Opinion
9:12-CV-01704 (TJM/TWD)
02-23-2015
MICHAEL JOSHUA HENDERSON, Plaintiff, v. BRIAN FISCHER, et al., Defendants.
APPEARANCES: MICHAEL JOSHUA HENDERSON Plaintiff pro se 06-A-5461 Attica Correctional Facility Box 149 Attica, New York 14011 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: ADRIENNE J. KERWIN, ESQ. Assistant Attorney General
APPEARANCES: MICHAEL JOSHUA HENDERSON
Plaintiff pro se
06-A-5461
Attica Correctional Facility
Box 149
Attica, New York 14011
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
OF COUNSEL: ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
Pro se Plaintiff Michael Joshua Henderson, who is presently confined at Attica Correctional Facility ("Attica"), has commenced this pro se civil rights action under 42 U.S.C. § 1983 against Defendants Brian Fischer ("Fischer"), former Commissioner of the Department of Corrections and Community Supervision ("DOCCS"); Harold D. Graham ("Graham"), Superintendent of Auburn Correctional Facility ("Auburn"); and Auburn Corrections Officer Justin E. Dennis ("Dennis"). (Dkt. No. 45 at ¶ 3.) Plaintiff has made claims that Defendants Dennis, Graham, and Fischer, individually and as a part of a conspiracy, have retaliated against him for filing grievance complaints by: (1) improperly revoking his mother's visitation privileges in violation of his rights under the First and Fourteenth Amendments and DOCCS Directive 4403; and (2) tampering directly or indirectly with his grievance complaints. Id. at ¶¶ 100-115. Plaintiff also claims that Dennis assaulted him and filed a false misbehavior report against him in retaliation for grievances he had filed. (Dkt. No. 47-1 at 36-38.) In addition, Plaintiff has asserted supervisory liability claims against Defendants Fischer and Graham and claims for denying Plaintiff's appeals on Tier II and Tier III misbehavior reports and the revocation of his mother's visiting privileges. Id. at ¶¶ 116-135; Dkt. No. 47-1 at 20-23. Defendants have been sued in their official and individual capacities. Id. at ¶ 3.
References to page numbers in citations to documents filed with the Clerk refer to the page numbers assigned by the Court's electronic filing system.
This action was commenced in November of 2012 by the filing of a Complaint which survived initial review under 28 U.S.C. §§ 1915(e)(2) and 1915A. (Dkt. Nos. 1 and 7.) After Defendants filed their Answer (Dkt. No. 20), the parties engaged in discovery. This Court granted Plaintiff leave to file an Amended Complaint in a Decision and Order filed on June 16, 2014. (Dkt. Nos. 44 and 45.) After answering the Amended Complaint (Dkt. No. 46), Defendants filed the motion for summary judgment now before the Court for report and recommendation. (Dkt. No. 47.) Plaintiff has opposed the motion. (Dkt. No. 55.) For the reasons that follow, the Court recommends that Defendants' motion for summary judgment be GRANTED in its entirety and further recommends the sua sponte dismissal of Plaintiff's § 1983 claims for money damages against Defendants in their official capacities on Eleventh Amendment grounds.
A majority of the factual allegations in Plaintiff's 136 paragraph Amended Complaint, filed on June 16, 2014, concern nineteen or more Auburn corrections personnel who, while identified as defendants in the Amended Complaint, are not intended by Plaintiff to be defendants in this lawsuit. (see Dkt. Nos. 45 at 6; 42. at ¶ 4.) Most of the nineteen, as well as Defendants Dennis, Graham, and Fischer herein, were named as defendants in a lawsuit filed by Plaintiff on December 13, 2013, entitled Michael Joshua Henderson v. Brian Fischer, et al., No. 9:13-CV-01537 (MAD/CFH) (N.D.N.Y.). The allegations in the Complaint in that action are largely verbatim to those in the Amended Complaint herein. (see No. 9:13-CV-01537, Dkt. No. 1.) That lawsuit was dismissed (without prejudice as to the claims asserted against the defendant's in their individual capacities) against all but five of the named defendants by the Hon. Mae A. D'Agostino, D.J., upon initial review under 28 U.S.C. § 1915(e). (No. 9:13-CV-01537, Dkt. No. 5.) Dismissal as to Defendants Dennis, Graham, and Fischer was based upon the pendency of this action found to be duplicative. Id. at 12-14. The Court will disregard the factual allegations in Plaintiff' Amended Complaint regarding non-defendants except to the extent they may have relevance to the claims asserted against the Defendants in this lawsuit.
II. BACKGROUND
A. July 12, 2012, Incident with Dennis
According to Plaintiff, during the evening of July 12, 2012, Defendant Dennis placed Plaintiff in the slop sink while he searched his cell. (Dkt. No. 45 at ¶ 75.) Plaintiff claims that there was no legitimate security reason for not allowing him to be present during the search and believes it was so that they could go through his property and legal work in order to have a better understanding of his case and to destroy and mess up his cell. Id. Dennis acknowledges conducting a frisk of Plaintiff's cell on July 12, 2012, pursuant to DOCCS policies and procedures, and finding no contraband. (Dkt. No. 47-4 at ¶ 10.)
Because Plaintiff's Amended Complaint (Dkt. No. 45) is verified, it is being treated as an affidavit. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ("A verified complaint is to be treated as an affidavit . . . and therefore will be considered in determining whether material issues of fact exist . . . .") (internal citations omitted).
Plaintiff's claims that when he was going back to his cell with Dennis after the search, Dennis started questioning him about the reason for his incarceration and told Plaintiff he made him sick because of what he had done running someone over and then coming back and running more people over. (Dkt. Nos. 45 at ¶ 75; 47-1 at 33.) Dennis was particularly sickened by the Plaintiff having medical records of the victims in his cell. Id. Plaintiff responded to Dennis' comments by saying "yeah, well, you know what? You and that officer right there make me sick." (Dkt. No. 45 at ¶ 75.) According to Plaintiff, Dennis lost it and started repeatedly hitting him in the left side of his face and body. Id. Plaintiff then "locked in" his cell. Id. Dennis has denied using any force against Plaintiff on July 12, 2012, or at any other time. (Dkt. No. 47-4 at ¶ 14.)
In a Declaration submitted by Plaintiff in opposition to Defendants' motion, Ricardo Martinez ("Martinez"), an inmate at Auburn during 2012 and 2013, states that sometime during July and August of 2012, he overheard Dennis telling several other officers that he had read Plaintiff's legal papers, including the victims' medical records, during a cell search, which "eventually led to him hitting [Plaintiff]." (Dkt. No. 55-5 at ¶ 2.)
Plaintiff contends that when Dennis came back to his cell to give him a no contraband receipt, he asked why Dennis had punched him in the face, and Dennis replied "I don't know what you are talking about." (Dkt. No. 45 at ¶ 75.) Plaintiff then said, "are you fucking kidding me, you just punched me in my face." Dennis then said, "are you threatening me, good cause now I'm going to write you a ticket." Id. According to Dennis, when he gave Plaintiff the no contraband slip, Plaintiff became agitated and made several verbal threats which resulted in Dennis writing a misbehavior report charging Plaintiff with violating DOCCS rules 102.10 (threats) and 107. 10 (interference). (Dkt. Nos. 47-3 at 6; 47-4 at ¶¶ 11-12.) Plaintiff was found guilty of both charges following a hearing. (Dkt. No. 45 at ¶ 76.) On his appeal to Fischer from the guilty determination, Plaintiff claimed that the misbehavior report written by Dennis was fabricated in retaliation for grievances Plaintiff had filed, and that the sentence was harsh and excessive. (Dkt. No. 55 at 15-17.) The charges were modified on appeal to dismiss the interference charge. (Dkt. No. 45 at ¶ 75.) Martinez has stated in his Declaration that he overheard Dennis talking about the misbehavior report and admitting that he "made the whole thing up." (Dkt. No. 55-5 at ¶ 2.)
