White v. Mielnicki

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

ERIK WHITE,

Plaintiff,

-against- 9:21-cv-791 (AMN/TWD)

TERRANCE MIELNICKI, et al.,

Defendants.

APPEARANCES: OF COUNSEL:

ERIK WHITE

771 B Seagirt Avenue

Apt. 8M

Far Rockaway, New York 11691

Plaintiff, pro se

LETITIA JAMES NICHOLAS W. DORANDO, ESQ.

Attorney General of the State of New York Assistant Attorney General

The Capitol

Albany, New York 12224

Attorney for Defendants

Hon. Anne M. Nardacci, United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On July 12, 2021, plaintiff pro se Erik White (“Plaintiff”), who was incarcerated in the

custody of the New York State Department of Corrections and Community Supervision

(“DOCCS”) at all relevant times, commenced this action pursuant to 42 U.S.C. § 1983. See Dkt.

No. 1.1 Plaintiff sought and was granted leave to proceed in forma pauperis. Dkt. Nos. 2, 4.

1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic

filing system.

Plaintiff’s amended complaint was accepted for filing on November 19, 2021. Dkt. No. 15. In it,

Plaintiff alleged Fifth Amendment self-incrimination and Fourteenth Amendment due process

claims against Social Worker Mielnicki, Senior Counselor Davis, Deputy Superintendent of

Programs Kozak, Assistant Deputy Superintendent of Programs Debraccio, Superintendent

Fennessy, Deputy Commissioner of Programs McKoy, and former Acting Commissioner Annucci

(collectively, “Defendants”). See id. On September 6, 2022, Senior United States District Judge

Lawrence E. Kahn2 dismissed Plaintiff’s Fourteenth Amendment due process claims for failure to

state a claim. Dkt. No. 36. On August 30, 2024, Defendants filed a motion for summary judgment

seeking dismissal of Plaintiff’s remaining Fifth Amendment self-incrimination claim. Dkt. No.

83. This matter was referred to United States Magistrate Judge Thérèse Wiley Dancks, who, on

August 27, 2025, issued a Report-Recommendation and Order (“Report-Recommendation”),

recommending that Defendants’ motion for summary judgment be granted. Dkt. No. 94 at 27.

Magistrate Judge Dancks advised that under 28 U.S.C. § 636(b)(1), the parties had fourteen days

within which to file written objections and that failure to object to the Report-Recommendation

within fourteen days would preclude appellate review. Id. at 27-28. No objections have been

filed, and the time for filing objections has expired.

For the reasons stated herein, the Court adopts the recommendations in the Report-

Recommendation.

II. BACKGROUND3

Plaintiff was convicted by plea of guilty to eight counts of rape in the second degree and

sixteen counts of criminal sexual act in the second degree. Dkt. No. 94 at 9 (citing, inter alia, Dkt.

2 This case was reassigned to the undersigned on January 19, 2023. Dkt. No. 46.

3 Plaintiff’s factual allegations and the facts asserted in Defendants’ statement of material facts are

detailed in the Report-Recommendation. See Dkt. No. 94 at 2-5 and 9-13.

No. 83-1 ¶ 1). Due to the nature of Plaintiff’s convictions, Plaintiff was required to complete sex

offender treatment programming. Id. at 10 (citing Dkt. No. 83-1 ¶ 14). In January 2018, Plaintiff

was placed in the Office of Mental Health Sex Offender Program (“OSOP”) at Marcy Correctional

Facility. Id. (citing Dkt. No. 83-1 ¶ 15). In July 2018, Plaintiff was removed from the OSOP for

fighting with an incarcerated individual and assaulting an officer, and in December 2018, was

placed into the Sex Offender Counseling Treatment Program (“SOCTP”) at Mid-State

Correctional Facility. Id. at 10-11 (citing, inter alia, Dkt. No. 83-1 ¶¶ 16-17). In June 2019,

Plaintiff was suspended from the SOCTP for twenty days after he was found guilty of four Tier III

violations—violent conduct, creating a disturbance, fighting, and refusing a direct order. Id. at 12

(citing Dkt. No. 83-1 ¶ 30).

