Cusamano v. Sobek

MEMORANDUM-DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Plaintiff filed this

pro se

civil rights action pursuant to 42 U.S.C. § 1983 , against

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thirteen (13) employees of the New York State Department of Corrections (“DOCS”), alleging that they violated his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution as well as his rights under Article 1, Section 6 of the New York Constitution. (Dkt. No. 1 [Plf.’s Compl.].) Currently pending before the Court are (1) Defendants’ motion for summary judgment pursuant to Fed.R.Civ.P. 56, (2) Plaintiffs cross-motion for summary judgment, (3) Plaintiffs cross-motion for an Order to stay decision on Defendants’ motion, and to compel discovery, and (4) Plaintiffs cross-motion for leave to amend his Complaint. (Dkt. Nos. 39, 42.)

On September 19, 2008, United States Magistrate Judge George H. Lowe filed a Report-Recommendation recommending that Defendants’ motion for summary judgment be granted in part and denied in part, and that Plaintiffs three cross-motions be denied. (Dkt. No. 47.) On October 3, 2008, Plaintiff filed Objections to that Report-Recommendation. (Dkt. No. 49.) For the reasons set forth below, Magistrate Judge Lowe’s Report-Recommendation is accepted as modified by the withdrawal of certain of Plaintiffs claims and his introduction of new evidence on appeal.

I. STANDARD OF REVIEW

When specific objections to a magistrate judge’s Report-Recommendation are made, the Court makes a “de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”

See

28 U.S.C. § 636 (b)(1)(C).

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When only general objections are made, the Court reviews for clear error or manifest injustice.

See Brown v. Peters,

95-CV-1641, 1997 WL 599355 , at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases],

aff'd without opinion,

175 F.3d 1007 (2d Cir.1999). Similarly, when a party makes no objection to a portion of a Report-Recommendation, the Court reviews that portion for clear error or manifest injustice.

See Batista v. Walker,

94-CV-2826, 1995 WL 453299 , at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducting the 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).

II. LEGAL STANDARD ON MOTION FOR SUMMARY JUDGMENT

Under Fed.R.Civ.P. 56, summary judgment is warranted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the

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moving party.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 , 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986). In addition, “[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate the absence of any genuine issue of material fact.”

Celotex v. Catrett,

477 U.S. 317, 323 , 106 S.Ct. 2548 , 91 L.Ed.2d 265 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with “specific facts showing a genuine issue [of material fact] for trial.” Fed.R.CivJP. 56(e)(2).

A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson,

477 U.S. at 248 , 106 S.Ct. 2505 . As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact.”

Kerzer v. Kingly Mfg.,

156 F.3d 396, 400 (2d Cir.1998) [citation omitted];

see also

Fed.R.Civ.P. 56(e)(2). As the Supreme Court has famously explained, “[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts” [citations omitted].

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 585-86 , 106 S.Ct. 1348 , 89 L.Ed.2d 538 (1986).

As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law.”

Anderson,

477 U.S. at 248 , 106 S.Ct. 2505 . “Factual disputes that are irrelevant or unnecessary will not be counted.”

Id.

[citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute — even if that nonmoving party is proceeding

pro se

2

(This is because the Court extends special solicitude to the

pro se

litigant in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)

3

As has often been rec

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ognized by both the Supreme Court and Second Circuit, even

pro se

litigants must obey a district court’s procedural rules.

4

For this reason, this Court has often enforced Local Rule 7.1(a)(8) by deeming facts set forth in a moving party’s statement to have been admitted where the nonmoving party has failed to properly respond to that statement

5

— even where the nonmoving party was proceeding

pro se

in a civil rights case.

6

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III. ANALYSIS OF DEFENDANTS’ MOTION

In his lengthy Objections to Magistrate Judge Lowe’s Report-Recommendation, Plaintiff offers specific objections to the majority of Magistrate Judge Lowe’s recommendations.

(Compare

Dkt. No. 47

with

Dkt. No. 49.) The only recommendations to which Plaintiff does not object are as follows: (1) the recommendation that Plaintiffs excessive-force claim against Defendant McAdam not be dismissed at this time; (2) the recommendation that Plaintiffs failure-to-protect claim against Defendant Snyder not be dismissed at this time; (3) the recommendation that Plaintiffs claim under Article 1, Section 6 of the New York State Constitution be dismissed; and (4) the recommendation that Plaintiffs access-to-courts claims against Defendants Emrich and Don be dismissed. (Dkt. No. 47, at 457-58, 467-68, 500-02.) As a result, the Court reviews these last four recommendations for clear error, and it reviews the remaining recommendations

de novo.

After applying the relevant standard of review, and conducting a careful review of all of the papers in this action (including Magistrate Judge Lowe’s Report-Recommendation and Plaintiffs Objections),

7

the Court adopts Magistrate Judge Lowe’s Report-Recommendation as modified by Plaintiffs withdrawal of certain of his claims and his introduction of new evidence in his objections. More specifically, the Court issues the following 21 rulings.

Excessive Force Claims

1. Plaintiffs excessive-force claim against Defendant Cushman is

not

dismissed. Although Plaintiff admits that he did not hear or see Defendant Cushman as he was actually being frisked or subjected to the use of force,

8

the Court finds that there is a genuine issue of material fact as to whether or not Defendant Cushman was present during and/or participated in the (alleged) assault.

9

This is largely because,

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in his Objections, Plaintiff adequately brings to the Court’s attention the portion of his deposition transcript in which he testified that,

after

the use of force was complete, he turned around and saw that “all of the officers” were present in the room. (Dkt. No. 49, at 13.)

As an initial matter, the manner in which Plaintiff presented the citation to this evidence to Magistrate Judge Lowe was to bury it in a 40-page, 139-para-graph, single-spaced, handwritten document that attempted to serve as the following four things at the same time: (1) a

partial

Rule 7.1 Response (and counter-statement of facts);

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(2) a Rule 7.1 Statement of Material Facts (in support of Plaintiffs cross-motion for summary judgment); (3) a declaration; and (4) a document containing legal arguments (including

ad hominem

attacks on defense counsel).

{See

Dkt. No. 42, Part 1.) Such a document is in blatant violation of numerous local rules that function to separate argument from factual assertions, and factual assertions from factual denials, and factual denials from record evidence (in order to enable the Court to fairly and efficiently decide the motion for summary judgment before it).

11

Plaintiff had adequate notice of Local Rule 7.1 before he violated it.

12

In addition, Plaintiff

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clearly understood the consequences of failing to properly oppose Defendants’ motion because he applied for (and was granted) an extension of time by which to file his response to Defendants’ motion for summary judgment. (Dkt. No. 40.)

13

Under the circumstances, Magistrate Judge Lowe did not abuse his discretion in refusing to excuse Plaintiffs rule violations given (1) the prior notice that Plaintiff had received about the consequences of failing to properly oppose Defendants’ motion for summary judgment, (2) the extension of time that Plaintiff received to file his response to Defendants’ motion for summary judgment, (3) Plaintiffs prior experience informally helping other inmates with their legal work since 2001, and formally helping other inmates with their legal work as a clerk in multiple prison law libraries,

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(4) Plaintiffs prior experience as a

pro se

litigant in federal court (which he acquired while using one or more of four aliases),

15

(5) the volume of the record evidence that Magistrate Judge Lowe would have had to sift through, and the opportunity to reply that he would have had to afford Defendants, had he chosen to overlook Plaintiffs failure,

16

and (6) the delay that would have resulted to the proceedings of other

pro se

civil rights litigants with cases pending on the Court’s docket.

17

As a result, Plaintiffs Rule 7.1 Response was, and is, properly disregarded by the Court.

However, the Court need not excuse the myriad deficiencies in Plaintiffs 7.1 Response in order to conclude that a genuine issue of material fact exists as to whether

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or not Defendant Cushman was present during and/or participated in the (alleged) assault. This is because, in his Objections, Plaintiff brings squarely before the Court a citation to the portion of his deposition transcript in which he testified that,

after

the use of force was complete, he turned around and saw that “all of the officers” were present in the room. (Dkt. No. 49, at 13.) While the Court is not inclined to consider evidentiary material that was not adequately presented to a magistrate judge in the first instance, the Court will not turn a blind eye to such evidentiary material. This is especially true when that material is consistent with other evidentiary material that the Court has come across in its review of this matter, such as the following: (1) the fact that Defendant Cushman escorted Plaintiff to the “frisk room”;

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(2) Plaintiffs statement, during his disciplinary hearing, that “Officer Cushman [was present in the room as Plaintiff was going into the room]”;

19

(3) Plaintiffs sworn allegation that Defendant Cushman “ ‘witnessed’ ” and “perpetrated” the (alleged) assault;

20

and (4) Plaintiffs testimony, in his deposition, that “[n]o, I cannot identify by name anyone else in [the] frisk room as [I] entered [except Defendant McAdam]. Now, mind you, one of the officers I identified as having been in the room and participating in this was Officer Cushman, but he escorted me.... [At the end of the alleged assault] all of the officers and Sergeant Snyder [were] still present.”

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Simply stated, the Court concludes that there is a genuine issue of material fact as to whether or not Defendant Cushman was present during and/or participated in the (alleged) assault, due to Plaintiffs citation (in his Objections to Magistrate Judge Lowe’s ReporL-Recommendation) to what is effectively “new” record evidence, which the Court considers under the special circumstances of this case.

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2. Plaintiffs excessive-force claim against Defendant McAdam is

not

dismissed, for the reasons stated by Magistrate Judge Lowe in Part III.A. of his Report-Recommendation. (Dkt. No. 47, at 464-66, 468.)

Failure-to-Protect Claims

3. Plaintiffs failure-to-protect claim against Defendant Cushman is deemed withdrawn under Fed.R.Civ.P. 41(a)(2), given Plaintiffs representation, in his Objections, that he never intended to assert that claim in his Complaint. (Dkt. No. 49, at 6, 13-14.) The Court will add only that it in no way faults Magistrate Judge Lowe for reading this claim into Plaintiffs Complaint, since this liberal construction was performed in an express attempt to extend Plaintiff special solicitude as a

pro se

civil rights litigant. (Dkt. No. 47, at 447, & n. 8.)

4. Plaintiffs failure-to-protect claim against Defendant Sobek is also deemed withdrawn under Fed.R.Civ.P. 41(a)(2), given Plaintiffs representation that he never intended to assert that claim in his

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Complaint. (Dkt. No. 49, at 6, 13-14.) Again, the Court will add only that it in no way faults Magistrate Judge Lowe for reading this claim into Plaintiffs Complaint out of special solicitude.

5. Plaintiffs failure-to-protect claim against Defendant Snyder is

not

dismissed, for the reasons stated by Magistrate Judge Lowe in Part III.A. of his Report-Recommendation. (Dkt. No. 47, at 464-66, 468, & n. 103.)

6. Plaintiffs failure-to-protect claim against Defendant McAdam is also deemed withdrawn under Fed.R.Civ.P. 41(a)(2), given Plaintiffs representation that he never intended to assert that claim in his Complaint. (Dkt. No. 49, at 6, 13-14.) Again, the Court in no way faults Magistrate Judge Lowe for reading this claim into Plaintiffs Complaint out of special solicitude.

Conspiracy Claims

7. Plaintiffs Section 1983 conspiracy claims against Defendants Sobek, Snyder, Cushman, and McAdam are dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing either (1) a meeting of the minds between any of these Defendants to act in concert to inflict a constitutional injury on Plaintiff, or (2) the commission of any overt act in furtherance of that goal. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.B. of his Report-Recommendation. (Dkt. No. 47, at 469.)

Plaintiffs Objections, which cite four different statements that “plausibly hint at a conspiracy to assault,” are without merit. (Dkt. No. 49, at 16-17.) As an initial matter, again, the manner in which Plaintiff presented citations to this evidence to Magistrate Judge Lowe was to bury them in a a 40-page, 139-paragraph, single-spaced, handwritten document that attempted to serve as the following four things at the same time: (1) a

partial

Rule 7.1 Response (and counter-statement of facts); (2) a Rule 7.1 Statement of Material Facts (in support of Plaintiffs cross-motion for summary judgment); (3) a declaration; and (4) a document containing legal arguments (including

ad hominem

attacks on defense counsel). (Dkt. No. 42, Part 1.) Such a document is in flagrant violation of numerous local rules. As a result, the document in question was, and is, properly disregarded by the Court. In any event, evidence of a series of expressions of a common dislike of a plaintiff by a handful of individuals is different from evidence of a conspiratorial agreement between those individual.

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Also without merit is Plaintiffs argument that Defendant Sobek “initiated the conspiracy to assault via a phone conversation with Sgt. Snyder.” (Dkt. No. 49, at 14-18.) This argument by Plaintiff ignores the following undisputed facts: (1) it was Defendant McAdam who initiated the telephone call; (2) even assuming Defendant Sobek received the call, no record evidence — only speculation — exists that, during the conversation that ensued, Defendant Sobek (a correctional officer), through Officer McAdam, instructed Defendant Snyder (a correctional sergeant and thus Sobek’s superior officer) to as

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sault Plaintiff;

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and (3) even if Defendant Sobek did issue such an instruction, no record evidence exists that-after doing so-Defendant Sobek committed an overt act in furtherance of the conspiracy to assault Plaintiff. With regard to this last point, Plaintiff appears to argue that either (1) it was Defendant Sobek’s meeting of minds with Defendant Snyder that itself constituted an overt act, or (2) Defendant Sobek’s overt act somehow preceded the point in time when a meeting of the minds occurred. However, both arguments are without merit.

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8. Plaintiffs Section 1985 conspiracy claims against Defendants Sobek, Snyder, Cushman, and McAdam are dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing either of the two requirements for the formation of a conspiracy, as stated above in Paragraph 7 of Part III of this Memorandum-Decision of Order, as well as for failure to adduce record evidence establishing that the underlying motivation for the conspiracy was racial or other class-based animus. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.B. of his ReporNRecommendation. (Dkt. No. 47, at 468-69.) Plaintiffs Objections argue that (1) federal courts have improperly injected a class-based animus requirement into Section 1985, and (2) in any event, he satisfies that requirement because he was, during the time of the alleged assault, a felon. (Dkt. No. 49, at 18-19.) Both arguments are patently without merit.

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In the alternative, the Court finds that Plaintiffs Section 1985 conspiracy claims are barred by the intra-corporate conspiracy doctrine, for the five reasons articulated by Magistrate Judge Lowe in Part III.B. of his Report-Recommendation. (Dkt. No. 47, at 467-70.)

False-Misbehavior-Report Claims

9. Plaintiffs false-misbehavior-report claim against Defendant Sobek is

sua sponte

dismissed under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b), for failure to allege facts plausibly suggesting that, even assuming the misbehavior report filed against Plaintiff was indeed false, the filing of that report somehow rose to the level of a constitutional violation. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Parts III.D. and III.F. of his Report-Recommendation. (Dkt. No. 47, at 471-72, 476-78.) The Court notes that granting Plaintiff leave to amend this claim would not be appropriate because the problem with this claim is substantive such that better pleading would not cure it.

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Plaintiffs Objections argue that (1) record evidence exists that Defendant Sobek issued the misbehavior report with “a retaliatory motive,” and (2) the Court is essentially estopped from dismissing this claim under 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b), because it reviewed and accepted his Complaint on August 25, 2006, when it considered whether to grant Plaintiffs

in forma pauperis

application. (Dkt. No. 49, at 23.)

Plaintiffs first argument lacks merit. A review of record evidence (which is attached to, or incorporated by reference into, a complaint) is not permitted during a Fed.R.Civ.P. 12(b)(6) analysis. A plaintiff may or may not, during discovery, adduce evidence in support of a claim, but that claim is not properly before the court if the defendant was not, through a liberal construction of the plaintiffs complaint, given fair notice of that claim and the grounds on which it rests (so as to fairly permit the defendant to shape a comprehensive defense to that claim, and to enable the court to render a proper decision on the merits of that claim). In any event, the record evidence to which Plaintiff cites does not establish that he was engaging in any speech or activity protected by the First Amendment when Defendant Sobek took adverse action against him by issuing him the (allegedly) false misbehavior report. (Dkt. No. 49, at 23.)

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Nor does the record evidence to which Plaintiff cites establish that Defendant Sobek took the adverse action against him

because

of any protected activity.

(Id.)

Plaintiffs second argument also lacks merit. The Court’s Order of August 25, 2006 (granting Plaintiffs motion to proceed

in forma

pauperis), did not contain any sort of ruling that Plaintiffs Complaint was thereafter immune from attack under 28 U.S.C. § 1915 (e)(2) and Fed. R.CivJP. 12(b)(6).

(See

Dkt. No. 6.) Rath

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er, the Order was issued after only an initial “screening” of Plaintiffs Complaint for purposes of 28 U.S.C. § 1915A.

29

In any event, even if the Order had contained such a ruling, the Court possesses the inherent authority to

sua sponte

reconsider its own orders before they become final (absent some rule or statute to the contrary).

30

10. Plaintiffs false-misbehavior-report claim against Defendant McAdam is dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing that, even assuming the misbehavior report filed against Plaintiff was indeed false (despite the fact that it was never reversed on appeal), the filing of that report somehow rose to the level of a constitutional violation. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.D. of his Report-Recommendation. (Dkt. No. 47, at 471-72.) Plaintiffs Objections, which merely address whether or not Defendant McAdam’s misbehavior report was

false,

have no merit. (Dkt. No. 49, at 20-23.)

