Opinion
Civil Action No. 9:13-CV-1437 (LEK/DEP)
02-24-2017
KEITH WATERS, Plaintiff, v. ALBERT PRACK, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: KEITH WATERS, Pro se 06-A-2999 Wallkill Correctional Facility Box G Wallkill, NY 12589 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 COLLEEN D.GALLIGAN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: KEITH WATERS, Pro se
06-A-2999
Wallkill Correctional Facility
Box G
Wallkill, NY 12589 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 COLLEEN D.GALLIGAN, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
This is a civil rights action brought pursuant to 42 U.S.C. § 1983 by plaintiff Keith Waters, a prison inmate who is proceeding pro se and in forma pauperis, against three employees of the New York State Department of Corrections and Community Supervision ("DOCCS"). In his complaint, Waters alleges that, during the course of disciplinary proceedings against him, the results of which were later annulled for non-compliance with DOCCS regulations, defendants deprived him of procedural due process and retaliated against him for complaining about the hearing officer and a disciplinary policy at the prison facility in which he was confined at the relevant times.
Currently pending before the court are the parties' cross-motions for summary judgment. For the reasons set forth below, I recommend that defendants' motion be granted in part and denied in part, and that plaintiff's motion be denied. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in the non-movant's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). In this case, in light of the parties' cross-motions for summary judgment, the court draws "all factual inferences . . . against the party whose motion is under consideration." Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (quotation marks omitted).
Plaintiff is a prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 42. While he is now incarcerated elsewhere, at the times relevant to his claims in this action, Waters was designated to the Coxsackie Correctional Facility ("Coxsackie"), and later to the Greene Correctional Facility ("Greene"), both of which are located in Coxsackie, New York. Id.
On January 18, 2013, plaintiff was issued a misbehavior report by a corrections sergeant who is not a named defendant, accusing him of accepting compensation in exchange for providing legal services to other inmates and violating a direct order from the law library officer prohibiting him from accepting remuneration for his services. Dkt. No. 42 at 4; Dkt. No. 110-4 at 2, 6. Although the misbehavior report was served upon plaintiff at Greene, it was based upon conduct that allegedly occurred at Coxsackie. Dkt. No. 110-4 at 6. The misbehavior report does not include the date, time, or location of the alleged offenses. Id.
A Tier III disciplinary hearing was conducted by defendant Eric Gutwein, beginning on January 22, 2013, and concluding on March 21, 2013, to address the charges set forth in the misbehavior report. Dkt. No. 110-4 at 2, 21-38. At the outset of the hearing, plaintiff objected that the misbehavior report did not provide him with sufficient information regarding the specific date, time, and place of the charged offense. Dkt. No. 110-4 at 22-23. Defendant Gutwein stated in a declaration submitted in support of defendants' pending motion that he proceeded with the disciplinary hearing over plaintiff's objection after determining that the misbehavior report and a letter accompanying the misbehavior report "provided plaintiff with the requisite notice" to prepare a defense. Id. at 2. Defendant Gutwein's stated explanation for proceeding with the hearing, however, does not appear in the transcript of the hearing. Id. at 21-32.
The DOCCS conducts three types of inmate disciplinary hearings. See 7 N.Y.C.R.R. § 270.3; see also Hynes v. Squillace, 143 F.3d 653, 655 n.1 (2d Cir. 1998). Tier I hearings address the least serious infractions and can result in minor punishments such as the loss of recreation privileges. Hynes, 143 F.3d at 655 n.1. Tier II hearings involve more serious infractions, and can result in penalties which include confinement for a period of time in the SHU. Id. Tier III hearings address the most serious violations and can result in unlimited SHU confinement and the loss of "good time" credits. Id.
The letter attached to the misbehavior report was authored by the inmate who allegedly paid plaintiff for legal services. Dkt. No. 110-4 at 2, 7, 22.
At the culmination of the hearing, defendant Gutwein found plaintiff not guilty of refusing a direct order but guilty of providing unauthorized legal assistance, and imposed a sanction that included three months of disciplinary special housing unit ("SHU") confinement, with a loss of packages, commissary, and telephone privileges for a corresponding period, and recommended that plaintiff forfeit three months of good time credits. Dkt. No. 110-4 at 31-32, 35-36.
Plaintiff appealed defendant Gutwein's determination to defendant Albert Prack who, prior to his retirement on December 31, 2014, was the director of the DOCCS Special Housing/Inmate Disciplinary Program. Dkt. No. 110-5 at 1. Defendant Prack affirmed the hearing officer's determination on May 8, 2013, concluding that the record did not reflect any due process violation and that substantial evidence supported defendant Gutwein's findings. Dkt. No. 110-5 at 2, 14.
On or about May 21, 2013, plaintiff commenced a proceeding pursuant to Article 78 of the New York Civil Practice Law and Rules challenging the Tier III determination. Dkt. No. 42 at 6; Dkt. No. 116-2 at 15-18. Plaintiff's Article 78 petition was granted by Supreme Court Justice Joseph C. Teresi on October 2, 2013. Dkt. No. 116-2 at 15-18. In his decision, Justice Teresi concluded that the misbehavior report failed to comply with the notice requirements under 7 N.Y.C.R.R. § 251-3.1, and ordered that the hearing officer's determination be annulled and all references to it be expunged from plaintiff's records. Id. at 17. By the time the Article 78 determination was issued and implemented, plaintiff had already served seventy days of the three-month SHU confinement ordered by defendant Gutwein. Dkt. No. 42 at 13.
Justice Teresi cited 7 N.Y.C.R.R. § 251-3.1(a) as the provision that defendant Gutwein's determination allegedly violated. Dkt. No. 116-2 at 16, 17. Justice Teresi further elaborated that the provision requires misbehavior reports to "'set forth the date, time and place of the offense[.]'" Id. at 16. Section 251-3.1(a) actually provides, however, that "[e]very incident of inmate misbehavior involving life, health, security or property must be reported, in writing as soon as practicable." 7 N.Y.C.R.R. § 251-3.1(a). In light of the remainder of Justice Teresi's decision, I have assumed that Justice Teresi found that the misbehavior report violated section 251-3.1(c)(3), which states that "[t]he misbehavior report shall include . . . the date, time and place of the incident," 7 N.Y.C.R.R. 251-3.1(c)(3), and that his citation to section 251-3.1(a) was in error. See Dkt. No. 116-2 at 16-17 (Justice Teresi finding that "the Misbehavior Report failed to properly set forth the date and time of the offense.").
In addition to his claims against defendants Gutwein and Prack, plaintiff alleges that defendant Arthur Dirie, who at the relevant times served as the Deputy Superintendent of Security at Greene and, at some unidentified point in time, as the facility's Acting Superintendent, (1) refused to undertake a review of plaintiff's appeal from the Tier III hearing determination, (2) transferred plaintiff to a different correctional facility, and (3) removed plaintiff from his law library clerk position at Greene - all in retaliation for plaintiff complaining to him concerning defendant Gutwein's bias during the Tier III hearing and a dormitory sanction policy in place at Greene. Dkt. No. 42 at 4-6.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on or about November 20, 2013, and subsequently filed a first amended complaint on November 25, 2013, with court approval. Dkt. Nos. 1, 33, 34. A second amended complaint ("SAC"), the currently operative pleading, was filed by plaintiff on December 15, 2014, again with leave of court. Dkt. Nos. 39, 41, 42. Plaintiff's SAC asserts procedural due process and retaliation claims against defendants Gutwein, Prack, and Dirie. Dkt. No. 42 at 8-11; Dkt. No. 110-3 at 1.
On April 29, 2016, following the close of discovery, defendants moved for the entry of summary judgment dismissing plaintiff's remaining claims. Dkt. No. 110. Plaintiff has opposed that motion and cross-moved, for the second time the entry of summary judgment in his favor. Dkt. No. 116. Defendants have since submitted papers in opposition to plaintiff's cross-motion. Dkt. No. 120. The parties' cross-motions, which are now fully briefed, have been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
Plaintiff's first motion for summary judgment, filed prior to the exchange of any meaningful discovery in the case, was denied. Dkt. Nos. 24, 64, 73.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact 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.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
In a case such as this, where the parties have filed cross-motions for summary judgment, "a court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Boy Scouts of Am. V. Wyman, 335 F.3d 80, 88 (2d Cir. 2003) (quotation marks omitted).
B. Procedural Due Process
In the first of his two remaining claims, plaintiff alleges that defendant Gutwein deprived him of his right to procedural due process during the course of his Tier III disciplinary. See, e.g., Dkt. No. 42 at 8.
To establish a procedural due process claim under section 1983, a plaintiff must show that he (1) possessed an actual property or liberty interest, and (2) was deprived of that interest without being afforded sufficient process. Tellier v. Fields, 280 F.3d 69, 79-80 (2d Cir. 2000); Hynes v. Squillace, 143 F.3d 653, 658 (2d Cir. 1998); Bedoya v. Coughlin, 91 F.3d 349, 351-52 (2d Cir. 1996). In this case, defendants contend that plaintiff was not deprived of a cognizable liberty or property interest as a result of defendant Gutwein's determination. Dkt. No. 110-2 at 6-9.
Liberally construed, plaintiff's SAC and his papers submitted in response to defendants' motion identify five alleged deprivations as a result of the Tier III determination, including (1) his SHU confinement, (2) the recommended loss of good time credits, (3) the denial of an area of preference transfer whereby he would be moved to a prison facility closer to his home, (4) the loss of his position as a law library clerk and the corresponding deprivation of wages, and (5) the loss of telephone and commissary privileges. See generally Dkt. Nos. 42, 116.
It is worth noting that in plaintiff's memorandum of law, submitted both in response to defendants' motion and in support of his cross-motion, plaintiff focuses on whether he was afforded sufficient process during the disciplinary hearing. Dkt. No. 116 at 7-12. He does not address defendants' arguments with respect to whether he possessed a protected liberty interest. Although consideration of the process afforded to plaintiff during the disciplinary hearing is certainly relevant to the analysis, he cannot prevail on a due process claim unless he establishes that he was denied a cognizable liberty interest. See Bedoya, 91 F.3d at 351-52 ("To award damages under 42 U.S.C. § 1983 for alleged violation of procedural due process, a court must . . . [engage in] a two-pronged inquiry: (1) whether the plaintiff had a protected liberty interest . . . '; and, if so, (2) whether the deprivation of that liberty interest occurred without due process of law." (emphasis added) (citing Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460-61 (1989)).
1. SHU Confinement
In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court determined that, to establish a liberty interest deprivation in the context of a prison disciplinary proceeding resulting in removal of an inmate from the general prison population, a plaintiff must demonstrate that (1) the state actually created a protected liberty interest in being free from segregation, and (2) the segregation would impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 483-84; Tellier, 280 F.3d at 79-80; Hynes, 143 F.3d at 658. The prevailing view in this circuit is that, by its regulatory scheme, the State of New York has created a liberty interest in remaining free from disciplinary confinement, thus satisfying the first Sandin factor. See, e.g., LaBounty v. Coombe, No. 95-CV-2617, 2001 WL 1658245, at *6 (S.D.N.Y. Dec. 26, 2001); Alvarez v. Coughlin, No. 94-CV-0985, 2001 WL 118598, at *6 (N.D.N.Y. Feb. 6, 2001) (Kahn, J.). Accordingly, at this juncture the court must inquire whether there is sufficient record evidence from which a reasonable factfinder could conclude that the conditions of plaintiff's SHU confinement rose to the level of an atypical and significant hardship under Sandin.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
Atypicality in a Sandin inquiry is normally a question of law. Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). "[W]hether the conditions of a segregation amount to an 'atypical and significant hardship' turns on the duration of the segregation and a comparison with the conditions in the general population and in other categories of segregation." Arce v. Walker, 139 F.3d 329, 336 (2d Cir. 1998) (citing Brooks v. DiFasi, 112 F.3d 46, 48-49 (2d Cir. 1997)). In cases involving relatively brief periods of segregated confinement, where the plaintiff has not alleged any unusual conditions a court may not need to undertake a detailed analysis of these considerations. Arce, 139 F.3d at 336; Hynes, 143 F.3d at 658.
In cases where there is factual dispute concerning the conditions or duration of confinement, however, it may nonetheless be appropriate to submit those disputes to a jury for resolution. Colon v. Howard, 215 F.3d 227, 230-31 (2d Cir. 2000); Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999).
