BRENDA K. SANNES, District Judge.
Plaintiff pro se Sir Jules Murray brought this action against Defendants Albert Prack and John Miller under 42 U.S.C. § 1983 alleging that the Defendants violated his right to due process under the Fourteenth Amendment while Plaintiff was confined at the Clinton Correctional Facility ("Clinton"). Dkt. No. 1. In the verified complaint Plaintiff alleged that he was found guilty of violating inmate rule 104.11, proscribing violent conduct, and inmate rule 104.12, proscribing leading or organizing, based upon his talk at a Nation of Islam religious service, which was tape recorded,
On October 30, 2015, the Defendants filed a motion for summary judgment arguing that the Plaintiff's complaint should be dismissed because he received all of the process he was due. Dkt. No. 22. Defendants served Plaintiff with a Notification of the Consequences of Failing to Respond to a Summary Judgment Motion, in accord with N.D.N.Y. Local Rule 56.2, informing Plaintiff, inter alia, that if he does not file a proper response to the motion, the Court "may grant the motion and dismiss some or all of your claims," and "may deem you to have conceded the defendant's arguments." Dkt. No. 22, p. 3. Although the docket indicated that Plaintiff was an inmate at Upstate Correction Facility, counsel for the Defendants discovered that he had been transferred to the Five Points Correction Facility, and served the summary judgment paperwork to him there.
This matter was referred to United States Magistrate Judge Christian F. Hummel who, on August 15, 2016, issued a Report-Recommendation and Order ("R & R") recommending that Defendants' motion for summary judgment be granted. Dkt. No. 24, p. 21.
In a letter dated September 1, 2016, and filed on September 6, 2016, Plaintiff objected to the Report-Recommendation. Dkt. No. 25.
This court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F.Supp.3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id.
Summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In re World Trade Center Lower Manhattan Disaster Site Litig., 758 F.3d 202, 210 (2d Cir. 2014). In ruling on a summary judgment motion, the court "must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). The question of whether evidence supporting a prison disciplinary decision affecting an inmate's liberty interest was sufficient to satisfy due process is a question of law for the Court. Sira v. Morton, 380 F.3d 57, 76 (2d Cir. 2004).
Plaintiff has raised specific objections to the sufficiency of the evidence underlying the disciplinary determination and to the fairness and impartiality of the hearing officer. Dkt. No. 25. Plaintiff, however, did not present these arguments to the Magistrate Judge; Plaintiff failed to file any response to the Defendants' summary judgment motion. In this situation, it appears to be within the Court's discretion whether to even consider Plaintiff's objections. See, e.g., Walker v. Stinson, 205 F.3d 1327 (2d Cir. 2000) (noting that the district court did not abuse its discretion in refusing to consider qualified immunity defense that the defendants failed to raise before the magistrate judge); cf. Stephens v. Tolbert, 471 F.3d 1173 (11th Cir. 2006) (finding that district court had discretion to consider and accept an argument that had not been presented to the magistrate judge).
In this case, while Plaintiff did not raise these arguments before Magistrate Judge Hummel, Plaintiff's assertion that his speech was insufficient to support the disciplinary determination is at the heart of his due process claim. It was alleged in his verified complaint and was thoroughly addressed by Magistrate Judge Hummel in the Report-Recommendation. The Court also notes that the notice providing Plaintiff with the due date for his response to the motion for summary judgment was mailed to a correctional facility from which Plaintiff had been transferred. Dkt. No. 23. Although Plaintiff is responsible for his failure to apprise the Court of his change of address, and Plaintiff had ample time to respond to the October 30, 2015 motion for summary judgment before the issuance of the August 15, 2016 Report-Recommendation, in light of all of the circumstances in this case, the Court will consider Plaintiff's Objections.
Plaintiff argues that statements in his speech were taken "out of context;" that he never "suggest[ed] or impl[ied] any violence towards anyone;" and that he was "peacefully speaking on and trying to find a solution to the injustices taking place in the facility." Dkt. No. 25, pp. 1-2. Plaintiff also cites to the fact that he prevailed in his challenge in state court to have the determination expunged from his institutional record. Dkt. No. 25, p. 2.
The fact that there was insufficient evidence to support the disciplinary determination under New York State law does not mean that there was insufficient evidence to afford due process because the standard required by New York State law "is sterner" than the standard necessary to afford due process. Sira, 380 F.3d at 76 n.9. "New York law requires prison disciplinary rulings to be supported by sufficiently relevant and probative information to constitute substantial evidence." Id. (quoting Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 729, 565 N.E.2d 477 (1990) (internal quotation marks omitted)). Due process, on the other hand, is afforded if the determination is supported by "some reliable evidence." Sira, 380 F.3d at 76; Luna v. Pico, 356 F.3d 481, 486 (2d Cir. 2004). The Supreme Court established the "some evidence" standard in Superintendent v. Hill, 472 U.S. 445, 447 (1985), and the Second Circuit has held that "only `reliable' evidence can constitute `some evidence.'" Sira, 380 F.3d at 76.
"Judicial review of the `some evidence' standard is narrowly focused." Id. The Supreme Court has explained:
Superintendent v. Hill, 472 U.S. at 447. The Supreme Court "declined to adopt a more stringent evidentiary standard," noting that "[p]rison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances." Id., at 456. In Superintendent v. Hill, two inmates were disciplined for assault based upon evidence that a prison guard found another inmate "bleeding from the mouth and suffering from a swollen eye" on a walkway and two of the three inmates disciplined were jogging away together down the walkway. Id., at 447-48. The two inmates asserted their innocence; the victim provided written statements that they did not cause his injuries; and there was "no direct evidence identifying any one of the three inmates as the assailant." Id., at 457. Although the Supreme Court noted that this evidence "might be characterized as meager," the Court held that "the record is not so devoid of evidence that the findings of the disciplinary board were without support or otherwise arbitrary." Id., at 457; cf. Zavaro v. Coughlin, 970 F.2d 1148, 1152-53 (2d Cir. 1992) (holding that statements that "every inmate" participated in a riot, when at least 100 inmates were present in a large mess hall and the statements were made by guards assaulted during in the riot, are "so blatantly implausible when taken literally that they do not constitute even `some evidence' of a particular inmate's guilt").
In this case, Plaintiff was convicted under disciplinary rule 104.11, which states that "[a]n inmate shall not engage in any violent conduct or conduct involving the threat of violence," and under disciplinary rule 104.12 which states that "[a]n inmate shall not lead, organize, participate, or urge other inmates to participate in a work-stoppage, sit-in, lock-in, or other actions which may be detrimental to the order of facility." See In the Matter of Sir Jules Murray, 104 A.D.3d at 1008; 7 NYCRR 270.2[B][5][ii] and [iii].
After reviewing this issue de novo, the Court concurs with Magistrate Judge Hummel's determination that the "some reliable evidence" standard has been met here. As a preliminary matter, Plaintiff acknowledged making the speech, which was recorded and played at the hearing. Dkt. No. 22-10, p. 12. With respect to the organizing violation (Rule 104.12), a certified transcript of the tape recording establishes that Plaintiff was urging inmates to take some action in response to wrongful beatings by corrections officers. Plaintiff has acknowledged telling the inmates that "a couple of the Muslim brothers had got assaulted during Ramadan and I felt that it was just because . . . we were on Ramadan and they see us gathering together." Dkt. No. 22-3, p. 21; see Dkt. No. 22-10, p. 12-13. During the speech he critically noted that no one had set up a "watch" beforehand. Dkt. No. 22-10, p. 12. Plaintiff told the inmates "you need to unite," and repeatedly asked the inmates what they were going to do. Id., pp. 12-14.
Although the sufficiency of the evidence that Plaintiff engaged in "conduct involving the threat of violence" in violation of Rule 104.11 presents a closer question, the Court finds that the standard was met for that violation as well. The transcript indicates that after describing a wrongful beating of a fellow Muslim, Plaintiff told the inmates that this could happen if they just "look at [a prison official] wrong." Dkt. No. 22-10, p. 12. Plaintiff asked them what they would do if officials "come along and kill me," and asked whether it would "take one of them killing us for us to do something?" Id., p. 13. Plaintiff said "we not going to be at all if we keep letting this happen," and questioned why it is that they would "do something way faster," if "somebody slapped" the kufi off of Louis Farrakhan, than if "they beat up my homie." Dkt. No. 22-10, p. 13. Plaintiff noted that it could be "me next," and noted that he would be "here for thirteen years for beating up the C.O.s in county." Id., p. 14. Plaintiff said "that [apparently referring to his conviction] can be their excuse," presumably referring to a justification for beating him up. Id. The combined effect of Plaintiff's exhortations to do something "now," in response to the beatings of fellow Muslims; that creating a paper trail is "not good enough," that officers "don't attack that easy, with being a large group like this," but they have "the upper hand," and are "going to do something," when coupled with a reference to his conviction for beating up corrections officers, is some evidence of "conduct involving the threat of violence." Thus, the record is not "so devoid of evidence" that Defendant Miller's findings were "without support or otherwise arbitrary." Superintendent v. Hill, 472 U.S. at 457.
The Court has reviewed for clear error the remaining portions of the Report-Recommendation to which Plaintiff has not objected, and found none.
The Court Clerk also served Plaintiff with a Notification of the Consequences of Failing to Respond to a Summary Judgment Motion, in accord with N.D.N.Y. Local Rule 56.2. Dkt. No. 23. The Clerk notified Plaintiff that his response was due by November 30, 2015. Id. That Notice, however, was mailed to Plaintiff at the address on the Court's docket, at Upstate Correctional Facility. Id.
