Opinion
9:20-CV-177 (DNH/TWD)
04-22-2021
TERRELL A. BERRY, Plaintiff, v. CORRECTIONAL OFFICER C. TREMBLAY, SGT. FINNEL, Defendants.
APPEARANCES: TERRELL A. BERRY Plaintiff, pro se 19-A-2478 Franklin Correctional Facility P.O. Box 10 Malone, New York 12953 HON. LETITIA JAMES Attorney General for the State of New York Counsel for Defendant The Capitol Albany, New York 12224 NICHOLAS LUKE ZAPP Assistant Attorney General
| APPEARANCES: | OF COUNSEL: |
| TERRELL A. BERRYPlaintiff, pro se19-A-2478Franklin Correctional FacilityP.O. Box 10Malone, New York 12953 | |
|---|---|
| HON. LETITIA JAMESAttorney General for the State of New YorkCounsel for DefendantThe CapitolAlbany, New York 12224 | NICHOLAS LUKE ZAPPAssistant Attorney General |
Terrell A. Berry ("Plaintiff"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), commenced this pro se action pursuant to 42 U.S.C. § 1983, asserting his constitutional rights were violated at Franklin Correctional Facility ("Franklin C.F."). (Dkt. No. 1.) The Honorable David N. Hurd, United States District Judge, reviewed the complaint in accordance with 28 U.S.C. § 1915, and found Plaintiff's First Amendment retaliation claims against Correctional Officer C. Tremblay ("Tremblay") and Sgt. Finnel ("Finnel") (collectively, "Defendants") required a response. (Dkt. No. 14.)
Generally, Plaintiff alleges Defendants retaliated against him for filing a grievance against Tremblay. (Dkt. No. 1.) Rather than answering Plaintiff's complaint, Defendants now move to dismiss the action for failure to state a claim. (Dkt. No. 22.) This motion was referred to this Court for a Report-Recommendation. For the reasons that follow, the Court recommends granting Defendant's motion without prejudice and with leave to amend.
I. DISCUSSION
A. Background
On September 14, 2019, Plaintiff alleges Tremblay issued a false misbehavior report accusing Plaintiff of violating a direct order, creating a disturbance, and harassment. (Dkt. No. 1 at 6.) On that same day, Plaintiff was placed on "full bed," meaning he could not leave his cube. Id. Shortly thereafter, Plaintiff asked Tremblay for a grievance and Tremblay refused. Id. at 7. According to Plaintiff, Tremblay told Plaintiff he would "be in for it" if he filed a grievance against him. Id. Plaintiff asserts he wrote a grievance despite Tremblay's threat. Id.
Plaintiff contends Finnel came to his dorm and called him to the "sally port" on September 26, 2019, or September 27, 2019. Id. at 7-8. Finnel allegedly showed Plaintiff the grievance he wrote against Tremblay. Id. at 8. Finnel told Plaintiff "before you have to grieve my man again talk to me first," and he said he would talk to Tremblay about the issue and take care of it. Id.
Then, on September 28, 2019, Plaintiff asserts Tremblay issued another false misbehavior report for violating a direct order in retaliation for the grievance Plaintiff filed against him. Id. at 8-9, 11. At the conclusion of the hearing regarding the misbehavior report, the hearing officer dismissed the ticket because Tremblay's testimony did not substantiate the charge. Id. at 11.
On October 3, 2019, while Plaintiff was speaking with a lieutenant about the grievance he filed against Tremblay, Finnel interrupted and began verbally harassing Plaintiff and threatened to remove him from the facility. Id. at 13. The next day, Plaintiff was moved to a different dormitory within Franklin C.F. Id.
As noted above, in its initial review, the District Court construed Plaintiff's complaint as alleging First Amendment retaliation claims against Tremblay and Finnel. (Dkt. No. 14.) Defendants now move to dismiss the complaint because they contend Plaintiff has failed to allege sufficient facts to state a claim against them. (Dkt. No. 22.) Specifically, Defendants argue Plaintiff failed to allege any causal connection between Finnel's conduct and threats to move Plaintiff and his protected speech. Id. at 6. Defendants also assert an inmate transfer to a different dormitory does not constitute adverse action for the purpose of maintaining a First Amendment retaliation claim. Id. Similarly, Defendants contend Tremblay's alleged false misbehavior report is not adverse action because it was ultimately dismissed. Id. at 7.
Plaintiff responded, asserting he plausibly alleged his transfer was initiated in response to his grievance against Tremblay. (Dkt. No. 31.) Moreover, Plaintiff asserts movement to a different dorm can cause anxiety and other problems and that the false misbehavior report has been covered up and it should constitute adverse action. Id. at 4-6.
B. Standard of Review
A defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted" under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion tests the legal sufficiency of the complaint and whether it conforms to Rule 8(a)(2) of the Federal Rules of Civil Procedure. To survive a motion to dismiss, the complaint must "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Id. at 679 (internal citation and punctuation omitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears there are not "enough facts to state a claim to relief that is plausible on its face." Id. at 570. While Rule 8(a)(2) "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me-accusation." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In other words, a complaint which "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" does not suffice. Id. (citation omitted).
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
Where a party is proceeding pro se, the court is obliged to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly). Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "[t]he problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Id.
C. Analysis
"To prevail on a First Amendment retaliation claim, an inmate must establish '(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected conduct and the adverse action.'" Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)). The plaintiff must establish that "the protected conduct was a substantial or motivating factor" behind the retaliatory action. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). The Second Circuit has warned that "courts must approach prisoner claims of retaliation with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). This is true because given the nature of a retaliation claim they are "easily fabricated" and as a result "virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act." Dawes v. Walker, 239 F.3d at 491.
