Opinion
9:22-CV-1094 (BKS/ML)
07-25-2024
BENJI D. REED, Plaintiff, v. J. AUCTER, Deputy Sheriff; RANDY REED, Deputy Sheriff; and JEREMY MYERS, Deputy Sheriff, Defendants.
BENJI D. REED, Pro Se Plaintiff Elmira Correctional Facility MURPHY BURNS, LLP THOMAS MURPHY, ESQ. Counsel for Defendants
BENJI D. REED, Pro Se Plaintiff Elmira Correctional Facility
MURPHY BURNS, LLP THOMAS MURPHY, ESQ. Counsel for Defendants
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
Currently before the Court, in this civil rights action filed by Benji D. Reed (“Plaintiff”) against defendants J. Aucter, Randy Reed, and Jeremy Myers (collectively “Defendants”) who are-or were at the relevant time-employed at the Lewis County Jail (“Lewis Jail”), is Defendants' unopposed motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No.19.) For the reasons set forth below, I recommend that Defendants' motion for summary judgment be granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
At this procedural posture, Plaintiff asserts the following two claims: (1) one claim of retaliation against Defendants Aucter and Myers; and (2) one claim that his due process rights were violated by Defendant Reed. (Dkt. No. 7 at 41.)
B. Defendants' Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Defendants in their Statement of Material Facts and not denied by Plaintiff in a response.
1. On August 13, 2022 at approximately 12:40 p.m., while conducting a security check in the A/B block day-space of the Lewis Jail, Defendant Myers observed playing cards on the floor and heard loud voices coming from incarcerated individuals on the block.
2. Defendant Myers ordered the incarcerated individuals in the A/B block to pick up the playing cards and ordered the block to quiet down.
3. Defendant Aucter was in A block at the time, heard a loud disturbance coming from the first floor of the cell block, and ordered all the incarcerated individuals to quiet down.
4. At approximately 12:50 p.m., Defendant Aucter was still in the A/B block and was confronted by incarcerated individual Casey Turck who was loud, disrespectful, and further escalated the disturbance in the A/B cell block.
5. Incarcerated individual Turck refused Defendant Aucter's orders to cease his disruptive behavior. He was removed from the A/B housing unit and relocated to a holding cell by Defendant Myers and others.
6. Once removed from the cell block to the holding cell, incarcerated individual Turck continued his disruptive and aggressive behavior. At approximately 1:00 p.m., Defendant Aucter ordered Defendant Myers to lock down the Lewis Jail.
7. After the Lewis Jail was locked down and the incarcerated individuals were in their cells, the incarcerated individuals in A/B block, including Plaintiff, started hollering and swearing at officers, slamming doors and toilets, and throwing items in their cells.
8. At approximately 1:30 p.m., Defendant Aucter ordered a reorganization and provided Defendant Myers with a list of twelve incarcerated individuals to be relocated. That reorganization process was completed at 2:00 p.m.
9. Plaintiff was among the twelve incarcerated individuals ordered to be relocated pursuant to Defendant Aucter's order.
10. During the reorganization process, officers observed that many of the incarcerated individuals possessed materials that were not permitted under the Lewis Jail rules.
To support this fact, Defendants cite to Defendant Aucter's affidavit at “112.” (Dkt. No. 19, Attach. 8 at ¶ 10 [citing Dkt. No. 19, Attach. 3 at “112”].) However, the support for this asserted fact is in paragraph 12 of Defendant Aucter's affidavit. (Dkt. No. 19, Attach. 3 at ¶ 12.) In addition, Defendants' citation to Defendant Myers' affidavit correctly provides support for the fact asserted.
11. Once the reorganization process was completed, Defendant Aucter ordered that all cells be searched and brought into compliance with the Lewis Jail rules.
12. Defendant Aucter-not Defendant Myers-ordered the Lewis Jail to be locked down, the reorganization and moving of incarcerated individuals, and the search of all cells to bring them into compliance with the Lewis Jail rules.
13. As a result of the disturbance that began on A/B block, all incarcerated individuals were locked in, twelve incarcerated individuals were relocated pursuant to the reorganization, and all cells were searched.