According to Plaintiff, to successfully complete the SOCTP, participants must admit

responsibility for their crimes both in writing and in group sessions. Id. at 2 (citing Dkt. No. 12 at

5-6). Plaintiff claims that if a participant refuses to take responsibility, he is negatively removed

from the program, his earned eligibility credit is rescinded, and his release from incarceration is

denied until he complies with the program requirements or he reaches his maximum release date.

Id. (citing Dkt. No. 12 at 6). Plaintiff further claims that, as part of the SOCTP, Defendant

Mielnicki required Plaintiff to take responsibility for his crimes. Id. (citing Dkt. No. 12 at 6).

According to Defendants, SOCTP participants are not required to admit the commission of a

particular crime or offense, and, moreover, participants are advised that statements made during

the program are confidential. Id. at 11 (citing Dkt. No. 83-1 ¶ 19). Plaintiff executed two SOCTP

waivers, in December 2018 and March 2019 respectively, which provided that “no written

statement made by [Plaintiff] in conjunction with treatment services rendered in connection with

the [SOCTP] may be used against [Plaintiff] in any subsequent criminal proceedings.” Id. at 11-

12 (citing Dkt. No. 83-1 ¶¶ 21, 28).

The Time Allowance Committee (“TAC”) evaluates incarcerated individuals prior to their

conditional release date to determine whether they should be granted earned eligibility credit,

which is often referred to as “good time” credit. Id. at 10 (citing Dkt. No. 83-1 ¶¶ 7-8). Plaintiff’s

TAC hearing, for which Defendant Debraccio was present, was held on February 14, 2020,

approximately four months prior to Plaintiff’s conditional release date in June 2020. Id. at 12

(citing Dkt. No. 83-1 ¶¶ 33-34). The TAC temporarily denied Plaintiff earned eligibility credit

after reviewing Plaintiff’s entire record and determining that Plaintiff had not achieved his earned

eligibility goals, i.e., an incarcerated individual’s required programming based on his criminal

history, due to Plaintiff’s disciplinary suspensions from the SOCTP. Id. (citing Dkt. No. 83-1 ¶¶

35-36). Defendant Fennessy affirmed the TAC’s determination, and Plaintiff was advised that he

could reapply for earned eligibility credit upon completion of the SOCTP and Aggression

Replacement Training. Id. (citing Dkt. No. 83-1 ¶¶ 39-40).

In March 2020, the SOCTP temporarily shut down due to the COVID-19 pandemic. Id.

(citing Dkt. No. 83-1 ¶ 41). After the SOCTP resumed, Plaintiff was required to complete a

“clarification assignment” which required him to discuss behaviors that lead to sexually offending

behavior without necessarily admitting a crime. Id. at 13 (citing Dkt. No. 83-1 ¶ 43). Plaintiff

initially refused to complete the assignment, which placed him on probation within the program.

Id. (citing Dkt. No. 83-1 ¶¶ 44, 48). Plaintiff eventually completed the SOCTP on August 16,

2020, see id. (citing Dkt. No. 83-1 ¶¶ 42, 49), and Plaintiff received his earned eligibility credit on

August 26, 2020, which resulted in a conditional release date of October 19, 2020. Id. (citing Dkt.

No. 83-1 ¶ 52).

Plaintiff contends that Defendants violated his constitutional rights under the Fifth

Amendment. Id. (citing Dkt. No. 12 generally). Specifically, Plaintiff claims that because he

refused to admit responsibility for his crimes, which the SOCTP required, Defendants rescinded

Plaintiff’s earned eligibility credit in February 2020 in violation of his Fifth Amendment right

against self-incrimination. Id. (citing Dkt. No. 12 at 5-6).

