govinfo:USCOURTS-nynd-9_25-cv-00618-0

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
 
KHALIF DIJOUR JOHNSON, 
 
 Plaintiff, 
 
 v. 
 
NEW YORK STATE DEPARTMENT OF 
CORRECTIONS AND COMMUNITY SUPERVISION, 
et al., 
 
 Defendants. 
 
 
 
9:25-CV-0618 
(LEK/DJS)
APPEARANCES: 
 
KHALIF DIJOUR JOHNSON 
Plaintiff, pro se 
23-B-0383 
Mohawk Correctional Facility 
6514 Route 26 
Rome, NY 13442 
 
LAWRENCE E. KAHN 
Senior United States District Judge 
OF COUNSEL: 
 
 
 
DECISION AND ORDER 
I. INTRODUCTION 
 P ro se plaintiff Khalif Dijour Johnson ("plaintiff") commenced this action by submitting a 
complaint pursuant to 42 U.S.C. § 1983 ("Section 1983"), with an application to proceed in 
forma pauperis ("IFP"). Dkt. No. 1 ("Compl."); Dkt. No. 8 ("IFP Application"). The complaint 
contained allegations of wrongdoing that occurred at Mohawk Correctional Facility ("Mohawk 
C.F."). See generally Compl. 
 By Memorandum-Decision and Order filed on December 18, 2025 (the "December 
2025 Order"), this Court granted plaintiff's IFP Application and reviewed the sufficiency of the 

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complaint in accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Dkt. No. 
10. The Court found that plaintiff's Eighth Amendment failure-to-protect claims against 
defendant Corrections Officer Doe survived review and required a response. See id. The 
Court dismissed plaintiff's § 1983 claims for monetary damages against DOCCS and official 
capacity claims with prejudice and all remaining claims, without prejudice. See id. The Court 
also directed the New York State Attorney General's Office to attempt to ascertain the full 
name of Corrections Officer Doe and to provide the address at which he may be served. See 
id. The New York State Attorney General's Office was directed to produce the information 
within thirty (30) days of the filing date of the Order. Id. 
 On January 27, 2026, the Attorney General's Office responded to the Court's directive. 
Dkt. No. 13. On February 4, 2026, the Court issued an Order advising plaintiff to review 
counsel's submission and advised, "[t]o the extent plaintiff is able to identify the 'Doe' 
defendant based on the submission, he must, within thirty (30) days of the date of this Order, 
prepare and submit an amended complaint which substitutes the named defendant in place 
of the 'Doe' defendant, and which makes any other corrections necessary." Dkt. No. 14. 
 Plaintiff's amended complaint is now before the Court for review. Dkt. No. 19 ("Am. 
Compl."). 
II. SUFFICIENCY OF AMENDED COMPLAINT 
 A. Legal Standard 
 The legal standard governing the dismissal of a pleading for failure to state a claim 
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A was discussed at length in the 
December 2025 Order and will not be restated in this Decision and Order. See Dkt. No. 10 at 
3-4. 

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 B. Summary of Amended Complaint 
 With the amended complaint, plaintiff substitutes defendant Correctional Officer 
Douglas Robinson ("Robinson") for Doe.1 See generally Am. Compl. Plaintiff also includes 
the following new defendants: Correctional Officer Sirleaf ("Sirleaf"), Sergeant Doe ("Sgt. 
Doe"), and Superintendent Alfred Montegari ("Montegari").2 See id. 
 On February 23, 2025, at approximately 7:03 a.m., plaintiff was physically assaulted 
by an unidentified inmate in the dayroom of the 22B dorm unit. Am. Compl. at 5. The 
assailant "stab[bed] and cut" plaintiff's face with a sharp object. Id. Robinson was not at his 
post or in the immediate area at the time of the incident. Id. at 5-6. Plaintiff alleges, "there 
had been at least 2 similar cutting incidents within approximately a five hour period on the 
22B dorm unit." Id. at 6. 
 Sirleaf issued a ticket "with false charges" and Sgt. Doe transferred plaintiff to the 
Special Housing Unit ("SHU"), where he remained for fifty days before attending a disciplinary 
hearing. Am. Compl. at 6-7. After the hearing, plaintiff was found "not guilty" of the charges 
in the misbehavior report. Id. at 6, 9. 
 Construing the amended complaint liberally
3, plaintiff alleges the following: (1) Eighth 
Amendment failure-to-protect claims against Robinson, Montegari, and Sgt. Doe; (2) Eighth 
 