In cases like this one that involve restrictive confinement of less than 101 days, where the confinement occurs under ordinary conditions found in a typical SHU setting, the disciplinary punishment does not rise to the level of an atypical and significant hardship. Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009). Accordingly, when the duration of restrictive confinement is less than 101 days, proof of "conditions more onerous than usual" is required in order to establish a protected liberty interest. Davis, 576 F.3d at 133 (citing Colon, 215 F.3d at 232-33 n.5). In such a case the court must examine "the [actual] conditions of [the plaintiff's] confinement 'in comparison to the hardships endured by prisoners in general population, as well as prisoners in administrative and protective confinement, assuming such confinements are imposed in the ordinary course of prison administration.'" Davis, 576 F.3d at 134 (quoting Welch v. Bartlett, 196 F.3d 389, 392-93 (2d Cir.1999)).
On the other hand, the Second Circuit has suggested that disciplinary segregation under ordinary conditions of more than 305 days rises to the level of atypicality. See Colon, 215 F.3d at 231 ("Confinement in normal SHU conditions for 305 days is in our judgment a sufficient departure from the ordinary incidents of prison life to require procedural due process protections under Sandin.").
In this instance, there is no evidence in the record suggesting that, while serving his disciplinary sentence, plaintiff was exposed to conditions that vary from the ordinary incidents of SHU confinement. Accordingly, and because the duration of his SHU confinement was less than 101 days, no reasonable factfinder could conclude that this represented a deprivation of plaintiff's protected liberty interests.
2. Good Time Credits
In his hearing determination, defendant Gutwein recommended that plaintiff forfeit three months of good time credits. Dkt. No. 110-4 at 31-32, 35. As a result of New York State Supreme Court Justice Teresi's decision granting plaintiff's Article 78 petition and the ensuing annulment of defendant Gutwein's determination, however, plaintiff did not actually lose any good time credits. Dkt. No. 116-2 at 17. Moreover, there is no record evidence suggesting that plaintiff was otherwise disadvantaged by the hearing officer's good-time recommendation with respect to his potential release date. Accordingly, this aspect of the hearing officer's determination does not provide a basis to conclude that plaintiff was deprived of a protected liberty interest.
3. Area of Preference Transfer
Plaintiff also claims the existence of a cognizable liberty interest in being transferred to a prison facility closer to home, and that he was deprived of that opportunity as a result of the hearing officer's determination. See, e.g., Dkt. No. 42 at 4. It is well established, however, that "[a] prisoner has no liberty interest in remaining at a particular correctional facility[.]" David v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998). Accordingly, no reasonable factfinder could conclude that plaintiff possessed, but was denied, a cognizable liberty interest in being transferred to a facility closer to home.
It appears, moreover, that plaintiff was reinstated in the area-of-preference program, which allows inmates to be transferred to facilities closer to loved ones, on December 18, 2013. Dkt. No. 42 at 7.
4. Law Library Clerk Position
Plaintiff further contends that, as a result of defendant Gutwein's determination, he was deprived of the opportunity to work as a law library clerk at Greene. Dkt. No. 42 at 10. It is well settled, however, that inmates do not have a constitutionally protected right to a prison job. Frazier v. Coughlin, 81 F.3d 313, 318 (2d Cir. 1996). Accordingly, plaintiff was not deprived of a cognizable liberty or property interest when he lost the opportunity to serve as a law library clerk, allegedly as a result of defendant Gutwein's hearing determination.
It is worth noting that it is far from clear that plaintiff was removed from his position as a law library clerk as a result of defendant Gutwein's disciplinary hearing determination. There is record evidence suggesting instead that plaintiff was removed from his position prior to the conclusion and pending the results of the disciplinary hearing. Dkt. No. 24 at 23.
5. Telephone and Commissary Privileges
The final deprivation alleged by plaintiff to implicate a cognizable liberty or property interest concerns the loss of his telephone and commissary privileges while in SHU confinement. Such privileges, however, do not constitute protected liberty or property interests. See Johnson v. Enu, No. 08-CV-0158, 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011) (Homer, M.J., report and recommendation adopted by 2011 WL 3439524 (N.D.N.Y. Aug. 5, 2011) (Scullin, J.)) ("Moreover, the loss of phone, telepackage, and commissary privileges does not give rise to a protected liberty interest under New York law." (quotation marks omitted)); Pitsley v. R. Ricks, No. 96-CV-0372, 2000 WL 362023, at *4 (N.D.N.Y. Mar. 31, 2000) (Mordue, J.) (recognizing that prison inmates to not enjoy a constitutional right to unlimited telephone use (citing cases)); DeMaio v. Kelly, No. 95-CV-0329, 1996 WL 685729, at *2 (W.D.N.Y. Nov. 22,1996) ("Loss of certain privileges - viz., recreation, special events, telephone and packages - does not represent the type of grievous loss which could reasonably be viewed as imposing an atypical and significant hardship on a prison inmate."). Accordingly, no reasonable factfinder could conclude that a three-month deprivation of telephone and commissary privileges rises to a level sufficient to support a procedural due process violation.
In sum, because plaintiff has failed to demonstrate a genuine dispute of material fact with respect to whether he was deprived a cognizable liberty or property interest resulting from defendant Gutwein's disciplinary hearing determination, I recommend that defendants' motion be granted with respect to plaintiff's due process claims asserted against defendant Gutwein.
To the extent that plaintiff has asserted a due process claim against defendant Prack for affirming defendant Gutwein's determination, I recommend that it also be dismissed. See, e.g., Lopez v. Whitmore, No. 13-CV-0952, 2015 WL 4394604, at *11 (July 16, 2015) (Sannes, J., adopting report and recommendation by Baxter, M.J.) (dismissing due process claims against defendant Prack "[b]ecause his only involvement in plaintiff's claims was to affirm the results of a disciplinary hearing that th[e] court . . . found comported with due process").
C. Retaliation
Plaintiff alleges that defendant Gutwein's determination, as well as the subsequent affirmance by defendant Prack, were the product of unlawful retaliation. See, e.g., Dkt. No. 42 at 8-9. Specifically, he contends that both defendants Gutwein and Prack acted with retaliatory animus in light of their knowledge of plaintiff's complaints regarding (1) a dormitory sanction policy at Greene and (2) defendant Gutwein's delays in completing the disciplinary hearing. Id. In addition, plaintiff maintains that, in retaliation for his complaints about defendant Gutwein's alleged bias during the Tier III hearing and Greene's dormitory sanction policy, defendant Dirie (1) failed to undertake a review of the disciplinary hearing, (2) caused plaintiff to be transferred to a different correctional facility, and (3) removed plaintiff from his position as a law library clerk. See, e.g., id. at 9-10. In their motion, defendants seek dismissal of the retaliation claims, arguing that there is no record evidence from which a reasonable factfinder could conclude that they retaliated against plaintiff. Dkt. No. 110-2 at 9-14.
A prison official engages in unlawful retaliation when he takes adverse action against an inmate, motivated by that inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. Franco v. Kelly, 854 F.2d 584, 588-90 (2d Cir. 1988). To establish such a claim, a plaintiff must prove that (1) he engaged in protected activity; (2) the defendants took adverse action against him; and (3) there was a causal connection between the protected activity and the adverse action - in other words, the protected conduct was a "substantial or motivating factor" and the prison official's decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.). If the plaintiff succeeds in carrying this burden, defendants may nonetheless avoid liability by showing, by a preponderance of the evidence, that they would have taken the same action against the plaintiff "even in the absence of the protected conduct." Mount Healthy, 429 U.S. at 287. If taken for both proper and improper reasons, defendants' actions may be upheld if the same action would have been taken based solely on the proper reasons. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted).
1. Defendant Gutwein
There is record evidence suggesting that plaintiff lodged two complaints that he claims served as the basis for defendant Gutwein's allegedly retaliatory disciplinary hearing determination and sanction. In his SAC, plaintiff alleges that defendant Gutwein retaliated against plaintiff "with the imposition of ninety days SHU confinement and loss of good time credits" after learning that plaintiff wrote "complaints [to Gutwein's] supervisors." Dkt. No. 42 at 8. Plaintiff's SAC alleges both that plaintiff "made written and oral complaints to supervisory staff" regarding the dormitory sanction policy and that, "[a]t different dates and time intervals[,] plaintiff made written complaints about hearing officer Gutwein's impartiality [sic] to defendant Prack and Dirie in conducting the hearing." Id. According to plaintiff, defendants Prack and Dirie notified defendant Gutwein of plaintiff's "written complaints of his biasness and impartiality [sic] in conducting the disciplinary hearing against plaintiff." Id. In plaintiff's affidavit submitted in opposition to defendants' motion and in support of his cross-motion, he repeats his allegation that defendant Gutwein was aware of plaintiff's complaints regarding the dormitory sanction policy. Dkt. No. 116- 2 at 12. Specifically, plaintiff contends as follows:
Gutwein offered plaintiff a favorable decision at the disciplinary hearing that would result in rescission of the law library suspension and removal and processing of plaintiff's preference transfer for plaintiff's discontinuance of the complaints and intention to file a grievance or legal action challenging the dorm sanction policy.Id.
In response to plaintiff's assertions, defendant Gutwein states that he was unaware of any complaints lodged against him at the time of the hearing, and that "[a]t no time during the hearing did [he] offer plaintiff a deal wherein [he] would find [plaintiff] not guilty of the charges in exchange for his silence with regard to the dorm sanction policy." Dkt. No. 110-4 at 3-4. The competing sworn testimony from both plaintiff and defendant Gutwein regarding whether plaintiff lodged the complaints as alleged, and whether defendant Gutwein learned of them, presents a dispute of fact that cannot be resolved at the summary judgment stage. In order to resolve the conflict, I would be forced to render a credibility determination that is prohibited at this procedural juncture.
This finding, however, does not end the inquiry. As was previously noted, once a prima facie case of retaliation is established, a defendant may nonetheless avoid liability by showing, by a preponderance of the evidence, that he would have taken the same action even in the absence of the protected conduct. See, e.g., Mount Healthy, 429 U.S. at 287. In this instance, even assuming a factfinder concludes that there is also record evidence to support a finding that defendant Gutwein rendered his disciplinary hearing determination out of retaliatory animus, there is evidence from the disciplinary hearing record that supports defendant Gutwein's determination finding plaintiff guilty of receiving compensation for providing legal services. More specifically, at the disciplinary hearing, Sergeant Melendez, the officer who authored the misbehavior report, testified that, in addition to finding the letter addressed to plaintiff from another inmate in which the inmate inferred (but did not explicitly state) that he would compensate plaintiff for assisting him with a legal matter in the same way he had in the past, Dkt. No. 110-4 at 7, Sergeant Melendez also confronted the inmate who wrote plaintiff the letter, and the inmate admitted that he had paid plaintiff in the past for legal assistance. Id. at 26. Although plaintiff denied receiving compensation for legal services at the hearing, id. at 22, Sergeant Melendez's testimony and the letter from the inmate addressed to plaintiff provide sufficient record evidence from which defendant Gutwein could have found plaintiff guilty absent any retaliatory motive.
A plaintiff's retaliation claim will "not survive summary judgment under Mount Healthy if the defendants meet their burden of showing that there is no genuine issue as to the fact that [the plaintiff] would have received the same punishment even if they had not been improperly motivated." Graham, 89 F.3d at 80. Because there is evidence from the disciplinary hearing record that supports defendant Gutwein's determination, and defendant Gutwein stated in his declaration that he would have imposed the same sanction against any inmate that he had found guilty of violating the same prison rule, Dkt. 110-4 at 3, I find that plaintiff's retaliation claim fails because defendant Gutwein would have taken the same action against plaintiff absent the constitutionally protected conduct. See Graham, 89 F.3d at 79 ("[I]f taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone."). Accordingly, I recommend that the portion of defendants' motion seeking dismissal of plaintiff's retaliation claim asserted against defendant Gutwein be granted.
2. Defendant Dirie
With respect to the first element of plaintiff's retaliation claim asserted against defendant Dirie, plaintiff alleges that he complained to defendant Dirie and threatened to file a grievance regarding a dormitory sanction policy at Greene, and additionally that he complained to defendant Dirie about defendant Gutwein's bias during, and delays in completing, the disciplinary hearing. See, e.g., Dkt. No. 42 at 5; Dkt. No. 116-2 at 11-12. Defendant Dirie does not recall receiving any of plaintiff's verbal complaints, and there is no record that plaintiff actually filed any grievances as threatened. Dkt. No. 110-3 at 2. Although courts in this circuit have held that even just a threat of filing a grievance constitutes constitutionally protected conduct, see, e.g., Coleman v. Beale, 636 F. Supp. 2d 207, 211 (W.D.N.Y. 2009), there is no independent record evidence to substantiate plaintiff's mere allegations that he lodged the complaints with defendant Dirie. Nonetheless, mindful of the procedural posture of this matter, and that it is not appropriate to render credibility determinations at the summary judgment stage, I find there is a genuine dispute of material fact with respect to whether plaintiff engaged in constitutionally protected conduct by complaining to defendant Dirie.
Plaintiff's SAC alleges that defendant Dirie took three adverse actions against him in retaliation for complaining about defendant Gutwein and the dormitory sanction policy. In particular, he contends that defendant Dirie (1) refused to review defendant Gutwein's disciplinary determination on appeal, (2) requested that plaintiff be transferred from Greene "for the sole purpose of punishment and to interfere with plaintiff's association in person with his daughter at a facility closer to the New York City area," and (3) ordered that plaintiff be removed from his position as a clerk in the law library. Dkt. No. 42 at 9-10; see also Dkt. No. 116 at 14-15.
With respect to plaintiff's first allegation of adverse action, aside from plaintiff's bare allegations, there is no record evidence from which a reasonable factfinder could conclude that defendant Dirie had the authority to conduct a review on appeal of a disciplinary determination. Defendant Dirie flatly denies possessing such authority as Deputy Superintendent of Security, Dkt. No. 110-3 at 4. Because the only record evidence that supports plaintiff's allegation that defendant Dirie should have intervened and undertaken an independent review of the disciplinary hearing consists of plaintiff's own speculative statements, I recommend that defendants be granted summary judgment with respect to this portion of plaintiff's retaliation claim. See, e.g., McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977) ("In this Circuit personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages."); Odom v. Matteo, 772 F. Supp. 2d 377, 399 (D. Conn. 2011) ("[T]he conclusory, unsubstantiated allegations contained in the Amended Complaint are insufficient to permit a reasonable jury to find in [the plaintiff]'s favor on her negligence claim against [the defendants]." (citing cases)).
Next, plaintiff alleges that defendant Dirie ordered or requested that plaintiff be transferred to a different correctional facility "for the purpose of punishment and to interfere with plaintiff's association in person with his daughter at a facility closer to the New York City area." Dkt. No. 42 at 10. Although defendant Dirie acknowledges that he "can make a request that an inmate be transferred [to a different prison] for the safety of the facility," he denies requesting that plaintiff be transferred out of Greene in 2013. Dkt. No. 1103-3 at 4. Again, because the only evidence in the record that support's plaintiff's allegations are his own, unsupported statements, I recommend that defendants' motion be granted with respect to this element of plaintiff's retaliation claim.
Lastly, plaintiff alleges that defendant Dirie removed him from his position as a law library clerk at Greene in retaliation for plaintiff complaining about defendant Gutwein and the dormitory sanction policy at Greene. Dkt. No. 42 at 10. In response, defendant Dirie merely states that he "advised plaintiff that he had been removed from his position in the law library pending the results of his tier hearing." Dkt. No. 110-3 at 3. He also contends that he "did not order plaintiff's removal from his job in the law library, his removal was due to his pending disciplinary hearing." Id.
There is record evidence suggesting that plaintiff applied and was chosen for the law library clerk position at Greene after he had already been issued the misbehavior report that triggered the disciplinary hearing. Indeed, plaintiff contends that he began the job on February 11, 2013, approximately three weeks after he had been issued the misbehavior report and the disciplinary hearing had commenced. Dkt. No. 116 at 15. It appears from the record that plaintiff was removed from his position on or about March 19, 2013. Dkt. No. 110-3 at 3-4; see also Dkt. No. 24 at 23. Defendants do not provide any explanation for why plaintiff was appointed as a law library clerk while the disciplinary charges were pending if, as defendant Dirie implies, inmates are not permitted to hold a law library clerk position during the pendency of a Tier III hearing. Id. In light of the absence of any explanation in this regard, and the close temporal proximity between plaintiff's alleged complaints to defendant Dirie and the termination of plaintiff's position as a law library clerk, I find there is sufficient record evidence to give rise to a genuine dispute of material fact as to whether there is a causal connection between plaintiff's constitutionally protected conduct and defendant Dirie's alleged adverse action. Accordingly, I recommend defendants' motion be denied with respect to this aspect of plaintiff's retaliation claim.
3. Defendant Prack
Even at this late stage in the litigation, the allegations surrounding plaintiff's retaliation cause of action asserted against defendant Prack remain unclear. Based on my review of the allegations in plaintiff's SAC and his filings submitted in connection with the pending motions, it appears plaintiff alleges that, in retaliation for plaintiff writing to defendant Prack about the dormitory sanction policy and defendant Gutwein's bias during the disciplinary hearing, defendant Prack took adverse action against him by (1) affirming defendant Gutwein's disciplinary determination and (2) approving defendant Gutwein's requests for extensions of the disciplinary hearing. Dkt. No. 42 at 6, 7, 9; Dkt. No. 116 at 19. Fatal to plaintiff's claims, however, is the lack of any evidence, aside from plaintiff's naked assertions, that defendant Prack learned of plaintiff's complaints concerning the dormitory sanction policy and defendant Gutwein's alleged bias during the disciplinary hearing. There is record evidence reflecting that plaintiff wrote a letter to the former DOCCS Commissioner Brian Fischer on or about March 18, 2013, complaining about how the misbehavior report failed to include "what specific act or rule violation" he was being charged with and that the disciplinary hearing had not yet been concluded in accordance with the relevant regulations, and that the letter was forwarded to defendant Prack for a response. Dkt. No. 110-5 at 16. Conspicuously, absent from plaintiff's letter, however are any complaints about the dormitory sanction policy and defendant Gutwein's bias during the disciplinary hearing. Id. Although plaintiff's SAC includes vague allegations that he informed defendant Prack about the dormitory sanction policy "[a]t different dates and time intervals during the period of January - March 2013," and wrote "complaints about hearing officer Gutwein's impartiality to defendant Prack," there is no other record evidence to support these assertions. Dkt. No. 42 at 5. Because of the absence of any independent record evidence that supports plaintiff's allegation that defendant Prack became aware of plaintiff's complaints regarding the dormitory sanction policy and defendant Gutwein's bias allegedly displayed during the disciplinary hearing, I find that no reasonable factfinder could conclude that defendant Prack's decision to provide an extension of time to defendant Gutwein to complete the hearing and his affirmance of the disciplinary determination were motivated by retaliatory animus. For that reason, I recommend that defendants' motion be granted with respect to plaintiff's retaliation claim against defendant Prack.
IV. SUMMARY AND RECOMMENDATION
The remaining two causes of action in this matter concern plaintiff's allegations that his due process rights were violated during the course of a disciplinary hearing conducted by defendant Gutwein, the results of which were affirmed by defendant Prack, and that defendants Gutwein, Prack, and Dirie retaliated against him for engaging in constitutionally protected activity. With respect to the procedural due process claim, no reasonable factfinder could conclude that plaintiff was deprived of a cognizable liberty or property interest. Accordingly, his procedural due process claim fails. Turning to the claims of retaliation, while there is sufficient evidence from which a reasonable factfinder could conclude that defendant Dirie retaliated against plaintiff by removing him from his law library clerk position, plaintiff's remaining retaliation claims fail for various reasons, including the absence of any record evidence that plaintiff engaged in protected activity and any evidence from which a reasonable factfinder could conclude there is a causal connection between plaintiff's protected activity and the alleged adverse action. Accordingly, it is hereby respectfully
RECOMMENDED that plaintiff's motion for summary judgment (Dkt. No. 116) be DENIED, and that defendants' motion for summary judgment (Dkt. No. 110) be GRANTED in part and DENIED in part as follows:
(1) Plaintiff's due process claims asserted against defendants Gutwein and Prack should be DISMISSED;
(2) Plaintiff's retaliation claim asserted against defendant Gutwein should be DISMISSED;
(3) Plaintiff's retaliation claims asserted against defendant Dirie regarding his failure to undertake a review of the disciplinary hearing determination and his alleged transfer of plaintiff to a different correctional facility should be DISMISSED;
(4) Plaintiff's retaliation claim asserted against defendant Dirie regarding his removal of plaintiff as a law library clerk at Greene should survive defendants' motion and proceed to trial;
(5) Plaintiff's retaliation claims asserted against defendant Prack should be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and 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).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: February 24, 2017
Syracuse, New York