Opinion
9:19-cv-1610 (BKS/TWD)
08-22-2023
FRANCISCO SANTOS Plaintiff, v. B. SCHROEDER, et al., Defendants.
FRANCISCO SANTOS Plaintiff, pro se. HON. LETITIA JAMES NICHOLAS W. DORANDO, ESQ. New York State Attorney General Ass't Attorney General Attorney for Defendants.
FRANCISCO SANTOS Plaintiff, pro se.
HON. LETITIA JAMES NICHOLAS W. DORANDO, ESQ. New York State Attorney General Ass't Attorney General Attorney for Defendants.
REPORT-RECOMMENDATION AND ORDER
THERESE WILEY DANCKS, United States Magistrate Judge.
I. INTRODUCTION
This matter has been referred for a report and recommendation by the Hon. Brenda K. Sannes, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). At all times relevant, Plaintiff was an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) at Auburn Correctional Facility (“Auburn”). In his amended complaint, the operative pleading in this matter, Plaintiff asserts First Amendment retaliation claims against Corrections Officer (“CO”) Schroeder, CO Kassen, Sgt. Sirvent, Lt. Masner, and Parmiter. (Dkt. Nos. 50, 51.) Presently before the Court is Defendants' motion for summary judgment. (Dkt. No. 99.) Plaintiff opposed the motion and Defendants replied. (Dkt. Nos. 109, 111.) For the reasons set forth below, the undersigned recommends Defendants' motion be granted.
Despite the Court granting Plaintiff three extensions totaling more than four months to file a response to Defendants' motion, Plaintiff did not timely file a response. (Dkt. No. 109.) The Court notes Plaintiff's original response was due March 14, 2023, which the Court extended at Plaintiff's request to May 15, 2023. (See Dkt. Nos. 103, 104.) Thereafter, Plaintiff made a second request for extension which the Court granted and extended to June 30, 2023. (See Dkt. Nos. 105, 106.) Again at Plaintiff's request, the Court allowed Plaintiff a third and final extension to respond by July 28, 2023, and made clear no further extensions would be granted for any reason. (Dkt. No. 108.) On August 9, 2023, almost two weeks after the Court's final extension deadline, the Court received Plaintiff's opposition to Defendants' motion for summary judgment, which was postmarked August 8, 2023. (Dkt. No. 109.) However, in deference to Plaintiff's pro se status, the Court has considered his opposition. (Dkt. No. 110.)
II. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted 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); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The movant may meet this burden by showing the nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing there is a genuine issue for trial. Salahuddin, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (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).
The Second Circuit instructs 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.'” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (alteration and emphasis in original) (quoting Anderson, 477 U.S. at 252). In other words, “a nonmoving party must offer some hard evidence showing that [his] version of the events is not wholly fanciful.” Id. (citation and internal quotation marks omitted). Accordingly, statements “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).
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 obligated 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, that status “does not relieve [a pro se] plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks and citation omitted).
In applying the summary judgment standard, the district court should not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996) (“Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.”).
III. DISCUSSION
On July 21, 2019, Plaintiff was taken to the interfacility visitation room at Auburn. (Dkt. No. 51-1 at 38.) During visitation, Plaintiff's visitor became upset and placed her head on the table. Id. CO Schroeder approached Plaintiff's table and informed Plaintiff and his visitor of the facility's rules and regulations prohibiting “lying on, or across tables.” (Dkt. No. 99-3 at 6.) However, according to Plaintiff, CO Schroeder approached the table “in an ag[g]ressive, unrespectful and with bad[]-faith” manner and uttered a racial slur towards Plaintiff. (Dkt. No. 51-1 at 38.) In response to the interaction between Plaintiff and CO Schroeder on July 21, 2019, Plaintiff filed a grievance against CO Schroeder dated July 26, 2019, alleging harassment. Id. Due to the nature of the complaint, the grievance was immediately forwarded to Auburn's Superintendent for investigation. (Dkt. No. 99-4 at 3.) The Superintendent ultimately denied Plaintiff's grievance due to a lack of evidence. Id. at 11.
