judgment); Rexnord Holdings, Inc. v. Bidermann, 21

F.3d 522, 525-26 (2d Cir. 1994) (“mere allegations or denials” not enough to defeat

summary judgment); Adilovic v. Cty. of Westchester, No. 08-CV-10971, 2011 WL

2893101, at *7 (S.D.N.Y. July 14, 2011) (uncorroborated claims of a forceful beating alone

cannot defeat summary judgment.)

Further, non-serious injuries of this type indicate a de minimis use of force. See

Berkley v. Ware, No. 9:16-CV-1326, 2018 WL 373791, at *8 (N.D.N.Y. July 6, 2018)

(swelling insufficiently serious); Gallagher v. Derkovicz, 13-CV-804 (LJV)(MJR), 2017 WL

1435710, at *1 (W.D.N.Y. Apr. 24, 2017) (temporary redness on the side of face and slight

pain de minimis); Bermudez v. Waugh, No. 09:11-CV-947 (MAD/DEP), 2013 WL 654401,

at *5 (N.D.N.Y. Feb. 21, 2013) (tackling of inmate that caused minor bruising was de

minimis); James v. Phillips, No. 05 Civ. 1539 (PKC) (KNF), 2008 WL 1700125, at *4

3 Although three inmates testified at Foster’s Tier III hearing, he has not submitted affidavits or other

admissible evidence from any witnesses to the event, for the purpose of opposing Defendants’ motion for

summary judgment.

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(S.D.N.Y. Apr. 9, 2008) (swelling of chin insufficiently serious). Given the absence of

evidence corroborating Foster’s allegations, or showing anything beyond de minimis

injuries, Foster has not met the objective requirement of a sufficiently serious injury.

Even assuming that his injuries were more than de minimis, there is insufficient

evidence from which a reasonable fact-finder could conclude that Murray or Thatcher

acted with wantonness or maliciousness. Foster asserts that a video of the showers

shows that Defendants “huddled” before moving toward shower 1. (Docket No. 43, ¶¶ 12-

15.) But the mere fact of “huddling,” without more, does not establish malicious intent.4

Both Murray and Thatcher state that Foster moved to attack Murray and that they used

force to bring him to the ground and restrain him as he continued to resist. The injuries

Foster sustained—including the welt noted by Nurse West—match this description of

events. They do not suggest malice, but rather a de minimis use of force to restore order.

Considering the record as a whole, there is simply no evidence from which a

reasonable fact-finder could conclude that Murray and Thatcher applied force maliciously

and sadistically to cause Foster harm, rather than in a good-faith effort to maintain order.

See Scott, 344 F.3d at 291. A reasonable fact-finder therefore could not find in Foster’s

favor on the subjective prong of the analysis. Cf. Griffin, 193 F.3d at 91 (malicious use of

force to cause harm constitutes an Eighth Amendment violation per se whether or not

significant injury is evident).

For all of these reasons, Defendants are entitled to summary judgment on Foster’s

Eighth Amendment excessive force claim. And because Foster’s failure-to-protect claim

4 Defendants assert that this videotape is not in the evidence submitted by Foster, and they have not had

a chance to review it. This Court does not find it among the evidence Foster has submitted, and therefore

has not considered it.

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against Cleveland is premised on his excessive force claim, Defendants are entitled to

summary judgment on the claim against Cleveland as well. See Jacobs v. Bayha, 616

Fed. Appx. 507, 515 n.13 (3d Cir. July 14, 2015) (“in the absence of excessive force,

there was no failure to protect”); Alexander v. Nolan, 6:17-CV-725 (GTS/ATB), 2018 WL

6621400, at *8 (N.D.N.Y. Dec. 18, 2018) (finding that failure-to-intervene claim requires

underlying constitutional violation) (collecting cases); Walker v. City of New York, 11-CV-

314 (CBA)(JMA), 2014 WL 12652345, at *12 (E.D.N.Y. Sept. 3, 2014) (“To prevail on a

failure to intervene claim a plaintiff must demonstrate the existence of an underlying

constitutional violation in which the defendant officer failed to intervene.”) (collecting

cases); Jenkins v. Caplan, No. C 02-5603 RMW (PR), 2012 WL 12904629, at *15

(N.D.Ca. Mar. 30, 2012) (“Because the court finds that Thompson did not use excessive

force, plaintiff’s “failure to protect” claim against Padilla necessarily fails.”); Lopez v. City

of New York, No. 05 Civ. 10321 (NRB), 2009 WL 229956, at *6 (S.D.N.Y. Jan. 30, 1999)

(finding that absence of excessive force precludes a finding of failing to intervene).

