USDC SDNY MEMORANDUM ENDORSEMENT DOCUMENT McGriff v. Superintendent Keyser et al. BLED DSO BLED DOC #: 7:17-cv-07307-NSR-PED DATE FILED: _10/12/2021 The Court has reviewed Defendants’ request for leave to file a motion for summary judgment (ECF No. 98), Plaintiff's letter requesting that the Court wait to address the request until Plaintiff was released on September 23, 2021 and could procure an attorney (ECF No. 99), and Plaintiffs letter notifying the Court of his new address (ECF No. 100).
The Court waives the pre-motion conference requirement and grants Defendants leave to file their proposed motion for summary judgment as follows: moving papers shall be served (not filed) on December 15, 2021; opposition papers shall be served (not filed) on January 14, 2022; reply papers shall be served on January 31, 2022. All motion papers shall be filed on the reply date, January 31, 2022. If Plaintiff has not obtained counsel by the reply date, Defendants shall file all motion papers, including Plaintiff's opposition papers. If Plaintiff has obtained counsel by the reply date, parties shall file their own papers. The parties shall provide two hard courtesy copies of all motion papers to Chambers as they are served. The Court has set the briefing schedule to afford Plaintiff time to find counsel. If Plaintiff is unable to comply with the current briefing schedule, he must timely seek an extension of his deadline to serve his opposition papers. The Clerk of Court is directed to terminate the motions at ECF No. 98 and 93, to mail a copy of this order to pro se Plaintiff at the address on ECF, and to show service on the docket. Dated: October 12, 2021 SO ORDERED: White Plains, NY ee Ohya HON-NECSONS. ROMAN UNITED STATES DISTRICT JUDGE
\ RS gris S~CRerrset >” STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL LETITIA JAMES DIVISION OF STATE COUNSEL ATTORNEY GENERAL LITIGATION BUREAU DIRECT DIAL: (212) 416-6551 September 15, 2021 Via ECF Honorable Nelson S. Roman United States District Judge Southern District of New York 300 Quarropas Street White Plains, New York 10601 Re: McGriff v. Keyser, No. 17 Civ. 7307 (NSR) Dear Judge Roman: This Office represents defendants William Keyser, Anthony Polizzi, and Stephen Keyser, (collectively “Defendants”) in the above-referenced matter. Pursuant to Judge Davison’s Order on August 4, 2021, and Your Honor’s Individual Practices, I write to respectfully request that the Court schedule a pre-motion conference in order to discuss the Defendants’ anticipated motion for summary judgment. Plaintiff, an inmate at Sullivan Correctional Facility (“Sullivan”), alleges that on October 19, 2015, Defendant Keyser wrote a misbehavior report charging him with drug possession and smuggling contraband. (Dkt. No. 32, | 8,12). Plaintiff was placed in SHU pending a hearing before Defendant Hearing Officer Polizzi, who found Plaintiff guilty and sentenced him to 45 days keeplock. Plaintiff contends that he did not receive due process at his disciplinary hearing, and that the conditions in SHU, where there was ongoing construction during the day, violated the Eighth Amendment. The sole claims remaining in this case are due process claims concerning the conduct of the disciplinary hearing against Defendants Polizzi and Keyser, and an Eight Amendment claim concerning the conditions in SHU against Defendant Superintendent Keyser. These claims are all meritless. 1. Plaintiff’?s Eighth Amendment Claim Fails Because He Failed to Exhaust his Administrative Remedies Prior to Filing this Action The Second Circuit has expressly held that the clear language of § 1997e(a) requires that exhaustion be completed prior to commencement of an action in court. Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001). Exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes.” Porter _v. Nussle, 534 U.S. 516, 532 (2002). Compliance with the particular prison’s administrative grievance procedure “define[s] the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). The exhaustion must be “[p]roper,” meaning that it must “compl[y] with an agency’s deadlines and 28 LIBERTY ST., NEW YORK N.Y. 10005 * PHONE (212) 416-8610 * FAX (212) 416-6075 *NOT FOR SERVICE OF PAPERS HTTP://WWW.AG.NY.GOV
imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). An inmate grievance procedure pursuant to DOCCS Directive 4040 requires an inmates to follow a three-step process (§ 701.5(a)-(b); 7 N.Y.C.R.R. § 701.5 (a)-(b). Plaintiff admits that he did not file a grievance concerning the noise while in SHU, and alleges that he grieved regarding the dusty food but did not receive any response at the time he commenced this action. Plaintiff thus failed to exhaust his Eighth Amendment claims, and they should be dismissed.
2. Defendant Superintendent Keyser was not Personally Involved in Any Constitutional Violation
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Shomo v. City of New York, 579 F.3d 176, 184 (2d Cir. 2009) (citation omitted). To hold a prison official liable under § 1983 “requires a showing of more than the linkage in the prison chain of command.” Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). Instead, plaintiffs must allege non-conclusory facts sufficient to establish that “each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, the only factual allegations in the Amended Complaint concerning Superintendent Keyser is that he was told, during rounds and by one letter, of the dusty food and noise issues in SHU. He is sued simply because of the high-ranking position he holds within DOCCS. This is insufficient to state a claim as a matter of law. See Ayers, 780 F.2d at 201. Additionally, receiving a letter from an inmate does not render the official personally involved with respect to the subject matter of the letter. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997). 3. Plaintiff Has Not Alleged a Deprivation of A Liberty Interest
The Second Circuit has instructed that “[r]estrictive confinements of less than 101 days do not generally raise a liberty interest … .” Davis v. Barrett, 576 F.3d 129, 133- 134 (2d Cir. 2009). Here, Plaintiff alleges that he was only sentenced to 45 days in keeplock, and there are no facts alleged to indicate that his keeplock confinement was unusual or different from routine restrictive confinement in keeplock or SHU. The allegations concerning dusty food and noise relate only to the pre-hearing time spent in SHU. He has thus failed to allege a liberty interest implicating the Due Process Clause, and the Court need proceed no further.
4. Plaintiff Received All the Process That Was Due In Any Event
Free access — add to your briefcase to read the full text and ask questions with AI
USDC SDNY MEMORANDUM ENDORSEMENT DOCUMENT McGriff v. Superintendent Keyser et al. BLED DSO BLED DOC #: 7:17-cv-07307-NSR-PED DATE FILED: _10/12/2021 The Court has reviewed Defendants’ request for leave to file a motion for summary judgment (ECF No. 98), Plaintiff's letter requesting that the Court wait to address the request until Plaintiff was released on September 23, 2021 and could procure an attorney (ECF No. 99), and Plaintiffs letter notifying the Court of his new address (ECF No. 100).
The Court waives the pre-motion conference requirement and grants Defendants leave to file their proposed motion for summary judgment as follows: moving papers shall be served (not filed) on December 15, 2021; opposition papers shall be served (not filed) on January 14, 2022; reply papers shall be served on January 31, 2022. All motion papers shall be filed on the reply date, January 31, 2022. If Plaintiff has not obtained counsel by the reply date, Defendants shall file all motion papers, including Plaintiff's opposition papers. If Plaintiff has obtained counsel by the reply date, parties shall file their own papers. The parties shall provide two hard courtesy copies of all motion papers to Chambers as they are served. The Court has set the briefing schedule to afford Plaintiff time to find counsel. If Plaintiff is unable to comply with the current briefing schedule, he must timely seek an extension of his deadline to serve his opposition papers. The Clerk of Court is directed to terminate the motions at ECF No. 98 and 93, to mail a copy of this order to pro se Plaintiff at the address on ECF, and to show service on the docket. Dated: October 12, 2021 SO ORDERED: White Plains, NY ee Ohya HON-NECSONS. ROMAN UNITED STATES DISTRICT JUDGE