In his Amended Complaint, Plaintiff claims that as a result of the assault by Dennis, he sustained swelling around the left side of his face, a black eye, and was left with a twitching of his upper and lower eyelids when he squeezes his eye slightly shut. Id. at ¶ 75. However, at his deposition, Plaintiff described the injuries he sustained as a result of being hit by Dennis as de minimis and stated that he was not pursuing a claim for the alleged assault. (Dkt. No. 47-1 at 32.) Plaintiff testified as follows at his deposition:
Q And who is Justin Dennis?
A Officer Justin Dennis is the officer who searched my cell July 12th, 2012 and put his hands on me physically.
Q Are you making a claim in this case with regard to any injuries you suffered from him putting hands on you?
A I mean, it's not that serious. There's I mean what claim can I make? It's like de minis (sic), not even serious or whatever you can it.
Q Okay. I just wanted to clarify that. So you're not making any claim because they were de minimis.
A Yes. I just want to expunge my tickets and get my mother's visits back . . . .Id. at 31-32. Plaintiff has not asserted an Eighth Amendment claim for excessive force in his Amended Complaint, filed nearly a year after his deposition. (see Dkt. No. 45.)
On July 13, 2012, after realizing that his face was still swollen, Plaintiff made repeated attempts to report the assault by Dennis to the company officer with no success. (Dkt. No. 45 at ¶ 76.) When his requests were ignored, he gave his neighbor his pin numbers and asked him to call Plaintiff's mother and let her know what had happened. Id. After receiving a phone call from inmate Marty Bartel, Plaintiff's mother called the facility and spoke to Graham. (Dkt. No. 55-3 at ¶ 9.) She demanded that Plaintiff be taken to medical to have pictures taken of his injuries. Id. Plaintiff was escorted to medical where he was interviewed and pictures were taken. (Dkt. No. 45 at ¶ 76.)
When Dennis logged onto his Facebook account on his personal computer at home on July 14, 2012, he discovered he had received a threatening message from a person identified as "Lisa Lee." (Dkt. No. 47-4 at ¶ 3 and 6.) The Facebook threats specifically named Dennis' son as well as two of his sisters. Id. at ¶ 4. Dennis found the threats to be similar in nature to those made to him by Plaintiff two days earlier. Id. at ¶ 4. Plaintiff informed Captain Chuttey ("Chuttey") of the threat and provided him with a copy of the Facebook message. Id. at ¶ 5. On December 13, 2012, Dennis gave a statement to the Inspector General's Office ("IG") regarding the threat and has taken no further action in the matter. Id. at ¶¶ 6-7.
At his deposition, Plaintiff testified that he no longer doubted that Dennis had received the Facebook message, but knew that Dennis had not felt threatened by it. (Dkt. No. 47-1 at 44, 60.) Plaintiff's position regarding the Facebook posting was that Dennis should not have reported it because he was not threatened, and that because it was on Dennis' personal Facebook account, it had nothing to do with DOCCS and should have been reported to the police if Dennis actually felt threatened. Id. at 60-62. Plaintiff claims that Dennis reported the July 14, 2012, Facebook posting in retaliation for Plaintiff's accusation that Dennis had assaulted him on July 12, 2012, and for filing grievances against other corrections officers at Auburn. Id. at 59.
Despite his deposition testimony indicating he did not dispute the posting of the Facebook message, Plaintiff has submitted the Martinez Declaration in which Martinez states that he overheard Dennis mention the alleged threat in Facebook and say none of it was true, and he had only reported it to his supervisors because he knew it would cause problems for Plaintiff. (Dkt. No. 55-5 at ¶ 2.)
Plaintiff claims to have filed a grievance regarding the events of July 12 and 13, 2012, and the misbehavior reports filed by Dennis and Corrections Officers Stanley C. Dine ("Dine") and Corrections Sergeant James T. Wright ("Wright") on or about July 13 and 14, 2102. (Dkt. No. 45 at ¶¶ 76-77.)
Dine is alleged to have filed a false misbehavior report against Plaintiff on July 13, 2012 in retaliation for Plaintiff's grievances. (Dkt. No. 45 at ¶¶ 75-76.) Wright filed a misbehavior report on or about July 14, 2012, that included charges regarding unauthorized telephone use and exchange of personal pin numbers. Id. at ¶ 77.
B. Revocation of Plaintiff's Mother's Visitation Privileges
On July 17, 2012, Defendant Graham wrote to Plaintiff's mother, Lisa Henderson, advising her that her visitation privileges had been revoked. (Dkt. No. 47-3 at 14.) The letter informed Lisa Henderson that there was an on-going investigation of whether she threatened a corrections officer and his family being conducted by the DOCCS IG. Id. The referenced threat was the July 14, 2012, Facebook posting to Dennis from Lisa Lee. (Dkt. No. 47-6 at ¶ 6.) The posting included a reference to something Dennis "did on July 12 at 8:30 PM," the date and time Plaintiff claimed Dennis had assaulted him. Id. at ¶¶ 5, 7. Based upon specific references made in the Facebook threat, DOCCS determined that "Lisa Lee" and Plaintiff's mother, "Lisa Henderson," were likely the same person. Id. at ¶ 7. According to Graham, all threats against corrections staff and personnel are considered to be serious risks to the safety, security, and good order of the facility. Id. at ¶ 10. He therefore exercised his discretionary authority as Superintendent at Auburn to revoke Lisa Henderson's right to visit any inmate at the facility until the investigation was concluded by the IG. Id. at ¶¶ 10-11. The IG had not completed his investigation as of the time Plaintiff was transferred from Auburn, and Graham has no personal knowledge regarding the conclusion. Id. at ¶¶ 16-17.
The July 17, 2012, letter to Lisa Henderson advised her that she would be notified of the outcome when the investigation was complete and informed her that she had a right to appeal the revocation decision, in writing, to the DOCCS Commissioner within twenty-days of receipt of the letter, or by submitting a request for a hearing to then DOCCS Commissioner Defendant Fischer within thirty-days of receipt of the letter. (Dkt. No. 47-3 at 13.) Lisa Henderson, who has denied ever making any threats against Dennis and his family or any other corrections officer or his or her family, (Dkt. No. 55-3 at ¶ 10), sent a written request for a hearing and a written appeal to Fischer on August 8, 2012. (Dkt. No. 47-2 at 7-8.) Plaintiff also submitted a written appeal from the revocation to Fischer and claims to have submitted a grievance as well. (Dkt. Nos. 45 at ¶ 79; 55 at 13; 47-2 at 12-19.) In accordance with N.Y. Comp. Codes R. & Regs. ("NYCRR") tit. 7, Part 201, appeals are delegated to the Department's Office of Counsel for response. Id. at ¶ 9.
DOCCS Deputy Counsel William Gonzalez ("Gonzalez") wrote to Lisa Henderson on October 4, 2012, in response to her request for a hearing. (Dkt. No. 47-2 at 21-22.) Plaintiff was copied on the letter. Id. at 22. Gonzalez informed Lisa Henderson that since the suspension of visiting rights during the ongoing investigation of the threat was not considered final, it would generally be advisable to wait until the issuance of a final decision and/or the conclusion of the investigation before proceeding with a hearing, if needed. Id. at 21-22. Gonzalez nonetheless agreed to have the Office of Counsel schedule a hearing if she wished to proceed at that point. Id. at ¶ 21. She was told that the purpose of a hearing at that point would be to determine whether the decision to suspend her visitation pending the investigation was within Graham's discretion. Id. at 22. Gonzalez also informed her that a written copy of the threat was being withheld from documents provided to her with the letter because it was being investigated by outside law enforcement agencies. Id.
Fischer has stated upon information and belief in his Declaration that Lisa Henderson did not respond to Gonzalez's October 4, 2012, letter. Id. at ¶ 11. Fischer has also noted that 7 NYCRR Part 201, effective October 1, 2012, allows a visitor whose visitation privileges have been indefinitely suspended to request reconsideration any time after the suspension has been in effect for one year, and on an annual basis thereafter by writing to the superintendent of the facility where the inmate is being housed. Id. at ¶ 13. Fischer has no knowledge whether Lisa Henderson has made any such request, and because he delegated responsibility for responding to the appeals to the DOCCS Office of Counsel, he had no involvement in issuing any response to the appeals. Id. at ¶¶ 13-14.
At his deposition in July of 2013, Plaintiff testified that the last time he had a visit with his mother was April 23, 2012. (Dkt. No. 47-1 at 22, 48.) Plaintiff testified that his mother had been refused visitation at Auburn, Southport Correctional Facility, where Plaintiff was transferred from on or about August 6, 2012, to November 27, 2012, when he returned to Auburn, and at Attica, where he was transferred on or about January 18, 2013. Id. at 13-14. According to Plaintiff, during the time his mother had been unable to visit, he had spoken with her on the telephone every chance he had, and that two or three days did not go by without her calling to check on how he was doing. Id. at 48-49.
Plaintiff testified at his deposition that his mother had not explained to him any final conclusions that might have been reached with regard to her visitation privileges. (Dkt. No. 47-1 at 22.) She had not indicated to him whether she had received a final decision on her appeal or anything of that nature. Id. at 23. Plaintiff only knew of his mother's initial appeal and request for a hearing. Id. Plaintiff has provided no additional information with regard to the administrative process or the status of Lisa Henderson's visitation privileges in his opposition papers. Lisa Henderson's Declaration contains no mention whatsoever regarding what has transpired administratively since her visiting privileges were temporarily revoked, or the present status of her privileges. (Dkt. No. 55-3.)
None of the Defendants have provided evidence with regard to the status of Lisa Henderson's visiting privileges subsequent to Gonzalez's October 4, 2012, letter to her regarding her request for a hearing. Graham, who has received no request from Lisa Henderson seeking restoration of her visitation privileges, claims to have no knowledge regarding whether she appealed his temporary revocation of her visiting privileges and no personal knowledge regarding the conclusion of the IG's investigation, which was not yet complete when Plaintiff was transferred from Auburn. (Dkt. No. 47-3 at ¶¶ 14-18.) Fischer has stated that Plaintiff and Lisa Henderson's appeals were delegated to DOCCS Office of Counsel for response, he had no involvement in issuing a response, and that he has no knowledge as to whether Lisa Henderson requested reconsideration of the revocation. (Dkt. No. 47-2 at ¶¶ 9, 11, 13-14.) In short, all of the parties have been curiously silent as to the status or outcome of the IG's investigation, the present status of the revocation and of any appeals taken by Plaintiff and his mother, and whether Lisa Henderson has had her visitation reinstated or attempted to have her privileges reinstated since the time of Plaintiff's deposition.
Pursuant to 7 NYCRR § 201.6(a), the request for reconsideration of visitation privileges goes to the superintendent of the facility where the inmate is confined. 7 NYCRR § 201.6(a). Since Plaintiff was moved to Attica on or about January 18, 2013, the fact that Graham has not received a request does not foreclose the possibility that one has been made to the superintendent at Attica. (Dkt. No. 47-1 at 13-14.)
III. APPLICABLE LEGAL STANDARDS
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). "Conclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998).
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010) ("It is well established that in determining the appropriateness of a grant of summary judgment, [the court] . . . may rely only on admissible evidence.") (citation and internal quotation marks omitted). As noted above, a plaintiff's verified complaint is to be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Plaintiff's Amended Complaint (Dkt. No. 45) was properly verified under 28 U.S.C. § 1746. See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use of the language "under penalty of perjury" substantially complies with 28 U.S.C. § 1746).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). 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." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3, 1999 U.S. Dist. LEXIS 16767 at *8 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
IV. ANALYSIS
A. Deficiencies in Plaintiff's Opposition Papers
As required under N.D.N.Y. L.R ("L.R.) 7.1, Defendants have filed a statement of material facts with citations to the summary judgment record. (Dkt. No. 47-6.) Although Plaintiff has responded to the statement of material facts filed by Defendants (Dkt. No. 47-6), he has failed to do so in the manner required under L.R. 7.1(a)(3). Under the rule, the opposing party's response to the movant's statement of material facts "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." Although Plaintiff has admitted or denied each of the Defendants' assertions, his citations to the record do not reference evidence that he claims creates a material issue of fact, but rather simply mirror the citations relied upon by Defendants as support for the assertions in their statement of material facts. Id.
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the L.R. provides that facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion,v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). However, the Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). In deference to Plaintiff's pro se status and his attempt, albeit inadequate, to respond to Defendants' statement of material facts, the Court has opted to review the entire summary judgment record.
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond to their summary judgment motion. (Dkt. No. 47 at 3.)
B. Official Capacity Claims for Money Damages
Plaintiff has sued Defendants in their official capacities for money damages under § 1983. (Dkt. No. 45 at ¶ 3.) The Eleventh Amendment protects states against suits brought in federal court. Alabama v. Pugh, 438 U.S. 781, 782 (1978). The immunity granted the states under the Eleventh Amendment extends beyond the states themselves to state agents and instrumentalities that are effectively arms of the state. (Woods v. Rondout Valley Cent. School Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006). The Eleventh Amendment bars all money damages claims against state officials acting in their official capacities, including the DOCCS Defendants herein. Kentucky v. Graham, 473 U.S. 159, 167-68 (1985); see also Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (an inmate plaintiff's claims for damages against all individual DOCCS employees sued in their official capacities are considered claims against New York and are thus barred by the state's Eleventh Amendment immunity).
Therefore, although Defendants have not raised an Eleventh Amendment argument in moving for summary judgment, the Court recommends the sua sponte dismissal with prejudice of Plaintiff's § 1983 claims for money damages against Defendants in their official capacities on Eleventh Amendment grounds. See Wood, 466 F.3d at 238 (recognizing that courts may raise the issue of Eleventh Amendment immunity sua sponte).
C. Conspiracy Claims
In his third cause of action, Plaintiff has alleged in conclusory fashion that Defendants Dennis, Graham, and Fischer conspired to violate his civil rights in violation of 42 U.S.C. §§ 1983, 1985(3), and 1986. (Dkt. No. 45 at ¶¶ 108-11.) In his fourth cause of action, Plaintiff has alleged, also in conclusory fashion, that the Defendants all had knowledge of the wrongs "conspired to be done," had the power to prevent them, and neglected to do so in violation of his statutory rights under §§ 1983, 1985(3), and 1986. Id. at ¶¶ 112-115. Plaintiff's seventh cause of action is entitled "Conspiracy to Violate Plaintiff's Civil Rights" but is devoid of language describing a conspiracy. Id. at ¶¶ 126-130.
"To prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999) (citations omitted). The elements of a conspiracy claim under § 1985(3) are "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws, . . . ; (3) an act in furtherance of the conspiracy; (4) whereby a person is . . . deprived of any right of a citizen of the United States." Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000) (quoting Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993)), overruled in part on other grounds by Gonzaga Univ. v. Doe, 536 U.S. 273 (2002). "[T]he conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." See Mian, 7 F.3d at 1088 (citation and internal quotation marks omitted).
There is not one shred of evidence in the record establishing that the Defendants entered into an agreement to violate Plaintiff's constitutional rights, no evidence of overt acts in furtherance of such an agreement, and no evidence that Defendants were motivated by racial or class-based animus in their dealings with Plaintiff as required for a claim under § 1985(3). See Scotto v. Almenas, 143 F. 3d 105, 114 (2d Cir. 1988) (reiterating that "conclusory allegations" or "unsubstantiated speculation" will not defeat summary judgment on a § 1983 conspiracy claim); Thomas v. Roach, 165 F.3d 137, 147 (2d Cir. 1999) (grant of summary judgment in defendants' favor on § 1985(3) conspiracy claim appropriate where plaintiff's claims of conspiracy were conclusory and vague and did not establish the existence of an agreement among defendants to deprive him of his constitutional rights) (citing Mass v. McClenahan, 893 F. Supp. 225, 231 (S.D.N.Y. 1995)) ("Absent specific factual allegations as to the participation of a particular defendant in the conspiracy, plaintiff's § 1985(3) claim cannot survive a motion for summary judgment by that defendant."). When a Plaintiff's § 1985(3) claim fails, a claim under § 1986 does as well. See Brown, 221 F.3d at 341.
Furthermore, the intra-corporate conspiracy doctrine, which has been applied by numerous district courts in the Second Circuit to conspiracy claims against DOCCS employees pursuant to both §§ 1983 and 1985(3), "'posits that officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment, are legally incapable of conspiring with each other.'" Toliver v. Fischer, No. 9:12-CV-00077 (MAD/ATB), 2015 WL 403133, at * 8, 2015 U.S. Dist. LEXIS 10139, at * 19 (N.D.N.Y. Jan. 29, 2015) (quoting Jefferson v. Rose, 869 F. Supp. 2d 312, 317-18 (E.D.N.Y. 2012)).
The Second Circuit has yet to validate the "intracorporate conspiracy doctrine in the context of a section 1983 action." Toliver, 2015 WL 403133, at *22 (quoting Rahman v. Fischer, No. 9:10-CV-1496 (LEK/TWD), 2012 WL 4492010, at *13 (N.D.N.Y. Sept. 28, 2012) ("[t]he Second Circuit has recognized the doctrine in the context of 42 U.S.C. § 1985, . . . but has not extended its application of the doctrine to conspiracy claims under § 1983").
For the foregoing reasons, the Court recommends that summary judgment be granted to Defendants Fischer, Graham, and Dennis on all of Plaintiff's conspiracy claims.
D. Supervisory Liability Claims Against Graham and Fischer
In his fifth, sixth, seventh, and eighth causes of action, Plaintiff claims that, as supervisory officials, Graham and Fischer, were aware or should have been aware of their subordinate Dennis' violations of his constitutional rights in taking adverse action against him for filing grievances, and either participated directly in the violations; failed to remedy the violations after learning of them through reports or appeals; created policies or customs, or allowed the continuation of policies or customs under which unconstitutional practices occurred; were grossly negligent in supervising subordinates who violated Plaintiff's rights; and were deliberately indifferent to Plaintiff's constitutional rights by failing to act on information that violations of those rights were occurring. (Dkt. No. 45 at ¶¶ 116-135.)
It is not entirely clear from the allegations in Plaintiff's Amended Complaint whether he intended for his supervisory liability claims to be limited to Dennis' alleged violation of his constitutional rights, or to include some or all of the nineteen or so non-party Auburn personnel identified in the Amended Complaint as well. (See generally Dkt. No. 45.) Whatever Plaintiff's intent, there is no evidence in the summary judgment record establishing or raising issues of fact with regard to either the alleged wrongdoing by the non-defendants, or the presence of any of the Colon criteria discussed herein with regard to Fischer and Graham in connection with their alleged actions. See Colon, 58 F.3d at 873.
The law is clear that "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). "Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6, 2012 U.S. Dist. LEXIS 25367, at *22-23 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (a "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections . . . in a § 1983 claim") (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.
The Second Circuit has thus far expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
The fifth, sixth, seventh, and eighth causes of action in Plaintiff's Amended Complaint merely regurgitate the Colon criteria for supervisory liability. (Dkt. No. 45 at ¶¶ 116-135.) There is no record evidence establishing that any of Dennis' alleged retaliatory conduct is attributable to Fischer or Graham. There is no evidence in the record establishing, or raising a material issue of fact with regard to whether: (1) either Fischer or Graham participated directly in Dennis' alleged retaliatory acts against Plaintiff, i.e., the cell search and going through Plaintiff's legal records; assaulting Plaintiff; filing a false misbehavior report; giving Chuttey the Lisa Lee Facebook posting or preventing Plaintiff's grievances from being filed; (2) the allegedly unconstitutional acts of Dennis occurred under policies or customs created by Fischer or Graham, or were allowed by them to continue; or (3) Fischer or Graham were grossly negligent with respect to Dennis' allegedly unconstitutional acts, or even aware of them at the time they are claimed by Plaintiff to have occurred. Plaintiff's conclusory allegations of personal involvement of Fischer and Graham with regard to Dennis' allegedly unconstitutional conduct, without the requisite evidence to support them, are not sufficient to defeat summary judgment. See Davis, 316 F.3d at 100 ("[C]onclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion.").
Graham and Fischer's personal involvement in the revocation of Plaintiff's mother's visitation rights is discussed separately below.
There is no evidence that either Graham or Fischer had any reason to believe that Dennis was being deceptive or dishonest with regard to the posting, or that he disclosed it to Chuttey in retaliation for Plaintiff filing grievances.
The only Colon criteria potentially applicable is the second failure to remedy a violation after being informed through a report or appeal. Colon, 58 F.3d at 873. Plaintiff has alleged in his Amended Complaint that Graham affirmed the determination of guilt on the misbehavior report filed by non-defendant Dine. (Dkt. No. 45 at ¶ 78.) In addition, Plaintiff's deposition testimony suggests that he may be attempting to assert claims for violation of his constitutional rights by Fischer in affirming the guilty findings on the Tier II and III retaliatory misbehavior reports filed against him by Dennis, Dine, and Wright relating to the events of July 12 and 13, 2012. (See Dkt. No. 47-1 at 20-21, 23-24.)
Plaintiff has also alleged that he appealed the denial of a grievance regarding his Administrative Segregation Status to Fischer on January 8, 2013. Id. at ¶ 98. However, there is no evidence in the record regarding the outcome of the appeal or establishing personal involvement on Fischer's part. See Perrilla v. Fischer, No. 13-CV-0398M, 2013 WL 5798557, at *7, 2013 U.S. Dist. LEXIS 154449, at * 21 (W.D.N.Y. Oct. 28, 2013) ("[I]t is well-established that the review, denial, or affirmance of a denial of a grievance is insufficient to establish personal involvement.") (citation and internal quotation marks omitted).
District courts in the Second Circuit are not in agreement on the issue of whether affirmance on appeal of the disposition of an inmate's administrative disciplinary hearing is sufficient to establish personal involvement. A number of courts have concluded it is not. See, e.g., Tafari v. McCarthy, 714 F. Supp. 2d 317 (N.D.N.Y. 2010) (Hurd, J. adopting report and recommendation by Lowe, M.J.) ("The affirming of a disciplinary conviction does not constitute personal involvement in a constitutional violation."); Abdur-Raheem v. Selsky, 598 F. Supp. 2d 367, 370 (W.D.N.Y. 2009) ("The only allegation concerning [Director of Special Housing/Inmate Disciplinary Program] . . . is that he affirmed the disposition of plaintiff's administrative segregation hearing, pursuant to which plaintiff was confined to SHU. That is not enough to establish [his] personal involvement."); Chavis v. vonHagn, No. 02-CV-0119 (Sr), 2009 WL 236060, at *68, 2009 U.S. Dist. LEXIS 6871, at * 199 (W.D.N.Y. Jan. 30, 2009) ("defendant Wilcox's decisions affirming or modifying the results of the disciplinary hearings do not, standing alone, establish a federal constitutional violation") (citations omitted).
Other district courts, generally in decisions involving the appeal of the denial of due process in the disciplinary hearing, have found that the review and response to an appeal of a disciplinary conviction is sufficient to establish personal involvement under the second of the Colon criteria. See, e.g., Vigliotti v. Selsky, No. 08-CV-00875- JJM, 2014 WL 1451984, at * 8, 2014 U.S. Dist. LEXIS 51422, at * 22 (W.D.N.Y. April 14, 2014) (denial of summary judgment to both hearing officer and SHU director who affirmed finding of guilt in administrative disciplinary hearing where the claim involved the alleged violation of plaintiff's due process rights by the hearing officer and evidence showed that the director had received a voluminous record on appeal and testified at his deposition that the affirmance was not a "rubber stamp decision"); (Smith v. Rosati, No. 9:10-CV-1502 (DNH/DEP), 2013 WL 1500422, at *8, 2013 U.S. Dist. LEXIS 54402, at * 28 (N.D.N.Y. Feb. 20, 2013) (finding that a reasonable factfinder could conclude, if plaintiff's testimony Were credited, that defendant's review on the appeal of plaintiff's disciplinary conviction revealed a due process violation, and by dismissing plaintiff's appeal the defendant failed to remedy that violation).
In Williams v. Smith, 781 F.2d 319, 324 (2d Cir. 1986), the Second Circuit concluded that there was an issue of fact precluding summary judgment in favor of a prison superintendent who had affirmed a disciplinary conviction on appeal where the plaintiff challenged the conviction on the grounds that the hearing officer had denied him the due process right to call witnesses. See Friedland v. Otero, No. 3:11cv606 (JBA), 2014 WL 1247992, at * 10, 2014 U.S. Dist. LEXIS 38767, at * 30 (D. Conn. Mar. 25, 2014) (construing Williams as holding that "a supervisory official in charge of a correctional facility may be personally involved in depriving an inmate of his due process rights during a hearing on a disciplinary charge if he or she has affirmed the appeal of the hearing officer's decision.")
Plaintiff has not alleged specific facts, or submitted evidence to support a constitutional claim against Graham for affirming the guilty finding on the Dire misbehavior report. Plaintiff has done nothing more than allege that the affirmance occurred. Id. at ¶ 98. Therefore, the Court finds that to the extent Plaintiff intended to assert a constitutional claim against Graham with regard to the affirmance, there is no support whatsoever in the record for such a claim. Furthermore, Plaintiff has not claimed or submitted evidence showing that he was denied due process in the disciplinary hearings in which the guilty determinations affirmed by Fischer occurred, and there is no evidence that Fischer was aware, or had reason to be aware, that the misbehavior report filed by Dennis was false as Plaintiff claimed. Therefore, the Court finds that this case falls within those decisions concluding that the conduct in affirming or modifying the results of the disciplinary hearings at issue, standing alone, does not establish a federal constitutional violation.
Based upon the foregoing, the Court recommends that Defendants Graham and Fischer be granted summary judgment on the supervisory claims against them in the fifth, sixth, seventh, and eighth causes of action in Plaintiff's Amended Complaint, as well as his claims against Graham and Fischer for affirming the findings of guilt on the misbehavior reports.
E. Retaliation Claims
1. Law Relating to Retaliation Claims
Plaintiff claims that Defendants have retaliated against him in various ways for exercising his right to file grievance complaints while confined at Auburn. Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004). Central to such claims is the notion that in a prison setting, corrections officials may not take actions that would have a chilling effect upon an inmate's exercise of First Amendment rights. See Pidlypchak, 389 F.3d at 381-83.
Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). As the Second Circuit has noted,
[t]his 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.Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citations omitted), overruled on other grounds, Swierkiewicz, 534 U.S. 506.
To establish a First Amendment claim for retaliation, an inmate must present evidence showing that: (1) he was engaged in a constitutionally protected activity; (2) the defendants took "adverse action" against the plaintiff; and (3) there was a causal connection between the protected speech and the adverse action in other words, that the protected conduct was a "substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Pidlypchak, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492). "Adverse action" in the prison context has been defined by the Second Circuit as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 380.
Several factors may be considered in determining whether a causal connection exists between the plaintiff's protected activity and a prison official's actions. Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58 F.3d at 873). Those factors include: (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation. Id. (citing Colon, 58 F.3d at 872-73). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. A showing of temporal proximity, without more, has been found insufficient to survive summary judgment. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 370 (S.D.N.Y. 2011) (citations omitted).
Even if a plaintiff makes the appropriate showing of retaliation, a defendant may avoid liability if he demonstrates that he would have taken the adverse action even in the absence of the protected conduct. See Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) ("Regardless of the presence of retaliatory motive, . . . a defendant may be entitled to summary judgment if he can show . . . that even without the improper motivation, the alleged retaliatory action would have occurred.") (citation omitted); Roseboro, 791 F. Supp. 2d at 371.
2. Fischer
In his Amended Complaint, Plaintiff claims that Fischer retaliated against him for filing grievances by improperly revoking his mother's visitation privileges and tampering with his grievances and mail. (Dkt. No. 45 at ¶¶ 100-107.) The filing of grievances has been found to constitute protected First Amendment conduct for purposes of a retaliation claim. See David v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) (the right to file a grievance is a constitutionally protected activity for retaliation purposes).
One of the grounds for summary judgment on Plaintiff's retaliation claim raised by Fischer is failure to exhaust administrative remedies. Because it is so clear to the Court from the record evidence, or more accurately lack thereof, that no reasonable juror could find in Plaintiff's favor on his retaliation claim against Fischer, it has foregone an exhaustion analysis and recommends summary judgment on the merits. See Anderson, 477 U.S. at 256 (nonmovant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor.")
However, the record evidence shows that Fischer did not revoke Plaintiff's mother's visitation. The evidence establishes that it was Graham who temporarily revoked Lisa Henderson's visitation privileges pursuant to 7 NYCRR § 201.4, after learning of the July 14, 2012, Facebook post threatening Dennis and his family. (Dkt. No. 47-3 at ¶¶ 4-10.)
According to Fischer, he has been advised that Graham revoked Lisa Henderson's visiting rights; that the IG was conducting an investigation; that Lisa Henderson appealed the revocation and requested a hearing; and that she was informed that while a hearing was premature given the ongoing investigation, she could go forward if she wished to do so. (Dkt. No. 47-2 at ¶¶ 8-10.) Fischer has explained in his Declaration that while pursuant to 7 NYCRR Part 201 and DOCCS Directive 4403, a superintendent's revocation of visiting privileges can be appealed to the Commissioner, the office Fischer held at the time, he routinely designated the duty of reviewing and rendering decisions of appeal of that nature to the Department of Counsel, as he did in Lisa Henderson's case. Id. at ¶¶ 5-7. Fischer has denied being personally involved in the alleged conduct regarding the revocation of Lisa Henderson's visitation by Graham. (Dkt. No. 47-2 at ¶ 15.) There is no evidence in the record to the contrary. Therefore, even though Plaintiff may have filed grievances while at Auburn, there is no evidence of any adverse action by Fischer in retaliation.
While Plaintiff has alleged that Fischer tampered, directly or indirectly, with his grievances and mail, the record is devoid of evidence supporting the claim. Therefore, Plaintiff has also failed to show adverse action by Fischer with regard to his grievances and mail.
Given the absence of evidence showing adverse action by Fischer an essential element of a retaliation claim with regard to either the revocation or tampering assertions, the Court recommends that Fischer be granted summary judgment on Plaintiff's retaliation claim against him.
3. Graham
Plaintiff also claims that Graham revoked his mother's visiting privileges and tampered, directly or indirectly, with his grievances and mail in retaliation for grievances filed by Plaintiff while at Auburn. (Dkt. No. 45 at ¶¶ 100-107.) Graham has acknowledged that in the exercise of his discretion, as authorized by 7 NYCRR § 204.1, he temporarily revoked Lisa Henderson's visiting privileges pending an IG investigation after he learned of the Lisa Lee Facebook posting threatening Dennis and his family, and initial investigation indicated she and Lisa Lee were likely one and the same. (Dkt. No. 47-3 at ¶¶ 6-9.)
As with Fischer, Graham has raised failure to exhaust as a ground for summary judgment on Plaintiff's retaliation claim. Because, as with Fischer, it is so clear to the Court from the evidence, or more accurately, lack thereof, that no reasonable juror could find in Plaintiff's favor on his retaliation claim against Graham, it has foregone an exhaustion analysis and recommends summary judgment on the merits.
The Court finds for purposes of this motion that Graham's temporary revocation of Plaintiff's mother's visitation privileges constitutes adverse action for retaliation purposes. However, Plaintiff has failed to produce any evidence sufficient to raise a question of fact as to whether the grievances he filed during his time at Auburn were a "substantial or motivating factor" in Graham's temporary revocation of his mother's visitation privileges. See Pidlypchak, 389 F.3d at 380. With the exception of the grievance Plaintiff claims to have attempted to file against Graham regarding the revocation of his mother's visitation privileges, there is no evidence that Plaintiff had previously filed any grievances against Graham. (Dkt. No. 45 at ¶ 79.) A grievance filed after the act constituting the alleged retaliation cannot be deemed a substantial or motivating factor for the allegedly retaliatory act. See Vallade v. Fischer, No. 12-CV-00231 (A)(M), 2014 WL 5481881, at * 13, 2014 U.S. Dist. LEXIS 154306, at *34 (W.D.N.Y. Oct. 29, 2014) (no causal connection where grievance not prepared until after the alleged retaliatory action).
As a general matter, it is difficult to establish that a defendant had cause to retaliate against a plaintiff for filing a grievance against another party. See Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a corrections officer when the only alleged basis for retaliation was a complaint about an incident involving another corrections officer); Guillory v. Ellis, No. 9:11-CV-600 (MAD/ATB), 2014 WL 4365274, at 18, 2014 U.S. Dist. LEXIS 120709, at * 49 (N.D.N.Y. Aug. 28, 2014) ("it is difficult to establish one defendant's retaliation for complaints against another defendant"); Roseboro, 791 F. Supp. 2d at 369 (failure by plaintiff to provide any basis to believe corrections counselor would retaliate for a grievance in which she was not personally named); Ciaprazi v. Goord, No. 9:02-CV-915 (GLS/DEP), 2005 WL 3531464, at * 8-9, 2005 U.S. Dist. LEXIS 38232, at * 22 (N.D.N.Y. Dec. 22, 2005) (granting summary judgment and dismissing retaliation claim based only on plaintiff's conclusory allegations that the manifest falsity of the misbehavior report and testimony during the disciplinary hearing indicate the disciplinary matters were motivated by retaliatory animus due to grievances plaintiff filed against individuals other than the defendants involved in the disciplinary hearing).
Plaintiff's claim that Graham retaliated against him for filing grievances against others during his time at Auburn is wholly conclusory. Plaintiff has failed to identify the specific grievances for which Graham was alleged to be retaliating. Plaintiff has also failed to submit evidence raising a material issue of fact as to whether the grievances filed against others were a "substantial or motivating factor" in the revocation. See Pidlypchak, 389 F.3d at 380
Furthermore, even if Plaintiff had submitted evidence suggesting that Graham had acted in retaliation for grievances Plaintiff had filed against others while at Auburn, the undisputed evidence establishes that Graham acted well within his discretion in temporarily revoking Lisa Henderson's visiting privileges based upon the threatening Facebook post believed to have been posted by Lisa Henderson. See Scott, 344 F.3d at 287-88 (defendant may be entitled to summary judgment even in the presence of a retaliatory motive if he shows that even without improper motivation, the alleged retaliatory action would have occurred).
Plaintiff's claim that Graham tampered with his grievances and mail is also without merit. There is no evidentiary support for Plaintiff's claim that grievances against Graham are generally not filed. (Dkt. No. 45 at ¶ 79.) Furthermore, in his Amended Complaint, Plaintiff has alleged that it was not Graham but "some officer [who] thwarted and impeded his ability to file and fully exhaust his grievance [against Graham]. Id. See Kerzer, 156 F.3d at 400 (conclusory allegations are insufficient to create a genuine issue of fact on summary judgment). Thus, Plaintiff has failed to show adverse action by Graham for purposes of a retaliation claim.
Given the foregoing, the Court recommends that Graham be granted summary judgment on Plaintiff's retaliation claim against him.
4. Dennis
a. Claim that July 12, 2012, Assault and Misbehavior Report Were Retaliatory
Plaintiff claims that Dennis assaulted him and filed a false misbehavior report against him on July 12, 2012, in retaliation for all of the grievances Plaintiff had filed at Auburn since March 22, 2012. (Dkt. No. 47-1 at 36-38.) An assault by corrections officers is sufficient to "chill a person of ordinary firmness from continuing to engage in his First Amendment activity" for purposes of a retaliation claim. See Rivera v. Goord, 119 F. Supp. 2d 327, 339-40 (S.D.N.Y. 2000). Likewise, the filing of a false misbehavior report which results in an inmate being placed "in solitary" for an extended period of time, as Plaintiff claims happened to him (Dkt. No. 47-1 at 36), would generally be considered an adverse action for retaliation purposes. See, e.g., Jeffrey v. Ahmed, No. 9:09-CV-0327, 2011 WL 4390220, at *11, 2011 U.S. Dist. LEXIS 106607, at *33 (N.D.N.Y. Aug. 22, 2011).