D. Failure-to-Protect Claim against Cleveland

As discussed above, this Court finds that Foster’s failure-to-protect claim fails on

the same basis as his excessive force claims against Murray and Thatcher. But his failure-

to-protect claim also fails because Foster did not exhaust his claims administratively

against Cleveland.

The Prison Litigation Reform Act of 1996 (“PLRA”), Pub. L. No. 104–134, 110 Stat.

1321 (1996) expressly requires that “[n]o action shall be brought with respect to prison

conditions under section 1983 of this title, or any other Federal law, by a prisoner confined

in any jail, prison, or other correctional facility until such administrative remedies as are

16

available are exhausted.” 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81,

85, 126 S. Ct. 2378, 165 L. Ed. 2d (2006) (“Exhaustion is . . . mandatory. Prisoners must

now exhaust all ‘available’ remedies[.]”); Hargrove v. Riley, No. 04–CV–4587, 2007 WL

389003, at *5-*6 (E.D.N.Y. Jan. 31, 2007) (“The exhaustion requirement is a mandatory

condition precedent to any suit challenging prison conditions, including suits brought

under Section 1983.”). “[T]he PLRA's exhaustion requirement applies to all inmate suits

about prison life, whether they involve general circumstances or particular episodes, and

whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S.

516, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002).

In the event the defendant establishes that the inmate plaintiff failed to fully

complete the administrative review process before commencing the action, the plaintiff's

complaint is subject to dismissal. See Pettus v. McCoy, No. 04–CV–0471, 2006 WL

2639369, at *1 (N.D.N.Y. Sept. 13, 2006); see also Woodford, 548 U.S. at 93 (“[W]e are

persuaded that the PLRA exhaustion requirement requires proper exhaustion.”). “Proper

exhaustion” requires a plaintiff to procedurally exhaust his claims by “compl[ying] with the

system's critical procedural rules.” Woodford, 548 U.S. at 95; accord Macias v. Zenk, 495

F.3d 37, 43 (2d Cir. 2007).

In New York, formal exhaustion of administrative remedies for prison inmates

requires compliance with a detailed three-step grievance and appeal procedure. See

Morrison v. Parmele, 892 F. Supp. 2d 485, 487 (W.D.N.Y. 2012) (citing 7 N.Y.C.R.R. §

701.5)). The grievance process outlined at § 701.5 provides that: (1) the inmate must

submit a written complaint to the Grievance Clerk within 21 calendar days of the alleged

occurrence; the Grievance Clerk then submits the complaint to the Inmate Grievance

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Resolution Committee (“IGRC”) for investigation and review; (2) if the IGRC denies the

grievance, the inmate may appeal to the superintendent of the facility by filing an appeal

with the IGP clerk; (3) after the superintendent issues a decision, the inmate may appeal

to the Central Office Review Committee (“CORC”), which makes the final administrative

determination. See Thousand v. Corrigan, 9:15-CV-01025 (MAD/ATB), 2017 WL

1093275, at *3 (N.D.N.Y. Mar. 23, 2017); Turner v. Goord, 376 F. Supp. 2d 321, 323

(W.D.N.Y. 2005). “A prisoner has not exhausted his administrative remedies until he goes

through all three levels of the grievance procedure.” Hairston v. LaMarche, Case No.05

Civ. 6642, 2006 WL 2309592, at *7 (S.D.N.Y. Aug.10, 2006) (citing cases). If all three

levels of review are exhausted, the prisoner may seek relief in federal court under § 1983.

See Thousand, 2017 WL 1093275, at *3; Bridgeforth v. DSP Bartlett, 686 F. Supp. 2d

238, 239 (W.D.N.Y. 2010).

While the Supreme Court has deemed the exhaustion of administrative remedies

generally mandatory, it has held that a prisoner’s duty to exhaust is limited to “available”

administrative remedies.5 Ross v. Blake, __ U.S. __, 136 S. Ct. 1850, 1855, 195 L. Ed.

2d 117 (2016) (“A prisoner need not exhaust remedies if they are not ‘available.’”). “An

inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.”

Id. at 1858. To be “available,” administrative remedies (e.g., grievance procedures) must

be “capable of use to obtain some relief for the action complained of.” Id. at 1859 (quoting

Booth v. Churner, 532 U.S. 731, 738, 121 S. Ct. 1819, 149 L. Ed. 2d 958 (2001)).

5 With this holding, the Court in Ross rejected the Second Circuit’s “extra-textual” exception to the

exhaustion requirement, which allowed courts to consider whether “special circumstances” justified a

prisoner’s failure to exhaust administrative remedies. See Williams, 829 F.3d 118, 123 (2d Cir. 2016)

(recognizing that Ross largely abrogates the framework set forth in Giano v. Goord, 380 F.3d 670, 675-76

(2d Cir. 2004) and Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004), which set forth a “special

circumstances” exception to the PLRA’s exhaustion requirement).

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The Court in Ross identified three circumstances in which an administrative

remedy may be unavailable:

First, an administrative remedy may be unavailable when it operates as a

simple dead end—with officers unable or consistently unwilling to provide

any relief to aggrieved inmates. Second, an administrative scheme might

be so opaque that it becomes, practically speaking, incapable of use. In

other words, some mechanism exists to provide relief, but no ordinary

prisoner can discern or navigate it. Third, an administrative remedy may be

unavailable when prison administrators thwart inmates from taking

advantage of a grievance process through machination, misrepresentation,

or intimidation.

Williams v. Correction Officer Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (citing Ross,

136 S. Ct. at 1859-60) (quotation marks and citations omitted).

Here, it is undisputed that Foster failed to file an Inmate Grievance in relation to

Cleveland’s alleged failure to protect him during the use of force by Murray and Thatcher.

(Docket No. 36-2, ¶ 36.) Foster did not mention Cleveland in his grievance against Murray

and Thatcher. (See Docket No. 20 at pp. 116-118.) In fact, Foster wrote a letter

specifically exonerating Cleveland for any use of force. (Docket No. 30-3 at p. 1.) Nowhere

does Foster contend that he followed the available grievance procedures regarding

Cleveland’s alleged failure to protect him. He therefore failed to exhaust, or even pursue,

all administrative remedies that were available to him. This Court will therefore dismiss

Foster’s failure-to-protect claims against Cleveland on this basis as well. See Guarneri v.

West, 782 F. Supp. 2d 51, 59 (W.D.N.Y. 2011) (“Each level of the grievance procedure

must be exhausted before an inmate may commence litigation in federal court.”).

E. Procedural Due Process Claims against Donahue and Venetozzi

Foster argues that Donahue violated his Fourteenth Amendment Due Process

rights by not allowing him to call the witnesses he requested at his Tier III hearing. Foster

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also argues that Venetozzi violated his Fourteenth Amendment rights by affirming

Donahue’s Tier III decision. Defendants argue that the 96 days Foster spent in the SHU

do not suffice for a constitutional violation, that Donahue permissibly denied testimony of

witnesses who were not present at the use of force, and that Venetozzi is not liable merely

for affirming Donahue’s decision.

1. Legal Standards

Plaintiff alleges that the Tier III hearing on his Misbehavior Report was

constitutionally infirm. He thus asserts a procedural due process claim. To prevail on

this claim, he must establish (1) that he possessed a protected liberty or property interest

and (2) that Defendants deprived him of that interest through constitutionally insufficient

procedures. See Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001) (citing Bedoya v.

Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996)); Durran v. Selsky, 251 F. Supp. 2d 1208,

1214 (W.D.N.Y. 2003).

a. Liberty Interest

“A liberty interest may arise from either of two sources – the Due Process Clause

itself [or] the laws of the States.” Rodriguez v. McLoughlin, 214 F.3d 328, 337 (2d Cir.

2000) (quoting Kentucky Dep’t of Corrs. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904,

104 L.Ed.2d 506 (1989) (internal quotation omitted)). A prisoner must identify a viable

liberty interest before he can demonstrate that such an interest was infringed. Palmer v.

Richards, 364 F.3d 60, 64 n. 2 (2d Cir. 2004); Frazier v. Coughlin, 81 F.3d 313, 317 (2d

Cir. 1996) (per curiam).

“A prisoner’s liberty interest is implicated by prison discipline, such as SHU

confinement, only if the discipline ‘imposes [an] atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life.’” Palmer, 364 F.3d at 64 (quoting

Sandin v. Connor, 515 U.S. 472, 484, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995)). The

prisoner’s actual punishment must be examined in making this determination. See Scott

v. Albury, 156 F.3d 283, 287 (2d Cir. 1998) (per curiam). In this regard, the Second Circuit

has consistently held that both the duration and conditions of confinement must be

considered. See Palmer, 364 F.3d at 64; Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir.

2003) (per curiam); Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999) (“Both the

conditions and their duration must be considered, since especially harsh conditions

endured for a brief interval and somewhat harsh conditions endured for a prolonged

interval might both be atypical.”).

While there is no bright-line rule regarding the length or type of sanction that

constitutes an atypical and significant hardship under Sandin, the Second Circuit has

provided guidance on the type of treatment that implicates a prisoner’s liberty interest.

See Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999) (no bright-line rule). For example,

SHU confinement of less than 101 days does not implicate a prisoner’s liberty interest

unless it is demonstrated that the conditions were more severe or extreme than normal

SHU conditions. See Palmer, 364 F.3d at 65. SHU confinement of an intermediate

duration – between 101 and 304 days – requires the district court to develop a detailed

record of the conditions of confinement relative to ordinary prison conditions. See Colon

v. Howard, 215 F.3d 227, 232 (2d Cir. 2000). SHU confinement of more than an

intermediate duration (305 days or more) under normal conditions is “a sufficient

departure from the ordinary incidents of prison life to require procedural due process

protections under Sandin.” Id. at 231 (finding that a prisoner’s liberty interest was

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infringed by 305-day SHU confinement).

A court can consider a term of SHU confinement that precedes a hearing where a

due process violation is alleged, for purposes of establishing the liberty interest at stake.

Sealey, 197 F.3d at 587–88 (“Although the confinement for these 18 days alone is not

alleged to have implicated a liberty interest and although Giltner had no responsibility for

determining the procedures (or their lack) with respect to such confinement, he

nonetheless bears responsibility for the 101–day aggregate of the 83 days of confinement

after his hearing and the 18 days that preceded it. Wherever the point is beyond which

confinement in harsh conditions constitutes atypicality, a prison official must not be

permitted to extend such confinement beyond that point without according procedural due

process.”)

The Second Circuit has suggested that “separate SHU sentences should be

aggregated for purposes of the Sandin inquiry when they constitute a sustained period of

confinement.” Giano, 238 F.3d at 226. Separate SHU sentences constitute a “sustained”

period of confinement when they are contiguous and either were imposed by the same

disciplinary hearing officer or were based on the same administrative rationale and are

executed under the same conditions. Bernier v Sweet, No. 15-CV-209 (RJA)(HBS), 2018

WL 1047102, at *4 (W.D.N.Y. Feb. 26, 2018), report and recommendation adopted, No.

15-CV-209A, 2018 WL 1827660 (W.D.N.Y. Apr. 17, 2018) (citing Taylor v. Artus, No. 05-

CV-0271, 2007 WL 4555932, at *8 (N.D.N.Y. Dec. 19, 2007)).

b. Process Due

After determining whether a liberty interest is implicated, a court must determine

whether the inmate received the process he or she was due. Wolff v. McDonnell, 418

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U.S. 539, 563-66, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974). Due process rights provide for

the following procedural safeguards: “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.” Smith v. Fischer, 803 F.3d 124, 127 (2d Cir.

2015) (per curiam) (quoting Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004)); see also

Wolff, 418 U.S. at 563-71.

“[T]he inmate facing disciplinary proceedings should be allowed to call witnesses

and present documentary evidence in his defense when permitting him to do so will not

be unduly hazardous to institutional safety or correctional goals.” Wolff, 418 U.S. at 566.

An official may refuse to call witnesses as long as the refusal is justifiable, because

“[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.” Id. at 566-67. Both the Supreme Court and the Second Circuit

agree that “a prisoner’s request for a witness can be denied on the basis of irrelevance

or lack of necessity.” Kingsley v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991).

However, the burden is not upon the inmate to prove the official's conduct was arbitrary

and capricious, but upon the official to prove the rationality of the position. Id. at 30-31

(citing Ponte v. Real, 471 U.S. 491, 495, 105 S. Ct. 2192, 2195, 85 L. Ed. 2d 553 (1985)).

Ultimately, due process requires only that there be some evidence to support the

findings made in the disciplinary hearing. Superintendant v. Hill, 472 U.S. 445, 457, 105

S. Ct. 2768, 86 L. Ed. 2d 356 (1985).

2. Foster’s Due Process Claim against Donahue

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Defendants first argue that Foster has not stated a constitutional violation because

he did not suffer an “atypical and significant hardship.” Foster argues that his 96 days in

SHU, in conjunction with the deprivation orders he experienced, constitute such a

hardship.

As noted above, the Second Circuit has held that SHU confinement for 101 days

under normal conditions does not amount to an “atypical and significant hardship” under

Sandin. Sealey, 197 F.3d at 589. Under unusual SHU conditions, periods of less than

101 days can implicate a liberty interest. Ortiz v. McBride, 380 F.3d 649, 654-55 (2d Cir.

2004) (citing Palmer v. Richards, 364 F.3d 60, 65 (2d Cir. 2004)). And, under certain

conditions, courts can aggregate penalties for the purpose of the Sandin analysis. Sealey,

197 F.3d at 587.

Foster spent 96 days in SHU under normal conditions as a result of the guilty

determination by Donahue. Without more, this does not amount to an atypical hardship.

Foster argues that this Court should consider the deprivation orders he experienced in

conjunction with his SHU term. As an initial matter, there is no evidence that Foster ever

grieved these orders. Additionally, the deprivation orders lasted from December 30, 2010,

through January 21, 2011, and Foster’s SHU term did not begin until October 16, 2011;

the two penalties are clearly not contiguous. And Donahue did not sign the deprivation

orders. This Court therefore declines to aggregate the two penalties.

This Court finds that Foster’s 96-day SHU sentence does not implicate a liberty

interest. Ortiz, 380 F.3d at 654 (“[p]rison discipline implicates a liberty interest [only] when

it 'imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.'”) (quoting Sandin, 515 U.S. at 484); see also Sealey, 197 F.3d at

24

589 (101 day confinement in SHU, with no additional allegations of conditions harsher

than usual SHU conditions, did not implicate a liberty interest); Brown v. Venetozzi, 2019

WL 4194432, at *5 (allegations of 210 days in SHU confinement, a dingy cell, one hour

of exercise per day, two showers per week, and no access to prison activities did not

sufficiently allege “atypical” conditions of confinement).

Because Foster was not deprived of a liberty interest by being sentenced to 96

days in SHU under ordinary conditions, this Court finds that his due process claim against

Donahue must fail, and will not proceed to the second part of the due process inquiry.

3. Foster’s Due Process Claim against Venetozzi

Because this Court does not find a due process violation in Foster’s Tier III hearing,

it cannot find a due process violation in Venetozzi’s affirmance of that decision.

Additionally, even if Foster were able to show a denial of due process rights at the Tier III

hearing, Venetozzi could be held liable only if he was personally involved in the violation.

Courts in the Second Circuit are split on whether simply affirming a decision can

establish liability. Some courts find liability merely in affirming a decision. See, e.g.,

Tolliver v. Lilley, No. 12–CV–971, 2014 WL 10447163, at *12 (S.D.N.Y. Oct. 24, 2014)

(“Prack received [the plaintiff's] grievance, reviewed it and acted on it, personally.

Accordingly, the allegations against Prack are sufficient to state personal involvement and

dismissing the claims against him based on this ground is not warranted ....”), adopted

sub nom. Tolliver v. Skinner, No. 12–CV–971, 2015 WL 5660440 (S.D.N.Y. Sept. 25,

2015); Murray v. Arquitt, No. 10–CV–1440, 2014 WL 4676569, at *12 (N.D.N.Y. Sept. 18,

2014) (“The affirmation of an allegedly unconstitutional disciplinary hearing appears to

establish personal involvement.”); Delgado v. Bezio, No. 09–CV–6899, 2011 WL

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1842294, at *9 (S.D.N.Y. May 9, 2011) (“[I]t cannot be said that the Iqbal holding

precludes liability where, as is alleged here, supervisory personnel affirmed a decision

that they knew to have been imposed in violation of Plaintiff[']s due process rights, thus

continuing a deprivation of liberty without due process of law”).

Other courts, however, have found that merely affirming a hearing determination

is not a sufficient basis to impose liability. Woodward v. Mullah, No. 08-CV-463A, 2009

WL 4730309, at *3 (W.D.N.Y. Dec. 7, 2009) (citing Abdur–Raheem v. Selsky, 598 F.

Supp. 2d 367, 370 (W.D.N.Y.2009) (Larimer, J.) (“The only allegation concerning Selsky

in the case at bar is that he affirmed the disposition of plaintiff's administrative segregation

hearing, pursuant to which plaintiff was confined to SHU.... That is not enough to establish

Selsky's personal involvement.”); Ramsey v. Goord, 2005 WL 2000144, *6

(W.D.N.Y.2005) (Skretny, J.) (“the fact that Commissioner Goord and SHU Director

Selsky, as officials in the DOCS ‘chain of command,’ affirmed defendant Ryerson's

determination on appeal is not enough to establish personal involvement of their part”).

The distinction between these cases appears to be that “while personal

involvement cannot be founded solely on supervision, liability can be found if the official

proactively participated in reviewing the administrative appeals as opposed merely to

rubber-stamping the results.” Hamilton v. Smith, No. 06-CV-805 (GTS/DRH), 2009 WL

3199531, at *22 (N.D.N.Y. Jan. 13, 2009), report and recommendation adopted as

modified, No. 9:06-CV-0805(GTSDRH), 2009 WL 3199520 (N.D.N.Y. Sept. 30, 2009).

Still other courts find that a violation must be ongoing for a supervisor to be held

liable for knowing of it and failing to correct it. Jamison v. Fischer, No. 11 CIV. 4697 RJS,

2012 WL 4767173, at *4 (S.D.N.Y. Sept. 27, 2012) (“Bezio was not present at the hearing

26

when this violation allegedly occurred, and the violation, if any, was isolated to the hearing

itself. … Put simply, Bezio could not have corrected the alleged denial of Plaintiff's ability

to call witnesses at the hearing because—by definition—the hearing ended before Bezio

became involved through Plaintiff's appeal. … Therefore, Bezio was not personally

involved because the alleged constitutional violation was not ongoing at the time of

Plaintiff's administrative appeal.”)

Here, there is no evidence that Venetozzi did anything more than rubber-stamp

Donahue’s decision. Venetozzi asserts that he never met Foster, and that he never

received any letters from Foster. (Venetozzi Declaration, Docket No. 36-10, ¶¶ 3-6.)

Defendants have submitted Venetozzi’s one-sentence decision affirming Donahue’s

decision. (Docket No. 20-1 at p. 78.) Foster does not bring forth any evidence suggesting

that Venetozzi played a more active role in affirming Donahue’s decision, or that

Donahue's alleged violation was more than a one-time occurrence, let alone an ongoing

constitutional violation. There is no question of fact regarding Venetozzi’s personal

involvement in any constitutional violation that may have occurred, and he is therefore

entitled to summary judgment on Foster’s claim against him.

IV. CONCLUSION

For the reasons stated above, Defendants’ Motion for Summary Judgment is

granted. This Court finds that Foster has not raised a question of fact regarding Murray’s

and Thatcher’s use of force, has failed to exhaust his administrative remedies against

Cleveland, has not pointed to a liberty interest at stake in the Tier III hearing held by

Donahue, and has raised no question of fact regarding Venetozzi’s personal involvement

in Donahue’s alleged due-process violation.

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V. ORDERS

IT HEREBY IS ORDERED, that Defendants’ Motion for Summary Judgment

(Docket No. 36) is GRANTED.

FURTHER, that the Clerk of Court is directed to CLOSE this case.

SO ORDERED.

Dated: April 13, 2020

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge

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