Opinion
9:13-cv-0606 (BKS/DEP)
03-18-2016
LEROME HILSON, Plaintiff, v. S. BEAURY, Correctional Officer, Great Meadow Correctional Facility, et al, Defendants.
APPEARANCES: Lerome Hilson 05-A-1881 Great Meadow Correctional Facility Box 51 Comstock, NY 12821 Pro se Plaintiff Hon. Eric T. Schneiderman New York State Attorney General Adrienne J. Kerwin, Esq., Assistant Attorney General The Capitol Albany, NY 12224 For Defendants
APPEARANCES: Lerome Hilson
05-A-1881
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
Pro se Plaintiff Hon. Eric T. Schneiderman
New York State Attorney General
Adrienne J. Kerwin, Esq., Assistant Attorney General
The Capitol
Albany, NY 12224
For Defendants Hon. Brenda K. Sannes, United States District Judge :
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Lerome Hilson, commenced this pro se civil rights action under 42 U.S.C. § 1983, alleging violations of his constitutional rights while he was confined at the Great Meadow Correctional Facility. Dkt. No. 1. Plaintiff alleged that defendant correctional officer S. Beaury retaliated against plaintiff for having written a grievance by, inter alia, issuing a false misbehavior report and, for four days, turning off the electrical power in plaintiff's cell and not allowing him to eat, in violation of plaintiff's First and Eighth Amendment rights. Dkt. 1, pp. 3-4. Plaintiff alleged that defendants Payne and Ely denied plaintiff the right to freely practice his religion, in violation of the First Amendment. Id. at 5-9. On June 5, 2015, defendants filed a motion for summary judgment seeking dismissal of all claims. Dkt. No. 38. Defendants attached a "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion" to their notice of motion. Dkt. No. 38, p. 3. The notification set forth the requirements in NDNY Local Rule 7.1(a) for a proper response to the motion and contained a warning regarding the consequences of failing to submit a proper response. Id.
On June 8, 2015, the Clerk of the Court mailed a letter to plaintiff notifying him that his response to the motion for summary judgment was due on or before June 22, 2015. Dkt. No. 39. The Court attached a copy of the same "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion," in its letter to plaintiff. Dkt. No. 39, p. 2. Plaintiff did not file a response to defendants' motion for summary judgment.
On February 17, 2016, United States Magistrate Judge David E. Peebles issued a Report and Recommendation recommending that defendants' motion for summary judgment be granted and that plaintiff's complaint be dismissed in its entirety. Dkt. No. 42. Magistrate Judge Peebles advised the parties that, under 28 U.S.C. § 636(b)(1), the failure to file written objections within fourteen days will preclude appellate review. Dkt. No. 42, p. 34. No objections to the Report-Recommendation have been filed.
II. APPLICABLE STANDARDS
A. Review of Report and Recommendation
Since no objections to the Report and Recommendation have been filed, and the time for filing objections has expired, the Court has reviewed the Report and Recommendation for clear error. Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b) advisory committee's note to the 1983 addition. Under this standard, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id. A report is clearly erroneous only if the Court, upon reviewing the entire record, is "left with the definite and firm conviction that a mistake has been committed." Mateo v. Bristow, 12-cv-5052, 2015 WL 925933, at *2, 2015 U.S. Dist. LEXIS 26761, at *6 (S.D.N.Y. Mar. 4, 2015) (quoting Easley v. Cromartie, 532 U.S. 234, 242 (2001)).
The Court has appended copies of all unreported decisions cited in this Decision for the convenience of the pro se plaintiff.
B. Consideration of an Unopposed Motion for Summary Judgment
Plaintiff failed to respond to defendants' motion after plaintiff had been twice notified of the requirements of the Local Rules of the Northern District of New York and the consequences of failing to respond to the motion. Dkt. No. 38, p 3; Dkt. Nos. 39, p. 2. As Magistrate Judge Peebles noted, under Local Rule 7.1(b)(3), "[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting . . . of the motion . . . unless good cause is shown." Dkt. No. 42, pp. 9-11. And, under Local Rule 7.1(a)(3), 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."
As Magistrate Judge Peebles further noted, however, "[t]he fact that there has been no response to a summary judgment motion does not . . . mean that the motion is to be granted automatically." Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); see Dkt. No. 42, p. 10; Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that "before summary judgment may be entered, the district court must ensure that each statement of material fact is supported by record evidence sufficient to satisfy the movant's burden of production," and "determine whether the legal theory of the motion is sound"). Summary judgment may only be granted if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In considering whether there are material issues of fact "[a] verified complaint is to be treated as an affidavit for summary judgment purposes . . . provided that it meets the other requirements for an affidavit" under Rule 56. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). "[T]he court may rely on other evidence in the record even if uncited." Jackson, 766 F.3d at 194 (citing Fed. R. Civ. P. 56(c)(3)).
Courts in this district have considered facts in a verified complaint in determining whether there are material issues of fact, and whether facts are controverted for the purposes of deeming admitted the defendant's statement of facts, under Local Rule 7.1(a)(3), when a plaintiff has failed to respond to a summary judgment motion. See, e.g., Jones v. Fischer, No. 9:11-cv-774, 2013 WL 4039377, at *4, 2013 U.S. Dist. LEXIS 111319, at *3 (N.D.N.Y. Mar. 21, 2013); Rivera v. Dianardo, No. 10-cv-1500, 2013 WL 1975437, at *1, 2013 U.S. Dist. LEXIS 68051, at *3 (N.D.N.Y. Apr. 16, 2013), report-recommendation adopted by 2013 WL 1975435, 2013 U.S. Dist. LEXIS 68051 (N.D.N.Y. May 13, 2013); c.f. Jamison v. Metz, 541 F. App'x 15, 18-19 (2d Cir. 2013) (summary order) (noting that "the verified complaint . . . [was] properly before the district court" and created an issue of fact in a case in which the plaintiff had failed to comply with the requirements in N.D.N.Y. Local Rule 7.1 for a responsive Statement of Material Facts).
In this case, Magistrate Judge Peebles considered the deposition of plaintiff, which was attached as an exhibit to the defendants' summary judgment motion, Dkt. No. 38-1, in assessing whether there are genuine disputes as to material facts. See Dkt. No. 42, p. 16. Pursuant to Local Rule 7.1(a)(3) and Fed. R. Civ. P. 56(e)(2), the Court deems all of the properly-supported facts in the defendants' statement of material facts which are not controverted by the allegations in the verified complaint and in the plaintiff's deposition to be undisputed for the purposes of this motion.
III. DISCUSSION
A. Plaintiff's Claims Against Defendants Ely and Payne
In the Report and Recommendation Magistrate Judge Peebles recommended that the plaintiff's free exercise of religion claims against defendants Ely and Payne be dismissed. Dkt. No. 42, pp. 25-34. Magistrate Judge Peebles concluded that there are no genuine disputes of material fact with respect to plaintiff's free exercise of religion claim against defendant Ely and that, while there are disputes of material fact regarding plaintiff's claim against defendant Payne, "even assuming plaintiff's allegations [against Payne] are true, [Payne] is entitled to qualified immunity from suit." Dkt. No. 42, p. 34. The Court has reviewed the Report and Recommendation regarding the claims against defendants Ely and Payne for clear error and found none. The Court therefore adopts Magistrate Judge Peebles' recommendation that the defendants' motion for summary judgment be granted as to defendants Ely and Payne for the reasons stated in the Report and Recommendation.
B. Plaintiff's Retaliation Claim Against Defendant Beaury
To establish a First Amendment retaliation claim under § 1983, a plaintiff must show that "(1) 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." Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2013) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)). As Magistrate Judge Peebles found, plaintiff's filing of a grievance against Corrections Officers Collins and Roberts satisfies the first element and plaintiff has raised a genuine issue of material fact regarding whether defendant Beaury took an adverse action against plaintiff. Dkt. No. 42, pp. 16-17.
Plaintiff originally identified this corrections officer as "C.O. H. Robinson." See Complaint, Dkt. No. 1, p. 3. At his deposition, however, plaintiff clarified that this individual's last name is actually "Roberts." Dkt No. 38-1, p. 9
Magistrate Judge Peebles concluded that plaintiff has failed to adduce record evidence to raise a triable issue of fact regarding whether there was a causal connection between the protected activity and the alleged adverse action. Dkt. No. 42, pp. 17-42. As Magistrate Judge Peebles noted, defendant Beaury submitted a sworn affidavit, in which he denied being aware that plaintiff had written a grievance against Corrections Officers Collins or Roberts, and stated that he did not work with Officer Roberts' husband and the two had never been social friends. Dkt. No. 42, pp. 17-18. Magistrate Judge Peebles further noted that plaintiff had speculated, during his deposition, that Officer Roberts "manipulated Officer Beaury to do his dirty work . . . [because it] is a common thing in Great Meadows or any other facility; all colleagues work together." Dkt. No. 42, pp. 18-19 (citing plaintiff's deposition at Dkt. No. 38-1, pp 18-19). Magistrate Judge Peebles concluded that "plaintiff's vague belief that corrections officers 'work together' to retaliate against inmates is not sufficient to give rise to a genuine dispute of material fact as to whether there exists a causal connection between plaintiff's protected activity and defendant Beaury's alleged adverse activity," and recommended granting the defendants' motion as to defendant Beaury. Dkt. No. 42, p. 21. The Court agrees that this speculative testimony is insufficient to raise a triable issue of fact regarding a causal connection between the protected activity and the alleged adverse action. However, in both plaintiff's deposition and in his verified complaint plaintiff alleged that Beaury told plaintiff, "I will get you for the grievance you wrote" on Corrections Officer Roberts. Dkt. No. 1, p. 3; Dkt. No. 38-1, p. 20-21. Plaintiff testified that Beaury said this on June 19, 2012, the day of the incident resulting in Beaury's alleged false misbehavior report. Dkt. No. 38-1, p. 20-21; Dkt. No. 1, pp. 3-4. Although this contradicts Beaury's sworn statement that he was unaware of the grievance at the time he issued the misbehavior report, it is sufficient to raise a triable issue of fact. The Court therefore rejects the recommendation that the summary judgment be granted as to Beaury.
C. Exhaustion of Plaintiff's Claim Regarding Beaury's Alleged Deprivation of Electricity and Food From June 22, 2012 until June 26, 2012
In their motion for summary judgment, defendants argue that plaintiff's claim regarding Beaury's alleged deprivation of electricity and food for four days in June 2012 should be dismissed because plaintiff failed to exhaust that claim. Dkt. No. 38-10, pp. 4-6.
As defendants note, "the First Cause of Action in the complaint states that defendant's Beaury's conduct violated plaintiff's First and Eighth Amendment rights." Dkt. No. 38-10, p. 6 n.1. Defendants argue that "the writing of a misbehavior report and loss of a prison job are not deprivations actionable under the Eighth Amendment." Id. Defendants, however, have not addressed whether plaintiff's testimony at his deposition that defendant Beaury denied plaintiff meals and electricity for four days in June 2012, (Dkt. No. 38-1, p. 42), raises a triable issue of fact with respect to plaintiff's Eighth Amendment claim. See, e.g., Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013) ("[P]rison officials violate the Constitution when they deprive an inmate of his 'basic human needs' such as food, clothing, medical care, and safe and sanitary living conditions."). Because the Court concludes that there is a material issue of fact as to whether plaintiff exhausted his claim regarding defendant Beaury's alleged deprivation of food and electricity, and defendants have not addressed these allegations in the context of the Eighth Amendment, to the extent defendants' seek summary judgment as to plaintiff's Eighth Amendment claims, their motion is denied.
Magistrate Judge Peebles did not analyze the exhaustion issue, in light of his recommendation that the retaliation claim be dismissed on the merits. Dkt. No. 42, p. 21, n.9. Id. --------
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. See Espinal, 558 F.3d at 123-24. To properly exhaust his administrative remedies an inmate must complete the administrative review process in accord with the applicable state procedural rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007). The completion of the administrative review process includes receiving the decision on the final appeal of grievance prior to filing the federal action. Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002).
The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee (IGRC). 7 N.Y.C.R.R. §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee (CORC). Id. § 701.5(d).
In this case, plaintiff alleges that he did grieve his claim; that he did appeal the decision; and that his appeal was denied by CORC. Dkt. No. 1, p. 5. Plaintiff attached the records of various grievances and appeals to his complaint. Dkt. No. 1-1. One of these grievances, which plaintiff labeled "Ex. A, Item # 4," is dated June 22, 2012, and states that "on the above date CO Beaury . . . turned my electricity power off, so there-fore [sic] I've not had power for it-less [sic] #4 days and none feed in upon his request of other C.O." Dkt. No. 1-1, p. 14. This exhibit includes the Superintendent's denial of grievance number GM-54-256-12, plaintiff's "appeal statement," and a notification that the appeal was received by CORC. Id. at 15-16.
In the statement of material facts, defendants state that plaintiff "did not appeal a grievance to CORC alleging that defendant Beaury retaliated against him for utilizing the grievance process by causing him to lose his prison job, by turning power off in cell or by refusing to feed him for four days from June 22, 2012-June 26, 2012." Dkt. No. 38-9, ¶ 23. Defendants cited to an affidavit from Jeffrey Hale, the Assistant Director of the Inmate Grievance Program for the New York State Department of Corrections and Community Supervision, stating that plaintiff did not appeal any grievance alleging that Beaury "retaliated against him for using the grievance process by causing him to lose his prison job, by turning power off in cell or by refusing to feed him for four days from June 22, 2012-June 26, 2012." Dkt. No. 38-6, p.3. Hale attached, "as evidence," the computer printout from the CORC database, reflecting a search of grievances "denied at the facility level." Dkt. No. 38-6, ¶¶ 10-11. That document includes grievance number GM-54-256-12, which is characterized as "harassment by staff." Hale did not discuss plaintiff's allegation that he had properly grieved his claim, or the exhibits attached to the complaint as "Ex. A, Item #4," Dkt. No. 1-1, pp. 14-16. In light of the allegations in plaintiff's verified complaint, the attached exhibits and the defendants' failure to address the attached exhibits which include a grievance regarding the alleged deprivation of electricity and food, followed by the receipt of an appeal to CORC in grievance number GM-54-256-12, the Court declines to deem as undisputed the defendants' statement of material fact regarding the absence of an appeal of a grievance. The Court therefore denies defendants' motion for summary judgment as to plaintiff's First Amendment and Eighth Amendment claims against defendant Beaury.
IV. CONCLUSION
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 42) is ADOPTED insofar as it recommends that defendants' motion for summary judgment (Dkt. No. 38) be granted as to defendants Eric Payne and E. Ely; and REJECTED only insofar as it recommends that summary judgment be granted as to defendant S. Beaury; and it is further
ORDERED that defendants' motion for summary judgment (Dkt. No. 38) is GRANTED as to defendants Eric Payne and E. Ely; and it is further
ORDERED that plaintiff's complaint (Dkt. No. 1) is DISMISSED as to defendants Eric Payne and E. Ely; and it is further
ORDERED that defendants' motion for summary judgment (Dkt. No. 38) is DENIED as to defendant S. Beaury; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 18, 2016
/s/ _________
Brenda K. Sannes
U.S. District Judge