\ RS gris S~CRerrset >” STATE OF NEW YORK OFFICE OF THE ATTORNEY GENERAL LETITIA JAMES DIVISION OF STATE COUNSEL ATTORNEY GENERAL LITIGATION BUREAU DIRECT DIAL: (212) 416-6551 September 15, 2021 Via ECF Honorable Nelson S. Roman United States District Judge Southern District of New York 300 Quarropas Street White Plains, New York 10601 Re: McGriff v. Keyser, No. 17 Civ. 7307 (NSR) Dear Judge Roman: This Office represents defendants William Keyser, Anthony Polizzi, and Stephen Keyser, (collectively “Defendants”) in the above-referenced matter. Pursuant to Judge Davison’s Order on August 4, 2021, and Your Honor’s Individual Practices, I write to respectfully request that the Court schedule a pre-motion conference in order to discuss the Defendants’ anticipated motion for summary judgment. Plaintiff, an inmate at Sullivan Correctional Facility (“Sullivan”), alleges that on October 19, 2015, Defendant Keyser wrote a misbehavior report charging him with drug possession and smuggling contraband. (Dkt. No. 32, | 8,12). Plaintiff was placed in SHU pending a hearing before Defendant Hearing Officer Polizzi, who found Plaintiff guilty and sentenced him to 45 days keeplock. Plaintiff contends that he did not receive due process at his disciplinary hearing, and that the conditions in SHU, where there was ongoing construction during the day, violated the Eighth Amendment. The sole claims remaining in this case are due process claims concerning the conduct of the disciplinary hearing against Defendants Polizzi and Keyser, and an Eight Amendment claim concerning the conditions in SHU against Defendant Superintendent Keyser. These claims are all meritless. 1. Plaintiff’?s Eighth Amendment Claim Fails Because He Failed to Exhaust his Administrative Remedies Prior to Filing this Action The Second Circuit has expressly held that the clear language of § 1997e(a) requires that exhaustion be completed prior to commencement of an action in court. Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001). Exhaustion requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes.” Porter _v. Nussle, 534 U.S. 516, 532 (2002). Compliance with the particular prison’s administrative grievance procedure “define[s] the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007). The exhaustion must be “[p]roper,” meaning that it must “compl[y] with an agency’s deadlines and 28 LIBERTY ST., NEW YORK N.Y. 10005 * PHONE (212) 416-8610 * FAX (212) 416-6075 *NOT FOR SERVICE OF PAPERS HTTP://WWW.AG.NY.GOV
imposing some orderly structure on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). An inmate grievance procedure pursuant to DOCCS Directive 4040 requires an inmates to follow a three-step process (§ 701.5(a)-(b); 7 N.Y.C.R.R. § 701.5 (a)-(b). Plaintiff admits that he did not file a grievance concerning the noise while in SHU, and alleges that he grieved regarding the dusty food but did not receive any response at the time he commenced this action. Plaintiff thus failed to exhaust his Eighth Amendment claims, and they should be dismissed.
2. Defendant Superintendent Keyser was not Personally Involved in Any Constitutional Violation
“[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Shomo v. City of New York, 579 F.3d 176, 184 (2d Cir. 2009) (citation omitted). To hold a prison official liable under § 1983 “requires a showing of more than the linkage in the prison chain of command.” Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985). Instead, plaintiffs must allege non-conclusory facts sufficient to establish that “each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here, the only factual allegations in the Amended Complaint concerning Superintendent Keyser is that he was told, during rounds and by one letter, of the dusty food and noise issues in SHU. He is sued simply because of the high-ranking position he holds within DOCCS. This is insufficient to state a claim as a matter of law. See Ayers, 780 F.2d at 201. Additionally, receiving a letter from an inmate does not render the official personally involved with respect to the subject matter of the letter. Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.1997). 3. Plaintiff Has Not Alleged a Deprivation of A Liberty Interest
The Second Circuit has instructed that “[r]estrictive confinements of less than 101 days do not generally raise a liberty interest … .” Davis v. Barrett, 576 F.3d 129, 133- 134 (2d Cir. 2009). Here, Plaintiff alleges that he was only sentenced to 45 days in keeplock, and there are no facts alleged to indicate that his keeplock confinement was unusual or different from routine restrictive confinement in keeplock or SHU. The allegations concerning dusty food and noise relate only to the pre-hearing time spent in SHU. He has thus failed to allege a liberty interest implicating the Due Process Clause, and the Court need proceed no further.
4. Plaintiff Received All the Process That Was Due In Any Event
The only process that an inmate is due at a disciplinary hearing is “advance written notice of the charges against him; a hearing affording him a reasonable opportunity to call witnesses and present documentary evidence; a fair and impartial hearing officer; and a written statement of the disposition, including the evidence relied upon and the reasons for the disciplinary actions taken.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citing Wolff v. McDonnell, 418 U.S. 539, 563- 567 (1974)). Furthermore, “judicial review of the written findings required by due process is limited to determining whether the disposition is supported by ‘some evidence.’” Id. (citing Superintendent v. Hill, 472 U.S. 445, 455 (1985). “This standard is extremely tolerant and is satisfied if there is any evidence in the record that supports the disciplinary ruling.” Sira, 380 F.3d at 69 (emphasis in original). Here, Plaintiff concedes that he was able to present witnesses and 28 LIBERTY ST., NEW YORK N.Y. 10005 • PHONE (212) 416-8610 • FAX (21 2) 416-6075 *NOT FOR SERVICE OF PAPERS in question. Plaintiff contends only that he was denied due process during his disciplinary hearing because Defendant Keyser was purportedly not able to specify the coded language used on Plaintiff’s phone call that indicated he was smuggling drugs, and there was thus not “substantial evidence” in the record to support Defendant Polizzi’s guilty verdict. But the Due Process Clause, even if applicable, would require only that there be “some evidence” in the record to support the disciplinary conviction. Sira, 380 F.3d at 69. Even were Keyser’s testimony to be disregarded, the misbehavior report and testimony of other witnesses were more than sufficient to meet this minimal standard. See Eleby v. Selsky, 682 F. Supp. 2d. 289, 293 (W.D.N.Y. 2010). Failure to consider all plaintiff’s objections would amount to harmless error in any event. Id.
5. Defendants Are Entitled to Qualified Immunity
The Second Circuit has instructed that “[t]he issues on qualified immunity are: (1) whether Plaintiff has shown facts making out [a] violation of a constitutional right; (2) if so, whether that right was ‘clearly established’; and (3) even if the right was ‘clearly established,’ whether it was ‘objectively reasonable’ for the officer to believe the conduct at issue was lawful.” Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). All Defendants are entitled to qualified immunity because Plaintiff does not make out a claim for a due process violation, as the time served in SHU did not implicate a liberty interest and he was afforded all process guaranteed in a disciplinary hearing. Additionally, the conditions while in SHU, were compelled by necessity, and a reasonable official could have believed that construction noise during the day did not implicate the Eight Amendment. In any event, a reasonable official in Defendants positions could have believed that the actions they are alleged to have taken did not violate the Constitution.
Respectfully submitted,
By: /s/ Jessica Acosta-Pettyjohn Assistant Attorney General Jessica.Acosta-Pettyjohn@ag.ny.gov cc: Dewitt McGriff DIN: 97-A-6773 Sullivan Correctional Facility P.O. Box 116 325 Riverside Drive Fallsburg, NY 12733 (Via First Class Mail) 28 LIBERTY ST., NEW YORK N.Y. 10005 • PHONE (212) 416-8610 • FAX (21 2) 416-6075 *NOT FOR SERVICE OF PAPERS pro se P letter dated 9/20/2021re 9/23/21 release date and response to / 23/2021 Defendants’ letter at ECF No.98.