On August 18, 2019, while CO Schroeder was on duty in the visitation room, Plaintiff exited the inmates' bathroom carrying a used paper towel. (Dkt. No. 99-1 at 2.) CO Schroeder ordered Plaintiff to return to the bathroom and properly dispose of the paper towel in compliance with signage posted in the bathroom. Id. According to CO Schroeder, Plaintiff ignored his direct order to properly dispose of the paper towel, which prompted him to file a misbehavior report. (Dkt. No. 51-1 at 44.) Pending a disciplinary hearing, Plaintiff spent 19 consecutive days in keeplock before the misbehavior report was dismissed. (Dkt. No. 51-1 at 21, 53, 68; Dkt. No 99-1 at 2.)
Plaintiff subsequently attempted to file another grievance against CO Schroeder regarding the August 18, 2019, incident. Id. Plaintiff alleged CO Schroeder's misbehavior report was predicated on false and inaccurate statements to retaliate against Plaintiff for the July 26, 2019, grievance he had filed against CO Schroeder. (Dkt. No. 51-1 at 52.) Although the second grievance was dated September 1, 2019, the Inmate Grievance Program (“IGP”) office at Auburn received the grievance sometime between September 15 and September 17, 2019. (Dkt. No. 99-4 at 4.) Upon receiving the September 1, 2019, grievance, Parmiter, the IGP Supervisor, informed Plaintiff via memorandum the grievance was untimely because it was received more than 21 days after the alleged August 18, 2019, incident. Id. Parmiter requested Plaintiff provide mitigating circumstances explaining the untimeliness of his grievance. Id. On September 26, 2019, Plaintiff responded to Parmiter's request, claiming he properly mailed the grievance on September 1, 2019, via the interfacility mail unit and its delayed arrival was out of his control. (Dkt. No. 51-1 at 67-68.) He further explained immediately after the August 18, 2019, incident, he was placed in keeplock for 19 days, which affected his access to resources. Id. at 68. Parmiter ultimately denied Plaintiff's September 1, 2019, grievance because he failed to provide acceptable mitigating circumstances for its untimely filing. (Dkt. No. 99-4 at 5.) There is no record of Plaintiff appealing the denial of his grievance or filing a separate grievance against Parmiter for failing to accept the grievance. Id.
Defendants now contend summary judgment is warranted because Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 99-5 at 7-17.)
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. 42 U.S.C. § 1997e(a). The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim. Page v. Haider-Shah, No. 9:09-CV-68 (FJS/ATB), 2010 WL 6428400, at *4 (N.D.N.Y. Mar. 2, 2010), report and recommendation adopted, 2011 WL 1213943 (N.D.N.Y. Mar. 31, 2011). Inmates must exhaust their administrative remedies even if they are seeking only monetary damages that are not available in prison administrative proceedings. Id.
To properly exhaust his administrative remedies, an inmate must complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81 (2006)). The PLRA requires “proper exhaustion,” which means an inmate must utilize all steps of the administrative process and comply with “deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90-91. Exhaustion is an affirmative defense, and the burden of proof, at all times, remains on the defendant. Cooley v. Garland, No. 9:19-CV-00382 (LEK/ATB), 2023 WL 346242, at *4 (N.D.N.Y. Jan. 20, 2023).
The grievance procedure in New York is three-tiered. The inmate must first file a grievance with the Inmate Grievance Resolution Committee (“IGRC”). N.Y. Comp. Codes R. & Regs., tit. 7 §§ 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). An adverse decision from the Superintendent level may be further appealed to the Central Office Review Committee (“CORC”). Id. § 701.5(d). Complaints of harassment are handled through an expedited procedure where the grievances are forwarded directly to the Superintendent, after which an inmate must appeal any negative determination to CORC. Id. §§ 701.8(g) & (h), 701.5.