Here, Plaintiff claims Defendants took two retaliatory actions against him: (1) transferring him to a different dormitory at Franklin C.F.; and (2) the issuance of a false misbehavior report. Under the applicable standards, this Court finds neither allegation constitutes adverse action and thus Plaintiff has failed to allege a viable retaliation claim.
In the first instance, Plaintiff has not alleged that his transfer from one dormitory to another caused any injury. Though he alleges that there was no basis for the transfer absent retaliation, he has not alleged that such a transfer resulted in any adverse change in his circumstance. To the contrary, he notes in his complaint that he has had no issues while residing in his new dormitory. (Dkt. No. 1 at 14.) Though Plaintiff argues in his response to Defendants' motion that prisoners can suffer anxiety and fear when they are moved to different locations, he did not make those assertions in his complaint and, regardless, conclusory allegations such as those are insufficient to establish an adverse action. In short, Plaintiff has not demonstrated that his transfer would have "deter[red] a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Dawes, 239 F.3d at 493 (citations omitted); Warren v. Goord, No. 99 CV 296, 2006 WL 1582385, at *15 (W.D.N.Y. May 26, 2006) (since complaint was "devoid of any allegations that the transfer [of inmate plaintiff to infirmary], by itself, resulted in any additional deprivation of privileges as required to support a finding that Warren's transfer resulted in some cognizable injury to Warren's First Amendment rights," transfer "d[id] not, as a matter of law, constitute action 'that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights,' and, thus, d[id] not provide the requisite 'adverse action' necessary to support the second prong of a First Amendment retaliation claim" (citation omitted)). Accordingly, the Court recommends dismissing his retaliation claim against Finnel.
Defendants also argue Plaintiff failed to allege a causal connection between his transfer to another dormitory and any protected action. (Dkt. No. 22 at 6.) However, the Court liberally construes the complaint as alleging a causal connection because Plaintiff notes Finnel's involvement in the relevant grievance and the context behind the transfer appears related to Finnel's frustration with Plaintiff's grievance. (Dkt. No. 1 at 13-14.)
Nor can Plaintiff establish an adverse action related to the issuance of the misbehavior report. In the context of inmate retaliation claims, adverse action is viewed objectively and requires the Court to ask whether the action taken with respect to the inmate "would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)). Courts have long recognized that if the alleged retaliation is not something that would deter an individual from exercising their rights, the alleged conduct is de minimis and "outside the ambit of constitutional protection." McFadden v. Friedman, No. 9:12-CV-685, 2015 WL 5603433, at *9 (N.D.N.Y. Sept. 23, 2015).
Courts in this district have routinely found the mere filing of a misbehavior report alone, without evidence of other repercussions, does not constitute an adverse action. Gilmore v. Blair, No. 9:18-CV-463, 2020 WL 5792467, at *6 (N.D.N.Y. June 30, 2020), report and recommendation adopted, 2020 WL 5775203 (N.D.N.Y. Sept. 28, 2020) (finding that a misbehavior report that resulted in the charges being dismissed did not constitute adverse action); Bartley v. Collins, No. 95 Civ. 10161, 2006 WL 1289256, at *7 (S.D.N.Y. May 10, 2006) (finding misbehavior report that resulted in plaintiff's temporary loss of privileges did not amount to adverse action but misbehavior report that resulted in keeplock confinement for ten days did). "Typically, courts require a showing of additional punishment above the filing of a misbehavior report to find an adverse action." Vidal v. Valentin, 16-CV-5745, 2019 WL 3219442, at *8 (S.D.N.Y. July 17, 2019); see also Flynn v. Ward, No. 15-CV-1028, 2018 WL 3195095, at *10-11 (N.D.N.Y. June 7, 2018), report and recommendation adopted, 2018 WL 3193201 (N.D.N.Y. June 28, 2018) (same). Thus, the filing of a false misbehavior report must result in some form of punishment to constitute adverse actions. See, e.g., Reed v. Doe No. 1, 9:11-CV-250, 2012 WL 4486086, at *5 (N.D.N.Y. July 26, 2012) (finding that the "filing of a false misbehavior report can qualify as an adverse action for the purposes of a First Amendment retaliation" where the report resulted in a fourteen-day term in keeplock confinement), report and recommendation adopted, 2012 WL 4486085 (N.D.N.Y. Sept. 27, 2012); Tafari v. McCarthy, 714 F. Supp. 2d 317, 373 (N.D.N.Y. 2010) (finding that a misbehavior report that resulted in SHU confinement constituted an adverse action).
In this case, the charges against Plaintiff were dismissed after a hearing. (Dkt. No. 1 at 11.) Thus, even construing Plaintiff's complaint liberally, there are no allegations that he suffered any adverse consequence in the form of lost privileges or restricted confinement because of the misbehavior report. He, therefore, cannot show and indeed has not alleged an adverse action from the issuance of the misbehavior report. Accordingly, the Court recommends dismissing his retaliation claim against Tremblay.
II. CONCLUSION
After carefully considering the record, the Court finds Plaintiff failed to plausibly allege he suffered adverse action in retaliation for his protected speech.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendant's motion to dismiss the complaint (Dkt. No. 22), be GRANTED without prejudice and with leave to replead; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: April 22, 2021
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge