Opinion
No. 02CV636.
June 21, 2004
Report Recommendation
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 6, Jan. 10, 2003). The instant matter before the Court is defendants' amended motion for summary judgment (Docket No. 25).
BACKGROUND
Plaintiff is an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), housed at the Attica Correctional Facility ("Attica") during the relevant events of this action. (Docket No. 26, Defs.' Statement, ¶¶ 1, 2;see Docket No. 31, Pl.'s Response to Defs.' Statement at 1 (adopting defendants' statement save where objected to expressly).) Plaintiff alleges that correctional officers defendants Simmons, Schuck, Dylag, and Diehl assaulted him, on July 12, 2000 (Docket No. 26, Defs.' Statement ¶ 8), in violation of his Eighth Amendment right to be free from cruel and unusual punishment. He claims that defendants Simmons, Schuck, Diehl, and Dylag, "as a result of this unprovoked attack" (Docket No. 1, Compl. ¶ 7), wrote and defendants Dylag and Diehl endorsed a false misbehavior report on that incident (id. ¶ 8) on July 13, 2000 (id. Compl. Ex.), and that defendant Lieutenant Thomas Dixon improperly conducted a Tier III disciplinary hearing regarding that report, thus violating his right to due process. According to plaintiff, defendants committed these acts in retaliation for plaintiff's exercise of his First Amendment religious free exercise rights; in particular, plaintiff alleges that prison "staff" considered him to be an "agitator" because he utilized the inmate grievance system numerous times for alleged staff misconduct and that he was "highly visible and active member of the Nation of Islam at said facility" (Docket No. 1, Compl. ¶ 4). He concludes that the acts and conduct of defendants was intentional and retaliatory in nature. (Id. ¶ 11.)
Plaintiff brought this suit against defendants in their official capacities. However, the Court dismissed the official-capacity claims sua sponte and deemed all claims to be against defendants in their individual capacities. (Docket No. 3, Order entered Sept. 10, 2002, at 3-4.)
At the close of this disciplinary hearing, Dixon found plaintiff guilty of the charges in the misbehavior report and imposed punishment of 180 days in the special housing unit and 180 days' loss of telephone privileges. (Docket No. 26, Defs.' Statement ¶¶ 6, 15; see Docket No. 31, Pl.'s Response at 1.)
Defendants move for summary judgment (Docket No. 25, Amended Motion) to dismiss the Complaint on the following grounds: 1) plaintiff never filed a grievance regarding the excessive force claim and therefore failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e (" PLRA"); 2) plaintiff has failed to allege facts sufficient to establish a prima facie due process claim; 3) plaintiff has failed to allege facts sufficient to establish a prima facie retaliation claim; and 4) plaintiff has failed to allege facts sufficient to establish a prima facie conspiracy claim. (Docket No. 27, at 1.) Responses were due on March 15, 2004, with replies (if any) due by April 2, 2004, and the motion being deemed submitted as of April 2 (Docket No. 28). Plaintiff filed a responding Memorandum and Counterstatement of Material Facts (Docket Nos. 30, 31); defendants did not file a reply.
DISCUSSION
I. Summary Judgment Standard
Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Ford v. Reynolds, 316 F.3d 351, 354 (2d Cir. 2003); Fed.R.Civ.P. 56(c). The party seeking summary judgment has the burden to demonstrate that no genuine issue of material fact exists. In determining whether a genuine issue of material fact exists, a court must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant. Ford, supra, 316 F.3d at 354. "A dispute regarding a material fact is genuine `if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Lazard Freres Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1535 (2d Cir.) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)), cert. denied, 522 U.S. 864 (1997). While the moving party must demonstrate the absence of any genuine factual dispute, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the party against whom summary judgment is sought, however, "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (emphasis in original removed); McCarthy v. American Intern. Group, Inc., 283 F.3d 121, 124 (2d Cir. 2002); Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002).