“CORC is required to provide, through IGP staff, written confirmation that an appeal has been received, and if the inmate does not receive such confirmation within forty-five days, he ‘should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.'” Ruiz v. Link, No. 20-CV-0235, 2022 WL 3020254, at *4 (S.D.N.Y. July 29, 2022) (quoting 7 N.YC.R.R. § 701.5(d)(3)(i)). If CORC has received an appeal and fails to rule within those thirty days, the inmate is considered to have exhausted his administrative remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020).
“Under the PLRA, a prisoner need exhaust only ‘available' administrative remedies.” Ross v. Blake, 578 U.S. 632, 638 (2016). There are “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Id. at 643. “First, an administrative remedy may be unavailable when ‘it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates.'” Williams v. Correction Officer Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross, 578 U.S. at 643). “Second, ‘an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.'” Id. (quoting Ross, 578 U.S. at 643). “Third, an administrative remedy may be unavailable ‘when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” Id. at 124 (quoting Ross, 578 U.S. at 644).
The “test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would ‘a similarly situated individual of ordinary firmness' have deemed them available.” Sandlin v. Poole, 575 F.Supp.2d 484, 488 (W.D.N.Y. 2008) (citation omitted). A plaintiff is estopped from exhausting administrative remedies where “defendants acted affirmatively to prevent an inmate from availing him or herself of the grievance procedures.” Pridgen v. Beatie, No. 9:16-CV-535 (DNH/CFH), 2018 WL 1402049, at *8 (N.D.N.Y. Jan. 17, 2018). Exhaustion may be excused if plaintiff alleges enough to show ordinary grievance procedures were unavailable because of a reasonable fear of retaliation. Thomas v. Cassleberry, No. 03-CV-6394L, 2007 WL 1231485, at *2 (W.D.N.Y. Apr. 24, 2007); Chaney v. Vena, No. 9:15-CV-653 (TJM/ATB), 2017 WL 6756645, at *4 (N.D.N.Y. Nov. 29, 2019) (“The fear of retaliation must be ‘reasonable' to render the grievance procedure unavailable.'”) (citation omitted).
A mere “generalized fear” of retaliation is insufficient to excuse a failure to exhaust administrative remedies. Davis v. Doe, No. 9:16-CV-0994 (MAD/DJS), 2017 WL 8640829, at *4 (N.D.N.Y. Dec. 29, 2017); Thompson v. Kelly, No. 9:18-CV-1235 (LEK/DJS), 2019 WL 2374119, at *4-5 (N.D.N.Y. Apr. 4, 2019) (plaintiff's allegation he failed to submit a timely grievance complaint because he feared staff would retaliate against him was merely a generalized fear and not a specific threat which could otherwise excuse the exhaustion requirement). However, a specific threat of retaliation can constitute more than a generalized fear. Hunter v. Rouse, No. 9:20-CV-65 (LEK/DJS), 2020 WL 8474744, at *4 (N.D.N.Y. Sept. 17, 2020), report and recommendation adopted, 2021 WL 101083 (N.D.N.Y. Jan. 12, 2021) (plaintiff's fear of retaliation was more than a generalized fear where defendant told plaintiff that “if he told ‘anyone what happened, the next time [plaintiff] won't walk away.'”) (citation omitted); Galberth v. Durkin, No. 9:14-CV-0115 (BKS/ATB), 2014 WL 7409915, at *8 (N.D.N.Y. Dec. 31, 2014) (plaintiff's allegation defendant threatened to “beat him within an inch of his life” was sufficient to create more than a generalized fear of retaliation) (citation omitted); Decolines v. Hollenbeck, No. 9:20-CV-1502 (MAD/ATB), 2021 WL 4947118, at *4 (N.D.N.Y. Oct. 25, 2021) (plaintiff's allegation officer assaulted him in response to a grievance was a sufficiently specific threat to excuse exhaustion requirements).