14. Defendant Aucter has no recollection of Plaintiff complaining to him about another incarcerated individual on August 13, 2022.
15. Defendant Aucter affirmed under penalty of perjury that the actions he took on August 13, 2022, were to ensure the safety, security, and good order of the Lewis Jail.
Plaintiff's Fourteenth Amendment Disciplinary Due Process Claim
16. On June 8, 2022 at approximately 4:50 p.m., Defendant Aucter supervised a strip search of Plaintiff during Plaintiff's admission to the Lewis County Jail.
17. During the strip search Plaintiff was found to be in possession of an item described as a 2-inch ball wrapped in toilet tissue.
18. The item found to be possessed by Plaintiff during the strip search was turned over to the Lewis County Sheriff's Investigation Unit. It was tested and contained a number of illegal narcotics including crack cocaine.
19. Plaintiff was asked by a Sheriff's Investigator whether the contraband was crack cocaine. Plaintiff responded with a head nod confirming that it was crack cocaine.
20. The possession of the drugs by Plaintiff upon admission to the Lewis Jail was a violation of jail rules and-in addition to being charged criminally- Plaintiff was subjected to discipline for the jail rules violation.
21. After Plaintiff was found to be in possession of the contraband, he was presented with a disciplinary hearing notification/waiver (the “Notice”) by Defendant Reed who was serving as disciplinary hearing officer at the time.
22. The Notice referenced “Incident No. 1391: Possession of Contraband.”
23. The Notice was presented to Plaintiff on June 25, 2022 at 7:00 p.m., and Plaintiff signed the notice acknowledging receipt.
24. The Notice informed Plaintiff that the hearing would be held 25 hours later on June 26, 2022 at 8:00 p.m.
25. At the conclusion of the disciplinary hearing, Plaintiff was found guilty of possession of contraband. Defendant Reed sanctioned Plaintiff to five days keep lock confinement-beginning on June 27, 2022, and ending on July 1, 2022-and loss of tablet privileges for approximately six days.
26. At the conclusion of the disciplinary hearing, Plaintiff received and acknowledged the results of the hearing in a hearing report that he signed.
27. Defendant Reed did not receive an appeal of Plaintiff's disciplinary determination. Defendant Myers conducted an investigation and could find no evidence that Plaintiff appealed his disciplinary determination.
28. Plaintiff was provided the Notice more than 24 hours in advance of the hearing. At the hearing, Plaintiff had the opportunity to defend himself and contest the evidence presented against him. At the conclusion of the hearing, Plaintiff was found guilty of possessing the illegal narcotics that were found on his person during his strip search while entering the Lewis Jail.
29. Plaintiff did not file an appeal of that decision and never provided Defendant Reed with a written appeal.
30. Notwithstanding, Plaintiff filed a grievance on August 4, 2022, in which he challenged Lewis Jail's strip search policy as unlawful and unreasonable (“August Grievance”).
31. Plaintiff's August Grievance was denied by Defendant Myers-who served as grievance coordinator. Plaintiff acknowledged, in writing, receipt of the denial on September 5, 2022.
32. Plaintiff appealed the denial of the August Grievance to the Chief Administrative Office, which upheld the denial noting that the strip search of Plaintiff was lawful. Plaintiff acknowledged, in writing, receipt of the denial of the appeal.
33. Plaintiff appealed the decision of the Chief Administrative Office to the New York State Commission of Correction Citizens Policy and Complaint Review Council (“NYSCC CPCRC”).
34. In a letter dated October 13, 2022, the NYSCC CPCRC stated that it reviewed the August Grievance and sustained the action taken by the Chief Administrative Office.
35. A copy of the NYSCC CPCRC letter dated October 13, 2022, was sent to Plaintiff.
36. On or about September 16, 2022-over two months after being found guilty of the contraband violation-Plaintiff filed a grievance inquiring into the status of what he claimed was his “disciplinary appeal” (“September Grievance”).
37. As grievance coordinator, Defendant Myers investigated the September Grievance and concluded that no such appeal had been filed by Plaintiff.
38. On September 22, 2022, Plaintiff appealed the determination of Defendant Myers. On September 22, 2022, the Chief Administrative Officer denied the appeal.