SDNY Dew) i MG tt 4 9746772: UE CEIV TL CUMENT Sullivan Core, Fac: □□ FILED P.O. Box JIG mB) SEP 23-2021 | Ce Kivyside D CiVEe NELSON S. ROMAN TE 9/23/2021 _ fallsburg, WY, 12733 | Hon. Nelson S. Roman (PED) September 2O, 2021 | United States Désteich J uege | Southern District of Neue oe SOO. Qua r ropes Street White Plains’, NewYork JO&0! a □ Re MCGrifPv. Keyser, No. 17 Civ. 7307 CUSR) PED)
| Dear Judge Romda: |. L fecieved a le ter ftom the Atheney Cenerols Oice todas y of them (eguestirg on □□□ motion donterence. fan. The Couct. When Vou recieve this lef EL be peleasedl fran priser ger wut on G-23-2l+ | Once oat, Twill the Gict and the Ath ben. □□□□□□ fo fegistec my nes location, lequest That The Gyuct holol We wo the. pee- mote Confbrence._tyath| Fan □□□□ to obfas'7 Cou rnse/ tic The. oboe COS □□□ L relernee my Civil Comp lana whith hes merit , aS you. hove eo , to“ Combat Fri Si fous mote for | Summary Mela mont thet the detenclats voont » subir
| fo - Se
OMe . , 4 oO : ‘ A vsn AeWO IBA, 2 □□ | (GS EOS : cal iPS i owe ET: — Beuneie weantp = = + arene CQ =, OS □ La □□□ OE Sey] Vv = hn Ae a a | XY = . Z OCfeh sett gs SS = | “i SW Ss S = ! ef (S 8 {9 □ RE □□ □ Bg 2 sHYxX = = fy Y 4S 4 a = Ra 2. = i ‘thi aN Q ~Y a MA □□ . he ~ AR □□ po g a Su 288 ZS NS A C 2 | □ "4S 9 : a S S y 4 ~~ OW) g Cy □ . ‘ . > □ po Sy 4 q sS§ysk Ss LS 2 yy Leo Q S BS 2 □□ qo. =, AY Pee, OD AF □□□
‘ rf PS . wl OQ ee — 8 2 te ©. | mow 8 &S 6 = 4 j m ~ . Q x 2 — Org □□ LY *9e9 wg «BSE 3 □
Dewitt MGefh PI SCE 1b2-45 (30% ve J 8) Jamatca, Ny (1/434 i EP 27», FL]
Te = of the Chu □ United States District Cour: Southern District of New York _ [Fedlecal Butlins and United Shree CounP 200 Quarrhdas Street Ajte Llain MY {[040O/ . . Bet Indy -CV- 7307 (WSR) -(£ED) Date: September 22%, 202) | Dear Clerk _ _ Bis, ole Nir ss 4 Ss lo _fat Lr he □□□□□ ‘Y¥) NEA) (re 1 Oc O74 « QtHAT MO □□□□□ atadee cat. My Meal Locotin ladyreos) It □ YS 30 Ave ITT Os tf / j _
30 please send all Cogeswndence fo ] Yigal JOCATECA), The ghrye C4de □□ Le. SO LL fa Lh! Ye Atte THIOGYE fcF fs 3. □ s/f IZ S OfSO. £2, Z ao leer LO Ae
. . . BOSE XLfA FF , p □
| Deted* $207, 23, 20a)
UNITED STATES DISTRICT COURT ECE VE SOUTHERN DISTRICT OF NEW YORK
U.S. CERTIFICATE OF SERVICE wee
1, Dewitt McGriff, certify that on 23 day of Sep tem ber 20. 21, I mailed a copy of the following document(s) and all attachments: beffer_inocmina the Court of my Cf [Ifist all Documents and Attachments] of □□□ ress
to the following parties: C ey 4 2 Un, of Sth, fos ‘Distciet Cou Ft + Place Name and Address Where Documents Were Sent] Sor rhea D istrict of New Yutk, Un ted 4S Ets s Cuort hy $e. Ze Quaccopas Street, white la 23 MY. fObO/ .- □ b Lice of the Attoney General 28 Liberty Ste 5 Mt, My, 10005 d I certify that these documents were placed in a United States Postal Service mailbox on the below indicated date for forwarding to the above parties by First Class Mail via U.S. Postal Service, I further certify under penalty of perjury that the foregoing is true and correct pursuant to 28 U.S.C, § 1746. .
Executed on: Sept. ZA , 202 f. Jamaica, New York
oe □□ [ Signature] _f D) oy Y Hye YY /', f | PrineName] Dee □□
fas ja _ 8 yO} ~ I = € oO hy OQ = | aS. : ob — ls CPC 3 S OS a = ms 5 t □□□ oO . gy Qo □□ =r = A Wd □ & □□ SES 3 Bye se 3 23” SES 4 — SEX Ws ta Vz 8S ~ Ss 4
□□ SR
= at □□
@ □□
7 . . \ j □□□