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granting summary judgment to defendants on plaintiff's retaliation claim because there was evidence demonstrating that "plaintiff in fact committed the prohibited conduct charged in the misbehavior report," the filing of which was the retaliatory act
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9:86-CV-208.
January 11, 2002
DONALD R. JERMOSEN, Plaintiff Pro Se, 03975-052, White Deer, PA.,
RICHARD J. FRESHOUR, ESQ., Assistant Attorney General, HON. ELIOT SPITZER, Attorney General of the State of New York, Albany, New York, Attorney for Defendants.
MEMORANDUM DECISION AND ORDER
Plaintiff Donald R. Jermosen, appearing pro se, has brought the instant prisoner's civil rights action pursuant to 42 U.S.C. § 1983, against various administrators and employees of the Auburn Correctional Facility, as well as employees of the New York State Department of Correctional Services, alleging that the defendants violated his constitutional rights when he was incarcerated at the Auburn Correctional Facility. Plaintiff asserts that his Fourteenth Amendment procedural due process rights were violated in connection with disciplinary hearings held in December 1984, and January 1985; that the misbehavior reports that led to these hearings were false and the result of illegal retaliation in violation of his First Amendment substantive due process rights because of the many legal proceedings instituted by plaintiff against Correctional Department personnel; and that his First Amendment rights were further violated when defendants would not permit him to attend religious services when he was in keeplock. Defendants moved for summary judgment pursuant to Rule 56 Fed.R.Civ.P., and the motion was referred by Chief Judge F .J. Scullin, Jr. to the Honorable David E. Peebles, United States Magistrate Judge, for recommendation. On July 25, 2001, Magistrate Judge Peebles filed a Report and Recommendation ("Report") in which he recommended that defendant's motion for summary judgment be granted in its entirety as against defendants Coughlin, Taylor, Costello, Burns, Eddy, Twomey, McQueeney, Canton, Borum, Malone, and any remaining John Doe defendants, and that defendant's summary judgment motion on behalf of defendants Festa, Wagner and Henderson be granted, except as to plaintiff's retaliation claim, which could not be decided on a motion for summary judgment because of the existence of a genuine issue of material fact. Following ten days from the service of the Report, the Clerk has sent the court the entire file and any and all objections filed by the parties herein. On August 6, 2001, defendants Festa, Wagner and Henderson had timely filed objections to that portion of the Report which retained the retaliation claims plaintiff made against them in the complaint. After careful review of all of the papers herein, including magistrate judge's Report, and considered de novo those portions of the Report to which defendants Festa, Wagner and Henderson object, the court will adopt Magistrate Judge Peebles Report in part and rejected in part, and the objections of defendants Festsa, Wagner and Henderson will be sustained.
The court notes that the magistrate judge's Report was returned to the court undelivered because the plaintiff is no longer at the address listed in the court's file, which is the last address the plaintiff instructed the court to use. The court will not use the plaintiff's failure to give the required notice to the court of his current address as a basis for dismissing his action, however, the plaintiff cannot in the future claim, in reliance of his failure to receive a copy of the Report, that he was deprived of the opportunity to file objections due to any fault of the court.
When timely objection has been made to a portion or portions of a magistrate judge's report, the district judge must make a de novo determination . . . of any portion of the magistrate's disposition to which specific written objection has been made." Rule 72(b) Fed.R.Civ.P. See also, 28 U.S.C. § 636(b)(1). The judge may then accept, reject, or modify, in whole or in part, the magistrate judge's proposed findings and recommendations. § 28 U.S.C. § 636(b)(1).
A district court's obligation to make a de novo determination of properly contested portions of a magistrate judge's report does not require that the judge hold a de novo hearing on the matter. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980). It is enough that the district court "arrive at its own, independent conclusion about the portions of the magistrate judge's report to which the objection is made." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983). In this situation, the court must "exercise . . . sound judicial discretion with respect to whether reliance should be placed on [the magistrate judge's] findings." American Express International Banking Corp. v. Sabet, 515 F. Supp. 472, 473 (S.D.N.Y. 1981), affd. without opinion, 697 F.2d 287 (2d Cir), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982).
In order to state a claim under § 1983, for retaliatory conduct, plaintiff must demonstrate that he engaged in constitutionally protected conduct and that the "protected conduct was a substantial or motivating factor in the prison officials decision to discipline the plaintiff." Graham v. Henderson, 89 F.3d 75,79 (2d Cir. 1996). Once the plaintiff carries his initial burden, "the defendants must show by a preponderance of the evidence that they would have disciplined the plaintiff `even in the absence of the protected conduct.'" Id. (quoting Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977)).
Two principles guide the analysis. First, prison officials have broad administrative and discretionary authority over the institution they manage. Therefore, the conclusion that the state action would have been taken in the absence of improper motives is easily reached in the circumstance of prison administration. In particular, acts taken to maintain order are presumed to have been done for a proper purpose. Hynes v. Squillace, 143 F.3d 653,657 (2d Cir. 1988), cert. denied, 525 U.S. 907, 119 S.Ct. 246, 142 L.Ed.2d 202 (1998). Second, retaliation claims must be carefully scrutinized because they are prone to abuse, in that an inmate can claim retaliation for every decision he dislikes. Graham, 89 F.2d at 79; see Colon v.Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (inmate retaliation claims are to be examined "with skepticism and particular care."). Moreover, an inmate cannot immunize himself from adverse administrative action by prison officials merely by complaining to them or filing a lawsuit and then claiming that everything that happens to him is retaliatory. Smith v. Halford, 570 F. Supp. 1187, 1194-95 (D.Kan. 1983). If that were so, then every prisoner could obtain review of non-cognizable claims merely by filing a lawsuit or grievance and then perpetually claim retaliation.