39. Plaintiff appealed the Administration's decision to the NYSCC CPCRC. In a letter dated November 10, 2022, the NYSCC CPCRC notified Plaintiff that they had voted to deny the September Grievance, thereby sustaining the action taken by the Chief Administrative Officer.
C. Parties' Briefing on the Motion for Summary Judgment
1. Defendants' Motion for Summary Judgment
Generally, in support of their motion for summary judgment, Defendants argue that (1) Plaintiff's First Amendment retaliation claim against Defendants Aucter and Myers must be dismissed because (a) there is no material issue of fact that Plaintiff did not engage in a constitutionally protected activity, (b) there is no material issue of fact that Defendants Aucter and Myers did not take any adverse action against Plaintiff and instead took action against all incarcerated individuals to restore order and prevent further disturbances, (c) there is no causal connection between Plaintiff's allegedly protected activity and the allegedly adverse action against Plaintiff, and (d) in any event, the claim should be dismissed against Defendant Myers because the decisions to lock down the jail, conduct a relocation of twelve incarcerated individuals, and conduct a search of the Lewis Jail, were made by Defendant Aucter, and (2) Plaintiff's Fourteenth Amendment Due Process claim against Defendant Reed must be dismissed because (a) Plaintiff was found to be in possession of contraband upon admission to the Lewis Jail, (b) the August Grievance was denied by Defendant Myers and upheld by the NYSCC CPCRC, (c) Plaintiff was provided the Notice more than twenty-four hours in advance of the disciplinary hearing, (d) Plaintiff attended the hearing and signed the hearing report after he was found guilty and punished to five days in keep-lock and loss of tablet privileges, (e) there is no evidence to support Plaintiff's assertion that he appealed the decision finding him guilty of possessing contraband and punishing him to five days keep-lock and loss of tablet privileges, and (f) Plaintiff's September Grievance was denied by Defendant Myers and upheld by the NYSCC CPCRC. (Dkt. No. 19, Attach. 9 at 5-9.)
Although Defendants' memorandum of law refers to this claim as being asserted against Defendants Aucter and Reed (Dkt. No. 19, Attach. 9 at 5-7), the claim is asserted against Defendants Aucter and Myers (Dkt. No. 1; Dkt. No. 7 at 24-25).
Although Defendants' memorandum of law refers to this claim as being asserted against Defendant Myers (Dkt. No. 19, Attach. 9 at 7-9), it is asserted against Defendant Reed (Dkt. No. 1; Dkt. No. 7 at 32-36).
2. Plaintiff's Failure to Respond
Plaintiff's response to Defendants' motion for summary judgment was due on December 12, 2023. (Dkt. No. 20.) On December 15, 2023, the Court received returned as undeliverable its Notice, which informed Plaintiff of his response deadline. (Dkt. No. 21.) The Clerk of the Court re-sent the filing to Plaintiff at the St. Lawrence County Sheriff's Office. (Id.)
On December 21, 2023, the undersigned issued a text order noting that according to a search of the Vinelink database, Plaintiff moved to the St. Lawrence County Correctional Facility. (Dkt. No. 22.) The text order sua sponte extended the deadline for Plaintiff to file a response to Defendants' motion until February 5, 2024, and reminded Plaintiff that he is required to keep his address up to date pursuant to N.D.N.Y. L.R. 10.1(c)(2). (Id.)
On December 26, 2023, Plaintiff filed a notice of change of address updating his address to the St. Lawrence County Correctional Facility. (Dkt. No. 23.) Plaintiff filed a letter advising that he did not receive a copy of the motion for summary judgment. (Dkt. No. 24.)
On December 28, 2023, Defendants filed a status report in response to Plaintiff's letter (Dkt. No. 24) which stated that upon receiving the Court's text order (Dkt. No. 22), Defendants again served on Plaintiff via regular mail at his new address-St. Lawrence County Correctional Facility-the entire motion for summary judgment packet. (Dkt. No. 25.)
