Ramsey v. Goord

Decision Date24 September 2009
Docket NumberNo. 05-CV-047.,05-CV-047.
Citation661 F.Supp.2d 370
PartiesMichael F. RAMSEY, Plaintiff, v. Glenn S. GOORD, et al., Defendants.
CourtU.S. District Court — Western District of New York

Michael F. Ramsey, Walkill, NY, pro se.

Andrew M. Cuomo, Attorney General, State of New York, Kim S. Murphy, Assistant Attorney General, of Counsel, Buffalo, NY, for Defendants.



This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on November 18, 2005. On January 22, 2007, defendants filed a motion for summary judgment. On August 19, 2009, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendants' motion for summary judgment be granted in part and denied in part.

Plaintiff filed objections to the Report and Recommendation on September 2, 2009, and defendants filed a response thereto.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions of the parties, the Court adopts the proposed findings of the Report and Recommendation.1

Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motion for summary judgment is granted in part and denied in part.

The case is referred back to Magistrate Judge Foschio for further proceedings.



LESLIE G. FOSCHIO, United States Magistrate Judge.


This action was referred to the undersigned by Honorable Richard J. Arcara, on November 18, 2005, for all pretrial matters including report and recommendation on dispositive motions The matter is presently before the court on Defendants' motion for summary judgment (Doc. No. 22), filed January 22, 2007.


Plaintiff, proceeding pro se, commenced this civil rights action on January 25, 2005, while incarcerated at Southport Correctional Facility ("Southport"), in Pine City, New York, against 17 Defendants, all employees of New York State Department of Correctional Services ("DOCS"), including DOCS Commissioner Glenn S. Goord ("Goord"), DOCS Director of Special Housing Unit ("SHU") and Inmate Disciplinary Program Donald Selsky ("Selsky"), DOCS civilian hearing officer David Ryerson ("Ryerson"), DOCS Inmate Grievance Program ("IGP") Coordinator Thomas G. Eagen ("Eagen"), DOCS Deputy Commissioner John H. Nuttall ("Nuttall"), Southport Superintendent Michael McGinnis ("McGinnis"), Acting Southport Superintendent Paul Chappius ("Chappius"), Southport Assistant Deputy Superintendent of Program Services A. Bartlett ("Bartlett"), Southport Corrections Officers Captain M. Sheahan ("Sheahan"), Southport Food Service Administrator J. Irizarry ("Irizarry"), former Southport IGP Supervisor J. Hale ("Hale"), Southport IGP Supervisor J. Cieslak ("Cieslak"), Corrections Officer ("C.O.") Sergeant Litwiler ("Litwiler"), C.O. J. Ames ("Ames"), C.O. Clark ("Clark"), C.O. Held ("Held"), and Southport counselor P. Klatt ("Klatt") (together, "Defendants"). Plaintiff specifically asserted five claims alleging violations of his constitutional and statutory rights. By order filed August 15, 2005 (Doc. No. 4), District Judge William M. Skretny, sua sponte, dismissed several of Plaintiff's claims against some Defendants, such that the remaining claims include (1) denial of due process by Defendant Ryerson in connection with a July 15, 2002 disciplinary hearing ("the disciplinary hearing"), and subsequent appeal of the disciplinary hearing's July 24, 2002 determination ("disciplinary hearing determination") ("First Claim for Relief"); (2) violations of constitutional rights to free exercise, petition for redress of grievances, due process and equal protection by Defendants Klatt, Clark, Held, Irizarry, McGinnis, and Sheahan relative to a temporary removal of Plaintiff from Southport's kosher meal program ("Fourth Claim for Relief"), and (3) interference with Plaintiff's right to petition for redress of grievances by Defendants Ames and Litwiler in connection with the alleged confiscation of Plaintiff's legal and stationary materials ("Fifth Claim for Relief"). Accordingly, the action was terminated as against Defendants Goord, Selsky, Eagen, Chappius, Bartlett, Hale, and Cieslak. Id.