Here, Plaintiff alleges Parmiter told him she did not file his grievance dated September 1, 2019, because she “did not feel like doing so.” (Dkt. No. 51-1 at 28.) He further claims she told Plaintiff if he “valued his . . . life,” he would “not make an[y] further attempts to file this grievance complaint because next time will be more than a ‘Keeplock' confinement.” Id. at 2829. Parmiter claims “[a]t no time” did she make any “verbal threats to Plaintiff for any reason” nor did she “have any reason to.” (Dkt. No. 99-4 at 5.) While tenuous, the Court finds Parmiter's alleged threat sufficient to create more than a generalized fear of retaliation and raises a question of material fact as to whether administrative remedies were available to Plaintiff. See Hunter, 2020 WL 8474744, at *4; Galberth, 2014 WL 7409915, at *8; Decolines, 2021 WL 4947118, at *4. Therefore, the Court recommends denying summary judgment on exhaustion grounds.
Notwithstanding the excusable exhaustion issue regarding Plaintiff's grievances, Plaintiff's First Amendment retaliation claims fail on the merits for the reasons that follow.
B. Merits of Plaintiff's First Amendment Retaliation Claims
To prove a First Amendment retaliation claim, “a prisoner must show ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'” Roseboro v. Gillespie, 791 F.Supp.2d 353, 366 (S.D.N.Y. 2011) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).
To demonstrate a prison official took adverse action against him, the plaintiff must show the defendant's retaliatory conduct “would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights . . . . Otherwise, the retaliatory act is simply de minimis, and therefore outside the ambit of constitutional protection.” Id. (internal quotation marks and citations omitted).
In determining whether there is causal connection between the protected speech and the adverse action, a court may consider a number of factors, including “(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 motivation.” Baskerville v. Blot, 224 F.Supp.2d 723, 732 (S.D.N.Y. 2002) (internal quotation marks and citation omitted). Although “‘[a] plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action[,]' [s]uch circumstantial evidence of retaliation . . . without more, is insufficient to survive summary judgment.” Roseboro, 791 F.Supp.2d at 370 (quoting Espinal, 558 F.3d at 129). Moreover, “[e]ven if plaintiff makes the appropriate showing of retaliation, defendants may avoid liability if they demonstrate that they would have taken the adverse action even in the absence of the protected conduct.” Brooks v. Rock, No. 9:11-CV-1171 (GLS/ATB), 2014 WL 1292232, at *18 (N.D.N.Y. Mar. 28, 2014) (citation omitted); 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 dual motivation, i.e., that even without the improper motivation the alleged retaliatory action would have occurred.”)
Prisoners' claims of retaliation must be examined with skepticism and particular care because they are “prone to abuse since prisoners can claim retaliation for every decision they dislike.” Roseboro, 791 F.Supp.2d at 367. (internal quotation marks and citation omitted). Thus, “a plaintiff asserting such a claim bears a heightened burden of proof and must plead the claim with particularity.” Green v. Phillips, No. 04-CV-10202 (TPG), 2006 WL 846272, at *3 (S.D.N.Y. Mar. 31, 2006). Consequently, a plaintiff must set forth non-conclusory allegations to sustain a retaliation claim. See id.; see also Williams v. Goord, 111 F.Supp.2d 280, 290 (S.D.N.Y. 2000) (“In recognition of the reality that retaliation claims can be fabricated easily, plaintiffs bear a somewhat heightened burden of proof, and summary judgment can be granted if the claim appears insubstantial.”) (internal quotation marks and citation omitted). Allegations, although specific, “may still be deemed conclusory if [they are] (1) largely unsubstantiated by any other direct evidence and (2) so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of disbelief necessary to credit the allegations made in the complaint.” Smith v. Woods, No. 9:03-CV-480 (DNH/GHL), 2006 WL 1133247, at *3 (N.D.N.Y. Apr. 24, 2006) (internal quotation marks and citations omitted).
