16-3137-pr
Allah v. Murphy


                          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
ASUMMARY ORDER@). A PARTY CITING TO 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 18th day of October, two thousand seventeen.

PRESENT: JOHN M. WALKER, JR.,
           REENA RAGGI,
           PETER W. HALL,
                 Circuit Judges.
_________________________________________

KHALAIRE ALLAH,

                       Plaintiff-Appellant,

                  v.                                                  No. 16-3137-pr

SGT. MURPHY, GREAT MEADOW CORRECTIONAL
FACILITY, J. FULLER, CORRECTION OFFICER, GREAT
MEADOW CORRECTIONAL FACILITY, T. TYNON, ADSP,
GREAT MEADOW CORRECTIONAL FACILITY, GOODMAN,
CORRECTIONAL CAPTAIN, GREAT MEADOW CORRECTIONAL
FACILITY, RACETTE, SUPERINTENDENT, GREAT MEADOW
CORRECTIONAL FACILITY, J. GLEASON, BHU CHIEF,
GREAT MEADOWCORRECTIONAL FACILITY,

                       Defendants-Appellees,


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M. ROCK, CORRECTION OFFICER, GREAT MEADOW
CORRECTIONAL FACILITY, P. LONDRIGAN, CORRECTION
OFFICER, GREAT MEADOW CORRECTIONAL FACILITY,
D. VANBUREN, EXECUTIVE ASST. COMM., DOCCS,

                 Defendants.
_________________________________________

FOR APPELLANT:                                   Khalaire Allah, pro se, Marcy, New
                                                 York.

FOR APPELLEES:                                   Barbara D. Underwood, Solicitor
                                                 General, Victor Paladino, Patrick Woods,
                                                 Assistant Solicitors General, for Eric T.
                                                 Schneiderman, Attorney General of the
                                                 State of New York, Albany, New York.

       Appeal from a judgment of the United States District Court for the Northern District

of New York (Glenn T. Suddaby, Chief Judge; Thérèse Wiley Dancks, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on August 17, 2016, is AFFIRMED.

       Plaintiff Khalaire Allah, proceeding pro se, appeals from an award of summary

judgment to defendants, a supervisor and various employees at Great Meadow

Correctional Facility, on Allah’s claims under 42 U.S.C. § 1983 that he was denied due

process at a disciplinary hearing, subjected to cruel and unusual punishment by being

forced to wear an “exposure jumpsuit” (a jumpsuit designed to prevent removal), and was

retaliated against for filing grievances through interference with his mail. See U.S. Const.

amends. I, VIII, & XIV. We review an award of summary judgment de novo and will

affirm only if the record, viewed in the light most favorable to the non-movant, shows no


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genuine issue of material fact and the movant’s entitlement to judgment as a matter of law.

See Jackson v. Fed. Express, 766 F.3d 189, 193–94 (2d Cir. 2014). In so doing, we

assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal, which we reference only as necessary to explain our decision to

affirm.

          In granting summary judgment, the district court concluded that (1) no record

evidence demonstrated regular interference with Allah’s mail, (2) Allah did not have a

liberty interest in being free from wearing an exposure jumpsuit or from transfer to a

different unit, (3) the exposure jumpsuit did not deprive Allah of his basic human needs,

and (4) Allah did not suffer an adverse disciplinary action. An independent review of the

record and relevant case law reveals that the district court properly granted summary

judgment on Allah’s claims for substantially the reasons stated by the magistrate judge in

her thorough May 16, 2016 report and recommendation, adopted by the court. See Allah

v. Murphy, No. 9:14-CV-0438 (GTS/TWD), 2016 WL 4401069, at *5–14 (N.D.N.Y. May

16, 2016), adopted by 2016 WL 4386013, at *1 (N.D.N.Y. Aug. 17, 2016).

          Insofar as Allah faults the district court for “fail[ing] to review statements recorded

on audio footage” by one of the defendants “admitting that plaintiff was subjected to facts

raised in the complaint because he filed grievances,” Appellant’s Br. 3, we agree with the

district court that the recording does not constitute admissible evidence, such as is




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necessary to defeat a motion for summary judgment. See Fed. R. Civ. P. 56(c); Sarno v.

Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999).

      We have considered Allah’s remaining arguments and conclude that they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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