On January 22, 2007, Defendants filed the instant motion for summary judgment (Doc. No. 22) ("Defendants' motion"), supported by Defendants' Memorandum of Law in Support of Motion for Summary Judgment (Doc. No. 23) ("Defendants' Memorandum"), Statement of Undisputed Facts (Doc. No. 24) ("Defendants' Statement of Facts"), and the Declarations of Defendant Held (Doc. No. 25) ("Held Declaration"), Defendant Irizarry (Doc. No. 26) ("Irizarry Declaration"), Defendant Litwiler (Doc. No. 27) ("Litwiler Declaration"), Rabbi Howard Matasar (Doc. No. 28) ("Rabbi Matasar Declaration"), Defendant Ryerson (Doc. No. 29) ("Ryerson Declaration"), and Defendant Sheahan (Doc. No. 30) ("Sheahan Declaration"). In opposition to summary judgment Plaintiff filed on March 26, 2007, Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment (Doc. No. 37) ("Plaintiff's Memorandum"), the Affidavit of Michael F. Ramsey (Doc. No. 38) ("Plaintiff's Affidavit"), and a Statement of Disputed Material Facts (Doc. No. 39) ("Plaintiff's Statement of Facts"). In further support of summary judgment, Defendants filed on June 4, 2007, Defendants' Reply Declaration of Assistant Attorney General Kim S. Murphy ("Murphy") (Doc. No. 42) ("Murphy Reply Declaration"). Oral argument was deemed unnecessary.

Based on the following, Defendants' motion should be GRANTED.


The court separately states the facts relevant to the temporal and geographic nature of Plaintiff's two distinct claims, occurring at different correctional facilities and more than two years apart. At all times relevant to Plaintiff's claims, Plaintiff has been an inmate in the custody of DOCS.

Disciplinary Hearing

On July 11, 2002, Plaintiff, then incarcerated at Elmira Correctional Facility ("Elmira" or "the correctional facility"), in Elmira, New York, was issued an Inmate Misbehavior Report ("Misbehavior Report"), by Elmira C.O. Ley, charging Plaintiff with violating DOCS Rules 102.10 (spoken threat), 104.11 (threat of violence), and 107.11 (insolent, abusive, obscene language). Misbehavior Report at Bates No. 1. According to Ley's description of the predicate incident, on July 11, 2002, as Ley walked past Plaintiff's cell, Plaintiff, without any provocation, directed an obscene remark at Ley and verbally threatened to harm or kill Ley's wife, children, and other relatives. Id. Defendant O'Herron approved the Misbehavior Report, signing the report as the "Area Supervisor Endorser." Id.

Defendant civilian hearing officer Ryerson conducted a Disciplinary Hearing ("the disciplinary hearing"), regarding the charges, commencing on July 14, 2002,2 and concluding on July 24, 2002. Prior to the hearing, Plaintiff was permitted to select a DOCS employee assistant, and Sergeant M. Killacky ("Killacky"), one of the five assistants available and selected by Plaintiff, was permitted as Plaintiff's assistant. When Killacky advised Plaintiff that a document Plaintiff had requested, i.e., an investigative report prepared by one Sergeant O'Herron, did not exist, and questioned Plaintiff's request for an inmate witness whose cell, at the time of the incident, was located one floor above and 19 cells down the galley from Plaintiff's cell, Plaintiff became agitated and refused further assistance from Killacky. During the disciplinary hearing, Plaintiff requested the assistance of a Spanish speaking assistant, but Ryerson explained that such assistants were reserved for inmates who speak only Spanish and Plaintiff was not solely Spanish speaking. Disciplinary Hearing T. at Bates No. 14-15. Ryerson did, however, in response to Plaintiff's requests, provide Plaintiff with requested documents, requiring Ryerson to adjourn the hearing to permit Plaintiff time to review the documents. Id. at Bates No. 3 and 26.

Plaintiff requested as witnesses at the disciplinary hearing O'Herron, Ley, and two inmates housed on either side of Plaintiff's cell on July 11, 2002, including "Hamilton" and "Marcus." After three adjournments to permit Ryerson to secure the requested witnesses, Ryerson secured only O'Herron and Ley, and Marcus to testify, but not Hamilton who was on an extended court trip outside the prison. Disciplinary Hearing T. at Bates No. 24. Ryerson was unable to identify any other inmate housed on either side of Plaintiff at the time of the July 11, 2002. Id. at Bates No. 24.

Nevertheless, Marcus testified that he was transferred to the cell next to Plaintiff after the incident in question. Disciplinary Hearing T. at Bates No. 23-24. O'Herron testified in response to Plaintiff's questions regarding O'Herron's investigation of the incident prior to signing the Misbehavior Report, including questions as to whom O'Herron spoke with prior to endorsing the Misbehavior Report. Id. at Bates No. 29-30. Ley testified in response to Plaintiff's questions regarding an unrelated incident in which Ley allegedly threw coffee in Plaintiff's face. Id. at Bates No. 32-34. Ley denied throwing any coffee, and also testified that he was not a coffee drinker. Id. at Bates No. 34. Ryerson advised Plaintiff that whether Ley threw coffee at Plaintiff was irrelevant to the charges pending against Plaintiff in the Misbehavior Report. Id. at Bates No. 39-40. Plaintiff exited the hearing room, refusing to stay to hear Ryerson deliver his ruling on the disciplinary charges. Id. at Bates No....

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