1. CO Schroeder
Plaintiff's First Amendment retaliation claim against CO Schroeder fails on the merits. It is undisputed Plaintiff's July 26, 2019, grievance against CO Schroeder constitutes protected activity. Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) (“the filing of prison grievances is a constitutionally protected activity”). “Moreover, the receipt of a false misbehavior report resulting in punishment” has been found to constitute an adverse action. Keyes v. Venettozzi, No. 9:18-CV-0372 (GTS/DJS), 2022 WL 991402, at *8 (N.D.N.Y. Mar. 31, 2022); see also Reed v. Doe No. 1, No. 9:11-CV-0250 (TJM/DEP), 2012 WL 4486086, at *5 (N.D.N.Y. July 26, 2012) (finding the “filing of a false misbehavior report can qualify as an adverse action for the purposes of a First Amendment retaliation” where the report resulted in 14 days in keeplock confinement), adopted by 2012 WL 4486085 (N.D.N.Y. Sept. 27, 2012); Tafari v. McCarthy, 714 F.Supp.2d 317, 373 (N.D.N.Y. 2010) (finding a misbehavior report resulting in SHU confinement constituted an adverse action). As a result, the issue before the Court is whether the causation element of retaliation has been established.
While the Second Circuit has not drawn a bright line defining the maximum time period that can give rise to an inference of causation, it found a period of up to six weeks “fits comfortably within any line [they] might draw.” See Nagle v. Marron, 663 F.3d 100, 111 (2d Cir. 2011). In this case, there was temporal proximity of approximately three to four weeks between when Plaintiff filed the July 26, 2019, grievance against CO Schroeder, and when CO Schroeder issued the August 18, 2019, misbehavior report against Plaintiff. (Dkt. No. 99-3 at 23.) With regard to the other considerations, the Court notes excluding the August 18, 2019, misbehavior report, Plaintiff was twice disciplined for disobeying a direct order roughly ten years ago in 2013 and 2014. (Dkt. No. 100 at 19.) Moreover, at Plaintiff's tier hearing for the August 18, 2019, misbehavior report, the hearing officer found Plaintiff not guilty of both charges due to lack of video recordings and staff testimony conflicting with the misbehavior report. (Dkt. No. 99-2 at 40, 44-45; Dkt. No. 51-1 at 45-47.)
CO Schroeder admits on or around July 25, 2019, he received notice Plaintiff filed a grievance against him regarding the July 21, 2019, incident. (Dkt. No. 99-3 at 2.) CO Schroeder also admits on August 18, 2019, he filed a misbehavior report against Plaintiff. Id. As detailed above, on that day, Plaintiff exited the inmate bathroom within the visitation room with used paper towels in his hand. Id. According to CO Schroeder, this was considered “prohibited conduct” because there was a sign in the bathroom instructing inmates to throw away paper towels. Id. at 2-3. CO Schroeder directed Plaintiff to return to the bathroom and throw out the paper towels there. Id. at 3. Plaintiff ignored CO Schroeder and instead threw the paper towels out in the visitation room trashcan. Id. When CO Schroeder called Plaintiff over to “counsel him about his actions” Plaintiff ignored him and then responded, “this is harassment, and you can add that to your report.” Id. (internal quotations omitted). CO Schroeder consulted with his area supervisor and stated in his declaration “while Plaintiff's statement led [him] to believe [Plaintiff] was planning to make a claim of retaliation,” disobeying direct orders from a CO is prohibited. Id. As a result, CO Schroeder issued a misbehavior report to Plaintiff for refusing a direct order and for a facility visiting violation resulting in Plaintiff being keeplocked for 19 days. Id.; (Dkt. No. 51-1 at 21, 45-47; Dkt. No. 99-2 at 40, 44-45.) CO Schroeder denies any retaliatory intent and claims to have “issued the inmate misbehavior report solely to address the observed behavior.” (Dkt. No. 99-3 at 3.)
Plaintiff does not dispute the fact he disobeyed a direct order from CO Schroeder. Plaintiff testified about the incident as follows:
Q. Okay. Now can you just explain to me what happened with the paper towels after you went to the bathroom?
A. After I went to the bathroom, well, I had a paper towel in my hand, drying my hands. And more or less as I'm coming up officer started telling me that I got to throw it out. Thinking nothing of it I threw out in the garbage that's
nearest to him. There's no difference as to which garbage. At that point he didn't say specifically which garbage so I just threw it out on the garbage that was right in front of him. At that point he got --.