1 The Clerk of the Court is directed to substitute Robinson for Doe on the Docket Report. 
 
2 The Clerk of the Court is direct to amend the Docket Report to include these defendants. 
 
3 The Court is mindful of the Second Circuit's instruction that a pleading by a pro se litigant must be construed 
liberally and interpreted to raise the strongest arguments that it suggests. See, e.g., Sealed Plaintiff v. Sealed 
Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district 
courts" that a pro se plaintiff's pleadings must be construed liberally); Phillips v. Gird ich, 408 F.3d 124, 130 (2d 
Cir. 2005) ("We leave it for the district court to determine what other claims, if any, [plaintiff] has raised. In so 
doing, the court's imagination should be limited only by [plaintiff's] factual allegations, not by the legal claims set 
out in his pleadings."); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("[W]e read [a pro se litigant's] 
supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest."). 

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Amendment claims related to his conditions of confinement against Robinson, Montegari, 
Sirleaf, and Sgt. Doe; and (3) Fourteenth Amendment due process claims against Sgt. Doe, 
Montegari, and Sirleaf. See generally Am. Compl. Plaintiff seeks monetary damages. Id. at 
12. 
 C. Analysis 
 1. Eighth Amendment – Failure-to-Protect 
 The law related to Eighth Amendment failure-to-protect claims was set forth in the 
December 2025 Order, and will not be restated herein. See Dkt. No. 10 at 9-10. 
 Plaintiff's Eighth Amendment failure-to-protect claim against Doe is repeated and 
realleged in the amended complaint against Robinson. For the reasons set forth in the 
December 2025 Order, Robinson is directed to respond to this claim. 
 In the December 2025 Order, the Court dismissed plaintiff's failure-to-protect claim 
against Sgt. Doe noting: 
The Court, however, reaches a different conclusion insofar as the 
Complaint may be construed to assert a failure- to-protect claim 
against Sergeant Doe because the pleading does not include any 
allegations explaining how this official may have been personally 
involved in the alleged wrongdoing. For example, the Complaint 
does not allege that Sergeant Doe was (1) responsible for 
overseeing the dorm area where plaintiff was allegedly assaulted 
on February 23, 2025, (2) aware that the environment in the dorm 
area was potentially dangerous, and/or (3) aware that Officer Doe 
left his assigned post. Indeed, it is entirely unclear from the 
allegations in the Complaint why plaintiff has named this official as 
a defendant. 
 
Dkt. No. 10 at 10. 
 Despite being afforded the opportunity to amend this claim, the amended complaint 
does not remedy the pleading deficiencies identified in the December 2025 Order. For the 