II. Prison Litigation Reform Act and Exhaustion
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) (" PLRA"), states "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." "Congress enacted § 1997e(a) to reduce the quantity and improve the quality of prisoner suits; to this purpose, Congress afforded corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Porter v. Nussle, 534 U.S. 516, 524-25 (2002). As one court noted "however vigorously and unsuccessfully an inmate seeks redress of grievances within the prison bureaucracy, he does not exhaust his remedies as required by § 1997e(a) unless he pursues the proper channels provided by state for remedying his situation." Mendoza v. Goord, 2002 WL 31654855, at *3 (S.D.N.Y. Nov. 21, 2002). The intent of the PLRA is to restrict inmate litigation where they had, but failed, to use all of their internal administrative remedies before commencing a federal civil rights action. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001); United States v. Al-Marri, 239 F. Supp. 2d 366, 367 (S.D.N.Y. 2002) (purpose of exhaustion requirement is to filter out frivolous claims, and clarify the contours of controversies in litigated cases, citing Porter, supra, 534 U.S. at 524-25); Blissett v. Casey, 969 F. Supp. 118, 128 (N.D.N.Y. 1997) (Congress's general purpose in enacting PLRA was to discourage filing of frivolous suits by inmates), aff'd, 147 F.3d 218 (2d Cir. 1998), cert. denied, 527 U.S. 1034 (1999).
Plaintiff has an obligation under the PLRA to exhaust "such remedies when Congress has specifically mandated that [she] do so." Giano v. Goord, 250 F.3d 146, 150-51 (2d Cir. 2001). Other courts have required plaintiffs to follow the proper channels to exhaust. Mendoza v. Goord, 2002 WL 31654855, at *3 (S.D.N.Y. Nov. 21, 2002). The PLRA "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter, supra, 534 U.S. at 532, rev'g, Nussle v. Willette, 224 F.3d 95 (2d Cir. 2000). The Supreme Court held that allegations of excessive force are included under the PLRA as prison conditions that first require exhausting administrative remedies before an inmate could be allowed to litigate the issue in federal court, rejecting this Circuit's contrary precedent. Porter, supra, 534 U.S. at 532; see Booth v. Churner, 532 U.S. 731 (2001).
Defendants here contend that plaintiff did not administratively exhaust his assault/excessive force claim. Plaintiff argues, first, that at the time of the incident Second Circuit law did not require a grievance, in essence questioning the retroactivity of Porter and Booth. Second, he alleges that he tried to file a grievance, but the form was either lost or stolen, and he raised the assault at his disciplinary hearing. Third, he contends that he wrote letters to the Deputy Superintendent for Security at the Attica Correctional Facility and to the DOCS Inspector General, complaining about his treatment at that facility. (Docket No. 30, Pl. Memo. at 2, Ex. A, B.)
Plaintiff concedes in his Response to Defendants' Statement of Material Facts (Docket No. 31, at 1) that a complaint regarding excessive force is a proper subject for DOCS's grievance (see Docket No. 26, Defs.' Statement ¶ 7).
A. DOCS Grievance Procedure
The Attica Correctional Facility, like similar facilities in New York, has a three-tier grievance procedure that includes filing a grievance with the facility's Inmate Grievance Resolution Committee; then an appeal to the superintendent; then an appeal to the Central Office Review Committee ("CORC"). N.Y. Comp. Codes R. Regs. tit. 7, § 701.7; see Harris v. Totten, 244 F. Supp.2d 229, 233 (S.D.N.Y. 2003). The first step has the inmate filing an Inmate Grievance Complaint Form to the facility's Grievance Clerk. 7 N.Y.C.R.R. § 701.7(a)(1), within fourteen days of the incident, N.Y. Corr. Law § 139; see Docket No. 26 Defs.' Statement ¶ 11. The facility's Inmate Grievance Resolution Committee then reviews the grievance and attempts to resolve it informally and, if resolved to the satisfaction of the grievant inmate, the resolution shall be entered on the grievance. Id. § 701.7(a)(3). The second step is appeal to the facility's superintendent from the written response to the grievance by the Inmate Grievance Resolution Committee. Id. § 701.7(b)(1). The third step is an appeal of the superintendent's written decision to the CORC. Id. § 701.7(c)(1).
B. Retroactivity of Porter
Plaintiff is incorrect in relying upon former Second Circuit law as of the date of the incident to excuse him from not filing a grievance. The Supreme Court held that allegations of excessive force are included under PLRA as prison conditions that first require exhausting administrative remedies before an inmate could be allowed to litigate the issue in federal court, rejecting this Circuit's contrary precedent. Porter, supra, 534 U.S. at 532,rev'g, Nussle, supra, 224 F.3d 95 (2d Cir. 2000); see Booth v. Churner, 532 U.S. 731 (2001). Courts have uniformly applied Porter retroactively to bar ungrieved excessive force claims by prisoners even though those allegations arose before Porter was decided. Webb v. Goord, 340 F.3d 105, 112 (2d Cir. 2003), cert. denied, 124 S.Ct. 1077 (2004); see also Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002) (per curiam) (claim of retaliatory misbehavior tickets barred retroactively by Porter). Further, plaintiff is time barred from grieving this July 2000 incident (see Docket No. 26, Defs.' Statement ¶ 12; Docket No. 31, Pl.'s Response at 1). Thus, plaintiff's excessive force claim is barred by his failure to grieve the matter.
C. Plaintiff's "Substantial Compliance" with Grievance Process
Alternatively, plaintiff suggests that he attempted to file a grievance but had lost his application or that the form was stolen by DOCS personnel. Essentially, plaintiff claims that defendants impeded his access to the grievance process. See Harris, supra, 244 F. Supp.2d at 234; see also Ortiz v. McBride, 323 F.3d 191, 195 (2d Cir. 2003) (per curiam) (plaintiff alleges that guards threatened to assault him if he pursued grievances). But plaintiff only alleges this impediment to filing this grievance without presenting additional evidence (such as the particulars as to how he attempted to file the grievance, who he believes possibly stole his grievance form).
One issue recently posed by the Second Circuit is whether the text of the PLRA, in particular whether " such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (emphasis added), allows inmate plaintiffs to use alternative means to exhaust their administrative remedies from the three-tier grievance and appeal process now available from the DOCS. Davidson v. Pearson, 71 Fed. Appx. 885 (2d Cir. 2003) (slip opinion, citing four pending appeals, Giano v. Goord, No. 02-0105; Johnson v. Reno, No. 02-0145; Hemphill v. State of N.Y., No. 02-0164;Abney v. Dep't of Corrections, No. 02-0241); Ortiz, supra, 323 F.3d at 194 (No. 02-0088). The Second Circuit appointed counsel to plaintiffs in these cases to articulate a standard for alternative means of meeting the exhaustion requirement. The Second Circuit later consolidated all five cases (the four cases noted in Davidson plus Ortiz) for hearing by the same panel with a common briefing schedule (Order of July 18, 2003), and oral argument on May 27, 2004 (Order of Apr. 5, 2004). Given the joint consideration of these appeals and the complexity of the issues presented therein, it may take months for the Second Circuit to render a decision. That court previously has held that the inmate grievance procedure itself recognizes that it is supplemental to informal resolution procedures inmates enjoy in state prisons. See Marvin v. Goord, 255 F.3d 40, 43 (2d Cir. 2001) (per curiam) (citing 7 N.Y.C.R.R. § 701.1); Ortiz, supra, 323 F.3d at 194; see also 7 N.Y.C.R.R. § 701.1(a) (the Inmate Grievance Program "is intended to supplement, not replace, existing formal and informal channels of problem resolution," emphasis added).
In Davidson, for example, the inmate had attempted to file a grievance for his claims of retaliation, had attempted to informally make his claims known to various prison officials, and had written to the superintendent regarding that retaliation claim. Davidson, supra, 71 Fed. Appx. at 885. The Second Circuit remanded Davidson to this Court (Skretny, J.) to consider whether the inmate satisfied the PLRA exhaustion requirement either by his informal attempts to exhaust or by his unsuccessful attempt to file a grievance. Id.
Courts in this Circuit have split on how to handle pending cases while awaiting the Second Circuit's decision on the issue of substantial compliance with the grievance process. Some courts have stayed determination of matters pending the Second Circuit's decision, see Ortiz v. Skinner, No. 00CV722 (W.D.N.Y., No. 36, Order of June 10, 2003) (Schroeder, Mag. J.); other courts have proceeded to decide what they could based upon the then-current state of the law, see, e.g., Jennings v. Deperio, No. 00CV266 (W.D.N.Y., No. 69, Report and Recommendation dated Feb. 10, 2004, adopted, No. 71, Order of Mar. 5, 2004) (Scott, Mag. J.); Rosario v. Kurtz, No. 02CV134 (W.D.N.Y., No. 38, Decision Order of Jan. 7, 2004) (Scott, Mag. J.); see also Ashford v. Goord, No. 01CV18 (W.D.N.Y., No. 112, Order of Feb. 13, 2004) (Scott, Mag. J.) (total exhaustion issue).