Q. Go ahead.
A. He got hostile and that's when he said no. I got to grab it from the garbage can, pick it up and go back to the bathroom and throw it in the garbage can inside the bathroom.
Q. Officer Schroeder told you that?
A. Yes. Yes, he did.
Q. Did you do did you do that?
A. No, I did not do that because, one, that's not within the authorized policy with D.O.C. Two, that's inhumane. Three, who was actually in the visiting room with visitors out there he's being all hostile. I'm not going to go into the garbage can that has other trash unknown just because his personal desire wanted me to be disgraded (sic) in that stage.(Dkt. No. 99-2 at 35-36.)
It is also undisputed Plaintiff was found not guilty of the charges in CO Schroeder's misbehavior report due to lack of video recording and because staff testimony conflicted with the misbehavior report, not because the report was intentionally or even unintentionally false. (Dkt. No. 51-1 at 46); LeBron v. Selsky, No. 905-CV-0172 (GTS/DRH), 2010 WL 1235593, at *5 n.9 (N.D.N.Y. Mar. 31, 2010) (rejecting the plaintiff's First Amendment retaliation claim premised on an allegedly false misbehavior report and observing that, although the disciplinary conviction upon which the allegedly false misbehavior report was based was ultimately reversed on appeal, “no admissible record evidence exist[ed] indicating that the reversal was based on a finding that the misbehavior report in question was intentionally false or even unintentionally false; rather, the reversal was based merely on a finding that the disciplinary hearing was incomplete.”).
Defendants have demonstrated through admissible evidence CO Schroeder issued the misbehavior report because Plaintiff disobeyed a direct order, not necessarily based on any retaliatory motive. (See Dkt. No. 99-3 at 2-3); see also Cooper v. A. Annucci, No. 9:18-CV-762 (GTS/CFH), 2020 WL 8474802, at *15 (N.D.N.Y. Nov. 9, 2020), adopted sub nom. Cooper v. DeGraff, 2021 WL 235946 (N.D.N.Y. Jan. 25, 2021). However, even if CO Schroeder's motive had been retaliatory, he would have still been entitled to summary judgment because he has shown “even without the improper motivation” he would have issued the misbehavior report to Plaintiff for disobeying a direct order. (See Dkt. No. 99-3 at 2-3); Scott, 344 F.3d at 287-88.
Thus, Defendants have established CO Schroeder would have issued the misbehavior report regardless of any retaliatory animus he may have had against Plaintiff and the retaliation claim fails. See Brooks, 2014 WL 1292232, at *18; Scott, 344 F.3d at 287-88.
2. CO Kassen, Sgt. Sirvent, Lt. Masner, and Parmiter
Defendants incorrectly refer to CO Kassen as CO “Klason” in their motion for summary judgment. (See Dkt. No. 99-5 at 7-13; Dkt. No. 73 at 1 n.1; Dkt. No. 56.)
Although Lt. Masner is a named Defendant, Defendants do not directly address the First Amendment retaliation claim against him in their brief. (See Dkt. No. 99-5 at 7-13.) The Court assumes this was an oversight and will address the claim against Lt. Masner here.