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reasons set forth in the December 2025 Order, plaintiff's failure-to-protect claim against Sgt. 
Doe is dismissed. 
 With respect to Montegari, as noted in the December 2025 Order, Tangreti requires 
that plaintiff allege that a defendant "violated the Eighth Amendment by [his] own conduct, not 
by reason of [his] supervision of others who committed the violation." Tangreti, 983 F.3d at 
619. In this regard, plaintiff does not allege that Montegari was present or should have been 
present at the time of the alleged assault, and he does not claim that he spoke to Montegari, 
that he wrote to Montegari, complained to Montegari, or had any interaction with Montegari. 
As presently pled, the amended complaint does not contain sufficient allegations to suggest 
that Montegari was personally involved in the alleged Eighth Amendment violation. 
Accordingly, the failure-to-protect claim against Montegari is dismissed. 
 2. Eighth Amendment – Conditions-of-Confinement 
 Plaintiff claims that "correctional staff engaged in an unlawful strike" and as a result, he 
suffered from "unsafe and dangerous" conditions within the facility. See Am. Compl. at 8. 
 "To demonstrate that the conditions of his confinement constitute cruel and unusual 
punishment, the plaintiff must satisfy both an objective test and a subjective test." Jolly v. 
Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (citation omitted). To satisfy the objective element, 
"the plaintiff must demonstrate that the conditions of his confinement result 'in unquestioned 
and serious deprivations of basic human needs.'" Id. (citation omitted). "[T]he inmate must 
show that the conditions, either alone or in combination, pose an unreasonable risk of serious 
damage to his health." Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) (citation omitted). 
With respect to the subjective element, plaintiff must "demonstrate that the defendants 
imposed those conditions with 'deliberate indifference.'" Jolly, 76 F.3d at 480 (citation 

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omitted). To constitute deliberate indifference, "[t]he prison official must know of, and 
disregard, an excessive risk to inmate health or safety." Walker, 717 F.3d at 125. 
 As presently pled, the amended complaint does not contain sufficient facts to satisfy 
either prong of the Eighth Amendment analysis. Plaintiff does not describe the conditions he 
allegedly endured during the strike. Indeed, the amended complaint lacks dates, times, or 
any other substantive information related to the alleged "unsafe and dangerous" conditions. 
Further, even assuming plaintiff had alleged facts that satisfied the objective prong of an 
Eighth Amendment analysis, plaintiff has not identified any individual or particular person 
involved in the alleged strike or personally involved in any constitutional violations related to 
his conditions of confinement. 
 Consequently, plaintiff's Eighth Amendment claims related to his conditions of 
confinement are dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) 
for failure to state a claim upon which relief may be granted. 
 3. Fourteenth Amendment – Due Process 
 The law related to due process claims was discussed in the December 2025 Order 
and will not be restated herein. See Dkt. No. 10 at 11-12. In the December 2025 Order, the 
Court dismissed these claims holding: 
As an initial matter, plaintiff does not describe the manner in which 
he was confined, including how, if at all, it differed from the manner 
in which he was confined on the date that preceded the alleged 
assault. In addition, plaintiff does not explain how either of the "Doe" 
defendants were responsible for his “confine[ment] on false 
charges” without a hearing. Thus, plaintiff has failed to adequately 
allege that either of the named defendants were personally involved 
in subjecting him to any atypical conditions of confinement. 
Furthermore, setting aside these pleading deficiencies, the 
Complaint is dated March 17, 2025. See Compl. at 5. Even 
assuming plaintiff was placed in restrictive confinement on 
February 23, 2025, the Court can only infer that plaintiff spent 

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twenty-two days in restrictive confinement without a hearing. In the 
absence of any facts detailing the nature of plaintiff’s confinement 
during this time, the Court has no basis to plausibly infer that his 
potential placement in restrictive confinement subjected him to "an 
atypical and significant hardship" in relation to the ordinary 
incidents of prison life. See Mortimer Excell v. Fischer , No. 9:08-
CV- 945 (DNH/RFT), 2009 WL 3111711, at *9 (N.D.N.Y. Sept. 24, 
2009) ("[C]ourts have roundly rejected the notion that . . . a short 
period of confinement, without additional hardships, creates a 
liberty interest even when confinement is completely segregated, 
such as when an inmate is sent to . . . [SHU]." (citing Sealey , 197 
F.3d at 589-90)). 
 