A review of the facts surrounding the writing of the misbehavior report shows that, even assuming an improper motive, there was a valid reason for the filing of the misbehavior report against plaintiff and the report could have been written for that reason alone. At the conclusion of his disciplinary hearing, plaintiff was found not guilty on the threats charge, and guilty of refusal to obey a direct order. At the disciplinary hearing, defendant Wagner testified that defendant Festa twice ordered plaintiff to leave the room, but he refused to do so, and, finally, defendant Festa directed him to escort plaintiff back to his cell. (Hear. Trans. P. 6). Defendant Festa testified that he told plaintiff to leave the room on two occasions, and when he did not do so, he gave him a direct order to leave. Plaintiff started to leave but came back and defendant Festa told defendant Wagner to take plaintiff to his cell. (Hear. Trans. p. 10). In his complaint and his disciplinary hearing testimony, plaintiff admits that he left the office but then returned to ask a question at which time he was escorted to his cell. (Complaint ¶ 1, Hear. Trans. p. 8). These admissions were corroborated by the testimony of defendants Wagner and Festa at the disciplinary hearing and by the hearing officer's decision which found plaintiff guilty of disobeying a direct order, and the decision was affirmed on appeal by defendant Henderson. This evidence demonstrated that plaintiff in fact committed the prohibited conduct charged in the misbehavior report, and therefore defendants Festa, Wagner and Henderson met their burden of showing proper, non-retaliatory reasons for filing the misbehavior report, and summary judgment on plaintiff's retaliation claim will be granted to these defendants.
Accordingly, for the foregoing reasons, Magistrate Judge Peebles' report recommendation is adopted in part and rejected in part. It is adopted in all respects except for that portion which denies summary judgment to defendants Festa, Wagner and Henderson on plaintiff's retaliation claim which the court rejects. The court sustains the objections of defendants Festa, Wagner and Henderson and GRANTS these defendants summary judgment on plaintiff's retaliation claim, and the complaint is DISMISSED in its entirety.
IT IS SO ORDERED
In the instant case, plaintiff has raised sufficient issues of material fact to make summary judgment in favor of defendants Festa, Wagner and Henderson unsuitable with respect to plaintiff's First Amendment substantive due process claim. The record clearly shows that defendants Festa and Wagner both testified at his disciplinary hearing that plaintiff threatened to bring lawsuits against them, and that the misbehavior report charging plaintiff with threats and failure to obey an order was made shortly thereafter. This sequence of events was also described in plaintiff's and his disciplinary hearing testimony and it plainly it suggests a possible correlation between the actions taken by defendants Festa and Wagner and plaintiff's lawsuit statements. Baker v. Zlochowon, 741 F. Supp. 436, 440 (S.D.NY 1990). A reasonable jury could conclude that the actions by these two defendants was done in anticipatory retaliation for his threatened legal action. Dixon v. Coughlin, 1995 WL 146193, at * 2 (S.D.N.Y. March 31, 1995) (denying summary judgment on inmate's First Amendment claim where correction officer allegedly filed a misbehavior report
The events underlying plaintiff's amended complaint were alleged to have occurred in December 1984 in the Supervisor's Office of the Auburn Correctional Facility. Plaintiff claims that he had been stopped in the prison yard by Correctional Officer Taylor and accused of feeding the birds in the prison yard, and issued a misbehavior report for littering. Correctional Officer Taylor is notparty in this lawsuit. A Tier I disciplinary hearing on the littering charge was conducted on December 29, 1984. Defendant Festa presided as the hearing officer and found plaintiff guilty of the charge. Plaintiff then refused to sign the disciplinary hearing disposition form and defendant Festa called in defendant Wagner to witness plaintiff's refusal
After defendant Wagner entered the office, the plaintiff told both correctional officers in a heated manner that he was going to sue both of them. Defendant then ordered plaintiff to leave the office twice before he would do so. Defendant Wagner then escorted plaintiff to his cell and placed in keeplock status. Defendant Wagner then issued a misbehavior report charging plaintiff with threats and disobeying a direct order. At his disciplinary hearing, plaintiff was acquitted of the threats charge and found guilty of disobeying a direct order. He received a sentence of 30 days keeplock and loss of priveleges.
In their objections to the magistrate judge's Report, defendants Festa, Wagner and Henderson maintain that plaintiff's threat to bring legal actions against them is not protected by the First Amendment and constituted a threat that violated inmate conduct regulations under N.Y. Comp. Codes R. Regs. Tit., § 207.2, Rule 102.10. This rule provides tha "[i]nmates shall not, under any circumstances make any threats, spoken or in writing, or by gesture." Furthermore, the contend that in order to maintain his retaliation claim, plaintiff must show that he suffered an actual injury, and he has not done so.