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As

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explained by Magistrate Judge Lowe, a false misbehavior report requires something more (such as retaliation for having exercised a constitutional right) to constitute a violation of the United States Constitution. (Dkt. No. 47, at 471-72.) In any event, again, the manner in which Plaintiff presented citations to this evidence to Magistrate Judge Lowe was to bury them in a 40-page, 139-Paragraph, single-spaced, handwritten document that violated Local Rule 7.1, and thus was, and is, properly disregarded by the Court.

Retaliation Claims

11. Plaintiffs retaliation claim against Defendant Emrich, based on his issuance of a false misbehavior report, is dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing a causal connection between the protected speech in which Plaintiff was engaged (the filing of a grievance) and the adverse action (the issuance of the misbehavior report). The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.E. of his Report-Recommendation. (Dkt. No. 47, at 476-78.)

Plaintiffs Objections, which purport to cite record evidence establishing the retaliatory motive of Defendant Emrich, are without merit. (Dkt. No. 49, at 21-23.) As an initial matter, again, the manner in which Plaintiff presented citations to this evidence to Magistrate Judge Lowe was to bury them in a document that violated Local Rule 7.1, and thus was, and is, properly disregarded by the Court. In any event, the evidence to which Plaintiff cites does not, in fact, establish a casual connection between the protected speech in which Plaintiff was engaged and the adverse action that he experienced (assuming, for the sake of brevity, that the issuance of the misbehavior report constituted such “adverse action”). Rather, the record rather clearly establishes that the misbehavior report was issued because caulk was missing from Plaintiffs cell.

12. Plaintiffs retaliation claim against Defendant Sobek (based on his issuance of a misbehavior report) is

sua sponte

dismissed under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b), for failure to allege facts plausibly suggesting that either (1) Plaintiff was engaging in activity protected by the First Amendment when (as a “library clerk”) he helped other inmates with their legal work

in his housing unit

at Gouverneur C.F., or (2) that it was that legal assistance and not Plaintiffs own misbehavior that caused him to receive the referenced misbehavior report. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.F. of his Report-Recommendation. (Dkt. No. 47, at 457-58.) The Court notes that granting Plaintiff leave to amend this claim would not be appropriate because the problem with this claim is substantive such that better pleading would not cure it. Plaintiffs Objections, which purport to cite record evidence establishing the retaliatory motive of Defendant Sobek, are without merit, for the same reasons as discussed above in the preceding paragraph of this Memoran

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dum-Deeision and Order. (Dkt. No. 49, at 21-23.)

Procedural Due Process Claims

13.Plaintiffs two procedural due process claims against Defendant Don are dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing that either (1) he enjoyed (during his disciplinary hearings on January 11, 2005, and January 26, 2005) a liberty interest protected by the Fourteenth Amendment, or (2) even assuming he enjoyed such a liberty interest, he was (at those hearings) denied any of the process to which he was due under the Fourteenth Amendment. In the alternative, this claim is dismissed for failure to state a claim under Fed. R.Civ.P. 12(b)(6).

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The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Parts III. G.1. and III. G.3. of his Report-Recommendation. (Dkt. No. 47, at 478-80, 486-87.)

Plaintiffs Objections, which argue that he (in his Rule 7.1 Response) cited record evidence of Defendant Don’s bias, are without merit. (Dkt. No. 49, at 23-24.) As an initial matter, again, the manner in which Plaintiff presented citations to this evidence to Magistrate Judge Lowe was to bury them in a document that violated Local Rule 7. 1, and thus was, and is, properly disregarded by the Court. In any event, the evidence to which Plaintiff cites does not, in fact, establish that Defendant Don deprived Plaintiff of any of the process to which he was due under the Fourteenth Amendment. Nor does that evidence establish (more importantly) that Plaintiff even enjoyed a protected liberty interest in his hearing, given the brevity of the disciplinary sentence that resulted from the hearing.

14. Plaintiffs procedural due process claim against Defendant Williams is also dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing that either (1) he enjoyed (during his disciplinary hearing) a liberty interest protected by the Fourteenth Amendment, or (2) even assuming he enjoyed such a liberty interest, he was denied any of the process to which he was due under the Fourteenth Amendment. In the alternative, this claim is dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Part III.G.2. of his Report-Recommendation. (Dkt. No. 47, at 480-85.) Plaintiffs Objections are without merit. (Dkt. No. 49, at 24-26.) In addition to relying on record citations that were buried in a document that violated Local Rule 7. 1, Plaintiffs Objections fail to refute the fact that he did not enjoy a protected liberty interest in the hearing, given the disciplinary sentence (if any) imposed as a result of the hearing.

Claims Under New York Constitution

15. Plaintiffs claims against Defendants Williams and Don under Article 1, Section 6 of the New York State Constitution are dismissed under Fed.R.Civ.P. 12(b)(1) and 12(h)(3) because the Court

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declines to exercise supplemental jurisdiction over that pendent state law claim. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.G.4. of his Report-Recommendation. (Dkt. No. 47, at 487.) The Court notes that Plaintiff failed to object to this recommendation.

(See generally

Dkt. No. 49.) The Court adds, however, that this recommendation of dismissal would survive even a

de novo

review.

Inadequate-Prison-Conditions Claim

16. Plaintiffs inadequate-prison-conditions claim against Defendant Sheridan is dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing that the conditions of his confinement resulted in deprivation that was sufficiently serious under the Eighth Amendment.

33

In the alternative, this claim is dismissed for failure to state a claim under Fed. R.Civ.P. 12(b)(6). The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Part III.H. of his Report-Recommendation. (Dkt. No. 47, at 487-90.) Plaintiffs Objections, which address only one of the several reasons Magistrate Judge Lowe recommended dismissal of this claim, are without merit. (Dkt. No. 49, at 26-27.)

Harassment Claim

17. Plaintiffs harassment claim against Defendants McAdams, Emrich and Sheridan is dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing that the conduct in question was sufficiently serious under the Eighth Amendment. In the alternative, this claim is dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Part III.I. of his Report-Recommendation. (Dkt. No. 47, at 495-97.) Plaintiffs Objections argue (for the first time) that the physical injury that accompanied the alleged verbal harassment occurred the day

before

the verbal harassment began. (Dkt. No. 49, at 27-28.) For the sake of brevity, the Court will not linger on the fact that, in his Complaint, Plaintiff alleged that the verbal harassment began on January 8, 2005, two days (not one day) after the occurrence of the alleged assault on January 6, 2005.

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The larger, more obvious problem with this argument is that it depends on a suspension of the laws of time: verbal harassment in the future cannot cause a physical assault in the past. Plaintiffs argument has no merit.

Inadequate-Medical-Care Claim

18. Plaintiffs inadequate-medical-care claim against Defendant Kasulke is dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing that Defendant Kasulke acted with a sufficiently culpable mental state (for purposes of the Eighth Amendment) with regard to any serious medical need Plaintiff may have possessed.

35

The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.J. of his

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Repork-Reeommendation. (Dkt. No. 47, at 490-93.) Plaintiffs Objections assert several arguments, including (1) an argument that, if the Court were to conduct a true

de novo

review of this Repork-Recommendation, the Court would have to look beyond the deficiencies in his Rule 7.1 Response, and (2) an argument that Defendant Kasulke’s Declaration was not sworn. (Dkt. No. 49, at 28-31.) Plaintiffs arguments have no merit.

A

de novo

review of a magistrate judge’s report-recommendation does not require a district judge to excuse a

pro se

nonmovant’s Rule 7.1 Response that admittedly (1) does not

mirror

the movant’s Statement of Facts, (2) does not admit or deny

each

of the movant’s factual assertions, and (3) does not support

every

denial with a specific citation to the record where the factual issue (allegedly) arises.

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Moreover, Defendant Kasulke’s Declaration contains a sufficient verification for purposes of 28 U.S.C. § 1746 . (Dkt. No. 39, Part 42, at 1.) Finally, Plaintiffs arguments ignore Magistrate Judge Lowe’s alternative finding that, even if Defendant Kasulke had received notice of Plaintiffs complaints, his subsequent actions would not establish that he possessed the sort of mental state (which is akin to criminal recklessness) required to be held liable under the Eighth Amendment.

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Access-to-Courts Claims

19. Plaintiffs access-to-courts claim against Defendant Cornelius is dismissed under Fed.R.Civ.P. 56 for failure to adduce record evidence establishing that either (1) Defendant Cornelius acted intentionally or recklessly in losing Plaintiffs legal materials, or (2) any such intentional or reckless loss materially prejudiced any legal action Plaintiff sought to pursue. In the alternative, this claim is dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6). The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Part III.K. of his Report-Recommendation. (Dkt. No. 47, at 495-99.) Plaintiffs Objections argue that (1) evidence of Defendant Cornelius’ culpable intent may be found from “[a] quick perusal of [Plaintiffs] factual claim set forth within [his] ... Complaint,” and (2) evidence that Plaintiff was materially prejudiced by the loss is found from the fact that the loss of the materials in question “necessarily prevented] or inhibited] [Plaintiff] from being able to litigate any further challenge(s) to it.” (Dkt. No. 49, at 31.) Plaintiffs arguments lack merit.

For the sake of brevity, the Court will set aside the issue of whether Plaintiff (in

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his Rule 7.1 Response) properly submitted this evidence to Magistrate Judge Lowe. In any event, even a careful review of Plaintiffs Verified Complaint fails to evidence that Defendant Cornelius acted intentionally or recklessly in losing Plaintiffs legal materials. (Dkt. No. 1, ¶ 6, Attached Pages 16-17 [Plf.’s Compl.].) Indeed, to the contrary, Plaintiffs Verified Complaint asserts that, when Defendant Cornelius decided to place Plaintiffs state-issued clothing in a third “draft bag” rather than place Plaintiffs remaining legal materials in that bag, he said that “he would place the rest of [Plaintiffs] legal papers in another bag once he returned to the property room.”

(Id.

at 17.) With regard to Plaintiffs “evidence” that he was materially prejudiced as a result of the loss of legal materials, Plaintiffs Objections contain no citation to any such evidence in the record. (Dkt. No. 49, at 31.) As explained by Magistrate Judge Lowe, Defendants met their burden of showing the prejudice Plaintiff alleges is merely speculative in nature, and Plaintiff failed to meet his resulting burden of showing otherwise. (Dkt. No. 47, at 499.)

20. Plaintiffs access-to-courts claims against Defendants Emrich and Don are

sua sponte

dismissed under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b), for failure to state a claim upon which relief might be granted. Specifically, the Court agrees with Magistrate Judge Lowe that, even liberally construed, Plaintiffs Complaint has failed to allege facts plausibly suggesting that (1) either of those two Defendants filed a false misbehavior report against Plaintiff with the

knowledge

that the sentence of disciplinary confinement that Plaintiff would experience following his conviction on that misbehavior report would interfere with his right to access the courts under the First Amendment, and/or (2) the restriction to merely three legal materials per day, which Plaintiff experienced while in the Gouverneur C.F. S.H.U.,

prejudiced

Plaintiff in any legal action attacking his criminal conviction or challenging the conditions of his confinement. (Dkt. No. 47, at 500, 502.) The Court notes that Plaintiff failed to object to this recommendation.

(See generally

Dkt. No. 49.) The Court adds, however, that this recommendation would survive even a

de novo

review. Finally, the Court notes that granting Plaintiff leave to amend this claim would not be appropriate because the problem with this claim is substantive such that a better pleading would not cure it.

Claims Against John Doe Defendants

21. Plaintiffs claims against the Defendants designated as John Doe # 1, John Doe # 2, and John Doe # 3 are dismissed without prejudice for failure to timely name and serve those three Defendants under Fed.R.Civ.P. 41(b) and Fed.R.Civ.P. 4(m). The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Parts III.L. and IV.C. of his Report-Recommendation. (Dkt. No. 47, at 500-03, 506-09.) Plaintiffs Objections argue that (1) he could not have served the John Doe Defendants because he did not know who they were, and (2) he could not know who they were because he “was denied an extension of the original discovery deadline.” (Dkt. No. 49, at 31-32.) Plaintiffs Objections are without merit.

As an initial matter, Plaintiffs argument is factually inaccurate. Plaintiff filed this action on May 22, 2006. (Dkt. No. 1.) On January 23, 2007, Magistrate Judge Lowe set the original deadline in the action as July 30, 2007. (Dkt. No. 21.) On April 24, 2007, Plaintiff requested an extension of the discovery deadline until September 10, 2007. (Dkt. No. 23, at 1.) On May 8, 2007, Magistrate Judge Lowe granted an exten

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sion of the discovery deadline until August 30, 2007.

(Id.)

On July 3, 2007, he extended the deadline until August 31, 2007. (Dkt. No. 30, at 3.) On November 23, 2007, Plaintiff requested that the Court reopen the discovery period-which had expired nearly three months before. (Dkt. No. 37, at 1-2.) On December 7, 2007, Magistrate Judge Lowe denied that request.

(Id.

at 1.) In any event, Plaintiffs argument fails to acknowledge that he had than seven months during which to learn the names and addresses of the three John Doe Defendants through discovery on the named Defendants (and he has had more than two-and-a-half-years during which to learn the names and address of the three John Doe Defendants through independent means). Magistrate Judge Lowe properly applied Fed.R.Civ.P. 41(b) and Fed. R.Civ.P. 4(m) to the facts of Plaintiffs case.

38

Alternative Grounds for Dismissal

Because the Court has found adequate grounds on which to adopt Magistrate Judge Lowe’s Report-Recommendation, the Court need not, and does not, address the merits of Defendants’ alternative argument that Plaintiffs claims of harassment, due process violations, and inadequate medical care should be dismissed because Defendants are protected by the doctrine of qualified immunity. (Dkt. No. 39, Part 45, at 21-23 [Defs. Memo, of Law].)

Similarly, because the Court has found adequate grounds on which to adopt Magistrate Judge Lowe’s Reporh-Recommendation, the Court need not address the merits of Magistrate Judge Lowe’s recommendation that the majority of Plaintiffs claims should be dismissed (and his three cross-motions denied) on the alternative ground that he should be sanctioned for knowingly making material misrepresentations to the Court. (Dkt. No. 47, at 509-11.) As a result, the Court does not address that alternative recommendation except to make two observations.

First, the Court has carefully considered-and rejected-Plaintiffs explanation for (1) making a sworn misrepresentation, in Paragraph 5 of his Verified Complaint, regarding his prior federal and state court actions relating to his imprisonment, and (2) making a sworn misrepresentation, on pages 1 and 27 of his Verified Complaint, that his legal name was “Anthony Cusamano.” (Dkt. No. 49, at 4, 35-37.)

Second, Plaintiffs submissions to this Court (at least as they relate to Defendants’ motion for summary judgment) have been peppered with abusive language. For example, even a cursory review of Plaintiffs papers in opposition to Defendants’ motion for summary judgment reveal dozens of

ad hominem

attacks on Assistant Attorney General James J. Seaman (an officer of this Court), including the use of the words “pestering,” “petty,” “puerile,” “ego[tisical],” “vapid,” “ethically challenged,” “equivocal,” “deceitful,” and “brazenly lying.” (Dkt. No. 42, Part 3, at 5-6, 8; Dkt. No. 42, Part 1, at 5-7, 9, 12, 32.) Plaintiffs Objections are similarly peppered with

ad hominem

attacks against the Honorable George H. Lowe, including the use of the words, “maudlin,”

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“inane,” “contrived,” “phony,” “Paleolithic,” “hysterical,” “blatant lie,” “deceitful,” “palpable bias,” “corrupt,” “court[ ]jester,” and “buffoon! ].” (Dkt. No. 49, at 5, 7, 16, 22, 26, 29, 31, 33-37.)

While the Court is certainly sympathetic with the stress and frustrations that accompany the litigation process, the Court reminds Plaintiff that such language in submissions to the Court is

never

tolerable — by either counsel or

pro se

litigants.

39

Although the Court does not see a need at this time to sanction Plaintiff for his abusive conduct, the Court cautions Plaintiff that he will be sanctioned without further warning for any such future abusiveness in submissions to the Court, including the striking of any submission containing such abusive language and/or the imposition of a monetary penalty against him.

40

IV. ANALYSIS OF PLAINTIFF’S CROSS-MOTIONS

The Court liberally construes Plaintiffs Objections as containing specific objections to (1) Magistrate Judge Lowe’s recommendation that the Court deny his cross-motion for summary judgment, and (2) Magistrate Judge Lowe’s Order denying his cross-motion to compel discovery.

(See

Dkt. No. 49, at 2, 20, 31-34, 37 [Plf.’s Obj., arguing that Magistrate Judge Lowe should have entered summary judgment in Plaintiffs favor out of special solicitude to him, and that Magistrate Judge Lowe wrongfully denied Plaintiffs request to reopen discovery on November 23, 2007].) However, the Court does not liberally construe Plaintiffs Objections as containing a specific objection to Magistrate Judge Lowe’s Order denying his cross-motion for leave to amend his Complaint.

(See generally

Dkt. No. 49.)