Plaintiff alleges CO Kassen, Sgt. Sirvent, and Lt. Masner conspired with CO Schroeder to issue the false misbehavior report in retaliation for Plaintiff's July 26, 2019, grievance against CO Schroeder. (Dkt. No. 51-1 at 13-14, 20-22.) Plaintiff claims he submitted a grievance dated September 1, 2019, against CO Schroeder, CO Kassen, Sgt. Sirvent, and Lt. Masner regarding the August 18, 2019, incident “by placing the envelopes containing said grievance in the Facility designated depository mail box located in A-Block for its delivery via the Facility mail process.” Id. at 26. Parmiter asserts the Auburn grievance office received Plaintiff's grievance dated September 1, 2019, sometime between September 15 and September 17, 2019, approximately 28 days after the alleged August 18, 2019, incident. (Dkt. No. 99-4 at 4.) On September 17, 2019, Parmiter returned Plaintiff's grievance and notified him it was untimely because the office received it beyond the 21-day timeline as provided in Directive #4040. Id. On September 24, 2019, in response to Plaintiff's letter dated September 18, 2019, Parmiter advised Plaintiff via memorandum to provide the inmate grievance office with mitigating circumstances for the untimely submitted grievance. Id. Parmiter, as the IGP supervisor at Auburn, determined Plaintiff's subsequent letter dated September 26, 2019, lacked mitigating circumstances to justify Plaintiff's untimely submission and ultimately denied the grievance. Id. at 4-5. As a result, Plaintiff's grievance dated September 1, 2019, was rejected and “never filed.” Id. at 5. Plaintiff did not file any subsequent grievance regarding the denial of his grievance dated September 1, 2019. Id.
On September 27, 2019, Plaintiff asserts he saw Parmiter and asked about his grievance dated September 1, 2019. (Dkt. No. 51-1 at 28.) Parmiter told Plaintiff she did not file the grievance as she received it “‘Two weeks' after” and would not file or process it because she “did not feel like doing so.” Id. She further told Plaintiff if he “valued his . . . life,” he would “not make an[y] further attempts to file this grievance complaint because next time will be more than a ‘Keeplock' confinement.” Id. at 28-29. Plaintiff also claims Parmiter did not file the grievance dated September 1, 2019, to “cover-up” for CO Schroeder, CO Kassen, Sgt. Sirvent, and Lt. Masner by preventing the creation of any official record of Defendants' misconduct. Id. at 29.
“Retaliation is not ‘reasonably inferred' where a plaintiff's protected speech does not involve the defendant alleged to have retaliated against him.” Coleman v. Racette, No. 9:18-CV-390 (MAD/CFH), 2021 WL 4312392, at *9 (N.D.N.Y. May 27, 2021) (citing Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009)). “Retaliation claims have been dismissed when they are supported only by conclusory allegations that the retaliation was based upon complaints against another officer.” Jones v. Fischer, No. 9:10-CV-1331 (GLS/ATB), 2013 WL 5441353, at *21 (N.D.N.Y. Sept. 27, 2013); see also Hare v. Hayden, No. 09-CV-3135 (RWS), 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011) (“As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant.”); Wright, 554 F.3d at 274 (dismissing retaliation claim against a corrections officer when the only alleged basis for retaliation was a complaint about a prior incident involving a different, nonparty corrections officer). However, in some cases, “causation may be established even if a prisoner's protected conduct was not directed at the defendant.” Kotler v. Boley, No. 21-CV-1630, 2022 WL 4589678, at *2 (2d Cir. Sept. 30, 2022) (citing Davis, 320 F.3d at 354).
While a plaintiff who “alleges retaliatory adverse action by one officer for a grievance filed against another officer . . . faces a heightened burden of establishing a causal connection,” this does not necessarily bar a retaliation claim where there are indications of “a retaliatory purpose - i.e., that the [officer's conduct] was meant to penalize [the plaintiff] for bringing past grievances, and to dissuade future grievances.”Moreau v. Ellsworth, No. 9:20-CV-124 (DNH/ATB), 2021 WL 3813172, at *11 (N.D.N.Y. July 15, 2021), report and recommendation adopted, 2021 WL 3793772 (N.D.N.Y. Aug. 26, 2021), reconsideration denied, 2021 WL 5332168 (N.D.N.Y. Nov. 16, 2021) (citations omitted).
