15-3414-cv
Smith v. Graham

                                 UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 22nd day of March, two thousand seventeen.

PRESENT:            JOSÉ A. CABRANES,
                    RICHARD C. WESLEY,
                                 Circuit Judges.
                    WILLIAM K. SESSIONS III,
                                 District Judge.


LAWRENCE SMITH,

                  Plaintiff - Appellant,

v.                                                            No. 15-3414

HAROLD D. GRAHAM, SUPERINTENDENT; AUBURN
CORRECTIONAL FACILITY, T. MCCARTHY, CAPTAIN;
 AUBURN CORRECTIONAL FACILITY, RICHARD ROY,
DEPUTY COMMISSIONER OF ALBANY DOC AND
INSPECTOR GENERAL, BRIAN FISCHER, COMMISSIONER,
VERNON FONDA, DIRECTOR OF OPERATIONS, NORMAN R.
BEZIO, FORMER DIRECTOR OF SPECIAL HOUSING,
ALBERT PRACK, DIRECTOR OF SPECIAL HOUSING,
 KAREN BELLAMY, DIRECTOR OF INMATE GRIEVANCES,
ELIZABETH O'MEARA, DEPUTY SUPERINTENDENT


     
      William K. Sessions III, Judge of the United States District Court for the District of Vermont,
sitting by designation.

                                                   1
OF ADMIN., JAMES FESTA, F.O.I.L. OFFICER OF AUBURN
CORRECTIONAL FACILITY, B. CHUTTEY, KOZIOL, LT.;
AUBURN CORRECTIONAL FACILITY, OLEKSIN, LIEUT.; AUBURN
CORRECTIONAL FACILITY, VANFLEET, V. RIZZO, SARGENT,
CHRISTOPHER ROGOFSKY, SARGENT, HARRY BRUNDAGE, AUBURN
CORRECTIONAL FACILITY, ADAMS, C.O, R. MARTIN, C.O.,
S. PYKE, C.O., HOWELL, C.O., R. BURDICK, C.O., WALTERS,
C.O., M. PARISH, C.O., D. VITALE, C.O., E. VAN NESS,
C.O., ABBOTT, LIBRARIAN, HESS, C.O., M. MOGAVERO, PROGRAM
COMMITTEE CHAIRPERSON, FKA DOE,

             Defendants - Appellees.


FOR PLAINTIFF-APPELLANT:                                    Lawrence Smith, pro se, Pine City, NY.

FOR DEFENDANTS-APPELLEES:                                   Barbara D. Underwood, Solicitor General,
                                                            Andrew D. Bing, Deputy Solicitor
                                                            General, Jeffrey W. Lang, Assistant
                                                            Solicitor General, for Eric T.
                                                            Schneiderman, Attorney General of the
                                                            State of New York, Albany, NY.

     Appeal from a judgment of the United States District Court for the Northern District of
New York (Glenn T. Suddaby, Chief Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Appellant Lawrence Smith, proceeding pro se, appeals from a judgment in favor of Appellees,
various prison officials, in his suit under 42 U.S.C. § 1983 raising claims for violations of his First,
Eighth, and Fourteenth Amendment Rights. The District Court sua sponte dismissed Smith’s claims
against Corrections Officer Walters, but allowed Smith’s due process claims against Captain Chuttey
to proceed. A magistrate judge subsequently recommended granting summary judgment in favor of
Chuttey. Smith failed to object to the report and recommendation, which the District Court
adopted. We assume the parties’ familiarity with the underlying facts, the procedural history of the
case, and the issues on appeal.

I.      Summary Judgment

       Smith waived appellate review of his due process claim against Chuttey by failing to object to
the magistrate judge’s report and recommendation despite being clearly notified of the consequences



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of his failure to do so.1 Even if we were to excuse Smith’s failure to object, the District Court
properly granted summary judgment on this claim.

        We review de novo a district court’s grant of summary judgment. Garcia v. Hartford Police
Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Summary judgment must be granted if “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). When determining whether a genuine dispute exists, we must “resolve all
ambiguities and draw all inferences against the moving party.” Garcia, 706 F.3d at 127.

         Due process requires that prison disciplinary hearings be conducted by a “fair and impartial
hearing officer.” Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir. 1999). However, “[prison]
adjudicators are presumed to be unbiased” and “[t]he degree of impartiality required of prison
officials does not rise to the level of that required of judges generally.” Allen v. Cuomo, 100 F.3d 253,
259 (2d Cir. 1996). In addition, due process requires that the findings of a prison disciplinary hearing
officer be based on some “reliable evidence of the inmate’s guilt.” Luna v. Pico, 356 F.3d 481, 488 (2d
Cir. 2004) (internal quotation marks omitted).