Alternatively, if this case were addressed now (and pending whatever decision of the Second Circuit), plaintiff could have appealed the inaction on his grievance to the next level of the grievance process, to the Superintendent, and, by appealing, exhausted his administrative remedies, or grieved his inability to commence a grievance. See Johnson v. Hart, U.S. Dist. Ct. (W.D.N.Y.), No. 99CV172, Docket No. 60, Decision and Order of Sept. 30, 2002, at 4 (Arcara, Ch. J.); Waters v. Schneider, 2002 WL 727025 (S.D.N.Y. Apr. 23, 2002); Burns v. Moore, 2002 WL 91607 (S.D.N.Y. Jan. 24, 2002). Plaintiff does not indicate that he was hindered in any way in appealing adverse grievances or inaction on his grievances. See Johnson, supra, at 5. From the exhibits submitted with the Complaint, plaintiff appears to be familiar with the appellate process within the inmate grievance system. Thus, under the present standard (calling for following existing regulations to administratively exhaust a claim) plaintiff failed to exhaust his remedies.
D. Letters to DOCS Officials
Plaintiff also claims that he exhausted his administrative remedies by writing to the Deputy Superintendent at Attica Correctional Facility and the DOCS Inspector General to complain about his assault. Plaintiff's contention here is squarely one of the issues now before the Second Circuit in the pending PLRA appeals. Cf. Marvin, supra, 255 F.3d at 43 (grievance program recognizes informal means, citing 7 N.Y.C.R.R. § 701.1);Ortiz, supra, 323 F.3d at 194; 7 N.Y.C.R.R. § 701.1(a). Other courts within the Second Circuit have construed letters like plaintiff's to be attempts to file grievances at that facility, and found that (absent following the other steps in the Inmate Grievance Program) those inmates failed to exhaust their complaints by mere letter writing. See Harris, supra, 244 F. Supp.2d at 233 (citing cases, holding that letters to superintendent do not qualify as exhaustion of established inmate grievance process); Mendoza v. Goord, supra, 2002 WL 31654855, at *3 (inmate must pursue the proper channels in order to exhaust his administrative remedies); Black v. Selsky, No. 01CV155, 2004 WL 625621, at *3 (W.D.N.Y. Jan. 13, 2004) (Elfvin, J.) (2 letters to Superintendent and DOCS Commissioner are not sufficient for exhaustion and are not exhaustion of appellate remedies within the administrative scheme). Barring Second Circuit action on this particular issue, letters to DOCS officials alone, however, do not satisfy the administrative exhaustion requirement of PLRA. Plaintiff's letter writing campaign does not suffice to constitute exhaustion of his administrative remedies.
Thus, under the current state of the law regarding administrative exhaustion, plaintiff has not established that he exhausted his administrative remedies prior to commencing this action and defendants' motion should be granted.
III. Due Process in Special Housing Unit Placement
Defendants contend that plaintiff's allegation that they wrote a false misbehavior report did not state a due process claim. Filing false charge does not constitute a due process violation.Freeman v. Rideout, 808 F.2d 949 (2d Cir. 1986), cert. denied, 485 U.S. 982 (1988); Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997). So long as plaintiff received a hearing, as he did here, there is no violation of his due process rights.Freeman, supra, 808 F.2d 949.
As for defendant Dixon, defendants argue that plaintiff makes a conclusory allegation that, as the hearing officer, Dixon violated several of plaintiff's procedural and constitutional due process rights in furtherance of a coverup of the other defendants' actions. They state that there is no liberty interest implicated in the punishment issued at the close of the hearing, 180 days in the Special Housing Unit and loss of telephone privileges, and that these punishments were not atypical to implicate liberty interests. The Complaint also fails to specify what Dixon did or failed to do in allegedly violating several of plaintiff's due process rights. Plaintiff, instead, merely alleged that Dixon found him guilty despite the fact that the misbehavior report allegedly was false. Defendants conclude that such a conclusory allegation cannot survive summary judgment.See Polur v. Raffe, 912 F.2d 52, 56 (2d Cir. 1990), cert. denied, 499 U.S. 937 (1991).