On February 2, 2024, Plaintiff filed a letter requesting an extension of time to file a response to the motion for summary judgment. (Dkt. No. 28.) On February 2, 2024, the undersigned granted Plaintiff's request and the deadline for Plaintiff's response to the motion for summary judgment was reset to March 6, 2024. (Dkt. No. 29.)
On March 8, 2024, Plaintiff filed a letter requesting a continuance of discovery and extension of time to respond to the motion for summary judgment. (Dkt. No. 30.) On March 11, 2024, the undersigned granted in part and denied in part Plaintiff's requests. (Dkt. No. 31.) More specifically, the undersigned granted Plaintiff's motion seeking an extension of time to file a response to the motion for summary judgment and reset the deadline to April 2, 2024. (Id.) The Court noted that this was the third extension for Plaintiff to file a response and that no further extensions would be granted. (Id.) Moreover, the undersigned noted that the discovery deadline expired approximately six months earlier, on September 20, 2023, and Plaintiff failed to show good cause for not having sought an extension of the discovery deadline before its expiration or for the untimely motion. (Id.)
On May 31, 2024, Plaintiff filed a notice of change of address reflecting that Plaintiff is now housed at Elmira Correctional Facility. (Dkt. No. 32.)
To date, Plaintiff has not filed a response to Defendants' motion for summary judgment. (See generally docket sheet.)
II. RELEVANT LEGAL STANDARDS
A. Standard Governing A Motion For Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
As a result, “[c]onclusory 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) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmovant is proceeding Pro Se. (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) As has often been recognized by both the Supreme Court and Second Circuit, even Pro Se litigants must obey a district court's procedural rules.
Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
Cusamano, 604 F.Supp.2d at 426 & n.3 (citing cases).
Cusamano, 604 F.Supp.2d at 426-27 & n.4 (citing cases).
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement-even when the non-movant was proceeding pro se
Among other things, Local Rule 56.1 (previously contained in Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises N.D.N.Y.L.R.56.1.
Cusamano, 604 F.Supp.2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y.2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”).
Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3). Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein ....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
B. Standard Governing Retaliation Claims
“To prevail on a First Amendment retaliation claim, an inmate must establish (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected conduct and the adverse action.” Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir. 2020) (cleaned up). As the Second Circuit has repeatedly cautioned, “[c]ourts properly approach prisoner retaliation claims ‘with skepticism and particular care,' 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.'” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)); see also Phelps v. Kapnolas, 308 F.3d 180, 187 n.6 (2d Cir. 2002).
“[A]dverse action” for the purposes of a retaliation claim has been defined as “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights . . . [o]therwise the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Davis, 320 F.3d at 353 (citing Dawes, 239 F.3d at 493).
To establish a causal connection between protected activities and the adverse action, the court may consider a number of factors, including “(1) the outcome of any hearing concerning the allegedly retaliatory charges; (2) the inmate's prior disciplinary record; (3) any statements made by the defendant concerning his motivation; and[] (4) the temporal proximity between the protected activity and the defendant's adverse action.” Williams v. Muller, 98-CV-5204, 2001 WL 936297, at *3 (S.D.N.Y. Aug. 17, 2001) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) abrogated, in part, on other grounds by Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)). However, with respect to temporal proximity at the summary judgment stage, the Second Circuit has “consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim.” Washington v. Afify, 681 Fed.Appx. 43, 46 (2d Cir. 2017).
It is well-settled that, even where the plaintiff can make a showing of retaliatory motive, the defendant may be entitled to summary judgment if he can show that the alleged adverse action would have occurred even in the absence of the improper motivation. Greer v. Mehiel, 805 Fed.Appx. 25, 29 (2d Cir. 2020) (citing Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003)) (“[A] defendant may be entitled to summary judgment if he can show dual motivation, i.e., that even without the improper motivation the alleged retaliatory action would have occurred.”), cert. denied, 141 S.Ct. 136 (2020), reh'g denied, 141 S.Ct. 217 (2020). The defendant bears the burden of making the showing that he would have taken exactly the same action in the absence of an improper motive. Greer, 805 Fed.Appx. at 29 (citing Scott, 344 F.3d at 288).