To the extent Plaintiff asserts CO Kassen, Sgt. Sirvent, Lt. Masner, and Parmiter retaliated against him for filing a grievance against CO Schroeder, Plaintiff has not demonstrated the requisite “indications of ‘a retaliatory purpose'” on Defendants' parts. Moreau, 2021 WL 3813172, at *11. Here, Plaintiff claims CO Kassen remarked “So the Mexican knows how to write english, snitching hick” the same day CO Schroeder issued the August 18, 2019, misbehavior report. (Dkt. No. 51-1 at 11.) (internal quotation marks omitted). He also claims Parmiter told Plaintiff if he valued his life, he would “not make an[y] further attempts to file [the grievance dated September 1, 2019,]” because next time would result in “more than” keeplock confinement. Id. at 28-29. Plaintiff does not claim CO Kassen, Sgt. Sirvent, or Lt. Masner made statements expressing they assisted in the issuance of a false misbehavior report because Plaintiff had filed a grievance against CO Schroeder. See Walker v. Senecal, No. 9:20-CV-0082 (AMN/CFH), 2023 WL 3322599, at *11 (N.D.N.Y. Jan. 27, 2023), report and recommendation adopted, 2023 WL 3051647 (N.D.N.Y. Apr. 24, 2023) (“Plaintiff has not proffered any evidence supporting a retaliatory motive on the part of defendant for the alleged verbal threats beyond stating that the alleged threat was ‘in retaliation for the plaintiff's protect[ed] activit[y]' of filing or attempting to file the amended complaint in his civil rights action.”) (alterations in original) (citation omitted). Nor does he allege Parmiter stated she did not file Plaintiff's grievance dated September 1, 2019, because of the previous grievance Plaintiff had filed against CO Schroeder. Id.
Moreover, Plaintiff's deposition testimony seemingly contradicts his claims as to Parmiter's motive in not filing the grievance dated September 1, 2019. At his deposition, Plaintiff testified Parmiter's motivation for not filing his grievance was not necessarily retaliation in and of itself but rather she was assisting in covering up retaliation by others:
Q. Is it your contention that Cheryl Parmiter was retaliating against you for grievances you filed against Officer Schroeder?
A. Let's - let's refer that I would like to refer to as she was assisting cover up the retaliation that was already taking place. There's a difference.
Q. And by -- by -- by that you mean she was refusing to file your grievance?
A. Yes.
Q. Okay.
A. And the threat. And the others. The -- so she was assisting covering up.(Dkt. No. 99-2 at 51.) (emphasis added).
Plaintiff makes a similar argument in his Additional Statement of Material Facts, claiming Parmitel's refusal to file and process his grievance “will help prevent Defendant Schroeder, Kassen, Sirvent and [Masner] . . . from being imposed additional &/or a more severe disciplinary sanction for their retaliatory misconduct.” (Dkt. No 109 at 6.) Plaintiff does not attempt to allege or support an argument that Parmiter's refusal to file his grievance in order to cover up for other officers' misconduct amounts to a First Amendment violation. See Walker, 2023 WL 3322599, at *9.
In sum, Plaintiff has not demonstrated CO Kassen, Sgt. Sirvent, Lt. Masner, and Parmiter had a motive to retaliate against him for his grievance against CO Schroeder. His conclusory and speculative allegations are insufficient to support “an inference of a causal connection between” the protected conduct and the alleged false misbehavior report and refusal to file a grievance. See Baskerville, 224 F.Supp.2d at 732; Hare, 2011 WL 1453789, at *4; Wright, 554 F.3d at 274. As Plaintiff fails to show “a genuine issue of material fact that the protected conduct was a substantial or motivating factor in his discipline[,]” Plaintiff's retaliation claims against CO Kassen, Sgt. Sirvent, Lt. Masner, and Parmiter lack merit and dismissal is recommended. Graham v. Henderson, 89 F.3d 75, 81 (2d Cir. 1996); Celotex Corp., 477 U.S. at 323.
IV. CONCLUSION
After carefully reviewing the record, the parties' submissions, and the applicable law, and for the reasons stated herein, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 99) be GRANTED;
ORDERED that the Clerk provide to Plaintiff a copy of this Order and Report Recommendation, along 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 (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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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).
SO ORDERED.