# White v. Mielnicki

> District Court, N.D. New York · September 30, 2025

URL: https://www.frixlaw.com/law-library/cases/11154678

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 30, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11154678

## How later opinions describe it (automated extraction)

- 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
- 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”

## Opinion text

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

14

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11154678. Public record. Not legal advice.