Dkt. No. 10 at 12-13. 
 Insofar as plaintiff has asserted a due process claim against Sirleaf based on the 
alleged issuance of a false misbehavior report, it is well settled that "the filing of unfounded 
charges is not per se a constitutional violation under section 1983[.]" Freeman v. Rideout, 
808 F.2d 949, 950 (2d Cir. 1986); Willey v. Kirkpatrick, 801 F.3d 51, 63 (2d Cir. 2015) (noting 
that "when an inmate is able to show either (1) that he was disciplined without adequate due 
process as a result of the [allegedly false] report; or (2) that the report was issued in 
retaliation for exercising a constitutionally protected right[,]" the alleged creation of a false 
report may give rise to a constitutional claim); Mitchell v. Senkowski, 158 Fed. App'x 346, 349 
(2d Cir. 2005) ("The issuance of false misbehavior reports and provision of false testimony 
against an inmate . . . violates due process only where either procedural protections were 
denied that would have allowed the inmate to expose the falsity of the evidence against him, . 
. . or where the fabrication of evidence was motivated by a desire to retaliate for the inmate's 
exercise of his substantive constitutional rights[]" (internal citations omitted)). The amended 
complaint lacks allegations regarding any prior history between plaintiff and Sirleaf. Thus, the 
Court has no basis to infer that the misbehavior report was issued as retaliation for the 
exercise of substantive constitutional rights. 

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 With respect to the claim against Sgt. Doe, while pre-hearing confinement may give 
rise to a liberty interest, see Yant v. Scholack, No. 95CIV.9462, 1998 WL 157053, at *5 
(S.D.N.Y. Apr. 3, 1998), "not every placement of a pre-trial detainee in segregation 
constitutes punishment." Johnson v. Herman, No. 1:05-CV-372, 2006 WL 1408389, at *1 
(N.D. Ind. May 18, 2006) (reasoning that segregation for legitimate security reasons, without 
a hearing, does not violate due process). Here, as noted supra, plaintiff has not pled that he 
suffered any unusual conditions while confined in the SHU. While plaintiff alleges that he 
was "confined in SHU for approximately 50 days before being afforded a disciplinary 
hearing," see Am. Compl. at 6, as the Court noted in the December 2025 Order, the 
complaint was dated March 17, 2025 (see Compl. at 5) and "[e]ven assuming plaintiff was 
placed in restrictive confinement on February 23, 2025, the Court can only infer that plaintiff 
spent twenty-two days in restrictive confinement without a hearing." See Dkt. No. 10 at 13. 
Because plaintiff has not alleged that his conditions were atypical, in any manner, the 
amended complaint fails to suggest that plaintiff suffered a deprivation of a liberty interest. 
See Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998) (pre-hearing confinement in 
keeplock for twenty-one days did not deprive prisoner of liberty interest). 
 E ven assuming plaintiff suffered a deprivation of a liberty interest, the complaint lacks 
facts suggesting that plaintiff's due process rights were violated. Plaintiff concedes that he 
received a misbehavior report on the day of the alleged incident, prior to the hearing. Plaintiff 
did not provide any facts related to the hearing including who presided over the hearing, what 
transpired, what requests plaintiff made for evidence or witnesses, whether the requests were 
ignored and why, or any other relevant factual information. See Watford, 2012 WL 5451457, 
at *6 (dismissing due process claim where pretrial detainee received a written statement of 

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the charges against him the day after he was placed into pre-hearing detention, the hearing 
took place within a reasonable time, the hearing officer heard witness testimony, and the 
hearing officer provided the plaintiff with a written statement of his decision, including the 
evidence relied on, and the reasons for the decision). 
 As to plaintiff's claim concerning the time of the hearing, DOCCS regulations provide: 
Where an incarcerated individual is subject to a superintendent's 
hearing, the hearing must be completed within five days of such 
placement in segregated confinement, unless the subject 
incarcerated individual requests a postponement for the purposes 
of seeking employee assistance and/or representation. 
 
N.Y. Comp. Codes R. & Regs. (“N.Y.C.R.R.”) tit. 7, § 251-5.1(a). Initially, the Court notes 
that a failure to comply with DOCCS' internal procedural rules and requirements is not a 
violation of a constitutional right. See Lopez v. Annucci, No. 17-CV-6305, 2018 WL 
11325795, at *5 (W.D.N.Y. Sept. 24, 2018). Furthermore, at best, plaintiff was confined for 
twenty-two days prior to the hearing. The amended complaint does not state why there was 
a delay beyond the five-day time period, who was responsible for the delay, or whether an 
extension of time was authorized or requested. "It has been held that the fact that the time 
deadlines were not followed does not necessarily rise to the level of a constitutional claim 
without a consideration of whether the delay was reasonable." Morales v. Woods, No. 906-
CV-15 (TJM/GJD), 2008 WL 686801, at *6 (N.D.N.Y. Mar. 10, 2008) (internal quotation 
marks omitted). Plaintiff summarily states that "staffing shortages" caused the delay, 
however, as noted supra, the pleading lacks any facts suggesting that any named defendant 
was involved in the strike, was responsible for the "staffing shortages," or was personally 
involved in the delay in conducting the disciplinary hearing within the five-day time period. 
See Marozzi v. Superintendent of Auburn Corr. Facility, No. 9:25-CV-1072 (AJB/MJK), 2025 

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WL 3042028, at *4 (N.D.N.Y. Oct. 31, 2025) (dismissing claims related to conditions the 
plaintiff allegedly endured during the labor strike for failure to plead personal involvement in 
the wrongdoing). 
 Accordingly, the Court finds that plaintiff’s due process claims are dismissed pursuant 
to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) for failure to state a claim upon which relief may 
be granted. 
III. CONCLUSION 
 WHEREFORE, it is hereby 
 ORDERED that the amended complaint (Dkt. No. 19) is ACCEPTED for filing and is 
the operative pleading in this action; and it is further 
 ORDERED that the Clerk of the Court shall (i) revise the docket to reflect that 
Robinson is substituted as a defendant for Doe in this action; and (ii) revise the docket to 
reflect that Sirleaf, Sgt. Doe, and Montegari are defendants in this action; and it is further; 
 ORDERED that the Eighth Amendment failure-to-protect claim against Robinson 
survives review and requires a response; and it is further 
 ORDERED that the remaining claims in the amended complaint are DISMISSED 
without leave to replead; and it is further 
 ORDERED that the Clerk shall issue a summons and forward it, along with copies of 
the amended complaint, to the United States Marshal for service upon the defendant. The 
Clerk shall forward a copy of the summons and amended complaint to the Office of the 
Attorney General, together with a copy of this Decision and Order, by electronic mail only; 
and it is further 

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ORDERED t hat a response to the amended complaint be filed by the defendant, or 
counsel, as provided for in the Federal Rules of Civil Procedure; 
ORDERED that plaintiff shall take reasonable steps through discovery to ascertain the 
identity of defendant Medical Doctor. Plaintiff's failure to timely serve this defendant will 
result in dismissal of the claims asserted against him/her and termination of defendant from 
the action; and it is further 
ORDERED that all pleadings, motions and other documents relating to this action 
 must bear the case number assigned to this action and be filed with the Clerk of the United 
States District Court, Northern District of New York, 7th Floor, Federal Building, 100 S. 
Clinton St., Syracuse, New York 13261-7367. Any paper sent by a party to the Court or the 
Clerk must be accompanied by a certificate showing that a true and correct copy of same 
was served on all opposing parties or their counsel. Any document received by the Clerk or 
the Court which does not include a proper certificate of service will be stricken from the 
docket. Plaintiff must comply with any requests by the Clerk’s Office for any documents that 
are necessary to maintain this action. All parties must comply with Local Rule 7.1 of the 
Northern District of New York in filing motions. Plaintiff is also required to promptly notify 
the Clerk’s Office and all parties or their counsel, in writing, of any change in his 
address; their failure to do so will result in the dismissal of his action; and it is further 
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on 
plaintiff in accordance with the Local Rules of Practice. 
May 27, 2026

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