If the defendant meets his burden offering a legitimate, non-discriminatory reason for the adverse action, the burden returns to the plaintiff to show that the real reason for the adverse action was his protected activity. See Porter v. Port Auth. of New York and New Jersey, 15-CV-3558, 2022 WL 991978, at *7 (E.D.N.Y. Mar. 31, 2022) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013)) (holding that the McDonnell Douglas burden-shifting approach applies to retaliation claims in violation of 42 U.S.C. § 1983); Alali v. DeBara, 07-CV-2916, 2008 WL 4700431, at *5 n.12 (S.D.N.Y. Oct. 24, 2008) (citing Thomas v. New York City Health & Hosps. Corp., 02-CV-5159, 2004 WL 1962074, at *16 n.7 (S.D.N.Y. Sept. 2, 2004) (“While McDonnell Douglas . . . involved claims brought under Title VII . . ., courts have held that discrimination and retaliation claims brought under 42 U.S.C. §§ 1981 and 1983 follow the same analysis.”)).
C. Standard Governing a Due Process Claim
To successfully state a claim under Section 1983 for denial of due process, a plaintiff must establish both the existence of a protected liberty or property interest, and that he or she was deprived of that interest without being afforded sufficient process. Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004) (citing Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)). Due process generally requires that the state afford individuals “some kind of hearing” prior to depriving them of a liberty or property interest. DiBlasio v. Novello, 344 F.3d 292, 302 (2d Cir. 2003).
The Supreme Court has held with respect to convicted prisoners that although states may still create liberty interests protected by due process, “these interests will be generally 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.” Sandin v. Conner, 515 U.S. 472, 483-84 (1995). A pretrial detainee, however, need not meet such a stringent standard to establish a liberty interest because “[a] detainee's interest in freedom from unjustified infliction of pain and injury is more substantial....” Benjamin v. Fraser, 264 F.3d 175, 188 (2d Cir. 2001); see also Iqbal v. Hasty, 490 F.3d 143, 146 (2d Cir. 2007), rev'd on other grounds, Ashcroft v. Iqbal, 556 U.S. 662 (2009) (“Th[e Second Circuit] has said that Sandin does not apply to pretrial detainees and that, accordingly, pretrial detainees need not show that an imposed restraint imposes atypical and significant hardships to state deprivation of a liberty interest protected by procedural due process.”). Thus, “restrictions on pretrial detainees . . . may not amount to punishment ....” Benjamin, 264 F.3d at 188 (citations and internal quotation marks omitted); see also Myers v. Bucca, 15-CV-0553, 2015 WL 13401929, at *9 (N.D.N.Y. Dec. 7, 2015) (Baxter, M.J.) (“[I]n the case of a pretrial detainee, the court must determine whether the condition imposed on the inmate was for a legitimate purpose or for the purpose of punishment.” (citations omitted)), report and recommendation adopted by 2016 WL 165016 (N.D.N.Y. Jan. 14, 2016) (Hurd, J.).
The duration of the challenged confinement, while not determinative, is a significant factor under Sandin. See Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000). The Second Circuit generally takes the position that a convicted prisoner's SHU confinement under ordinary conditions for more than 305 days rises to the level of atypicality. Colon, 215 F.3d at 231-32.
In determining whether a restriction is punitive, a court may consider
Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment-retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable . . . and whether it appears excessive in relation to the alternative purpose assigned ....Bell v. Wolfish, 441 U.S. 520, 537-38 (1979) (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963)). If a restriction or condition is deemed “punishment,” it “may not be inflicted upon pretrial detainees without due process.” Myers, 2015 WL 13401929, at *9 (citing LaRock v. Amato, 12-CV-0503, 2013 WL 5466410, at *12 (N.D.N.Y. Sept. 30, 2013) (McAvoy, J.)).
The due process procedures to which a pretrial detainee is entitled are outlined in Wolff v. McDonnell, 418 U.S. 539 (1974), and include a disciplinary hearing and written notice of the charges at least twenty-four hours in advance of that hearing; the opportunity to present witnesses and documentary evidence before an impartial hearing officer as long as doing so will not jeopardize prison safety and security; and a written statement including evidence relied on by the hearing officer in reaching his or her decisions and the reasons for the disciplinary action. See 418 U.S. at 564-66.