III. STANDARD OF REVIEW

A. Summary Judgment

A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant

judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29,

36 (2d Cir. 1994) (citations omitted). “[T]he mere existence of a scintilla of evidence in support

of the plaintiff’s position will be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.” Jeffreys v. City of N.Y., 426 F.3d 549, 554 (2d Cir. 2005)

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (emphasis in original). In

other words, “a nonmoving party must offer some hard evidence showing that [his] version of the

events is not wholly fanciful.” Id. (internal citations and quotations omitted). Moreover, the court

“cannot try issues of fact; it can only determine whether there are issues to be tried.” See

Chambers, 43 F.3d at 36-37 (internal citations and quotations omitted). Any assessments of

credibility and all choices between available inferences are matters to be left for a jury, not matters

to be decided by the Court on summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317

(1986) (citing Fed. R. Civ. P. 56(c), (e)).

In assessing the record to determine whether any issues of material fact exist, the court is

required to resolve all ambiguities and draw all reasonable factual inferences in favor of the

nonmoving party. See Chambers, 43 F.3d at 36 (citing, inter alia, Anderson, 477 U.S. at 255).4

Where a party is proceeding pro se, like here, the court must “read his supporting papers liberally,

and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14

F.3d 787, 790 (2d Cir. 1994); accord Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). “However,

a pro se party’s ‘bald assertion,’ completely unsupported by evidence, is not sufficient to overcome

a motion for summary judgment.” Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995)

(quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

B. Review of Report-Recommendation

A district court reviews de novo those portions of a magistrate judge’s report-

recommendations that have been properly preserved with a specific objection. 28 U.S.C.

§ 636(b)(1)(C). “To be ‘specific,’ the objection must, with particularity, ‘identify [1] the portions

of the proposed findings, recommendations, or report to which it has an objection and [2] the basis

for the objection.’” Petersen v. Astrue, 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012) (alteration in

original) (quoting N.D.N.Y. Local Rule 72.1(c)). When a party files “[g]eneral or conclusory

objections, or objections which merely recite the same arguments [previously] presented to the

magistrate judge,” the district court reviews a magistrate judge’s report-recommendations for clear

error. O’Diah v. Mawhir, 08-cv-322, 2011 WL 933846, at *1 (N.D.N.Y. Mar. 16, 2011) (citations

omitted).

“[I]n a pro se case, the court must view the submissions by a more lenient standard than

4 Where, as here, the non-movant fails to appropriately dispute the movant’s statement of material

facts, the court may not rely solely on the moving party’s Rule 56.1 statement; rather, the court

must be satisfied that the citations to evidence in the record support the movant’s assertions. See

Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the

record the assertions in a motion for summary judgment “would derogate the truth-finding

functions of the judicial process by substituting convenience for facts”).

that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289,

295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations

omitted). The Second Circuit has held that courts are obligated to “‘make reasonable allowances

to protect pro se litigants’” from inadvertently forfeiting legal rights merely because they lack a

legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a

pro se party’s objections to a Report and Recommendation must be specific and clearly aimed at

particular findings in the magistrate’s proposal . . ..” Machicote v. Ercole, 06-cv-13320, 2011 WL

3809920, at *2, (S.D.N.Y. Aug. 25, 2011) (citation and quotations omitted); accord Caldwell v.

Petros, 22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate

review, “the court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

IV. DISCUSSION

Magistrate Judge Dancks recommended granting Defendants’ motion for summary

judgment. Dkt. No. 94 at 27. In response to the Report-Recommendation, Plaintiff submitted a

document docketed as an objection. Dkt. No. 97. However, Plaintiff’s submission restates certain

allegations in the Amended Complaint and does not identify any objection to the analysis in the

Report-Recommendation. See id. Thus, Plaintiff has failed to adequately object to the Report-

Recommendation. See Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)

(noting that a “statement, devoid of any reference to specific findings or recommendations to

which [the plaintiff] objected and why, and unsupported by legal authority, was not sufficient to

preserve” a claim for appellate review). Accordingly, the Court reviews the Report-

Recommendation for clear error.5

For the reasons stated below, the Court adopts the Report-Recommendation in its entirety.

A. Personal Involvement

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

prerequisite to an award of damages under [Section] 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d

Cir. 1994) (citations and quotations omitted). To survive summary judgment, a plaintiff must

present evidence that “‘each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). As detailed herein, Magistrate Judge

Dancks concluded that each of the Defendants lacked personal involvement in the alleged violation

of Plaintiff’s Fifth Amendment rights.

1. Defendants Mielnicki and Davis

First, Magistrate Judge Dancks recommended that the Court grant summary judgment as

to Defendants Mielnicki and Davis for lack of personal involvement. See Dkt. No. 94 at 19.

Specifically, Magistrate Judge Dancks found that Plaintiff failed to establish that Defendants

Mielnicki and Davis were personally involved in the decision to deny Plaintiff earned eligibility

credit in February 2020. Id.

Magistrate Judge Dancks found that, according to the record, the job duties assigned to

Defendants Mielnicki and Davis were limited to providing and managing therapeutic treatments.

See id. at 17-18. They were not responsible for making recommendations as to how much time

individuals spend incarcerated or when they should be released from incarceration. See id. at 18

5 While the time for Defendants to file a response to Plaintiff’s objection to the Report-

Recommendation has not yet elapsed, given the nature of Plaintiff’s objection, the Court finds it

unnecessary to withhold its decision.

(citing Dkt. No. 83-9 ¶ 7); see also Dkt. No. 83-3 ¶ 10. Specifically, Magistrate Judge Dancks

concluded that Defendant Mielnicki did not attend TAC meetings and had no involvement in

determining whether to grant Plaintiff earned eligibility credit. See Dkt. No. 94 at 18 (citing Dkt.

No. 83-9 ¶ 7). While Defendant Mielnicki met with Plaintiff regularly as part of sex offender core

group discussions and one-on-one meetings, he did not discuss Plaintiff’s sex offender treatment

with the TAC. Id. Likewise, Magistrate Judge Dancks found that Defendant Davis did not attend

TAC meetings and was not involved in determining whether to grant Plaintiff earned eligibility

credit, nor did she provide any recommendations pertaining to Plaintiff’s incarceration at any time.

See id. at 17 (citing Dkt. No. 83-3 ¶¶ 8, 19).

Finding no clear error, the Court adopts Magistrate Judge Dancks’ recommendation to

grant summary judgment as to Defendants Mielnicki and Davis.

2. Defendant Kozak

Second, Magistrate Judge Dancks recommended that the Court grant summary judgment

as to Defendant Kozak, also for lack of personal involvement. Dkt. No. 94 at 20. Specifically,

Magistrate Judge Dancks concluded that the record supported Defendant Kozak’s lack of

involvement in the decision to deny Plaintiff’s earned eligibility credit, as Defendant Kozak did

not attend Plaintiff’s TAC meeting in February 2020 and the report generated from Plaintiff’s TAC

meeting did not include his signature. Id. at 19; see also Dkt. Nos. 83-7 ¶¶ 12-13, 83-10 at 14, and

83-4 at 41. Moreover, Magistrate Judge Dancks found that Plaintiff had failed to provide any

evidence that would create a genuine issue of material fact as to Defendant Kozak’s personal

involvement. Finding no clear error, the Court adopts Magistrate Judge Dancks’ recommendation

to grant summary judgment as to Defendant Kozak.

3. Defendant Fennessy

Third, Magistrate Judge Dancks found that Defendant Fennessy lacked personal

involvement in the decision to deny Plaintiff earned eligibility credit, and accordingly,

recommended that the Court grant summary judgment as to Defendant Fennessy. Dkt. No. 94 at

22. Magistrate Judge Dancks noted that Defendant Fennessy, the Superintendent of Mid-State

Correctional Facility, had declared that he had no personal knowledge of Plaintiff or his individual

treatment as part of the SOCTP. Id. at 21 (citing Dkt. No. 83-6 ¶¶ 5, 15). Ultimately, Magistrate

Judge Dancks concluded that, although Defendant Fennessy had affirmed the TAC

recommendation to deny Plaintiff earned eligibility credit based on Plaintiff’s repeated disciplinary

violations and his failure to complete the required sex offender programming, see id. at 21, mere

“linkage in the prison chain of command” is insufficient to establish personal involvement for

purposes of raising a claim under Section 1983. Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir.

1985); see also Banks v. Annucci, 48 F. Supp. 3d 394, 417 (N.D.N.Y. 2014) (“Where a defendant

is a supervisory official, a mere linkage to the unlawful conduct through the chain of command . .

. is insufficient to show his or her personal involvement in that unlawful conduct.”) (internal

quotations omitted). Additionally, Magistrate Judge Dancks found that Plaintiff had failed to

provide any evidence that would support reaching a contrary conclusion. Dkt. No. 94 at 22; see

Tangreti, 983 F.3d at 618 (noting that a plaintiff must establish that the supervisor committed the

alleged constitutional violation himself and possessed the requisite state of mind for the violation

alleged). Finding no clear error, the Court adopts Magistrate Judge Dancks’ recommendation to

grant summary judgment as to Defendant Fennessy.

4. Defendants Annucci and McKoy

Fourth, Magistrate Judge Dancks recommended that the Court grant summary judgment as

to Defendants Annucci and McKoy for lack of personal involvement. Dkt. No. 94 at 24. Like

Defendant Fennessy, Magistrate Judge Dancks found that Defendants’ mere link to the alleged

conduct through DOCCS’ chain of command is insufficient to establish supervisory liability. See

Banks, 48 F. Supp. 3d at 416.

As the Acting Commissioner of DOCCS, Defendant Annucci declared that he had no

interaction with Plaintiff and did not review Plaintiff’s letter seeking reconsideration of TAC’s

decision to deny Plaintiff earned eligibility credit. See Dkt. Nos. 94 at 23 and 83-4 at 37-39; see

also Dkt. No. 83-2 ¶ 10 (noting that the DOCCS Commissioner forwards all mail to the appropriate

Deputy Commissioner given the significant amount of correspondence the DOCCS Commissioner

receives daily). Furthermore, Magistrate Judge Dancks found that Plaintiff had failed to provide

any evidence to create a genuine issue of material fact as to Defendant Annucci’s personal

involvement and that the record does not demonstrate any such involvement. Dkt. No. 94 at 23;

see also Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (finding no personal involvement where

DOCCS Commissioner referred inmate’s letters to subordinates); Douglas v. Annucci, 14-cv-

6018, 2022 WL 2306934, at *8 (W.D.N.Y. June 27, 2022) (finding that “[r]eceiving and

forwarding an inmate’s correspondence is insufficient to establish personal involvement by a

prison official”); Adams v. Annucci, 17-cv-3794, 2023 WL 2664301, at *11 (S.D.N.Y. Mar. 28,

2023) (explaining that receipt of an inmate’s letter, by itself, is not personal involvement).

While Defendant McKoy did respond to Plaintiff’s letter in September 2020, and affirmed

the TAC’s decision in that response, see Dkt. No. 83-8 ¶¶ 6-7, 21, Magistrate Judge Dancks found

that the record lacks evidence indicating that Defendant McKoy had any involvement in the

decision to deny Plaintiff earned eligibility credit in February 2020. See Dkt. No. 94 at 24. As a

result, Magistrate Judge Dancks concluded that the record does not sufficiently demonstrate

Defendant McKoy’s personal involvement in the alleged misconduct. Id. Finding no clear error,

the Court adopts Magistrate Judge Dancks’ recommendation to grant summary judgment as to

Defendants Annucci and McKoy.

B. Merits

Lastly, Magistrate Judge Dancks concluded that regardless of Defendants’ lack of personal

involvement in the decision to deny Plaintiff earned eligibility credit, the record does not provide

sufficient evidence from which a reasonable factfinder could find a Fifth Amendment violation.

Dkt. No. 94 at 27. “The Fifth Amendment, applicable to the states through the Fourteenth

Amendment, provides that a person shall not be ‘compelled in any criminal case to be a witness

against himself.’” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d Cir. 1998) (quoting

U.S. Const. amend. V.). However, “[a] sex-offender treatment program that requires disclosure of

criminal conduct without guaranteeing immunity does not violate the Fifth Amendment’s Self-

Incrimination Clause unless the consequences for non-disclosure compel the prisoner to make self-

incriminating statements.” Krull v. Oey, 805 F. App’x 73, 75 (2d Cir. 2020) (citing McKune v.