Reviewing

de novo

those parts of Magistrate Judge’s Lowe’s Report-Recommendation that addresses Plaintiffs cross-motion for summary judgment and his cross-motion to compel discovery, and reviewing for clear error the part of Magistrate Judge Lowe’s Report-Recommendation that addresses Plaintiffs cross-motion for leave to amend his Complaint, the Court can find no error (clear or otherwise) in any of those parts of the Report-Recommendation.

41

The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Parts IY.A., IV.B. and IV.C. of his Report-Recommendation. (Dkt. No. 47, at 504-09.)

As a result, the Court adopts and affirms Magistrate Judge’s Lowe’s Report-Recommendation insofar as it addresses Plaintiffs three cross-motions.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Lowe’s Report-Recommendation (Dkt. No. 47) is

ADOPTED

as modified by Plaintiffs withdrawal of certain claims and his intro

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duction of new evidence in his objections; and it is further

ORDERED that Defendants’ Motion for Summary Judgment (Dkt. No. 39) is

GRANTED

in part, and

DENIED

in part, in the following respects:

1. Plaintiffs excessive-force claim against Defendant Cushman is not dismissed;

2. Plaintiffs excessive-force claim against Defendant McAdam is not dismissed;

3. Plaintiffs failure-to-protect claim against Defendant Cushman is voluntarily dismissed without prejudice under Fed. R.CÍV.P. 41(a)(2);

4. Plaintiffs failure-to-protect claim against Defendant Sobek is voluntarily dismissed without prejudice under Fed. R.Civ.P. 41(a)(2);

5. Plaintiffs failure-to-protect claim against Defendant Snyder is not dismissed;

6. Plaintiffs failure-to-protect claim against Defendant McAdam is voluntarily dismissed without prejudice under Fed. R.Civ.P. 41(a)(2);

7. Plaintiffs Section 1983 conspiracy claims against Defendants Sobek, Snyder, Cushman, and McAdam are dismissed with prejudice under Fed.R.Civ.P. 56;

8. Plaintiffs Section 1985 conspiracy claims against Defendants Sobek, Snyder, Cushman, and McAdam are dismissed with prejudice under Fed.R.Civ.P. 56.

9. Plaintiffs false-misbehavior-report claim against Defendant Sobek is

sua sponte

dismissed without prejudice under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b);

10. Plaintiffs false-misbehavior-report claim against Defendant McAdam is dismissed with prejudice under Fed.R.Civ.P. 56;

11. Plaintiffs retaliation claim against Defendant Emrich is dismissed with prejudice under Fed.R.Civ.P. 56;

12. Plaintiffs retaliation claim against Defendant Sobek is

sua sponte

dismissed without prejudice under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b);

13. Plaintiffs two procedural due process claims against Defendant Don are dismissed with prejudice under Fed. R.Civ.P. 56;

14. Plaintiffs procedural due process claim against Defendant Williams is dismissed with prejudice under Fed.R.Civ.P. 56;

15. Plaintiffs claims against Defendants Williams and Don under Article 1, Section 6 of the New York State Constitution are dismissed without prejudice under Fed.R.Civ.P. 12(b)(1) and 12(h)(3);

16. Plaintiffs inadequate-prison-conditions claim against Defendant Sheridan is dismissed with prejudice under Fed. R.CivJP. 56;

17. Plaintiffs harassment claim against Defendants McAdams, Emrich and Sheridan is dismissed with prejudice under Fed.R.CivJP. 56;

18 Plaintiffs inadequate-medical-care claim against Defendant Kasulke is dismissed with prejudice under Fed.R.Civ.P. 56;

19. Plaintiffs access-to-eourts claim against Defendant Cornelius is dismissed under with prejudice Fed.R.Civ.P. 56;

20. Plaintiffs access-to-courts claims against Defendants Emrich and Don are

sua sponte

dismissed without prejudice under Fed.R.Civ.P. 12(b)(6) and 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b); and

21. Plaintiffs claims against the Defendants designated as John Doe # 1, John

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Doe # 2, and John Doe # 3 are dismissed without prejudice under Fed.R.Civ.P. 41(b) and Fed.R.Civ.P.4(m); and it is further

ORDERED that Plaintiffs Complaint (Dkt. No. 1) is

DISMISSED

except for (1) his claims against Defendants Cushman and McAdam alleging excessive force, and (2) his claim against Defendant Snyder alleging failure to protect, which shall be

SET DOWN FOR TRIAL;

and it is further

ORDERED that Plaintiffs Cross-Motion for Summary Judgment (Dkt. No. 42) is

DENIED;

and it is further

ORDERED that Magistrate Judge Lowe’s Order denying Plaintiffs Cross-Motion to Compel Discovery and his Cross-Motion to File an Amended Complaint (Dkt. No. 42) are

AFFIRMED;

and it is further

ORDERED that the Clerk of the Court shall serve a copy of this Order upon all parties.

REPORT-RECOMMENDATION

GEORGE H. LOWE, United States Magistrate Judge.

This pro

se

prisoner civil rights action, commenced pursuant to 42 U.S.C. §§ 1983 and 1985, has been referred to me for Report and Recommendation by the Honorable Lawrence E. Kahn, Senior United States District Judge, pursuant to 28 U.S.C. § 636 (b) and Local Rule 72.3(c).

Generally, Anthony Cusamano (“Plaintiff’), alleges that, between about January 6, 2005, and about May 13, 2005, at Gouverneur Correctional Facility (“Gouverneur C.F.”), thirteen employees of the New York State Department of Correctional Services (“DOCS”) violated his rights under the First, Eighth and Fourteenth Amendments by,

inter alia,

assaulting him, filing false misbehavior reports against him, denying him due process of law at his disciplinary hearings, subjecting him to cruel-and-unusual prison conditions while in disciplinary confinement, harassing him, being deliberately indifferent to his serious medical needs, and denying him access to the courts.

(See generally

Dkt. No. 1 [Plf.’s Compl.].)

Currently pending before the Court is Defendants’ motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 39.) Also pending are three cross-motions filed by Plaintiff: (1) a cross-motion for summary judgment; (2) a cross-motion for an Order to compel discovery (and, implicitly, an Order staying the Court’s decision regarding Defendants’ motion for summary judgment pending Plaintiffs receipt of that discovery); and (3) a cross-motion for leave to amend his Complaint. (Dkt. No. 42.) For the reasons that follow, I recommend that Defendants’ motion be granted in part and denied in part; and I recommend that Plaintiffs three cross-motions be denied.

TABLE OF CONTENTS

I. BACKGROUND...........................................................445

A. Summary of Plaintiffs Complaint......................................445

B. Summary of Defendants’ Motion.......................................450

C. Summary of Plaintiffs Cross-Motions..................................451

II. APPLICABLE LEGAL STANDARDS.......................................451

A. Legal Standard Governing Motions for Summary Judgment..............451

B. Legal Standard Governing Motion to Dismiss ...........................457

III. ANALYSIS OF DEFENDANTS’ MOTION...................................463

A. Plaintiffs Excessive-Force and Failure-to-Protect Claims...............463

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B. Plaintiffs Conspiracy Claim...........................................468

C. Plaintiffs Claims Against Defendant Cushman..........................470

D. Plaintiffs False-Misbehavior-Report Claims............................471

E. Plaintiffs Retaliation Claim Against Defendant Emrich.................472

F. Plaintiffs Retaliation Claim Against Defendant Sobek...................476

G. Plaintiffs Procedural Due Process Claims..............................478

H. Plaintiffs Inadequate-Prison-Conditions Claim.........................487

I. Plaintiff s Harassment Claim..........................................490

J. Plaintiffs Inadequate-Medical-Care Claim.............................493

R. Plaintiffs Access-to-Courts Claim Against Defendant Cornelius..........497

L. Plaintiffs Remaining Access-to-Courts Claims .........................500

M. Doctrine of Qualified Immunity........................................502

N. Denial of Any Request to Supplement Record During Appeal.............502

IV. ANALYSIS OF PLAINTIFF’S CROSS-MOTIONS............................504

A. Plaintiffs Request for an Order Granting Him Summary Judgment.....504

B. Plaintiffs Request for an Order to Compel Discovery....................504

C. Plaintiffs Request for Leave to Amend His Complaint...................506

D. Sanction for Making Misrepresentations to Court .......................509

I. BACKGROUND

A. Summary of Plaintiffs Complaint

Before summarizing the claims asserted in Plaintiffs Complaint, a few words are necessary about my construction of those claims. In construing Plaintiffs claims, I afford his Complaint the liberal construction that all pleadings must be afforded under Fed.R.Civ.P. 8.

See

Fed.R.Civ.P. 8(f) (“All pleadings shall be so construed as to do substantial justice.”). It is true that generally the pleadings of

pro se

litigants are construed with even more liberality than is required under Fed. R.Civ.P. 8.

1

The rationale for extending this special liberality to the pleadings of

pro se

litigants is that, generally,

pro se

litigants are unfamiliar with legal terminology and the litigation process. For this reason, “[t]here are circumstances where an overly litigious inmate, who is quite familiar with the legal system and with pleading requirements, may not be afforded [the] special [liberality or] solicitude” that is normally afforded

pro se

litigants.

2

For example, on several occasions, the Second Circuit has, quite appropriately in my opinion, diminished the special liberality normally afforded to a

pro se

litigant’s pleadings, and/or indicated the acceptability of such a diminishment, due to the

pro se

litigant’s extraordinary litigation experience.

3

In addition to being unnecessary, I

*446

believe that an extension of special liberality to the pleadings of extraordinarily experienced

pro se

litigants would tilt the scales of justice unfairly in favor of the

pro se

litigant and against his opponents.

4

Here, a review of on-line databases, including the Federal Judiciary’s Public Access to Court Electronic Records (“PACER”) System, reveals that, before he signed his Complaint in this action on May 1, 2006, Plaintiff — who has used at least three aliases

5

— had filed at least four other federal or state court actions or appeals.

6

Moreover, Plaintiff has adduced a

*447

sworn assertion establishing that, when he drafted his Complaint, he was a certified paralegal, having worked as a law clerk in the Gouverneur C.F. Law Library.

7

No doubt due to his familiarity with legal terminology and the litigation process, he himself describes the allegations of his Complaint as having “been set forth in a consistent, coherent and credible manner.” (Dkt. No. 42, Part 3, at 2 [Plf.’s Opp. Memo, of Law].) Indeed, he goes so far as to state that he “articulates [himself] as coherently as [does his] adversary — if not more so.”

(Id,

at 12.)

Under the circumstances, I hesitate somewhat to afford Plaintiffs Complaint the full measure of special liberality normally afforded to the pleadings of inexperienced

pro se

litigants, since doing so would appear to risk tilting the playing field in his favor and against Defendants. (For example, reading certain claims into Plaintiffs Complaint at this late stage of the proceeding, when discovery is complete, would risk disadvantaging Defendants, who have already moved for summary judgment with regard to only the claims expressly appearing in the “Causes of Action” Section of Plaintiffs Complaint.)

8

However, I am mindful that Plaintiff may not be so experienced at drafting pleadings as he believes himself to be. I am also mindful of the serious civil rights claims asserted in his Complaint (specifically, his assault claim).

9

As a result, I construe Plaintiffs Complaint with special leniency.

Construed extra-leniently, Plaintiffs Complaint asserts the following seventeen claims:

Conspiracy, Excessive Force, and Failure to Protect

(1) On January 6, 2005, Defendants Sobek, Snyder, Cushman, McAdam, John Doe # 1, and John Doe # 2 conspired to subject Plaintiff to excessive force in the Gouverneur C.F. Special Housing Unit (“S.H.U.”), in violation of 42 U.S.C. § 1985 ;

10

(2) On January 6, 2005, Defendants Cushman, McAdam, John Doe # 1, and John Doe # 2 repeatedly used excessive force against Plaintiff in the Gouverneur C.F. S.H.U., in violation of the Eighth Amendment;

11

(3) On January 6, 2005, Defendants Sobek, Snyder, Cushman, McAdam, John Doe # 1, and John Doe # 2 failed to protect him from the referenced use of excessive force, in violation of the Eighth Amendment;

12

*448

False Misbehavior Reports

(4) On or about January 8, 2005, in order to cover up the referenced conspiracy, Defendant Sobek intentionally filed a false misbehavior report against Plaintiff, in violation of the Fourteenth Amendment;

13

(5) On or about January 10, 2005, in order to cover up the referenced use of excessive force, Defendant McAdam intentionally filed a false misbehavior report against Plaintiff (charging him with “violent conduct”), which caused Plaintiff to incur a disciplinary conviction (on January 13, 2005), a sentence of four months’ confinement to S.H.U., and an increased security classification (resulting in his being confined to a maximum-security prison, where he experienced fear for his safety and emotional distress), in violation of the Fourteenth Amendment;

14

Retaliatory Misbehavior Reports

(6) On or about January 8, 2005, Defendant Sobek intentionally filed a false misbehavior report against Plaintiff in retaliation for his having engaged in constitutionally protected activity by helping inmates with their legal research and writing (as part of his job as a law clerk in the law library), in violation of the First Amendment;

15

(7) On or about January 21, 2005, Defendant Emrich intentionally filed a false misbehavior report against Plaintiff (charging him with “destruction of state property”) in retaliation for his having engaged in constitutionally protected activity by filing grievances against him and other S.H.U. officers (on January 9,11 and 15. 2005), which caused Plaintiff to incur a second disciplinary conviction (on January 26, 2005), and a 50-day extension of his sentence of confinement to S.H.U., in violation of the First Amendment;

16

Procedural Due Process Violations

(8) On or about January 11, 2005, Defendant Williams wrongfully imposed a guilty verdict and disciplinary sentence on Plaintiff based on the patently flawed misbehavior report issued by Defendant Sobek, in violation of the Fourteenth Amendment, as well as Article 1, Section 6 of the New York State Constitution;

17

(9) On January 13, 2005, Defendant Williams wrongfully imposed a guilty verdict and disciplinary sentence on Plaintiff based on the patently flawed misbehavior report issued by Defendant McAdam, in violation of the Fourteenth Amendment, as well as Article 1, Section 6 of the New York State Constitution;

18

(10) On or about January 26, 2005, Defendant Don wrongfully found Plaintiff guilty of a disciplinary charge (i.e., the charge brought by Defendant Emrich) based on insufficient evidence, and wrongfully imposed a disciplinary sentence on Plaintiff (based on a miscalculation, and unauthorized extension, of Plaintiffs previous disciplinary sentence), in violation of the Fourteenth Amendment, as well as

*449

Article 1, Section 6 of the New York State Constitution;

19

Inadequate Prison Conditions

(11) Between January 8, 2005, and January 20, 2005, Defendant Sheridan withheld basic necessities from Plaintiff while in S.H.U. (such as toilet paper and soap), in violation of the Eighth Amendment;

20

Harassment

(12) Between January 8, 2005, and January 20, 2005, while Plaintiff was in S.H.U., Defendants McAdam, Emrich and Sheridan harassed him by uttering profanities at him, striking his cell door so that he would step back from his cell window, threatening to “kick his f* * *ing ass,” and intentionally filing a false misbehavior report against him (charging him with “violent conduct”), in violation of the Eighth Amendment;

21

Inadequate Medical Care

(13) Between January 6, 2005, and January 25, 2005, Defendant Kasulke was deliberately indifferent to Plaintiffs serious medical needs by (a) failing to visit Plaintiff in S.H.U., and (b) failing to prescribe him a prescription painkiller to treat the intense pain in his left side, in violation of the Eighth Amendment;

22

(14) Between January 26, 2005, and April 28, 2005, Defendant Kasulke was deliberately indifferent to Plaintiffs serious medical needs by (a) failing to administer further tests to ascertain the extent of Plaintiffs back injuries (in particular, an M.R.I. or an x-ray of Plaintiffs left side, which was

not

taken on January 26, 2005, when other x-rays of Plaintiffs torso were taken), (b) failing to give Plaintiff a followup visit in S.H.U., and (c) failing to eliminate Plaintiffs residual back pain (which persisted despite receiving prescription painkillers), in violation of the Eighth Amendment;

23

Interference with Access to the Courts

(15) On or about January 21, 2005, Defendant Emrich interfered with Plaintiffs access to the courts by filing the above-referenced misbehavior report against him, causing the extension of his confinement in S.H.U., where he was restricted to merely three legal materials per day, in violation of the First Amendment;

24

(16) On or about January 26, 2005, Defendant Don interfered with Plaintiffs access to the courts by wrongfully extending Plaintiffs previous disciplinary sentence in S.H.U., where he was restricted to receiving merely three legal materials per day, in violation of the First Amendment;

25

(17) On or about February 7, 2005, Defendant John Doe # 3 (who was either the S.H.U. Mail Officer or an employee of the Gouverneur C.F. Mail Room) interfered

*450

with Plaintiffs access to the courts by discarding, or failing to secure safe administrative passage of, Plaintiffs discovery motion in his federal court

habeas corpus

proceeding pending in the Southern District of New York, in violation of the First Amendment;

26

and

(18) On or about March 13, 2005, Defendant Cornelius interfered with Plaintiffs access to the courts by losing Plaintiffs legal documents (specifically, more than 200 pages of trial transcripts in the criminal case of

New York v. Cusamano,

an appeal from which Plaintiff was litigating in the New York State Appellate Division, Third Department), because he placed them in a “storage bin” rather than Plaintiffs third “draft bag” during Plaintiffs transfer from Gouverneur C.F. to Clinton C.F., thus limiting Plaintiffs ability to challenge his underlying conviction, in violation of the First Amendment.