III. ANALYSIS
A. Retaliation Claim
After carefully considering the matter, for the reasons set forth in Defendants' memorandum of law (Dkt. No. 19, Attach. 9 at 5-7), I recommend that Plaintiff's retaliation claim against Defendants Aucter and Myers be dismissed. The following is intended to supplement-not supplant-those reasons.
To the extent that Plaintiff asserts the facility-wide lockdown or facility-wide cell search were adverse actions by Defendants Aucter and Myers, those actions were “conducted throughout the entire facility and clearly not directed solely at Plaintiff.” Felder v. Filion, 03-CV-0516, 2006 WL 8435089, at *6 (N.D.N.Y. Sept. 5, 2006) (Treece, M.J.). Thus, those actions cannot be said to have been adverse to Plaintiff since they were taken against every incarcerated individual at the Lewis Jail on August 13, 2022.
Moreover, as set forth above in Part II.B. of this Report and Recommendation, temporal proximity alone is insufficient to establish a genuine issue of fact for trial with respect to the causal connection element of a retaliation claim. See Hendricks v. Mallozzi, 20-CV-1035, 2022 WL 1129887, at *5 (N.D.N.Y. Jan. 14, 2022) (Lovric, M.J.) (citations omitted), report and recommendation adopted, 2022 WL 856885 (N.D.N.Y. Mar. 23, 2022) (D'Agostino, J.). Hence, even assuming arguendo that the facility-wide lockdown, facility-wide cell search, and reorganization of Plaintiff (and twelve other incarcerated individuals), were “adverse actions” for purposes of a retaliation claim, Plaintiff has failed to establish an issue of fact for trial that those actions were causally connected to his alleged protected activity.
Finally, Defendant Aucter-who was the sole decision maker with respect to the allegedly adverse actions-affirmed that “[t]he actions [he] took were for the purpose of restoring the safety, security, and good order of the Jail.” (Dkt. No. 19, Attach. 3 at ¶ 18.) Thus, the record establishes that even in the absence of Plaintiff's protected speech, Defendant Aucter would have taken the same action to restore the security of the Lewis Jail. Plaintiff failed to show that the real reason for the allegedly adverse action or actions was his protected activity.
For each of these reasons, I recommend that Plaintiff's retaliation claim be dismissed.
B. Due Process Claim
After carefully considering the matter, for the reasons set forth in Defendants' memorandum of law (Dkt. No. 19, Attach. 9 at 7-9), I recommend that Plaintiff's due process claim against Defendant Reed be dismissed. The following is intended to supplement-not supplant-those reasons.
The record evidence establishes that Plaintiff was afforded all-or more-of the process that he was due. (See Dkt. No. 19, Attach. 5 at ¶¶ 14-16 [Defendant Reed's declaration affirming that Plaintiff was provided notice of a disciplinary hearing with more than 24 hours advance notice of the hearing, Plaintiff had an opportunity to defend himself and contest the evidence presented against him, and Plaintiff received a copy of the disciplinary hearing report that found Plaintiff guilty of the violation and imposed discipline].)
Moreover, “[t]here is no constitutional right to appeal the decision of a disciplinary hearing.” Calhoun v. Quiros, 23-CV-0715, 2023 WL 8618745, at *9 (D. Conn. Dec. 13, 2023) (citing Staton v. Gonzalez, 22-CV-0855, 2023 WL 3042187, at *6 (D. Conn. Apr. 21, 2023)); see Cox v. New York City Dep't of Corr., 94-CV-3644, 1995 WL 604699, at *4 (E.D.N.Y. Oct. 3, 1995) (although the state may afford a prisoner the right to appeal from a disciplinary proceeding, there is no federal constitutional right to such an appeal).
For each of these reasons, I recommend that Plaintiff's due process claim against Defendant Reed be dismissed because the record established that Plaintiff received the process that he was due.
ACCORDINGLY, it is respectfully
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 19) be GRANTED ; and it is further respectfully
RECOMENNDED that Plaintiff's Complaint (Dkt. No. 1) be dismissed in its entirety; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
If you are proceeding Pro Se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).