         Smith raises three challenges to his 2012 disciplinary hearing, over which Chuttey presided.
First, he argues that, because the statement in his grievance did not communicate an intent to inflict
harm, it was insufficient to establish that he had made a threat. However, a prisoner’s statement
need not threaten violence to be considered a threat under disciplinary rule 102.10. See Vazquez v.
Senkowski, 251 A.D.2d 832, 833 (3d Dep’t 1998). Second, he argues that Chuttey demonstrated bias
by allowing Walters to present false testimony. However, false testimony given during a disciplinary
proceeding does not establish a denial of due process. See Boddie v. Schnieder, 105 F.3d 857, 862 (2d
Cir. 1997); see also Phelps v. Kapnolas, 123 F.3d 91, 92–93 (2d Cir. 1997) (affirming dismissal of a
§ 1983 claim alleging that corrections officer provided false testimony at a disciplinary hearing).
Third, Smith argues that Chuttey demonstrated bias by not calling as a witness an inmate to testify
that Walters put Smith on keeplock on February 20, 2012, two days before Walters filed the
misbehavior report against Smith. However, three witness had already testified that Smith was on
keeplock on February 20, and “[t]he refusal to call witnesses whose testimony would be redundant is


    1
      We have held that failure to timely object to a report and recommendation generally constitutes
a waiver of the defaulting party’s right to appeal, provided the party received clear notice of the
consequences of a failure to object. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Notice is
sufficient if it informs the litigant that the failure to timely object will result in the waiver of further
judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d
298, 299 (2d Cir. 1992). We may nevertheless excuse the waiver “in the interests of justice.” Thomas
v. Arn, 474 U.S. 140, 155 (1985); Cephas, 328 F.3d at 107. “Such discretion is exercised based on,
among other factors, whether the defaulted argument has substantial merit or, put otherwise,
whether the magistrate judge committed plain error in ruling against the defaulting party.” Spence v.
Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 174 (2d Cir. 2000).

                                                     3
not a violation of any established due process right.” See Holland v. Goord, 758 F.3d 215, 225 (2d Cir.
2014). Moreover, the inmate had submitted a form stating that he refused to testify because he had
not seen anything.2 See Silva v. Casey, 992 F.2d 20, 22 (2d Cir. 1993) (holding that if witness “will not
testify if called, it cannot be a ‘necessity’ to call him,” and that prison official who “reasonably
concludes that it would be futile to call a witness to testify” does not violate inmate's constitutional
rights).

II.       Sua Sponte Dismissal of Claims Against Walters

         We review de novo a district court’s sua sponte dismissal of claims under 28 U.S.C. §§ 1915(e)(2)
and 1915A. See Giano v. Goord, 250 F.3d 146, 149–50 (2d Cir. 2001); see also Larkin v. Savage, 318 F.3d
138, 139 (2d Cir. 2003) (per curiam). To avoid dismissal, a complaint must plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). We afford a pro se litigant “special solicitude” by interpreting a complaint filed
pro se “to raise the strongest claims that it suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)
(internal alterations and quotation marks omitted).

         Liberally construed, Smith’s brief raises three challenges to the District Court’s sua sponte
dismissal of his claims against Walters. First, he reiterates his allegations that Walters planted a metal
spoon in his cell and then stole his legal documents while Smith was in solitary confinement.
However, both of these allegations occurred in 2008, and any claim based on them was therefore
barred by New York’s three-year statute of limitations. See Milan v. Wertheimer, 808 F.3d 961, 963–64
(2d Cir. 2015) (per curiam) (affirming sua sponte dismissal of claims based on statute of limitations).
Second, Smith alleges that Walters “stalked” him for a period of four years. This general allegation
of harassment failed to state a claim because he did not allege any “appreciable injury.” See Purcell v.
Coughlin, 790 F.2d 263, 265 (2d Cir. 1986). Third, Smith argues that Walters “illegally” placed him on
keeplock in February 2012. To the extent that Smith intended this to be a claim of retaliation, he
failed to allege any specific grievance that would give rise to an inference of retaliatory animus based
on the temporal proximity between that grievance and being placed on keeplock; he specifically
alleged that Walters did not yet know of grievances Smith had filed in early 2012. See, e.g., Bennett v.
Goord, 343 F.3d 133, 137 (2d Cir. 2003) (observing that temporal proximity constitutes circumstantial
evidence of retaliation). To the extent Smith intended this to be a due process claim, Smith failed to
allege any facts that demonstrated an “atypical and significant hardship on [him] in relation to the


      2
    To the extent Smith sought to call the third inmate to testify that it was Walters specifically
who had placed Smith on keeplock on February 20, this evidence would have been irrelevant to
whether Smith committed the offenses of which he was charged, which occurred before February
20.

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ordinary incidents of prison life.” Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009) (internal quotation
marks omitted).

                                           CONCLUSION

       We have reviewed all of the remaining arguments raised by Smith on appeal and find them
to be without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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