27

B. Summary of Defendants’ Motion

Defendants’ motion for summary judgment is premised on the following eleven grounds:

(1) Plaintiffs conspiracy claim should be dismissed because there is no evidence establishing a meeting of the minds between Defendant Sobek and Defendants Snyder, McAdam and Cushman to assault Plaintiff, or that any of those Defendants acted due to racial animus;

28

(2) Plaintiffs excessive-force and failure-to-protect claims should be dismissed because there is no evidence establishing those claims;

29

(3) At the very least, Plaintiffs conspiracy, excessive-force, and failure-to-protect claims against Defendant Cushman should be dismissed since there is no evidence that Cushman was present during the alleged use of excessive force;

30

(4) Plaintiffs false-misbehavior-report claim against Defendant McAdam should be dismissed because there is no constitutional right against being issued a false misbehavior report in prison and because, in any event, there is no evidence that Plaintiff was deprived of any due process following the issuance of that report;

31

(5) Plaintiffs retaliation claim against Defendant Emrich should be dismissed because there is no evidence that Plaintiff was subjected to sufficient adverse action and, in any event, there is no evidence that the action taken against him was taken because of his protected activity;

32

(6) Plaintiffs procedural due process claims (arising from his disciplinary hearings) should be dismissed because, based on the record evidence, he did not enjoy a protected liberty interest giving rise to such claims and, in any event, he was afforded all the process he was due at the hearings;

33

(7) Plaintiffs inadequate-prison-conditions claim should be dismissed because the conditions in question were not sufficiently serious to support such a claim (based on Plaintiffs own allegations or, in

*451

the alternative, based on the record evidence);

34

(8) Plaintiffs harassment claim should be dismissed because the conduct in question was not sufficiently serious to support such a claim (based on Plaintiffs own allegations or, in the alternative, based on the record evidence);

35

(9) Plaintiffs inadequate-medical-care claim should be dismissed because there is no evidence that he had a sufficiently serious medical need and, in any event, there is no evidence that Defendant Kasulke acted with a sufficiently culpable state of mind with regard to that medical need;

36

(10) Plaintiffs access-to-courts claim should be dismissed because there is no evidence that Defendant Cornelius lost Plaintiffs legal materials intentionally or recklessly and, in any event, there is no evidence that the loss materially prejudiced any legal action Plaintiff sought to pursue;

37

(11) In the alternative, the doctrine of qualified immunity protects Defendants from liability with regard to Plaintiffs claims of harassment, due process violations, and inadequate medical care.

38

C. Summary of Plaintiffs Cross-Motions

In his Memorandum of Law in Opposition to Defendants’ motion, Plaintiff requests that the Court grant him three forms of relief (in addition to an Order denying Plaintiffs motion for summary judgment): (1) an Order entering summary judgment in

Plaintiffs

favor; (2) an Order compelling discovery (and, if necessary, an Order granting Plaintiff a stay of the Court’s decision regarding Defendants’ motion for summary judgment pending Plaintiffs receipt of that discovery); and (3) an Order granting Plaintiff leave to file an Amended Complaint. (Dkt. No. 42, Part 3, at 1, 3, 8, 9 11, 14-16 [Plf.’s Opp. Memo, of Law];

see also

Dkt. No. 42, Part I, ¶¶ 138,139 [Plf.’s Deck].)

II. APPLICABLE LEGAL STANDARDS

A. Legal Standard Governing Motions for Summary Judgment

Under Fed.R.Civ.P. 56, summary judgment is warranted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In determining whether a genuine issue of material

39

fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party.

40

However, when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.”

41

The

*452

nonmoving party must do more than “rest upon the mere allegations ... of the [plaintiffs] pleading” or “simply show that there is some metaphysical doubt as to the material facts.”

42

Rather, “[a] dispute regarding a material fact is

genuine

if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

43

What this burden-shifting standard means when a plaintiff has failed to respond to a defendant’s motion for summary judgment is that “[t]he fact that there has been no [such] response ... does not ... [by itself] mean that the motion is to be granted automatically.”

44

Rather, practically speaking, the Court must (1) determine what material facts, if any, are

disputed

in the record presented on the defendants’ motion, and (2) assure itself that, based on those

undisputed

material facts, the law indeed warrants judgment for the defendants.

45

However, the plaintiffs failure to respond to the defendant’s motion for summary judgment lightens the defendant’s burden on the motion.

More specifically, where a plaintiff has failed to properly respond

46

to a defendant’s statement of material facts, contained in its Statement of Material Facts (a/k/a its “Rule 7.1 Statement”), the facts

*453

as set forth in that Rule 7.1 Statement will be accepted as true

47

to the extent that (1) those facts are supported by the evidence in the record

48

and (2) the non-moving party, if he is proceeding

pro se,

has been specifically advised of the potential consequences of failing to respond to the movant’s motion for summary judgment.

49

Similarly, where a plaintiff has failed to respond to a defendant’s properly filed and facially meritorious memorandum of law (submitted in support of its motion for summary judgment), the plaintiff is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3) of the Local Rules of Practice for this Court.

50

*454

Stated another way, where a defendant has properly filed a memorandum of law (in support of a properly filed motion for summary judgment), and the plaintiff has failed to respond to that memorandum of law, the only remaining issue is whether the legal arguments advanced in the defendant’s memorandum of law are

facially

meritorious,

51

A defendant’s burden in making legal arguments that are .facially meritorious has appropriately been characterized as “modest.”

52

Implied in the above-stated standard is the fact that, where a non-movant fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute, even if that non-movant is proceeding

pro

se.

53

*455

This is because even

pro se

plaintiffs must obey the Court’s procedural rules.

54

For example, this Court has rather consistently enforced Local Rule 7.1(a)(3) (and its predecessor, Local Rule 7.1[f]), by deeming facts set forth in a moving party’s statement to have been admitted where the opposing party has failed to properly respond to that statement-even where the opposing party was proceeding

pro

se in a civil rights case.

55

However, in the event the district court chooses to conduct such an independent review of the record, any verified complaint filed by the plaintiff should be treated as an affidavit.

56

(Here, I note that Plaintiffs’ Amended Complaint is verified pursuant to 28 U.S.C. § 1746 .

57

) That having been said, to be sufficient to create a factual issue for purposes of a summary judgment motion, an affidavit (or verified complaint) must, among other things, be based “on personal knowledge.”

58

An affidavit (or verified complaint) is not based on personal knowledge if, for example, it is based on mere “information and belief’ or hearsay.

59

In addition, such an affidavit

*456

(or verified complaint) must not be conclusory.

60

An affidavit is conclusory if, for example, its assertions lack any supporting evidence or are too general.

61

Finally, even where an affidavit (or verified complaint) is nonconclusory, it may be insufficient to create a factual issue where it possesses the following two characteristics: (1) it constitutes almost the sole or exclusive basis for a disputed issue of fact in the case (or, expressed differently, it is largely unsubstantiated by any other direct evidence); and (2) it is so lacking in credibility that, even after drawing all inferences in the light most favorable to the nonmovant, no reasonable jury could find for the non-movant because the testimony is incomplete and/or replete with inconsistencies and improbabilities.

62

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B. Legal Standard Governing Motion to Dismiss for Failure to State a Claim

To the extent that a defendant’s motion for summary judgment under Fed.R.Civ.P. 56 is based entirely on the plaintiffs complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6). As a result, “[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.”

Schwartz v. Compagnie General Transatlantique,

405 F.2d 270, 273-74 (2d Cir.1968) [citations omitted];

accord, Katz v. Molic,

128 F.R.D. 35, 37-38 (S.D.N.Y.1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.”). Moreover, even where a defendant has not advanced such a failure-to-state-a-claim argument on a motion for summary judgment, a district court may,

sua sponte,

address whether a

pro se

prisoner has failed to state a claim upon which relief may be granted.

63

For these reasons, it is appropriate to briefly summarize the recently clarified legal standard governing Fed.R.Civ.P. 12(b)(6) motions to dismiss.

Under Fed.R.Civ.P. 12(b)(6), a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). It has long been understood that a defendant may base such a motion on either or both of two grounds: (1) a challenge to the “sufficiency of the pleading” under Fed. R.Civ.P. 8(a)(2);

64

or (2) a challenge to the

*458

legal cognizability of the claim.

65

Rule 8(a)(2) requires that a pleading contain “a short and plain statement of the claim

showing

that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) [emphasis added]. By requiring this “showing,” Fed. R.Civ.P. 8(a)(2) requires that the pleading contain a short and plain statement that “give[s] the defendant

fair notice

of what the plaintiffs claim is and the grounds upon which it rests.”

66

The main purpose of this rule is to “facilitate a proper decision on the merits.”

67

A complaint that fails to comply with this rule “presents far too heavy a burden in terms of defendants’ duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiffs] claims.”

68

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The Supreme Court has long characterized this pleading requirement under Fed. R.Civ.P. 8(a)(2) as “simplified” and “liberal,” and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement.

69

However, it is well established that even this liberal notice pleading standard “has its limits.”

70

As a result, several Supreme Court and Second Circuit decisions exist, holding that a pleading has failed to meet this liberal notice pleading standard.

71

Most notably, in the recent decision of

Bell Atlantic Corporation v. Twombly,

the Supreme Court, in reversing an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1 , “retire[d]” the famous statement by the Court in

Conley v. Gibson,

355 U.S. 41, 45-46 , 78 S.Ct. 99 , 2 L.Ed.2d 80 (1957), that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 550 U.S. 544 , 127 S.Ct. 1955, 1968-69 , 167 L.Ed.2d 929 (2007).

72

Rather than turning on the

conceivability

of an actionable claim, the Court clarified, the Fed.R.Civ.P. 8 “fair notice” standard turns on the

plausibility

of an actionable claim.

Id.

at 1965-74.

More specifically, the Court reasoned that, by requiring that a pleading “show[ ] that the pleader is entitled to relief,” Fed. R.Civ.P. 8(a)(2) requires that the pleading give the defendant “fair notice” of (1) the nature of the nature of the claim and (2) the “grounds” on which the claim rests.

Id.

at 1965, n. 3 [citation omitted]. While this does not mean that a pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the pleading must contain at least “some factual allegation^].”

Id.

[citations omitted]. More specifically, the “[fjactual allegations must be enough to raise a right to relief

*460

above the speculative level [to a plausible level],” assuming (of course) that all the allegations in the complaint are true.

Id.

at 1965 [citations omitted]. What this means, on a practical level, is that there must be “plausible grounds to infer [actionable conduct],” or, in other words, “enough fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct].”

Id.

As have other Circuits, the Second Circuit has repeatedly recognized that the clarified plausibility standard that was articulated by the Supreme Court in

Twombly

governs

all

claims, not merely antitrust claims brought under 15 U.S.C. § 1 (as were the claims in

Twombly

).

73

The Second Circuit has also recognized that this

plausibility

standard governs claims brought even by

pro se

litigants (although the plausibility of those claims is be assessed generously, in light of the special solicitude normally afforded

pro se

litigants).

74

It should be emphasized that Fed. R.Civ.P. 8’s plausibly standard, explained in

Twombly,

was in no way retracted or diminished by the Supreme Court’s decision (two weeks later) in

Erickson v. Pardus,

in which the Court stated, “Specific facts are not necessary” to successfully state a claim under Fed.R.Civ.P. 8(a)(2).

Erickson v. Pardus,

551 U.S. 89 , 127 S.Ct. 2197, 2200 , 167 L.Ed.2d 1081 (2007) [citation omitted]. That statement was merely an abbreviation of the often-repeated point of law — first offered in

Conley

and repeated in

Twombly

— that a pleading need not “set out in detail the facts upon which [the claim is based]” in order to successfully state a claim.

Twombly,

127 S.Ct. at 1965 , n. 3 (citing

Conley v. Gibson,

355 U.S. 41, 47 , 78 S.Ct. 99 , 2 L.Ed.2d 80 [1957]). That statement in no way meant that all pleadings may achieve the requirement of giving a defendant “fair notice” of the nature of the claim and the “grounds” on which the claim rests without ever having to allege any facts whatsoever.

75

*461

There must still be enough facts alleged to raise a right to relief above the speculative level to a plausible level, so that the defendant may know what the claims are and the grounds on which they rest (in order to shape a defense).

Having said all of that, it should also be emphasized that, “[i]n reviewing a complaint for dismissal under Fed.R.Civ.P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor.”

76

“This standard is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted

pro se.”

77

In other words, as stated above in Part I.A. of this Report-Recommendation, while all pleadings are to be construed liberally under Fed.R.Civ.P. 8(e),

pro se

civil rights pleadings are to be construed with an

extra

degree of liberality.

78

For example, the mandate to read the papers of

pro se

litigants generously makes it appropriate to consider a plaintiffs papers in opposition to a defendant’s motion to dismiss as effectively amending the allegations of the plaintiffs complaint, to the extent that those factual assertions are consistent with the allegations of the plaintiffs complaint.

79

More

*462

over, “courts must construe

pro se

pleadings broadly, and interpret them to raise the strongest arguments that they suggest.”

80

Furthermore, when addressing a

pro se

complaint,

generally

a district court “should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.”

81

Of course, an opportunity to amend is not required where “the problem with [plaintiffs] causes of action is substantive” such that “[b]etter pleading will not cure it.”

82

However, while this special leniency may somewhat loosen the procedural rules governing the form of pleadings (as the Second Circuit very recently observed),

83

it does not completely relieve a

pro se

plaintiff of the duty to satisfy the pleading standards set forth in Fed.R.CivJP. 8, 10 and 12.

84

Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed.R.Civ.P. 8, 10 and 12 are procedural rules that even

pro se

civil rights plaintiffs must follow.

85

Stated more plainly, when a

*463

plaintiff is proceeding

pro se,

“all normal rules of pleading are not absolutely suspended.”

86

III. ANALYSIS OF DEFENDANTS’ MOTION

A. Whether Plaintiffs Excessive-Force and Failure-to-Protect Claims Should Be Dismissed Due to Lack of Evidence

As stated above, Defendants argue that Plaintiffs excessive-force and failure-to-protect claims should be dismissed because there is no evidence establishing those claims. (Dkt. No. 39, Part 45, at 2-3 [Defs.’ Memo, of Law].) More specifically, Defendants argue that, because of the record evidence demonstrating the limited extent of Plaintiffs injuries within five minutes of the documented use of force, no reasonable juror would undertake the suspension of disbelief necessary to credit his “sworn statement that he was beaten more than 300 times” by Defendants Cushman, McAdam, John Doe # 1, and John Doe # 2 in the Gouverneur C.F. S.H.U., on January 6,2005.

(Id.)

Plaintiffs response, as I understand it, offers what are in essence two different arguments: (1) a reasonable juror

would

in fact undertake the suspension of disbelief necessary to credit the allegations made by Plaintiff since (a) his credibility is “impeccable” in that his testimony regarding the incident has been consistent for more than thirty months (while Defendant McAdam’s credibility is extremely questionable since statements made in the misbehavior report he authored show him to be a “liar”), and (b) the record contains evidence (e.g., Plaintiffs Verified Complaint and his deposition testimony) that Plaintiff was struck numerous times with short, controlled blows, and that he experienced pain in the months following the use of force (e.g., his Verified Complaint and his deposition testimony); and (2) none of the referenced Defendants have submitted sworn statements that they did

not

use excessive force against Plaintiff in the

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Gouverneur C.F. S.H.U., on January 6, 2005. (Dkt. No. 42, Part 3, at 1-3 [Plf.’s Opp. Memo, of Law].)

Taking Plaintiffs arguments out of order, I am not persuaded by his second argument since it shows a fundamental misunderstanding of the shifting burden on Defendants’ motion (which is described above in Part II.A. of this Report-Recommendation). Succinctly stated, when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial; he may not simply argue that the movant has failed to adduce testimony affirmatively

denying

a certain fact.

However, Plaintiffs first argument is somewhat more persuasive. It is well established that issues of credibility are

almost never

to be resolved by a court on a motion for summary judgment.

87

Granted, there is a

narrow exception

to this well-established rule.

88

This narrow exception is for testimony by a non-movant that possesses the following two characteristics: (1) it constitutes almost the sole or exclusive basis for a disputed issue of fact in the case (or, expressed differently, it is largely unsubstantiated by any other direct evidence); and (2) it is so lacking in credibility that, even after drawing all inferences in the light most favorable to the nonmovant, no reasonable jury could find for the non-movant because the testimony is incomplete and/or replete with inconsistencies and improbabilities.

89

Again, it must be remembered that this circumstance is “rare.”

90

Here, the following is a summary of the material evidence before the Court on the current record:

(1) Defendant McAdam’s testimony (at Plaintiffs disciplinary hearing) stating that he “had to use force [against Plaintiff] to restore order” in the Gouverneur C.F. S.H.U., on January 6, 2005, and that Defendant Snyder was present in the room at the time;

91

(2) Defendant McAdam’s misbehavior report against Plaintiff arising from the

*465

incident, indicating that (a) “physical force” was used, (b) before the force was used, Plaintiff was standing, and (c) after force was used, Plaintiff had to “stand up”;

92

(8) The “Use of Force Report,” following the incident, containing (a) Defendant McAdam’s statement that (in response to an attempted assault by Plaintiff) he,

inter alia,

“pushed [Plaintiff] against the wall” and “forced [Plaintiff] to the floor ... for several seconds,” and (b) Nurse Debbie Theriault’s statement that, immediately after the incident, she examined Plaintiff and saw a “[r]ed area” that was “3-4 cm long” on the “[left] side of [his] back” and a round area of “swelling” that was

“lk

cm” in diameter on his “lower lip,” warranting her giving him “Ibuprofen” for “back pain” and “cold compresses to [his] lip”;

93

(4) Plaintiffs medical records reflecting similar injuries on January 6, 2005, and complaints of pain during the following weeks, including on January 8 and 12, 2005;

94

(5) Color photographs of Plaintiff taken within five minutes after the documented use of force, which show redness on various parts of Plaintiffs back and sides (and apparently some redness under his left breast);

95

(6) Plaintiffs disciplinary hearing testimony that the force used against him was not in response to any threatening gesture made by him, and consisted of Defendant McAdam and at least one other officer repeatedly “smack[ing]” and “punch[ing]” Plaintiff in the face, head, back and sides intermittently over the course of ten or fifteen minutes;

96

(7) Plaintiffs sworn statements in his Verified Complaint that the force used against him was not in response to any threatening gesture made by him, and consisted of Defendant McAdam and at least one other officer repeatedly “smack[ing]” and “punch[ing]” Plaintiff in the face, head, back and sides intermittently over the course of several minutes;

97

and

(8) Plaintiffs deposition testimony that the force used against him was not in response to any threatening gesture made by him, and consisted of Defendant McAdam and at least one other officer repeatedly “slap[ping],” “grabbing],” and “punching]” Plaintiff on the head, sides, and back intermittently in “bursts” that were “short” and “controlled” over the course of ten to fifteen minutes, as well as someone pressing either a knee or boot into Plaintiffs back.

98

Based on this record evidence, I am unable to agree with Defendants that the circumstances of this case fall within the narrow exception to the well-established rule that issues of credibility are not to be resolved by a court on a motion for summary judgment. As an initial matter, I find that the “sworn statement” to which Defendants apparently refer (i.e., Plaintiffs deposition testimony that the blows to his face, head and sides numbered in the

*466

hundreds) does not, in fact, constitute

almost the sole or exclusive basis

for a disputed issue of fact in the case. Rather, that deposition testimony is accompanied by Plaintiffs Verified Complaint and disciplinary hearing testimony.

As a result, there is no need to proceed to the second prong of the above-stated two-part test (e.g., examining whether the testimony is so incomplete and/or replete with inconsistencies and improbabilities that, even after drawing all inferences in the light most favorable to Plaintiff, no reasonable jury could find for Plaintiff). Even if I were to proceed to that prong, I would be unable to deem Plaintiffs deposition testimony

incomplete, inconsistent

with Plaintiffs other sworn statements, and/or

improbable.

For example, his deposition testimony appears consistent with his Verified Complaint and disciplinary hearing testimony. Moreover, it appears probable to me that, had the events occurred as Plaintiff described them in his deposition, they would have resulted in the injuries evident from the color photographs of Plaintiff (which show redness on his back and sides) and Nurse Theriault’s examination of Plaintiff (which revealed a “[r]ed area” that was “3-4 cm long” on the “[left] side of [his] back” and a round area of “swelling” that was “]é cm” in diameter on his “lower lip.”)

99

Simply stated, the mere fact that Plaintiffs version of events might be rejected by a jury is not a sufficient ground upon which to discredit that version of events.

See Caraballo v. City of New York,

05-CV-8011, 2007 WL 1584202 , at *6 (S.D.N.Y. May 31, 2007) (“Despite the seeming unlikelihood of Caraballo’s version of events, it cannot be said that this is the ‘rare’ case in which the only factual issues are created by testimony of the plaintiff that is ‘so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint....’”). Similarly, the significance of Plaintiffs physical injuries (so long as they are not

de

minimis) do not “preclude a reasonable jury from finding that excessive force was used.”

Griffin v. Crippen,

193 F.3d 89, 91-92 (2d Cir.1999) (injuries consisted of only “a bruised shin and swelling over [the plaintiffs] left knee”).

Having said all of that, I do agree with Defendants to the extent that they argue that there is no evidence in the record from which a rational fact-finder could find that (1) Defendant Cushman used excessive force against Plaintiff in the Gouverneur C.F. S.H.U., on January 6, 2005, or (2) Defendants Sobek and Cushman failed to protect him from the referenced use of excessive force. (Dkt. No. 39, Part 45, at 3 [Defs.’ Memo, of Law]; Dkt. No. 39, Part 44, ¶¶ 20, 22, 23, 26, 28 [Defs.’ Rule 7.1 Statement of Facts].)

As for Defendant Cushman, Plaintiff offers only speculation and conjecture that he was present during the (alleged) use of excessive force.

See, infra,

Part III.C. of this Report-Recommendation. It must be remembered that mere

speculation

or

conjecture

is not a sufficient ground upon which to oppose summary judgment.

100

*467

Similarly, Plaintiff offers only speculation and conjecture that, when Defendant Cushman handed Plaintiff off to Defendant McAdam at the “frisk room” of the Gouverneur C.F. S.H.U. on January 6, 2005, Defendant Cushman

knew

there was a

substantial

risk that Plaintiff would suffer

serious

harm, and that Defendant Cushman

disregarded

that risk by failing to take reasonable measures to avoid it.

101

As for Defendant Sobek, Plaintiff offers no evidence that he was present during the (alleged) use of excessive force. Similarly, Plaintiff offers only speculation and conjecture that, when or immediately after Defendant Sobek accused Plaintiff of a disciplinary offense on January 6, 2005, Defendant Sobek

knew

there was a substantial risk that Plaintiff would suffer serious harm, and that Defendant Sobek disregarded that risk by failing to take reasonable measures to avoid it.

For example, Plaintiff offers only speculation that, when Defendant McAdam placed a telephone call from the “frisk room” prior to the (alleged) use of excessive force, the following events transpired: (1) Defendant McAdam in fact reached Defendant Sobek on the telephone and not someone else; (2) based on that telephone call, Defendant Sobek acquired

actual knowledge,

that there was a

substantial

risk that Defendant McAdam would use excessive force against Plaintiff,

and

that the excessive force would result in

serious

harm to Plaintiff; and (3) Defendant Sobek nonetheless

disregarded

the risk by failing to take reasonable measures to avoid it.

102

With regard to this last conditional event, I note that it would appear that Defendant Sobek, who was a Correctional

Officer,

did not have the duty to supervise, or the authority to issue orders to, Defendant Snyder, who was a Correctional

Sergeant

(and who was present in the “frisk room” during the alleged use excessive force).

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss (1) Plaintiff’s excessive-force claim against Defendant Cushman and (2) Plaintiff’s failure-to-protect claim against Defendants Sobek and Cushman. However, I recommend that the Court not dismiss (1) Plaintiff’s excessive-force claim against Defendant McAdam, and (2) Plaintiff’s failure-to-protect claim against

*468

Defendants Snyder and McAdam.

103

B. Whether Plaintiffs Conspiracy Claim Should Be Dismissed Due to Lack of Evidence

As stated above, Defendants argue that Plaintiffs conspiracy claim should be dismissed because there is no evidence establishing a meeting of the minds between Defendants Sobek, Snyder, McAdam and Cushman to assault Plaintiff, or that any of those Defendants acted due to racial animus. (Dkt. No. 89, Part 45, at 4-5 [Defs.’ Memo, of Law].) For substantially the same reasons as stated by Defendants in their Memorandum of Law, I agree with Defendants that Plaintiffs conspiracy claims should be dismissed.

“To prove a § 1983 conspiracy [claim], a plaintiff must show: (1) an agreement between two or more state actors[,] or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages.”

Pangburn v. Culbertson,

200 F.3d 65, 72 (2d Cir.1999);

accord, Bussey v. Phillips,

419 F.Supp.2d 569, 586 (S.D.N.Y.2006) [citations omitted].

Here, all the record shows is the following material facts: (1) Defendant Sobek charged Plaintiff with various disciplinary offenses arising out of,

inter alia,

an incident that occurred on January 6, 2005, during which Plaintiff (allegedly) held up Defendant Sobek’s count of inmates in the “F-l Block” of Gouverneur C.F.;

104

(2) that same day, as a result of the charge, Defendant Snyder escorted Plaintiff to the Short-Term S.H.U. at Gouverneur C.F., with the assistance of Defendant Cushman;

105

(3) at the Short-Term S.H.U., Defendant Snyder brought Plaintiff into the “frisk room,” which was occupied by Defendant McAdam, as well as possibly three or four other officers whom Plaintiff could not (and cannot) identify;

106

(4) inside the frisk room, Defendant McAdam called someone by telephone in F-l Block (possibly reaching Defendant Sobek), asked the person why Plaintiff was in

*469

S.H.U, and then said either “No problem” or “Oh, no, don’t worry,” followed by the words,

“We’ll take good care of Mm

”;

107

and (5) following the telephone call, Defendant McAdam (allegedly) used excessive force against Plaintiff, and Defendant Snyder (allegedly) failed to stop him.

Based on the current record, I find that Plaintiff has offered only speculation and conjecture that there was ever a

meeting of the minds

between Defendants Sobek, Snyder, McAdam and Cushman to act in concert to inflict an unconstitutional injury on Plaintiff. Similarly, he has offered only speculation and conjecture that there was an

overt act

done in furtherance of that goal. For example, to the extent that Plaintiff is alleging that a meeting of the minds occurred between Defendant McAdam and Sobek during the referenced telephone call that occurred from the frisk room to F-l Block, that allegation depends on Plaintiffs

guess

that (1) Defendant McAdam reached Defendant Sobek on the phone (and not some other officer in F-l Block),

and

(2) Defendant Sobek effectively said to Defendant McAdam, “Take good care of him [by beating him up], okay?” Moreover, even if those two events did transpire, Plaintiff has adduced no evidence that,

after

the telephone call, Defendant Sobek committed an overt act in furtherance of that conspiracy. Simply stated, based on the current record, Plaintiffs proper claim is one of excessive force, not conspiracy.

In addition, I agree with Defendants that Plaintiffs conspiracy claim under 42 U.S.C. § 1985 (3) fails on the additional ground that Plaintiff has failed to show (or even allege) that the underlying motivation for the conspiracy was racial or other class-based animus — a requirement of stating such a claim.

See Iqbal v. Hasty,

490 F.3d 143, 176 (2d Cir.2007) (“[A] conspiracy [under 42 U.S.C. § 1985 (3) ] must be motivated by some class-based animus.”) [citation omitted];

accord, Hawkins v. County of Oneida,

497 F.Supp.2d 362, 379 (N.D.N.Y.2007) (Hurd, J.) [citation omitted];

R-Goshen LLC v. Village of Goshen,

289 F.Supp.2d 441, 454-55 (S.D.N.Y.2003) [citations omitted].

Because I have already found that adequate grounds exist upon which to base a recommendation that Plaintiffs conspiracy claims be dismissed, I need not, and do not, evaluate in depth the merit of Defendants’ argument that those claims should be dismissed on the alternative ground of the intracorporate conspiracy doctrine, except to make five brief points.

First, the “intracorporate conspiracy” doctrine (also known as the “intraenterprise conspiracy” doctrine, or the “intra-agency conspiracy” doctrine) provides that officers, agents or employees of a single corporate entity are legally incapable of conspiring together. Second, because I have found seven district court cases from within this Circuit in which the intracorporate conspiracy doctrine has been applied with regard to conspiracy claims against the State, and only one district court case in which it has not been so applied, it appears to me that the intracorporate conspiracy doctrine does apply

*470

to cases in which the entity is the State.

108

Third, even where the doctrine applies to a plaintiffs conspiracy claims, those claims

may

fall within the doctrine’s “scope of employment” exception, which exists “when individuals pursue personal interests wholly separate and apart from the entity.”

109

Fourth, in order to allege facts plausibly suggesting that individuals were pursuing personal interests wholly separate and apart from the entity, more is required of a plaintiff than simply alleging that the defendants were motivated by personal bias against the plaintiff.

110

Fifth, it is not clear to me that, here, Plaintiff has alleged facts plausibly suggesting that — when Defendant Sobek charged Plaintiff with various disciplinary offenses for holding up his count, and Defendants Snyder and Cushman brought Plaintiff to the Gouverneur C.F. Shorts Term S.H.U., and Defendant McAdam “frisked” him in such a way as to assault him — those Defendants were pursuing personal interests

wholly separate

and apart from the interests of the State of New York.

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss Plaintiff’s conspiracy claims.

C. Whether, at the Very Least, Plaintiffs Claims Against Defendant Cushman Should Be Dismissed Due to Lack of Evidence

As stated above, Defendants argue that, at the very least, Plaintiffs conspiracy, excessive-force, and failure-to-protect claims against Defendant Cushman should be dismissed, since there is no evidence that Defendant Cushman was present during the alleged use of excessive force.

111

Defendants support this argument with accurate citations to the record.

112

In his Opposition Memorandum of Law, Plaintiff entirely fails to address this argument. (Dkt. No. 42, Part 8, at 1-3 [Plf.’s Opp. Memo, of Law].) As explained above in Part II.A. of this Report-Recommendation, where a plaintiff has failed to respond

*471

to an argument in a defendant’s properly filed and facially meritorious memorandum of law (submitted in support of its motion for summary judgment), the plaintiff is deemed to have “consented” to that legal argument under Local Rule 7.1(b)(3) of the Local Rules of Practice for this Court.

113

In any event, even if I were to subject Defendants’ argument to the increased scrutiny appropriate for contested legal arguments, I would find Defendants’ argument persuasive. Again, mere

speculation

or

conjecture

by Plaintiff that Defendant Cushman may have been present during the alleged use of excessive force is not a sufficient ground upon which to oppose summary judgment in favor of Defendant Cushman (especially where, as here, there exists evidence that he was

not

present).

114

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss Plaintiffs claims against Defendant Cushman.

D. Whether Plaintiffs False-Misbehavior-Report Claims Should Be Dismissed for Failure to State a Claim or, in the Alternative, Due to Lack of Evidence

As stated above, construed with special leniency, Plaintiffs Complaint asserts the following two false-misbehavior-report claims: (1) on or about January 10, 2005, in order to cover up the referenced use of excessive force, Defendant McAdam intentionally filed a false misbehavior report against Plaintiff (charging him with

“violent conduct”), which caused Plaintiff to incur a disciplinary conviction (on January 13, 2005), a sentence of four months’ confinement to S.H.U., and an increased security classification (resulting in his being confined to a maximum-security prison, where he experienced fear for his safety and emotional distress);

115

and (2) on or about January 8, 2005, in order to cover up the referenced conspiracy, Defendant Sobek intentionally filed a false misbehavior report against Plaintiff.

116

As stated above, in arguing that there is no constitutional right against being issued a false misbehavior report in prison, Defendants address only Plaintiffs false-misbehavior-report claim arising from the report issued by Defendant McAdam; Defendants do not address Plaintiffs false-misbehavior-report claim arising from the report issued by Defendant Sobek.

117

Of course, this fact does not prevent the Court from

sua sponte

addressing the pleading sufficiency of this latter claim: under 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b), the Court may (and indeed must) address the pleading sufficiency of this

pro se

prisoner civil rights claim.

I agree with Defendants that “a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report.”

Boddie v. Schnieder,

105 F.3d 857, 862 (2d Cir. 1997) (citing

Freeman v. Rideout,

808 F.2d 949, 951 [2d Cir.1986] ).

118

Rather, the only way that false accusations contained in a misbehavior report can rise to the

*472

level of a constitutional violation is when there has been more such as “retaliation against the prisoner for exercising a constitutional right.”

Boddie,

105 F.3d at 862 ;

accord, Murray v. Pataki,

03-CV-1263, 2007 WL 965345 , at *8, 2007 U.S. Dist. LEXIS 26959 , at *26 (N.D.N.Y. March 5, 2007) (Treece, M.J.) [citations omitted]. (Plaintiffs retaliation claims with regard to two of the three misbehavior reports in question are discussed below in Parts III.E. and III.F. of this Report-Recommendation.) In addition, it should be noted that “[t]he filing of a false report does not, of itself, implicate the guard who filed it in [any] constitutional violations which occur at a subsequent disciplinary hearing.”

Williams v. Smith,

781 F.2d 319, 324 (2d Cir.1986).

119

I note that, even if I were to proceed to the merits of Plaintiffs false-misbehavior-report claim arising from the report issued by Defendant McAdam, I would report that I can find no record evidence that Defendant McAdam’s January 10, 2008, misbehavior report, which was not subsequently reversed on appeal, was indeed false. Nor can I find any record evidence that Plaintiff was deprived of any due process following the issuance of that misbehavior report. Plaintiffs brief response to Defendants’ argument, in his Opposition Memorandum of Law, certainly does not cite any such evidence. (Dkt. No. 42, Part 3, at 9 [Plf.’s Opp. Memo, of Law].) Furthermore, Plaintiffs argument that Defendant McAdam has not adduced an affidavit denying Plaintiffs assertion that the January 10, 2005, misbehavior report was false demonstrates (1) a misunderstanding of the shifting burden on Defendants’ motion, and (2) a failure to address Defendants’ alternative argument that, at the January 13, 2005, disciplinary hearing on Defendant McAdam’s misbehavior report, Plaintiff was afforded all the process that he was due.

120

For these reasons,

I recommend that, under Fed.R.Civ.P. 12(b)(6), the Court dismiss Plaintiff’s false-misbehavior-report claims against Defendant Sobek. In addition, I recommend that, under Fed. R.Civ.P. 56, the Court dismiss Plaintiffs false-misbehavior-report claim against Defendants McAdam (or that, in the alternative, the Court dismiss that claim under Fed.R.Civ.P. 12[b][6] ).

E. Whether Plaintiffs Retaliation Claim Against Defendant Emrich Should Be Dismissed Due to Lack of Evidence

As stated above, Defendants argue that Plaintiffs retaliation claim against Defen

*473

dant Emrich (through the issuance of a misbehavior report on or about January 21, 2005, charging Plaintiff with “destruction of property”) should be dismissed because there is no evidence that Plaintiff was subjected to sufficient adverse action and, in any event, there is no evidence that the action taken against him was taken because of his protected activity.

121

Claims of retaliation like those asserted by Plaintiff-find their roots in the First Amendment.

See Gill v. Pidlypchak,

389 F.3d 379, 380-81 (2d Cir.2004). Central to such claims is the notion that in a prison setting, corrections officials may not take actions which would have a chilling effect upon an inmate’s exercise of First Amendment rights.

See Gill,

389 F.3d at 381-383 . Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care.

See Flaherty v. Coughlin,

713 F.2d 10, 13 (2d Cir.1983). As the Second Circuit has noted,

This is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners’ claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official — even those otherwise not rising to the level of a constitutional violation — can be characterized as a constitutionally proscribed retaliatory act.

Dawes v. Walker,

239 F.3d 489, 491 (2d Cir.2001) [citations omitted],

overruled on other grounds, Swierkiewicz v. Sorema N.A.,

534 U.S. 506 , 122 S.Ct. 992 , 152 L.Ed.2d 1 (2002).

To prevail on a First Amendment claim under 42 U.S.C. § 1983 , a Plaintiff must prove by the preponderance of the evidence that: (1) the speech or conduct at issue was “protected”; (2) the defendants took “adverse action” against the plaintiff-namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action-in other words, that the protected conduct was a “substantial or motivating factor” in the defendants’ decision to take action against the plaintiff.

Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 287 , 97 S.Ct. 568 , 50 L.Ed.2d 471 (1977);

Gill,

389 F.3d at 380 (citing

Dawes v. Walker,

239 F.3d 489, 492 [2d Cir.2001]). Under this analysis, adverse action taken for both proper and improper reasons may be upheld if the action would have been taken based on the proper reasons alone.

Graham v. Henderson,

89 F.3d 75, 79 (2d Cir.1996) [citations omitted].

As an initial matter, I question the merit of Defendants’ “adverse action” argument. On the one hand, I acknowledge that the Second Circuit has stated, in

Franco v. Kelly,

that a prisoner would be entitled to relief under a First Amendment retaliation theory if he could “prove his allegation that he was subjected to false disciplinary charges

and subsequent punishment”

as a result of his protected activity.

Franco v. Kelly,

854 F.2d 584, 590 (2d Cir.1988) [emphasis added]. However, I do not read the

Franco

decision as holding that such a prisoner would be entitled to relief under a First Amendment retaliation theory

only

if

*474

the false disciplinary charges resulted in punishment.

122

Rather, the litmus test (regarding whether the filing of a false disciplinary charge is sufficiently adverse for purposes of a First Amendment retaliation) is not whether or not the charge resulted in punishment but whether or not Defendants’ action “ ‘would ... deter a similarly situated prisoner of ordinary firmness from exercising his constitutional rights.’ ”

Davis v. Goord,

320 F.3d 346, 353 (2d Cir.2003) (quoting

Dawes,

239 F.3d at 493 ). For this reason, in applying a similar rule, the Sixth Circuit has held that the filing of a false disciplinary charge against a prisoner in and of itself resulted in adverse action even though the charge did not result in a finding of guilt.

123

Of course, that is not a holding of the

Second

Circuit. Furthermore, at least one district court in the Second Circuit has held that, even where there was a disciplinary conviction, the filing of the disciplinary charge giving rise to the conviction was not sufficient adverse action because the conviction resulted in only a loss of various privileges.

124

Fortunately, I need not resolve this issue under the circumstances, because I find merit in Defendants’ alternative argument, specifically, their argument that Plaintiff has adduced no admissible record evidence establishing that there was a

causal connection

between the protected speech and the adverse action.

In nine paragraphs of their Rule 7.1 Statement, Defendants assert, in chronological order, numerous facts regarding the events giving rise to Defendant Em-rich’s issuance of the referenced misbehavior report, which occurred on January 20, 2005. (Dkt. No. 39, Part 44, ¶¶ 71-79 [Defs.’ Rule 7.1 Statement].) Defendants support each of these factual assertions with accurate record citations, as they are required to do under Local Rule 7.1(a)(3).

(Id.)

In his opposition papers, Plaintiff does not submit a Rule 7.1 Response that “mirror[s] [Defendants’ Rule 7.1 Statement] by admitting and/or denying each of [Defendants’] assertions in matching numbered paragraphs,” as he is required to do under Local Rule 7.1(a)(3). Instead, Plaintiff submits what he calls an “Unsworn Declaration / 7.1 Statement of Facts / Affirmation in Support of Petition.” (Dkt. No. 42, Part 1, at 3.) Buried in that thirty-nine-page document are ten paragraphs that (in

*475

topical, not chronological order) are deficient in several ways: (1) they deny only

some

of Defendants’ factual assertions, failing to deny others; (2) generally, they fail to support those denials with accurate citations to admissible record evidence, or they support those denials with only challenges to the credibility of certain affidavit testimony relied on by Defendants; and (3) they assert additional facts that are either unsupported by accurate citations to admissible record evidence or that are immaterial to the issue of whether Defendant Emrich would have issued Plaintiff the referenced misbehavior report even if Plaintiff had not engaged in constitutionally protected conduct (by filing grievances against Defendant Emrich and other S.H.U. officers on January 9, 11 and 15, 2005). (Dkt. No. 42, Part 1, ¶¶ 85-94.)

Given these patent flaws in Plaintiffs Rule 7.1 Response, I decline (and I recommend that the Court also decline) to engage in the

sua sponte

comparison of unmatching factual assertions contained in Plaintiffs Rule 7.1 Response (and scouring of the record) that would be necessary to determine if the record contains admissible evidence creating an issue of fact regarding each of the assertions made by Defendants. The Court has no such duty, even if the non-movant is proceeding

pro

se.

(See, supra,

note 53 of this Repork-Recommendation.) This is because even

pro se

plaintiffs must obey the Court’s procedural rules. (See,

supra,

note 54 of this Reports Recommendation.) In particular, this Court has rather consistently enforced Local Rule 7.1(a)(3), by deeming facts set forth in a moving party’s statement to have been admitted where the opposing party has failed to properly respond to that Statement — even where the opposing party was proceeding

pro se

in a civil rights case.

(See, supra,

note 55 of this Repork-Recommendation.)

Deemed admitted, then, are the factual assertions contained in Paragraphs 71 through 79 of Defendants’ Rule 7.1 Statement. Among other things, those facts establish as follows: (1) in his misbehavior report dated January 20, 2005, Defendant Emrich charged Plaintiff with having damaged his cell in S.H.U. by removing caulking from around the door casing; (2) in his misbehavior report, Defendant Emrich indicated that he had inspected Plaintiffs cell after Plaintiff had been transferred out of it, and that he had found the caulking missing; (3) at Plaintiffs disciplinary hearing on January 26, 2005, the hearing officer (Defendant Don) was presented with, among other documents, a Cell Property Inventory form that Plaintiff had signed upon entering his cell in S.H.U. (on January 6, 2005), which contained no notification of any damage to the cell; (4) at his disciplinary hearing, Plaintiff did not contest the fact that caulking had been removed from the cell (but he contended that the caulking could have been removed by another inmate prior to Plaintiffs being transferred into the cell); (5) from his years at Gouverneur C.F., Defendant Don was aware that S.H.U. cells are routinely inspected for damage anytime an inmate vacates a cell and before another inmate is placed in the cell; (6) after the disciplinary hearing, Defendant Don found Plaintiff guilty of having damaged the cell; and (7) on appeal from his disciplinary conviction, Plaintiff had no objection to the manner in which Defendant Don had conducted the hearing.

125

These facts, in and of them

*476

selves, indicate that the cause of Plaintiffs receipt of the January 20, 2005, misbehavior report authored by Defendant Emrich was reason to believe that Plaintiff indeed removed the caulking from around the door casing of his cell in S.H.U. at some point between January 6, 2005, and January 20, 2005.

Plaintiff argues that, to the contrary, the record contains evidence that Defendant Emrich issued the misbehavior report with a “retaliatory motive,” as “getback” against Plaintiff for having filed a grievance against Defendants Emrich, McAdam and Sheridan (and C.O. Glarin). (Dkt. No. 44, Part 3, at 14-15 [Plf.’s Memo, of Law].) In support of that argument, Plaintiff offers the following sworn assertion: “On January 19, [2005,] after I was informed that I was being transferred to the facility’s ‘S-Block’ SHU and my property was packed, Off. Emrich asked me: ‘Do you know what tomorrow is?’ I responded: ‘Just another day in jail.’ He retorted: ‘Wrong. You’ll see.’” (Dkt. No. 1, ¶6, Attached Page 13 [Plf.’s Compl.].)

For the sake of brevity, I will set aside the fact that Defendant Emrich could have been referring to Plaintiffs transfer to the S-Block S.H.U. on or about January 20, 2005, where Plaintiff asserts he was strip-searched and subjected to a vague threat by another correctional officer “with no incident.”

(Id.)

I will also set aside the fact that, even if Defendant Emrich was referring to the misbehavior report, he could have already obtained reason to

suspect

that the caulk was missing (e.g., during the packing of Plaintiffs property). I will also set aside the fact that Defendant Emrich’s statement is devoid of any reference to any grievance filed by Plaintiff. I will also set aside the fact that Plaintiff has failed to point to where, if anywhere, in the lengthy record before the Court there exists (1) the grievance to which Plaintiff refers and (2) evidence that, before January 20, 2005, Defendant Emrich

knew

of that grievance

The more serious problem (at least from Plaintiffs perspective) with the referenced sworn assertion is that it in no way establishes that adequate grounds did

not

exist on January 20, 2005, upon which to issue Plaintiff a misbehavior report for destruction of property. For example, the sworn assertion does not dispute the established fact that the referenced Cell Property Inventory form reflected no damage to the cell when Plaintiff entered it on January 6, 2005. Nor does the sworn assertion dispute the established fact that, in Defendant Don’s experience, S.H.U. cells are routinely inspected for damage anytime an inmate vacates a cell and before another inmate is placed in the cell. Nor does the sworn assertion dispute the established fact that, at his disciplinary hearing, Plaintiff did not contest that the caulking had been removed from the cell. Nor does the sworn assertion dispute the established fact that Plaintiffs disciplinary conviction on January 26, 2005, was never subsequently overruled on appeal. Simply stated, I can find no record evidence from which a rational fact-finder could conclude that Plaintiff would not have received the referenced misbehavior report anyway, even without the alleged retaliatory motive.

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss Plaintiffs retaliation claim against Defendant Emrich.

F. Whether Plaintiffs Retaliation Claim Against Defendant Sobek Should Be Dismissed

Sua Sponte

for Failure to State a Claim

As stated above, in addition to the retaliation claim asserted against Defen

*477

dant Emrich, Plaintiff has asserted a retaliation claim against Defendant Sobek. Specifically, Plaintiff has alleged that, on or about January 8, 2005, Defendant Sobek intentionally filed a false misbehavior report against Plaintiff in retaliation for his having engaged in constitutionally protected activity by helping inmates with their legal research and writing (as part of his job as a law clerk in the law library).

126

Even construed with the utmost of special leniency, Plaintiffs Complaint has not alleged facts plausibly suggesting that the activity in which he claims to have engaged was protected under the First Amendment. To the contrary, Plaintiff alleges that the protected activity in which he had engaged consisted of his performing his job as a “library clerk” by “help[ing] people with their law work”

in his “housing unit" at Gouverneur C.F.

(Dkt. No. 1, Attached Page 2 [Plf.’s Compl.] [emphasis added].) Plaintiff further alleges that it was Defendant Sobek’s position that Plaintiffs job as a library clerk authorized him to help people with their law work “in the law library, not here in the housing unit.” (Id.)

127

That fact distinguishes this case from the case of

Auleta v. LaFrance,

in which Judge Kahn held that, based on an application of the four factors set forth in

Turner v. Safley,

482 U.S. 78 , 107 S.Ct. 2254 , 96 L.Ed.2d 64 (1987), a prisoner had sufficiently alleged that he had engaged in protected activity under the First Amendment where he alleged that the activity consisted of his giving another inmate “authorized” legal advice as part of his prison work assignment.

See Auleta v. LaFrance,

233 F.Supp.2d 396, 398-401 (N.D.N.Y.2002) (Kahn, J.).

In any event, even construed with the utmost of special leniency, Plaintiffs Complaint has not alleged facts plausibly suggesting that it was the alleged retaliatory motive that

caused

him to receive the referenced misbehavior report.

128

To the contrary, Plaintiff alleges that, before being issued the referenced misbehavior report, he exchanged a look with another inmate, and “proceeded to hold [his] hands in front of [himself] and shake them, physically imitating someone who is scared,” which resulted in “some laughter from the other prisoner,” and Defendant Sobek becoming “angry.” (Dkt. No. 1, ¶ 6 & Attached Page 1 [Plf.’s Compl.].) Plaintiff also alleges that, when he later asked why Defendant Sobek had requested Plaintiffs identification card after the incident, Defendant Sobek responded, “Maybe to write you up ... for holding up my count____ [and to] teach you not to make fun of me.”

(Id.

at Attached Page 1.) Plaintiff also alleges that it was only after Plaintiff accused Defendant Sobek of having a “fragile little ego” that Defendant Sobek angrily summoned Plaintiff to a locked room and told him, “I am tired of you doing other

*478

people’s legal work [in the housing unit] and sticking your nose into business that doesn’t concern you.”

(Id.

at Attached Page 2.) Finally, it should be noted that Plaintiff has alleged that he was ultimately convicted of the disciplinary charge leveled by Defendant Sobek, and that the conviction was affirmed on appeal, plausibly suggesting that what caused him to receive the referenced misbehavior report was his own misconduct.

129

For both of these alternative reasons,

I recommend that the Court sua sponte dismiss Plaintiff’s retaliation claim against Defendant Sobek, pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b), and Fed. R.Civ.P. 12(b)(6).

G. Whether Plaintiffs Procedural Due Process Claims Should Be Dismissed for Failure to State a Claim, or, in the Alternative, Due to Lack of Evidence

As stated above, Defendants argue that Plaintiffs procedural due process claims (arising from his disciplinary hearings) should be dismissed because, based on the record evidence, he did not enjoy a protected liberty interest giving rise to such claims and, in any event, he was afforded all the process he was due at the hearings.

130

Although I do not read Defendants’ motion papers as also attacking the pleading sufficiency of these procedural due process claims, that fact does not prohibit the Court from reviewing that pleading sufficiency. This is because, as stated elsewhere in this Report-Recommendation, the Court has the authority (and indeed the duty) to review the pleading sufficiency of

pro se

prisoner civil rights claims

sua sponte,

pursuant to 28 U.S.C. §§ 1915 (e)(2)(B)(ii), 1915A(b). As a result, I do so here.

“[Courts] examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State ...; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.... ”

Kentucky Dept. of Corr. v. Thompson,

490 U.S. 454, 460 , 109 S.Ct. 1904 , 104 L.Ed.2d 506 (1989). With regard to the first question, in 1995, the Supreme Court held in

Sandin v. Conner

that liberty interests protected by the Fourteenth Amendment’s Due Process Clause will not arise from the use of mandatory language of a particular state law or regulation, but “will generally be limited to freedom from restraint which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

Sandin v. Conner,

515 U.S. 472 , 483^84, 115 S.Ct. 2293 , 132 L.Ed.2d 418 (1995).

1. Hearing Conducted by Defendant Don on January 11, 2005

Even when construed with the utmost of special leniency, Plaintiffs Complaint alleges facts plausibly suggesting that the disciplinary hearing conducted by Defendant Don on January 11, 2005 (i.e., the hearing on the January 6, 2005, misbehavior report issued by Defendant Sobek) resulted in a sentence of twenty (20) days in disciplinary confinement with a corresponding loss of privileges. (Dkt. No. 1, ¶ 6, Attached Pages 10, 14 [Plfi’s Compl.].) Based on these factual allegations, I find that Plaintiff has failed to state a procedural due process claim: more specifically,

*479

I find that Plaintiff has not alleged facts plausibly suggesting that he possessed, during the disciplinary hearing, a liberty interest that was protected by the Fourteenth Amendment. Numerous district courts in this Circuit have issued well-reasoned decisions finding no atypical and significant hardship experienced by inmates who served sentences in

Special Housing Units

(the conditions in which are ordinarily more restrictive than are the conditions in keeplock confinement) of far more than the twenty (20) days alleged here-even where the conditions of confinement in the Special Housing Units were, to varying degrees, more restrictive than those in the prison’s general population.

131

Even if I were to proceed to an analysis of the record evidence establishing how much time Plaintiff served in S.H.U. as a result of this disciplinary conviction (under a summary judgment analysis), I would find that Plaintiff has failed to establish that he possessed (at the disciplinary hearing) a liberty interest that was protected by the Fourteenth Amendment. This is because the record contains uncontroverted evidence that the disciplinary hearing in question resulted in a sentence of twenty (20) days in keeplock confinement, to start on January 6, 2005 (the day on which Plaintiff had been admitted to the ShortrTerm S.H.U.), and a corresponding loss of privileges.

132

*480

Because Plaintiff did not (in connection with his January 11, 2005, disciplinary hearing) enjoy a liberty interest that was protected by the Fourteenth Amendment, the Court need not proceed to Defendants’ argument that (1) Plaintiff waived any procedural objections during that hearing, or (2) in the alternative, Plaintiff has failed to establish that Defendant Don denied Plaintiff any process to which he was due at that hearing (by being biased or otherwise). (Dkt. No. 39, Part 45, at 9-10 [Defs.’ Memo, of Law].) In the interest of brevity, I will not address those arguments, except to report that, having reviewed the record, I can find no record evidence that exists from which a rational fact-finder could conclude that Defendant Williams denied Plaintiff any process to which he was due at that hearing (by being biased or otherwise).

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss Plaintiff’s procedural due process claims regarding the disciplinary hearing conducted by Defendant Don on January 11, 2005. In the alternative, I recommend that the Court dismiss that claim under Fed.R.Civ.P. 12(b)(6).

2. Hearing Conducted by Defendant Williams on January 12-13, 2005

I reach the same conclusion (that I reached in Part III.G.l. of this Report-Recommendation) with regard to Plaintiffs procedural due process claim against Defendant Williams arising out of the disciplinary hearing he conducted on January 12 and 13, 2005.

Even when construed with the utmost of special leniency, Plaintiffs Complaint alleges facts plausibly suggesting that the disciplinary hearing conducted by Defendant Williams on January 12 and 13, 2005 (i.e., the hearing on the January 10, 2005, misbehavior report issued by Defendant McAdam) resulted in a sentence of (1) one hundred twenty (120) days confinement in S.H.U. to run

concurrently

with the previously imposed sentence of twenty (20) days in keeplock confinement, and (2) a corresponding loss of privileges to run

consecutively

to the previously imposed sentence of twenty (20) days of loss of privileges. (Dkt. No. 1, ¶ 6, Attached Page 10-11, 14 [Plf.’s Compl.].) Furthermore, even if I were to proceed to an analysis of the record evidence establishing how much time Plaintiff served in S.H.U. as a result of this disciplinary conviction (under a summary judgment analysis), I would find that Plaintiff has failed to establish that he possessed (at the disciplinary hearing) a liberty interest that was protected by the Fourteenth Amendment. This is because the record contains uncontroverted evidence that the disciplinary hearing in question resulted in a sentence of only one hundred twenty (120) days in S.H.U. confinement.

133

*481

As stated above in Part III.G.l. of this Report-Recommendation, numerous district courts in this Circuit have issued well-reasoned decisions finding no atypical and significant hardship experienced by inmates who served sentences in Special Housing Units of far more than the one hundred (120) days at issue here.

134

Because Plaintiff did not (in connection with his January 12 and 13, 2005, disciplinary hearing) enjoy a liberty interest that was protected by the Fourteenth Amendment, the Court need not proceed to Defendants’ argument that (1) Plaintiff waived any procedural objections during that hearing, or (2) in the alternative, Plaintiff has failed to establish that Defendant Williams denied Plaintiff any process to which he was due at that hearing. (Dkt. No. 39, Part 45, at 10-11 [Defs.’ Memo, of Law].) However, in the interest of thoroughness, I will analyze that argument.

Defendants assert that, at his deposition, Plaintiff identified four errors allegedly committed by Defendant Williams at the hearing in question: (1) a procedural error based on a violation of a New York State regulation requiring everyone present at an incident to either submit an incident report or endorse a report prepared by another; (2) a procedural error based on a violation of a New York State regulation requiring that misbehavior reports be written as soon as practicable after the underlying incidents; (3) bias; and (4) either altering or causing to be altered the transcript of the disciplinary hearing transcript, in order to conceal the fact that, when Defendant McAdam testified at the hearing from home via telephone, there was rustling of paper, giving the appearance that he was reading from his misbehavior report rather than testifying from personal knowledge. (Dkt. No. 39, Part 44, ¶¶ 59-64 [Defs.’ Rule 7.1 Statement].) Defendants argue that the first two errors are not actionable under the Fourteenth Amendment and 42 U.S.C. § 1983 , and that the second two errors are unsupported by any record evidence. (Dkt. No. 39, Part 45, at 11 [Defs.’ Memo, of Law]; Dkt. No. 39, Part 44, ¶¶ 59-64 [Defs.’ Rule 7.1 Statement].)

In response to Defendants’ argument about the first error, Plaintiff argues (in his Rule 7.1 Response) that, by violating 7 NYCRR § 251 — 3.1(b) (the New York State regulation requiring every DOCS employee present an the incident of inmate misbehavior to either submit an incident report or endorse a report prepared by another employee),

135

Defendant Williams violated the Fourteenth Amendment and 42 U.S.C. § 1983 .

136

Of course, Plaintiffs “response” is no real response at all, but merely an attempt to shout

*482

even louder that Defendant Williams violated the Fourteenth Amendment

because

he violated a New York State regulation. Defendants are correct.

Section 1983 provides, in pertinent part, “Every person who ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by

the Constitution and laws,

shall be liable to the party injured....” 42 U.S.C. § 1983 [emphasis added]. The term “the Constitution and laws” refers to United States Constitution and

federal

laws.

137

A violation of a state law or regulation, in and of itself, does not give rise to liability under 42 U.S.C. § 1983 .

138

Granted, it is true that a state may, under certain circumstances, create a liberty interest protected by the Fourteenth Amendment’s Due Process Clause through its enactment of certain statutory or regulatory measures. However, as described above in Part III.G. of this Report-Recommendation, in order for a state to create a liberty interest protected by the Fourteenth Amendment’s Due Process Clause, the interest will not arise from the use of mandatory language of a particular state law or regulation; rather, the interest “will generally be limited to freedom from restraint. which ... imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”

Sandin v. Conner,

515 U.S. 472, 483-84 , 115 S.Ct. 2293 , 132 L.Ed.2d 418 (1995).

139

Moreover, I find that, even if Defendants Snyder and Cushman had indeed been present at the incident and failed to sign the misbehavior report (as

*483

Plaintiff argues), there would have been no violation of 7 N.Y.C.R.R. § 251-8.1(b). Section 251-3.1(b), which requires an endorsement of other DOCS employees present at the incident only “where appropriate,”

140

has consistently been construed as containing what is in essence a

materiality

requirement. As a result, in order for there to have been a violation of Section 251-3.1(b), an inmate must show that the failure to endorse the misbehavior report caused him

prejudice.

141

There can be no such prejudice where the employees who failed to endorse the report either (1) testifled at the hearing or (2) had their testimony waived by the inmate.

142

Here, Plaintiff waived his right to call Defendants Snyder and Cushman at the hearing. The only witness he called was Defendant McAdam-and Defendant Synder

“if Officer McAdam is not available.”

(Dkt. No. 39, Part 12, at 1-2, 6 [Ex. 8 to Seaman Affid.] [emphasis added].) However, Defendant McAdam was in fact available to testify, and did so.

(Id.

at 8-10.) Furthermore, following that testimony, Plaintiff stated that he had no further witnesses that he would like to call.

(Id.

at 11-12.)

143

*484

In response to Defendants’ argument about the second error, Plaintiff argues that, by violating 7 N.Y.C.R.R. § 251-3.1(a) (the New York State regulation requiring that a misbehavior report be written as soon as practicable after the underlying incident),

144

Defendant Williams violated the Fourteenth Amendment and 42 U.S.C. § 1983 .

145

Again, Plaintiff is mistaken for the same reasons as described above: a violation of a state law or regulation, in and of itself, does not give rise to liability under 42 U.S.C. § 1983 . Furthermore, it is extremely questionable to me that there was indeed a violation of 7 N.Y.C.R.R. § 251-3.1(a), based on the current record.

146

In response to Defendants’ argument about the third error, Plaintiff argues that Defendant Williams’ bias is evident from the following: (a) the fact that -he “deceitfully” tried to

“distort the record

” by substituting a Sergeant Skeldon (who was not present at any time during the incident giving rise to the misbehavior report) as the sergeant who was present with Officer McAdam during that incident, in order to “circumvent” Plaintiffs objection that Sergeant Snyder (who

was

present during the incident) failed to sign the misbehavior report, as he was required to do;

147

(b) the fact that Defendant Williams “remained deceitfully silent” about (what Plaintiff perceived to be) evidence that the misbehavior report in question was not written when it stated it was written;

148

and (c) the fact that he convicted Plaintiff despite the lack of evidence supporting a conviction.

149

I disagree. I can find no evidence in the record of any such bias.

Even assuming, for the sake of argument, that Defendant Williams did commit some sort of procedural error at the hearing in question, I can find no evidence that such an error was caused by some type of bias (e.g., an impermissible conflict of interest, etc.) rather than being caused by simple error.

See Saunders v. Ricks,

03-CV-0598, 2006 WL 3051792 , at *11 (N.D.N.Y. Oct. 18, 2006) (Hurd, J., adopting Report-Recommendation of Lowe, M.J.).

150

Furthermore, I find Plain

*485

tiffs argument that Defendant Williams’ finding of guilt constitutes evidence of bias to be wholly circular and conclusory.

Saunders,

2006 WL 3051792 , at *11.

151

Finally, in response to Defendants’ argument about the fourth error (specifically their argument that the record is clear that Defendant Williams did not prepare the hearing transcript, but a keyboard specialist named Joanne Ducharm did), Plaintiff concedes that “it is probably not realistic to expect anyone doing a transcription to record such a subtle occurrence as the rustling of paper.”

152

However, he argues that, nevertheless, when receiving Defendant McAdam’s testimony via telephone, Defendant Williams knowingly permitted Defendant McAdam to “parrot” his misbehavior report rather than testify from personal knowledge-which “present[s] major credibility problems for ... ‘Superintendent’ Williams.”

153

I am not aware of any authority supporting the proposition that a correctional officer’s heavy reliance on his allegations in a misbehavior report to refresh his recollection (or his adoption of his allegations in such a report as his sworn testimony) during a prison disciplinary hearing constitutes a violation of the Due Process Clause of the Fourteenth Amendment. I note that it is unclear to me that doing so in federal court would violate Rule 612 of the Federal Rules of Evidence where that officer possessed an

independent recollection

of the details of the events giving rise to the misbehavior report (as Defendant McAdam apparently did here). In any event, the

Federal

Rules of Evidence do not apply in a

New York State

Department of Correctional Services prison disciplinary hearing.

See Young v. Selsky,

41 F.3d 47, 53-54 (2d Cir.1994) (“[Prisoners’] rights to cross-examine and challenge witnesses and evidence are limited [in prison disciplinary hearings].... The disciplinary hearings rely heavily on hearsay, including unverifiable information from prison guards and informants.”) [internal quotation marks and citations omitted];

Espinal v. Goord,

01-CV-6569, 2002 WL 1585549 , at *1, 2002 U.S. Dist. LEXIS 12979 , at *5 (S.D.N.Y. July 17, 2002) (“The Fourteenth Amendment imposes no absolute bar to [the use of hearsay] evidence in prison disciplinary hearings---- Rather, for a prison disciplinary hearing to satisfy the element of due process, a decision adverse to a prisoner merely must have been supported by some evidence, whether hearsay or otherwise.”) [internal quotation marks and citations omitted].

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss Plaintiff’s procedural due process claims regarding the disciplinary hearing conducted by Defendant Williams on January 12 and 13, 2005. In the alternative, I recommend that the Court dismiss that claim under Fed.R.Civ.P. 12(b)(6).

*486

3. Hearing Conducted by Defendant Don on January 26, 2005

I reach the same conclusion (that I reached in Parts III.G.l. and III.G.2. of this Report-Recommendation) with regard to Plaintiffs procedural due process claim against Defendant Don arising out of the disciplinary hearing he conducted on January 26, 2005.

Even when construed with the utmost of special leniency, Plaintiffs Complaint alleges facts plausibly suggesting that the disciplinary hearing conducted by Defendant Don on January 26, 2005 (i.e., the hearing on the January 21, 2005, misbehavior report issued by Defendant Em-rich) resulted in a sentence of fifty (50) days in S.H.U. confinement. (Dkt. No. 1, ¶ 6, Attached Page 13-14 [Plf.’s Compl.].) Furthermore, even if I were to proceed to an analysis of the record evidence establishing how much time Plaintiff served in S.H.U. as a result of this disciplinary conviction (under a summary judgment analysis), I would find that Plaintiff has failed to establish that he possessed (at the disciplinary hearing) a liberty interest that was protected by the Fourteenth Amendment. This is because the record contains uncontroverted evidence of two facts: (1) the disciplinary hearing in question resulted in a

stated

sentence of only thirty (30) days in S.H.U. confinement (and, from Plaintiffs perspective, an

effective

sentence of fifty days in S.H.U., due to the fact that the sentence was to run consecutively to a previously imposed sentence),

154

with a corresponding loss of privileges; and (2) in any event, Plaintiff did not serve any of that sentence since the sentence was eliminated on April 4, 2005, upon discretionary review by Deputy Superintendent Doldo.

155

In his Opposition Memorandum of Law, Plaintiff entirely fails to address Defendants’ argument that, because Plaintiff did not end up serving any of the sentence imposed by Defendant Don on January 26, 2005, his Due Process claim fails. (Dkt. No. 42, Part 3, at 12-14 [Plf.’s Opp. Memo, of Law].) As explained above in Part II.A. of this Report-Recommendation, where a plaintiff has failed to respond to an argument in a defendant’s properly filed and facially meritorious memorandum of law (submitted in support of its motion for summary judgment), the plaintiff is deemed to have “consented” to that legal argument under Local Rule 7.1(b)(3) of the Local Rules of Practice for this Court.

156

In any event, even if I were to subject Defendants’ argument to the increased scrutiny appropriate for contested legal arguments, I would find Defendants’ argument persuasive.

Because Plaintiff did not (in connection with his January 26, 2005, disciplinary hearing) enjoy a liberty interest that was protected by the Fourteenth Amendment, the Court need not, and I do not, proceed to Defendants’ alternative argument that Plaintiff has failed to establish that Defendant Don denied Plaintiff any process to which he was due at that hearing. (Dkt. No. 39, Part 45, at 12 [Defs.’ Memo, of Law].)

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss Plaintiff’s procedural due process claims regarding the disciplinary hearing conducted by Defendant Don on January 26,

*487

2005. In the alternative, I recommend that the Court dismiss that claim under Fed.R.Civ.P. 12(b)(6).

4. Claim Under New York State Constitution

As I stated above in Part IA. of this Report-Recommendation, ■ Plaintiff also asserts, with regard to his disciplinary hearing, a claim under Article 1, Section 6 of the New York State Constitution. Under the circumstances, I find that the Court should decline to exercise supplemental jurisdiction over this pendent state law claim because (1) grounds exist supporting the dismissal of Plaintiffs federal claims, and (2) Plaintiffs state law claims lack evidentiary support for the same reasons as do his federal claims.

157

For these reasons,

I recommend that, under Fed.R.Civ.P. 12(b)(6), the Court dismiss Plaintiff’s claim under Article 1, Section 6 of the New York State Constitution.

H. Whether Plaintiffs Inadequate-Prison-Conditions Claim Should Be Dismissed for Failure to State a Claim or, in the Alternative, Due to Lack of Evidence

As stated above, Defendants argue that Plaintiffs inadequate-prison-conditions claim should be dismissed because the conditions in question were not sufficiently serious to support such a claim (based on Plaintiffs own allegations or, in the alternative, based on the record evidence).

158

Generally, to prevail on a claim of inadequate prison conditions, a plaintiff must show two things: (1) that the conditions of his confinement resulted in deprivation that was

sufficiently serious;

and (2) that the defendant acted with

deliberate indifference

to the plaintiffs health or safety.

Farmer v. Brennan,

511 U.S. 825, 834 , 114 S.Ct. 1970 , 128 L.Ed.2d 811 (1994). Specifically, with regard to the first prong of this test, “the plaintiff must demonstrate that the conditions of his confinement resulted in ‘unquestioned and serious deprivations of basic human needs’ or ‘deprive[d] inmates of the minimal civilized measures of life’s necessities.’ ”

159

For example, a prisoner must demonstrate that he has been deprived of a “single, identifiable human need such as food, warmth, or exercise.”

160

If, however, the condition is not sufficiently prolonged or severe, it does not rise to the level of an Eighth Amendment violation.

161

As recognized by the Supreme Court, “the Constitution does not mandate comfortable prisons,” and conditions that are “restrictive

*488

and even harsh ... are part of the penalty that criminal offenders pay for their offenses against society.”

162

A “deprivation of toiletries, and especially toilet paper,

can

rise to the level of unconstitutional conditions of confinement. ...”

Trammell v. Keane,

338 F.3d 155 , 165 (2d Cir.2003) [citations omitted; emphasis added]. However, generally, a denial of toilet paper and soap for a

temporary

period must be accompanied by other deprivations to rise to the level of an Eighth Amendment violation.

See, e.g., Wright v. McMann,

387 F.2d 519 (2d Cir. 1967) (allegations that prisoner was denuded and exposed to bitter cold in solitary confinement cell for eleven days, that he was deprived of basic elements of hygiene such as soap and toilet paper, and that cell was filthy, without adequate heat, and virtually barren would, if established, constitute cruel and unusual punishment in violation of the Eighth Amendment);

Atkins v. County of Orange,

372 F.Supp.2d 377, 404, 406 (S.D.N.Y.2005) (“The failure to regularly provide prisoners with ... toilet articles [for one month] including soap, razors, combs, toothpaste, toilet paper, access to a mirror and sanitary napkins for female prisoners constitutes a denial of personal hygiene and sanitary living conditions.”) [internal quotation marks and citations omitted],

Here, even when construed with the utmost of special leniency, Plaintiffs Complaint does not allege facts plausibly suggesting that the conditions of confinement to which he was allegedly subjected by Defendant Sheridan while in the Gouverneur C.F. Short-Term S.H.U. between January 8 and 20, 2005, were sufficiently serious for purposes of the Eighth Amendment. Specifically, Plaintiffs Complaint alleges that “[o]ver the course of the next few days [following January 8, 2005], Officers McAdam, Sheridan and Emrich harassed, verbally abused and threatened me [at Gouverneur C.F.’s Short-Term S.H.U.]. Whenever Off. Sheridan addressed me, he uttered profanities to me, and he withheld basic amenities from me, such as toilet paper and soap, on several occasions.” (Dkt. No. 1, ¶ 7, “Twelfth Cause of Action” [Plf.’s Compl.]; Dkt. No. 1, ¶ 6, Attached Pages 8-9 [Plf.’s Compl.].) Plaintiff further alleges that he was transferred from the Short-Term S.H.U. to the Long-Term S.H.U. (also known as the “S-Block” S.H.U.) on January 20, 2005. (Dkt. No. 1, ¶ 6, Attached Page 13 [Plf.’s Compl.].)

Conspicuously missing from Plaintiffs otherwise-detailed Complaint is any factual allegation plausibly suggesting that, while Plaintiff was in the S-Block S.H.U., Defendant Sheridan

continuously

denied Plaintiff toilet paper and soap. Rather, as explained above, Plaintiff alleges that Defendant Sheridan denied Plaintiff toilet paper and soap “on several occasions” during “the few days” that followed January 8, 2005. Furthermore, conspicuously missing from Plaintiffs otherwise-detailed Complaint is any factual allegation plausibly suggesting that, at any point during entire period during which Plaintiff was in the Short-Term S.H.U., Defendant Sheridan deprived Plaintiff of food, clothing, bedding, heat, running water, showers, or medicine. Simply stated, a mere denial of the toilet paper and soap on several occasions for a few days is, while dismaying and unprofessional, not a denial of “the minimal civilized measure of life’s necessities,” as required by

Farmer,

511 U.S. at 834 , 114 S.Ct. 1970 .

See Davidson v. Murray,

371 F.Supp.2d 361, 372-73 (W.D.N.Y.2005) (“[Occasional or temporary deprivations of personal items [such

*489

as toilet paper and cleaning supplies],” without more, does not constitute a sufficiently serious deprivation under the Eighth Amendment).

163

In any event, even if the Court were to find that Plaintiffs Complaint had sufficiently stated an Eighth Amendment claim against Defendant Sheridan, I would report that I agree with Defendants that the record (and in particular, Plaintiffs deposition transcript) contains no evidence that Defendant Sheridan deprived Plaintiff of anything but toilet paper and soap for a thirteen-day period. (Dkt. No. 39, Part 45, at 7 [Defs.’ Memo, of Law].) Furthermore, I note that the record contains uncontradicted evidence that, during the period of time in which Plaintiff was actually in the Short-Term S.H.U. (i.e., January 6 to 21, 2005), Plaintiff was seen by medical staff at Gouverneur C.F. on at least four occasions: on January 6, 8, 12, and 20, 2005. (Dkt. No. 39, Part 43, at 2-4 [Ex. A to Kasulke Decl., attaching Plaintiffs Ambulatory Health Records].) His medical records memorializing those visits reflect no request by Plaintiff for toilet paper, nor a complaint by Plaintiff regarding any medical consequences resulting from the denial of toilet paper and soap.

(Id.)

Nothing in Plaintiffs Opposition Memorandum of Law persuades me that the deprivation of toilet paper and soap was sufficiently serious under the Eighth Amendment. (Dkt. No. 42, Part 3, at 9-12 [Plf.’s Memo, of Law].) Plaintiffs argument that the deprivation was

intentional

is, while perhaps true, not material to the first prong of the above-stated Eighth Amendment test.

(Id.

at 10.) His assertion that, on at least one occasion, the deprivation of toilet paper required him to •wipe his rectum with his underwear is not sworn and thus does not constitute evidence sufficient to oppose a motion for summary judgment.

(Id.)

Nor would evidence of his need to use his underwear in that way constitute evidence of a deprivation

different

from a deprivation of toilet paper. Similarly, his assertion that he experienced “humiliation^] ... [and]

extreme

feelings of marginality and ‘nobodiness’” is also not sworn — nor would it constitute a deprivation of “life’s necessities” under the Eighth Amendment and

Farmer,

511 U.S. at 834 , 114 S.Ct. 1970 .

(Id.

at 11 [emphasis in original].) Finally, the accompanying utterance of profanities by Defendant Sheridan also does not constitute a deprivation of

life’s necessities. (Id.

at 10 [emphasis in original].)

164

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss Plaintiff’s inadequate-prison-conditions claim against Defendant Sheridan. In the alternative, I recommend that the

*490

Court dismiss that claim under Fed. R.Civ.P. 12(b)(6).

I. Whether Plaintiffs Harassment Claim Should Be Dismissed for Failure to State a Claim or, in the Alternative, Due to Lack of Evidence

As stated above, Defendants argue that Plaintiffs harassment claim should be dismissed because the conduct in question was not sufficiently serious to support such a claim (based on Plaintiffs own allegations or, in the alternative, based on the record evidence).

165

It is well established in the Second Circuit that verbal harassment of inmates by prison officials, unaccompanied by any injury — no matter how inappropriate, unprofessional, or reprehensible it might seem — does not rise to the level of a violation of the Eighth Amendment.

166

Nor do threats, unaccompanied by any injury, amount to such a violation.

167

It should be noted that, generally, the injury referred to in the previous two sentences must be

physical

in nature.

168

It is true

*491

that, under certain circumstances, a prison official’s infliction of

psychological

pain on an inmate may constitute an Eighth Amendment violation; however, to do so, the psychological pain must be (1) intentionally inflicted and (2) more than

de minimis

in nature.

169

Here, Plaintiffs harassment claim against Defendants McAdam, Emrich and Sheridan is based, in part, on the same factual allegations as is his inadequate-prison-conditions claim against Defendant Sheridan (which is discussed above in Part III.H. of this Report-Recommendation). Specifically, Plaintiffs Complaint alleges as follows:

Over the course of the next few days [following January 8, 2005], Officers McAdam, Sheridan and Emrich harassed, verbally abused and threatened me [in the Short-Term S.H.U.]. Whenever Off. Sheridan addressed me, he uttered profanities to me, and he withheld basic amenities from me, such as toilet paper and soap, on several occasions.

On one occasion, I peered out of my cell door window, as Off. McAdam would regularly bypass my cell while offering services to all the other prisoners, such as access to books and magazines. As he passed by my cell, he ordered me to ‘get off the window and mind your own business.’ As I was explaining why I was looking out the window, another officer came up to the door and struck it, then yelled: ‘You heard what the officer said! Go and sit the f* * * down!’ He then noticed me attempting to locate his name tag, stood on his toes, stuck his chest out and said: ‘Is that what you want to see? Emrich, the next officer that’s going to kick your dumb f* * *ing ass!’

*492

(Dkt. No. 1, ¶ 7, “Fifth Cause of Action” [Plf.’s Compl.]; Dkt. No. 1, ¶ 6, Attached Pages 8-9 [Plf.’s Compl.].) In addition, Plaintiff alleges that, on or about Monday, January 10, 2005, Defendant McAdam intentionally filed a false misbehavior report against him (charging him with “violent conduct”). (Dkt. No. 1, ¶ 7, “Fifth Cause of Action” [Plf.’s Compl.]; Dkt. No. 1, ¶ 6, Attached Pages 9-13 [Plf.’s Compl.].) Finally, he alleges that the harassment caused him to suffer “mental duress.” (Dkt. No. 1, ¶ 7, “Fifth Cause of Action” [Plfi’s Compl.].)

Even when construed with the utmost of special leniency, Plaintiffs Complaint does not allege facts plausibly suggesting that the conduct of Defendants McAdam, Em-rich and Sheridan — when viewed either separately or together — rose to the level of a violation of the Eighth Amendment. Conspicuously missing from Plaintiffs otherwise — detailed Complaint is any factual allegation plausibly suggesting that, at any point during entire period during which Plaintiff was in the Short-Term S.H.U., the harassment of Defendants McAdam, Emrich and Sheridan caused Plaintiff either (1) a physical injury or (2) a psychological injury that was anything more than

de minimis

in nature. For example, Plaintiff does not allege that the “mental duress” he experienced caused him depression, nausea, hyperventilation, headaches, insomnia, dizziness, and/or weight loss. This case is analogous to several cases from within this Circuit that have found a plaintiffs claims of psychological injury to be

de minimis

in nature.

170

In his Opposition Memorandum of Law, Plaintiff alleges for the first time that the harassment caused him to experience “humiliation!,] ... [and]

extreme

feelings of marginality and ‘nobodiness.’ ” (Dkt. No. 42, Part 3, at 11 [Plf.’s Memo, of Law] [emphasis in original].) As an initial matter, I note that, while special solicitude permits a

pro se

plaintiff to effectively amend the allegations of his complaint while responding to a motion to dismiss for failure to state a claim (which, typically, comes relatively early in an action),

171

it does

not

permit him to do so while responding to a motion for summary judgment (which, typically, comes relatively late in an action, for example, where, as here, after the defendants have completed discovery based on the allegations contained in the plaintiffs complaint).

172

As

*493

explained above in Part II.A. of this Report-Recommendation, even

pro se

plaintiffs must obey the Court’s procedural rules.

173

In any event, the new allegations would not elevate Plaintiffs alleged psychological injuries above a

de minimis

level.

174

Even if the Court were to find that Plaintiffs Complaint had sufficiently stated an actionable harassment claim against Defendants McAdam, Emrich and Sheridan, I would report that I agree with Defendants that the record contains no evidence that the harassment by Defendants McAdam, Emrich and Sheridan caused Plaintiff to experience either (1) a physical injury or (2) a psychological injury that was anything more than

de minim-is

in nature.

(See generally

Dkt. No. 39, Part 4, at 54-55, 58, 65-66, 106-07, 139, 207-08, 216-21 [Ex. A to Seaman Affid., attaching Plf.’s deposition transcript, containing relevant portions of Plaintiffs testimony regarding the harassment].)

To the contrary, Plaintiffs medical records from the time period in question (i.e., January 6 to 21, 2005) reflect no complaint by Plaintiff of any psychological injury (or physical manifestation thereof), or any request for any mental health treatment. (Dkt. No. 39, Part 43, at

2-4

[Ex. A to Kasulke Deck, attaching Plaintiffs Ambulatory Health Records].) Finally, to the extent that Plaintiffs papers can be liberally construed as arguing that he sustained a

physical injury

that consisted of his having to endure restricted living conditions in disciplinary confinement following his disciplinary conviction and sentence on the allegedly false misbehavior report authored by Defendant .McAdam on or about January 10, 2005 (charging Plaintiff with “violent conduct”), three points bear mentioning: (1) I can find no record evidence that any such “physical injury” was sufficiently serious for purposes of the Eighth Amendment; (2) I can find no record evidence that any such “physical injury” was caused by the alleged harassment of Defendants Emrich and Sheridan; and (3) I can find no record evidence that Defendant McAdam’s January 10, 2008, misbehavior report, which was not subsequently reversed on appeal, was indeed

false.

For these reasons,

I recommend that, under Fed.R.Civ.P. 56, the Court dismiss Plaintiffs harassment claim against Defendants McAdam, Emrich and Sheridan. In the alternative, I recommend that the Court dismiss that claim under Fed. RCiv.P. 12(b)(6).

J. Whether Plaintiffs Inadequate-Medical-Care Claim Should Be Dismissed for Lack of Evidence

As stated above, Defendants argue that Plaintiffs inadequate-medical-care claim

*494

should be dismissed because there is no evidence that he had a sufficiently serious medical need and, in any event, there is no evidence that Defendant Kasulke acted with a sufficiently culpable state of mind with regard to that medical need.

175

Generally, for a prisoner to prevail on a claim of inadequate medical care, he must show two things: (1) that he had a

sufficiently serious

medical need; and (2) that the defendant was

deliberately indifferent

to that serious medical need.

Estelle v. Gamble,

429 U.S. 97, 104 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976);

Chance v. Armstrong,

143 F.3d 698, 702 (2d Cir. 1998).

For the sake of brevity, I will assume that, during the time in question, Plaintiff possessed a sufficiently serious medical need under the Eighth Amendment. The problem (at least from Plaintiffs perspective) is that he has adduced no admissible record evidence establishing that Defendant Kasulke acted with a sufficiently culpable state of mind with regard to that medical need. As the Supreme Court has observed, “[Deliberate indifference describes a state of mind more blameworthy than negligence.”

176

Rather, deliberate indifference is a state of mind akin to

criminal

recklessness.

177

Here, the admissible record evidence does not establish any such recklessness. More specifically, in thirteen paragraphs of their Rule 7.1 Statement, Defendants assert, in chronological order, numerous facts regarding the medical care that Defendant Kasulke (and Nurse Theriault at Gouvemeur C.F.) gave Plaintiff between January 6, 2005, and April 28, 2005. (Dkt. No. 39, Part 44, ¶¶ 38-41, 85-

*495

93 [Defs.’ Rule 7.1 Statement].) Defendants support each of these factual assertions with accurate record citations, as they are required to do under Local Rule 7.1(a)(3).

(Id.)

In his opposition papers, Plaintiff does not submit a Rule 7.1 Response that “mirror[s] [Defendants’ Rule 7.1 Statement] by admitting and/or denying each of [Defendants’] assertions in matching numbered paragraphs,” as he is required to do under Local Rule 7.1(a)(3). Instead, Plaintiff submits what he calls an “Unsworn Declaration / 7.1 Statement of Facts / Affirmation in Support of Petition.” (Dkt. No. 42, Part 1, at 3.) Buried in that thirty-nine-page document are sixteen paragraphs that (in topical, not chronological order) are deficient in several ways: (1) they deny only

some

of Defendants’ factual assertions, failing to deny others; (2) they either fail to support any denials with accurate citations to admissible record evidence, or they support those denials with only challenges to the credibility of certain affidavit testimony relied on by Defendants; and (3) they assert additional facts that are either unsupported by accurate citations to admissible record evidence or that are immaterial to the issue of whether Defendant Kasulke was deliberately indifferent to any of Plaintiffs serious medical needs. (Dkt. No. 42, Part 1, ¶¶ 108-123.)

Given these patent flaws in Plaintiffs Rule 7.1 Response, I decline (and I recommend that the Court also decline) to engage in the

sua sponte

comparison of unmatching factual assertions contained in Plaintiffs Rule 7.1 Response, and scouring of the record, that would be necessary to determine if the record contains admissible evidence creating an issue of fact regarding each of the assertions made by Defendants. The Court has no such duty, even if the non-movant is proceeding

pro se. (See, supra,

note 53 of this Reporh-Recommendation.) This is because even

pro se

plaintiffs must obey the Court’s procedural rules.

(See, supra,

note 54 of this Report-Recommendation.) In particular, this Court has rather consistently enforced Local Rule 7.1(a)(3), by deeming facts set forth in a moving party’s statement to have been admitted where the opposing party has failed to properly respond to that Statement — even where the opposing party was proceeding

pro se

in a civil rights case.

(See, supra,

note 55 of this Report-Recommendation.)

Deemed admitted, then, are the factual assertions contained in Paragraphs 38-41 and 85-93 of Defendants’ Rule 7.1 Statement. Among other things, those facts establish as follows: (1) within five minutes after Plaintiff had been placed in his cell in S.H.U. following the use of force on January 6, 2005, Nurse Theriault visited him, asked him what injuries he was complaining about, did not record his torso and lip injuries in writing with complete accuracy (minimizing those injuries in certain respects), but gave Plaintiff Ibuprofen for his back pain;

178

(2) Plaintiff complained of continued back pain on January 8 and 12, 2005, and was placed on a schedule to see a physicia

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