As for other evidence plaintiff may have used to support this claim, he testified in his deposition that Dixon refused to allow plaintiff's assistant to testify as a witness to the assistance he provided plaintiff (Docket No. 26, Defs.' Statement ¶¶ 23-24; Docket No. 21, Atty. Decl. Ex. A, at 42); that Dixon found plaintiff guilty despite agreeing with plaintiff on the oddity of the circumstances (id., Atty. Decl. Ex. A. at 47; Docket No. 27, Memo. of Law at 11-12); Dixon allowed defendant Schuck to testify at the hearing by speaker telephone (Docket No. 21, Atty Decl. Ex. A, at 51); and, as an experienced DOCS officer, Dixon "just knew" and "knew [the defendants] were wrong" (id., Atty. Decl. Ex. A, at 51-52).
Plaintiff retorts that he sufficiently alleged a due process claim against all defendants. He contends that the hearing was in fact a sham and part of the overall "`retaliative' mind-set of the Defendants" (Docket No. 30, at 3). He claims that the assistant he wanted to call as a witness at the disciplinary hearing would have testified to other (unnamed) witnesses who refused to appear and testify at plaintiff's hearing out of fear of reprisal. Plaintiff's assistant would have stated that he was informed of events leading to plaintiff's assault. (Docket No. 31, Pl.'s Response ¶ 13.) Plaintiff, however, does not explain how the admissibility of this otherwise hearsay testimony impinges on due process rights.
Plaintiff needs to come forward with specific facts which create a genuine issue of fact to defeat a motion for summary judgment. See Curley v. Village of Suffern, 268 F.3d 65, 70 (2d Cir. 2001). Plaintiff did not produce such facts. Thus, this claim should be dismissed and defendants granted summary judgment as to this claim.
IV. Conspiracy Claim
In order to allege a conspiracy, plaintiff must allege facts which establish an agreement among the defendants. Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir. 1992), cert. denied, 506 U.S. 819 (1992); Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir. 1988). Conclusory, vague or general allegations of conspiracy cannot withstand a motion to dismiss. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983), cert. denied, 464 U.S. 857 (1983), Dwares v. City of N.Y., 985 F.2d 94, 99-100 (2d Cir. 1993). Such allegations do not state a claim for relief.Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997).
Defendants argue that plaintiff has not alleged a conspiracy, only alleges that a conspiracy exists, but makes no factual assertions in support of that allegation. He merely describes the actions the defendants took, and claims that the actions themselves are evidence of a conspiracy. This Court has dismissed claims in which a mere description of the officials' actions and the outcome of an alleged conspiracy were held insufficient to show the actual existence of a conspiracy. See, e.g., Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003); Spies v. Kelleher, 01CV499 (W.D.N.Y., No. 13, Order of Feb. 13, 2002) (Siragusa, D.J.).
Plaintiff is proceeding pro se in this action and his pleadings have to be liberally construed. See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Nevertheless, plaintiff must plead, and for a motion for summary judgment, produce evidence to support, a conspiracy allegation. The mere allegation of conspiratorial meetings, for example, is not sufficient to create a material issue of fact as to whether something improper occurred. San Filippo v. U.S. Trust Co., 737 F.2d 246, 256 (2d Cir. 1984); Scotto v. Almenas, 143 F.3d 105, 115 (2d Cir. 1998). Furthermore, to defeat a summary judgment motion plaintiff must go beyond the pleading stage and present sufficient evidence to show that an improper conspiracy took place. See Scotto, supra, 143 F.3d at 114; Leon v. Murphy, 988 F.2d 303, 311 (2d Cir. 1993) (plaintiff's allegations held insufficient to defeat defendant's summary judgment motion in § 1983 conspiracy claim, where allegations were unsupported by specifics). Plaintiff here fails to do that. Thus, the conspiracy claim should be dismissed and defendants should be granted summary judgment as to this claim.
V. Retaliation Claim
In a case cited by plaintiff (Docket No. 30, Pl. Memo. at 4), the Second Circuit noted the skepticism and care needed in prisoner retaliation claims.
"As a threshold matter, we note that courts must approach prisoner claims of retaliation with skepticism and particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). This is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because 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. See Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988); see also [ACLU v. Wicomico County], 999 F.2d [780,] 785 [(4th Cir. 1993)] (`Retaliation by a public official for the exercise of a constitutional right is actionable . . . even if the act, when taken for different reasons, would have been [constitutionally permissible].'); Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (same); Johnson v. Rodriguez, 110 F.3d 299, 313 n. 19 (5th Cir. 1997) (same). Given that such adversity is an ever-present concomitant of prison life, the opportunities to characterize its manifestations as actionable retaliation are far greater than that for society at large."Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001). The Second Circuit there affirmed the dismissal of a pro se inmate's retaliation claim on a motion to dismiss. Id. That court also recognizes "both the near inevitability of decisions and actions by prison officials to which prisoners will take exception and the ease with which claims of retaliation may be fabricated. . . ." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
To state a valid retaliation claim, plaintiff must allege that he engaged in constitutionally protected activity, and that retaliation against the protected conduct was a substantial or motivating factor in defendants' actions. Mount Health City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). "To survive summary dismissal, a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations establishing: (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 speech and the adverse action." Dawes, supra, 239 F.3d at 492. "A plaintiff alleging retaliatory punishment `bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff.' Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). The burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation. Id. at 80. The defendant can meet this burden by demonstrating that there is no dispute that the plaintiff `committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.' Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir.) (per curiam), cert. denied, 525 U.S. 907 (1998); see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (holding that the defendants met their burden when `it was undisputed that [the plaintiff] had in fact committed the prohibited conduct')."Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002). In Gayle, the Second Circuit vacated summary judgment granted to defendants, finding that the plaintiff alleged in a verified complaint that several DOCS officers charged plaintiff with a false misbehavior report in retaliation for exercising his constitutional right to file a grievance. Id. at 688-83. Plaintiff had elicited "circumstantial, but sufficient, evidence to create a genuine issue of material fact as to whether retaliation was a substantial factor in the DOCS officials' decision to charge and punish" the plaintiff. Id. at 683. The temporal proximity of the grievance to the misbehavior report may serve as circumstantial evidence of retaliation. Id.; Colon, supra, 58 F.3d at 872.
Here, plaintiff signed his Complaint under penalty of perjury (see Docket No. 1, Complaint) alleging that defendants endorsed a false misbehavior report authored by defendant Schuck to cover up the assault (Compl. ¶ 8) and, upon plaintiff's information and belief, defendants acts (including incarcerating plaintiff in Special Housing Unit for 180 days following a hearing) was retaliatory (Compl. ¶¶ 10, 11). Defendants argue that plaintiff does not allege that he wrote grievances or complaints against these defendants or showed that defendants were aware of complaints he made against other officers to constitute retaliation. Defendants contend that plaintiff has not produced evidence of their improper motive, such as defendants' expressions of their respective states of mind, circumstances suggesting plaintiff was singled out by defendants, or the highly unusual nature of the action taken. See Blue v. Koren, 72 F.3d 1075, 1084 (2d Cir. 1995). (Docket No. 27, Defs.' Memo. of Law at 15.) Plaintiff has not produced any evidence that these defendants knew of plaintiff's membership in the Nation of Islam or of his history of prior grievances. Plaintiff only argues in his responding papers that it is "a well known fact" that staff at Attica can get access to the Inmate Grievance Review Committee office and inmate grievances (although they are supposed to be confidential) (Docket No. 30, Pl. Memo. of Law at 5). The Court cannot take judicial notice of such facts. Plaintiff needed to provide proof that these defendants engaged in such activity and acted on review of plaintiff's grievance files. He also argues that defendants were accused or sued for alleged assaults against other inmates (id.), thus they engaged in a cover up of this incident by filing a false misbehavior report. All this alleges, however, is that defendants were accused or sued, without any proof of what happened to those accusations, whether they were substantiated, or whether there was a common method of filing false misbehavior reports to cover up inmate assaults.
The first prong of the Graham test, that the conduct at issue was constitutionally protected, was met here through plaintiff's verified Complaint and enclosed exhibits thereto. See Gayle, supra, 313 F.3d at 682. Plaintiff filed a Complaint affirmed under penalty of perjury (Docket No. 1), with attached exhibits of various grievances he filed. As a verified Complaint, it serves as an affidavit under Fed.R.Civ.P. 56(e) to rebut defendants' motion for summary judgment. See Colon, supra, 58 F.3d at 872; Gayle, supra, 313 F.3d at 682. The secondGraham prong, that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff, requires plaintiff show the intention of the defendant officers, be it by direct or circumstantial evidence.Id. at 682-83; Colon, supra, 58 F.3d at 872-73. Here, plaintiff did not produce any direct evidence, such as was introduced in Colon of a defendant's admission of acting in retaliation, Colon, supra, 58 F.3d at 873.
While many of the grievances attached as exhibits to the Complaint discuss plaintiff's complaints due to his religious beliefs, prior assaults by other prison officers, or other grievances, there is no mention of these particular defendants or their awareness of those complaints. A generic allegation that "staff" considered him to be an "agitator" or "advocate" (Docket No. 30, Memo. of Law at 5) because he utilized the inmate grievance system numerous times or that he was "highly visible and active member of the Nation of Islam at said facility" (Docket No. 1, Compl. ¶ 4) alone does not establish the intent of the named defendants to retaliate against him.
In his responding Memorandum, plaintiff calls upon the Court to take notice that Nation of Islam members in Attica "are not liked at all per-se by prison staff at this facility moreso [sic] than others in light of the chain of events that unfolded during the infamous `Attica 1971' rebellion up until this very day." (Docket No. 30, Memo. of Law at 4.)
As for the nature of the action taken and its timing, plaintiff was assaulted on July 12, 2000, and the misbehavior report was filed the next day. The reporting of the incident the next day is not unusual and is consistent with maintaining prison order.
Plaintiff has not alleged or provided evidence connecting these defendants to deprivation of his religious free exercise rights as a member of the Nation of Islam — the adverse action prong of the Graham retaliation test. He does not show that these defendants were aware of his advocacy or his religious belief. Therefore, plaintiff has not met his burden under Graham to establish at least a material issue of fact as to his retaliation claim to have the defendants rebut to support their motion. Defendants should be granted summary judgment dismissing plaintiff's retaliation claim.
CONCLUSION
Based upon the above, it is recommended that defendants' amended motion (Docket No. 25) for summary judgment be determined as follows (based upon the claims alleged): on plaintiff's assault claim, defendants' motion should be granted as barred by PLRA and failure to exhaust or raise administratively; plaintiff's due process claim should be granted; plaintiff's conspiracy claim should be granted; and plaintiff's retaliation claim should be granted. In sum, defendants' motion for summary judgment should be granted in its entirety.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report Recommendation be filed with the Clerk of the Court and that the Clerk shall send a copy of the Report Recommendation to all parties. ANY OBJECTIONS to this Report Recommendation must be filed with the Clerk of this Court within ten (10) days after receipt of a copy of this Report Recommendation in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b) and W.D.N.Y. Local Civil Rule 72.3(a). FAILURE TO FILE OBJECTIONS TO THIS REPORT RECOMMENDATION WITHIN THE SPECIFIED TIME OR TO REQUEST AN EXTENSION OF SUCH TIME WAIVES THE RIGHT TO APPEAL ANY SUBSEQUENT DISTRICT COURT'S ORDER ADOPTING THE RECOMMENDATIONS CONTAINED HEREIN. Thomas v. Arn, 474 U.S. 140 (1985); F.D.I.C. v. Hillcrest Associates, 66 F.3d 566 (2d Cir. 1995); Wesolak v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The District Court on de novo review will ordinarily refuse to consider arguments, case law and/or evidentiary material which could have been, but was not, presented to the Magistrate Judge in the first instance. See Patterson-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y. Local Civil Rule 72.3(a)(3), "written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Failure to comply with the provisions of Rule 72.3(a)(3) may result in the District Court's refusal to consider the objection.
SO ORDERED.