Lile, 536 U.S. 24, 36 (2002)); see also McChesney v. Hogan, 08-cv-1290, 2010 WL 1027443, at

*7 (N.D.N.Y. Feb. 26, 2010) (“It is by now fairly well settled that risking the loss of good time

credits or jeopardizing the chance for parole, alone, does not qualify as sufficiently compulsive to

meet the test.”), report-recommendation adopted, 2010 WL 1037957 (N.D.N.Y. Mar. 18, 2010).

Magistrate Judge Dancks concluded that, while using statements Plaintiff made during the

SOCTP against him in a future criminal proceeding would violate the Fifth Amendment, there is

insufficient evidence to conclude that such unlawful use occurred here. Dkt. No. 94 at 26.

Specifically, Magistrate Judge Dancks found that the record evidence does not indicate that

statements Plaintiff made in the SOCTP were admitted as testimony against him in a criminal

proceeding. Id.; see, e.g., Fifield v. Eaton, 669 F. Supp. 2d 294, 298 (W.D.N.Y. 2009) (dismissing

plaintiff’s compelled self-incrimination claim where he failed to “allege that the defendant ever

used, sought to use, or could have used any incriminating statement against him in a criminal

proceeding”). Indeed, as Magistrate Judge Dancks noted, DOCCS policy provides that statements

made in SOCTP are covered by confidentiality and no such written statements may be used against

Plaintiff in a future criminal proceeding. See Dkt. Nos. 94 at 25 and 83-1 ¶¶ 20-21, 28 (noting that

Plaintiff signed two waivers affirming his understanding that his written statements made in

connection with the SOCTP cannot be used against him in any subsequent criminal proceedings).

Moreover, Magistrate Judge Dancks concluded that, according to the record, the TAC’s

decision to temporarily deny Plaintiff earned eligibility credit in February 2020 was not premised

upon statements Plaintiff made during the SOCTP because the TAC lacked knowledge of any

statements Plaintiff made to the SOCTP staff. See Dkt. No. 94 at 21. Magistrate Judge Dancks

also noted that determinations regarding whether to grant earned eligibility credit are based on

numerous factors such as “the incarcerated individual’s disciplinary history, whether the

incarcerated individual has met his programming needs, whether the incarcerated individual has

refused certain programming, and/or has been negatively removed from programming.” Id. at 20-

21 (quoting Dkt. No. 83-1 ¶ 11). Thus, Magistrate Judge Dancks concluded that the decision to

temporarily deny Plaintiff earned eligibility credit was due to Plaintiff’s disciplinary history and

Plaintiff’s failure to complete his required programming, id. at 26-27, and found that Plaintiff

proffered no evidence indicating otherwise. Id. at 27. But even if the TAC’s decision was

premised upon Plaintiffs statements, Magistrate Judge Dancks found that such temporary denial

of earned eligibility credit “does not suffice to establish the requisite degree of compulsion” for

purposes of a Fifth Amendment violation given that such denial of earned eligibility credit, “a

discretionary privilege,” does not violate the Fifth Amendment. McChesney, 2010 WL 1027443,

at *7,

Accordingly, Magistrate Judge Dancks recommended that the Court grant summary

judgment on this ground, as well. See Dkt. No. 94 at 25-27. Finding no clear error, the Court

adopts Magistrate Judge Dancks’ recommendation.

V. CONCLUSION

Accordingly, the Court hereby

ORDERS that the recommendations in the August 27, 2025 Report-Recommendation,

Dkt. No. 94, are ADOPTED for the reasons stated herein; and the Court further

ORDERS that Defendants’ motion for summary judgment, Dkt. No. 83, is GRANTED;

and the Court further

ORDERS that the Clerk shall enter judgment in Defendants’ favor and close this case; and

the Court further

ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the

parties in accordance with the Local Rules.

IT ISSO ORDERED.

Dated: September 30, 2025 Ounce] |. Jardacer

Albany, New York Anne M. Nardacci

U.S. District Judge

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