DOCCS records submitted by Defendants reveal that Plaintiff exhausted an administrative grievance filed on July 17, 2012, complaining that he had been verbally abused and assaulted. (Dkt. No. 47-5 at 5.) Given the timing, the grievance was presumably the one Plaintiff claims to have filed against Dennis arising out of the alleged July 12, 2012, assault. (Dkt. No. 45 at ¶¶ 76-77.)
However, Plaintiff has failed to produce sufficient evidence to raise a question of material fact about whether the grievances he had filed against other corrections officers at Auburn were a "substantial or motivating factor" in Dennis' alleged assault or filing an allegedly false misbehavior report. See Pidlypchak, 389 F.3d at 380. As noted above, retaliation claims are scrutinized with particular care because of the relative ease with which they can be made, Flaherty, 713 F.2d at 13, and it is difficult for a plaintiff to establish that a defendant had cause to retaliate against him for filing grievances against other corrections officers. See Wright, 554 F.3d at 274.
According to Dennis, he did not use excessive force on Plaintiff and wrote the misbehavior report because Plaintiff had been verbally threatening. (Dkt. No. 47-4 at ¶¶ 11-13.) Dennis also denies ever directing or suggesting that any DOCCS employee retaliate against Plaintiff for any reason. Id. at ¶ 14.
At his deposition, Plaintiff testified that he was making no claim that he had any interaction with Dennis before the alleged assault and false misbehavior report on July 12, 2012. (Dkt. No. 47-1 at 36-37.) Plaintiff had no knowledge of Dennis having been required to respond to any of his grievances prior the alleged assault and false misbehavior report and merely noted in his deposition testimony that several officers had been required to respond to his grievances and like it. Id. 38-39. The only factual allegation in Plaintiff's Amended Complaint possibly offering support for Plaintiff's claim is the allegation that Dennis is good friends with a number of the non-defendant Auburn personnel about whom he has alleged wrongdoing, including Robin E. Richardson, about whom Plaintiff's mother had complained to the IG regarding an incident on March 22, 2012. (Dkt. No. at ¶¶ 6,76.) That is clearly not enough.
Martinez has stated in his Declaration that he overheard Dennis telling other officers sometime in July or August of 2012, that: (1) "he confronted [Plaintiff] about having the medical records [of his victims] and it eventually lead (sic) him to hitting [Plaintiff];" (2) that he made the whole misbehavior report up; and (3) he had "did it all" because of all the grievances Plaintiff was writing. (Dkt. No. 55-5 at ¶ 2.) The Court finds that the Martinez Declaration fails to raise an issue of material fact with regard to Plaintiff's claim that Dennis assaulted him and wrote a false misbehavior report in retaliation for filing grievances against other corrections officers.
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks omitted). Statements, like those in the Martinez Declaration, "that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
Given Dennis' denial and the complete absence of nonconclusory evidence supporting Plaintiff's retaliation claim, the Court recommends that Dennis be granted summary judgment on Plaintiff's claim that Dennis assaulted him and wrote a false misbehavior report in retaliation for grievances Plaintiff had written against other corrections officers.
b. Claim that Dennis' Report of the Threatening Facebook Post was Retaliatory
The Court finds that Plaintiff's claim that Dennis reported the threatening Facebook post to Chuttey in retaliation for grievances filed against other corrections officers and for his mother's telephone call to Auburn reporting the alleged assault on her son by Dennis on July 12, 2012, likewise fails to survive summary judgment. (Dkt. No 45 at ¶¶ 76, 78.) According to Dennis, the Facebook post he received on July 14, 2012, threatened him and his family, he reported the threat and gave a copy to Chuttey the same day, gave a statement to the IG several months later, and took no further action with regard to the post. (Dkt. Nos. 47-4 at ¶¶ 3-7; 47-1 at 59.) Plaintiff does not deny that the threatening Facebook post was made on Dennis' personal Facebook page, or that Dennis received the post, only that he reported the post to DOCCS "not because he felt threatened, but out of spite, to get back at Plaintiff." (Dkt. No. 45 at ¶ 78.) At his deposition, Plaintiff gave the following testimony regarding his retaliation claim:
Q And then you said that [Dennis] used I guess some false reason to get your mother's visitation privileges revoked(Dkt. No. 47-1 at 44.)
A Yeah.
Q is that correct?
A Yes. I mean, come on. I know he didn't feel threatened by the message. I know that. I mean, come on.
Q Are you doubting that he received that message?
A No, I don't doubt it anymore. I mean, I got the report from him to Captain Chuttey for you, one of the documents you sent me where he alleged he reported an incident against him and [on] the day after my mother called the facility to make sure that pictures were taken of my injuries and that the incident was documented.
Dennis submitted a written statement regarding the threatening Facebook post to Chuttey on July14, 2012, in which he detailed the threats contained in the post and noted that the post referred to something Dennis had done on July 12, 2012 at 8:20 pm, the time Dennis allegedly assaulted Plaintiff. According to the statement, a second post was received theatening Dennis' sisters. (Dkt. No. 47-4 at 10.)
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Plaintiff also testified that he did not think that Dennis was involved in the actual process of determining punishment only that he would not have filed complaint against Plaintiff's mother but for his desire to retaliate for grievances Plaintiff had filed against other corrections officers and the complaint Plaintiff's mother made to Graham regarding Dennis' assault. Id. at 59.
Plaintiff has failed to produce any nonconclusory and non-speculative evidence that could be found to raise a material question of fact on his claim that Dennis did not feel threatened by the Facebook post and only reported it to create problems for Plaintiff and his mother. Martinez's statement that he overheard Dennis ". . . mention an alleged Facebook threat on facebook" and say "that none of it was true and that he only reported it to his supervisors because he knew it would cause [Plaintiff] trouble" is, as with Plaintiff's other retaliation claim against Dennis, "so devoid of any specifics" [and] replete with conclusions," that is insufficient to defeat Dennis' motion for summary judgment. Bickerstaff, 196 F.3d at 452.
Therefore, the Court recommends that Dennis be granted summary judgment on Plaintiff's retaliation claim arising out of Dennis' action in reporting the threatening Facebook post to Chuttey.
F. Suspension/Revocation of Visitation Mother's Privileges
Defendants have moved for summary judgment on any independent constitutional claims Plaintiff may have intended to assert with regard to the temporary revocation of his mother's visitation privileges. (Dkt. No. 47-7 at 4-8.) Plaintiff has indicated in his opposition that he is not challenging the revocation of his mother's visitation as an independent violation of his constitutional rights, but only as an adverse action taken against him by Defendants in retaliation for filing grievances. (Dkt. No. 55-1 at 7; see also Dkt. No. 45 at ¶¶ 115-135.) Nonetheless, given the Court's obligation to read pro se complaints with "special solicitude" and interpret them to raise the "strongest [claims] that they suggest," (Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)) (internal quotation marks and citations omitted), the Court finds it appropriate to consider whether Plaintiff may have a § 1983 claim for violation of his constitutional rights in connection with the revocation of his mother's visitation privileges. Because the evidence submitted by the parties is restricted to the temporary revocation by Graham set forth in his July 17, 2012, letter to Lisa Henderson, appeals by Plaintiff and Lisa Henderson, and Lisa Henderson's request for a hearing and the response thereto, the Court's consideration is limited strictly to whether Plaintiff's constitutional rights were violated by the temporary revocation of visitation rights by Graham.
1. Standing
Defendants argue that Plaintiff lacks Article III standing to seek damages for his mother's loss of visitation privileges because it was his mother who lost visitation privileges, and Plaintiff has suffered no direct injury as a result of his mother being unable to visit him. (Dkt. No. 47-7 at 20.) Defendants have cited no on point case law supporting their position, and their argument is difficult to square with the number of cases in which courts have considered an inmate's claim challenging the suspension of a visitor's privileges. See, e.g., Meadows v. Dodrill, 872 F.2d 418 (4th Cir. 1989) (table) (inmate plaintiff claiming that his ex-wife was wrongfully denied visitation privileges for security reasons); Rackley v. Blevins, No. CIV-14-145-HE, 2014 WL 2519313, 2014 U.S. Dist. LEXIS 76178 (W.D. Okl. May 13, 2014) (plaintiff brought suit for indefinite termination of his wife's visitation privileges); Ford v. Fischer, No. 9:09-CV-723 (DNH/ATB), 2011 WL 856416, 2011 U.S. Dist. LEXIS 23479 (N.D.N.Y. Jan. 31, 2011) (inmate sued for the indefinite suspension of his fiancee's visiting privileges because of, among other things, her alleged involvement in smuggling a note from another inmate to plaintiff); LeCompte v. Ricci, No. 11-1639 (JAP), 2011 WL 6130596, 2011 U.S. Dist. LEXIS 140586 (D. N.J. Dec. 7, 2011) (inmate plaintiff sued for the permanent visitation ban imposed on his mother on the grounds that she posed a substantial risk to the safety and security of the facility). Therefore, the Court concludes that Plaintiff has standing to assert a claim under § 1983 for the revocation of his mother's visitation privileges due to security concerns.
2. First Amendment Right to Freedom of Association
A prisoner retains those rights which are not inconsistent with his incarceration. Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (citing Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125 (1977); Shaw v. Murphy, 532 U.S. 223, 229 (2001)). In Overton, the Supreme Court found that "freedom of association is among the rights least compatible with incarceration" and "some curtailment of that freedom must be expected in the prison context." Id. at 131 (citations omitted). It is clear from Overton that inmates retain a limited First Amendment right of association, although the right may be withdrawn for various reasons relevant to legitimate penological interests. Overton, 539 U.S. at 131-36 (restrictions on visitation do not infringe on First Amendment rights of association where, inter alia, they bear a rational relationship to legitimate penological interests and alternative means of communication are available); see also Caldwell v. v. Goord, No. 09-CV-00945(Sr.), 2013 WL 1289410, at * 5, 2013 U.S. Dist. LEXIS 43536, at * 12 (W.D.N.Y. Mar. 27, 2013) (suspension of inmate's wife's visiting privileges due to intentional conspiracy to smuggle drugs into the correctional facility and denial of request for reinstatement did not infringe on inmate and his wife's First Amendment rights of association where suspension bore a rational relationship to legitimate penological interests and alternate methods of communications were available); Ford, 2011 WL 856416, at * 12 (no claim for infringement of First Amendment rights where denial of visiting privileges was justified by legitimate penological interests when fiancee's privileges were indefinitely suspended because of alleged smuggling of note from another inmate and because of safety concerns).
Lisa Henderson has denied ever threatening Dennis. (Dkt. No. 55-3 at ¶ 10.) However, the record evidence, including the threatening Facebook post (Dkt. No. 47-3 at 7), Dennis' report regarding the post (Dkt. No. 47-4), and the specific references in the post that led to the determination that "Lisa Lee" and Lisa Henderson were likely one and the same person (Dkt. No. 47-3 at ¶¶ 7-8), establishes that Graham had reasonable cause to believe that temporary suspension of Plaintiff's mother's visitation privileges pending an investigation was necessary to "maintain the safety, security, and good order of the facility." 7 NYCRR § 201.4; Dkt. No. 47-3 at ¶¶ 9-10. See Overton, 539 U.S. at 132 (finding a legitimate penological interest in maintaining prison security and noting that courts "must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.") Moreover, Plaintiff has acknowledged that he was able to stay in frequent telephone contact with his mother during the temporary revocation. Id. at 135 (where it is shown that no alternate means of communication were available, though it would not be conclusive, it would be some evidence that visitation restrictions were unreasonable).
Based on the foregoing, the Court finds that 7 NYCRR § 201.4 and the temporary revocation of Lisa Henderson's visitation privileges by Graham pending investigation of the threatening Facebook post did not violate Plaintiff's First Amendment right of association.
3. Due Process
To prevail on a procedural due process claim under § 1983, a plaintiff must show he possessed a protected property or liberty interest and that he was deprived of the interest without sufficient procedural safeguards. See Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000) (liberty interest). In Kentucky Dept. of Correc. v. Thompson, 490 U.S. 454, 461 (1989), the Supreme Court held "[t]he denial of prison access to a particular visitor is well within the terms of confinement ordinarily contemplated by a prison sentence, and therefore is not independently protected by the Due Process Clause." See also Midalgo v. Bass, No. 9:03-CV-1128 (NAM/RFT), 2006 WL 2795332, at * 16, 2006 U.S. Dist. LEXIS 98871, at * 49 (N.D.N.Y. Sept. 26, 2006) ("family visitations for inmates constitute a privilege and not a right.")
In Sandin v. Conner, 515 U.S. 472, 484 (1995), the Supreme Court held that although states may create liberty interests for inmates that are protected by due process, "these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force . . . , nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." The Court finds that, given the Supreme Court finding that denial of access to a particular visitor is "within the terms of confinement ordinarily contemplated by a prison sentence," Kentucky Dept. of Correc., 490 U.S. at 461, the temporary revocation of visitation privileges pending investigation imposed by Graham under 7 NYCRR § 201.4(a) would not impose an "atypical and significant hardship" on Plaintiff. Sandin, 515 U.S. at 484.
Even if the regulations in 7 NYCRR Part 201 could be construed to create such a liberty interest, Plaintiff and his mother were both afforded the right to appeal the temporary revocation, and Lisa Henderson was also given the right to request a hearing. See 7 NYCRR § 201.4(b) and (c). Plaintiff and his mother filed written appeals, and Plaintiff's mother asked for a hearing. (Dkt. Nos. 47-2 at 7-8 and 12-19; 47-3 at 13.) Since the parties have provided no evidence with regard to either a response by Lisa Henderson to Gonzalez' October 4, 2012, letter regarding the prematurity of the hearing request but nonetheless giving her the right to go forward, or the outcome of the appeals, the Court can find only that Plaintiff and his mother were afforded the right under the regulations to file appeals and request a hearing with regard to the temporary revocation.
Based upon the foregoing, the Court finds that the temporary revocation of his mother's visiting privileges did not violate his First Amendment right of association or his Fourteenth Amendment right to due process and recommends that Defendants be granted summary judgment with regard to the temporary revocation.
G. Qualified Immunity
Defendants contend that if the Court were to find that their actions violated Plaintiff's rights, they are entitled to qualified immunity. (Dkt. No. 47-7 at 18-19.) Inasmuch as the Court is recommending that Defendants be granted summary judgment on other grounds, it finds it unnecessary to reach the qualified immunity argument.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 47) be GRANTED IN ITS ENTIRETY; and it is further
RECOMMENDED that Plaintiff's § 1983 claims for money damages against Defendants in their official capacities be sua sponte DISMISSED WITH PREJUDICE; and it is hereby
ORDERED, that the Clerk provide Plaintiff with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in 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 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 DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: February 23, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge