Burrell v. McIntyre et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
AKO K. BURRELL,
Plaintiff,
9:23-CV-454
v. 	(MAD/DJS)
J. SPENCE, Correctional Officer, Five Points
Correctional Facility, et al.,
Defendants.
APPEARANCES: 	OF COUNSEL:
AKO K. BURRELL
Plaintiff, pro se
19070
Oneida County Correctional Facility
6075 Judd Road
Oriskany, New York 13424
HON. LETITIA JAMES 	LELA M. GRAY, ESQ.
Attorney General for the State of New York 	Assistant Attorney General
Attorney for Defendants
The Capitol
Albany, New York 12224
DANIEL J. STEWART
United States Magistrate Judge
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REPORT-RECOMMENDATION and ORDER1
Defendants have moved for partial summary judgment under Rule 56 of the
Federal Rules of Civil Procedure seeking dismissal of Plaintiff’s retaliation claim. Dkt.
No. 83. This action was commenced by Plaintiff pursuant to 42 U.S.C. § 1983 relating
to alleged constitutional violations in March 2023, while Plaintiff was incarcerated at
Five Points Correctional Facility. See generally Dkt. No. 1, Compl. Employees of the
New York State Department of Corrections and Community Supervision (“DOCCS”)
are named as Defendants. 	Id. 	Upon review under 28 U.S.C. §§ 1915 & 1915A,
numerous claims and Defendants were dismissed, leaving just Eighth Amendment
excessive force and failure-to-intervene claims and a First Amendment retaliation claim
to proceed against Defendants Benjamin, Huynh, Spence, and Conger. Dkt. No. 8 at pp.
19-20. 	Those Defendants now seek summary judgment only with respect to the
retaliation claim which alleges that the assault giving rise to the Eighth Amendment
claims “occurred in retaliation for grievances” filed by Plaintiff against DOCCS
employees who are not a party to this action. See Dkt. No. 83-8, Defs.’ Mem. of Law
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
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at p. 1. Plaintiff opposes the Motion, Dkt. No. 87. Pl.’s Opp., and Defendants have filed
a reply. Dkt. No. 90.2
For the reasons that follow, the Court recommends that the Motion be DENIED.
I. BACKGROUND
Plaintiff alleges that on February 14, 2023, he filed several grievances at Five
Points Correctional Facility, including against Joseph McIntyre, a DOCCS employee.
Pl.’s Opp at p. 2, ¶ 5. The grievance against McIntyre was filed March 16, 2023. Compl.
at ¶ 17. Plaintiff contends that several times subsequent to the filing of that grievance,
DOCCS officials, including Defendants, spoke to him about dropping his grievances.
Id. at ¶¶ 16-21 & 24. 	He further alleges that Defendants assaulted him on March 29,
2023. 	Id. at ¶¶ 29-30; Pl.’s Opp. at p. 3, ¶¶ 9-10. 	Plaintiff alleges that Defendants
suggested that the McIntyre grievance was the cause of the assault. 	Compl. at ¶ 30.
Defendants have each provided sworn declarations in support of their Motion denying
any retaliation or assault occurred. See generally Dkt. Nos. 83-3-83-6.
II. SUMMARY JUDGMENT STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is
appropriate only where “there is no genuine dispute as to any material fact and the
2 Plaintiff has also filed a brief surreply. Dkt. No. 91. Though this filing was not permitted under the rules, the
Court has considered it out of deference to Plaintiff’s pro se status.
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movant is entitled to judgment as a matter of law.” The moving party bears the burden
to 	demonstrate 	through 	“pleadings, 	depositions, 	answers 	to 	interrogatories, 	and
admissions on file, together with [ ] affidavits, if any,” that there is no genuine issue of
material fact. 	F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific
facts showing that there is a genuine issue for trial and cannot rest merely on allegations
or denials of the facts submitted by the movant. F ED . R. CIV . P. 56(c); see also Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are
ordinarily not sufficient to defeat a motion for summary judgment when the moving
party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d
522, 525-26 (2d Cir. 1994). 	To that end, sworn statements are “more than mere
conclusory allegations subject to disregard . . . they are specific and detailed allegations
of fact, made under penalty of perjury, and should be treated as evidence in deciding a
summary judgment motion” and the credibility of such statements is better left to a trier
of fact. Scott v. Coughlin, 344 F.3d at 289 (citing cases).
When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the non-movant. 	Nora
Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he
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trial court’s task at the summary judgment motion stage of the litigation is carefully
limited to discerning whether there are any genuine issues of material fact to be tried,
not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does
not extend to issue-resolution.” 	Gallo v. Prudential Res. Servs., Ltd. P’ship, 22 F.3d
1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court
must “read [his or her] 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). 	Nonetheless, summary judgment is appropriate “[w]here the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. ANALYSIS
To prevail on a First Amendment retaliation claim, a plaintiff must establish “(1)
that the speech or conduct at issue was protected, (2) that the defendant took adverse
action against the plaintiff, and (3) there was a causal connection between the protected
speech [or conduct] and the adverse action.” Holland v. Goord, 758 F.3d 215, 225 (2d
Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).3 “To constitute
3 Defendants do not dispute for purposes of this Motion that the filing of a grievance is a protected activity and
that the assault, if it occurred, would constitute an adverse action. Defs.’ Mem. of Law at p. 5 n.3; see also Hayes
v. Dahkle, 2017 WL 9511178, at *10 (N.D.N.Y. Oct. 30, 2017), report and recommendation adopted as modified,
2018 WL 555513 (N.D.N.Y. Jan. 19, 2018).
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adverse action, conduct must be of the type that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights.” Walker
v. Senecal, 130 F.4th 291, 298 (2d Cir. 2025) (internal quotation and citations omitted).
Plaintiff bears the burden of demonstrating that “the protected conduct was a substantial
or motivating factor” in the decision to take adverse action. Graham v. Henderson, 89
F.3d 75, 79 (2d Cir. 1996).
The court may consider a number of factors when determining whether a
causal connection exists, including (1) the temporal proximity between the
protected activity and the alleged retaliatory act; (2) the inmate’s prior
good disciplinary record; (3) vindication at a hearing on the matter; and
(4) statements by the defendant concerning his motivation.
Vega v. Artus, 610 F. Supp. 2d 185, 207 (N.D.N.Y. 2009) (internal quotations and
citations omitted). 	“The causal connection must be sufficient to support an inference
that the protected conduct played a substantial part in the adverse action.” Baskerville
v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002).
Defendants rely heavily on what are sometimes equivocal statements from
Plaintiff during his deposition about exactly what was said to him during the assault he
alleges occurred. Defs.’ Mem. of Law at pp. 6-9 (citing to Plaintiff’s deposition). The
citations relied upon, however, are somewhat selective and do not provide a complete
picture of Plaintiff’s testimony.
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The Complaint specifically alleges that while being assaulted, Defendant Conger
told Plaintiff that the assault was related to grievances filed against Officer McIntyre.
Compl. at ¶ 30. Plaintiff offered similar testimony several times during his deposition.
For example, he testified specifically that Defendant Conger spoke of Plaintiff having
filed grievances during the assault. Dkt. No. 83-2, Pl.’s Dep. at pp. 74-75. He likewise
testified that Defendant Benjamin mentioned Plaintiff’s grievances “[a]lmost every time
he was down with me.” 	Id. at p. 68. 	Defendants highlight that Plaintiff’s testimony
“could not specify whether Benjamin mentioned any grievance on March 29, 2023,”
Defs.’ Mem. of Law at p. 6 (citing Pl.’s Dep. at p. 68), but the referenced testimony also
shows that Plaintiff was not specifically asked whether he could do so or not. Pl.’s Dep.
at p. 68.
Similarly, while Defendants say that Plaintiff’s testimony concerning Defendant
Huynh was vague, Defs.’ Mem. of Law at p. 7, when asked about Huynh Plaintiff
testified specifically that Huynh mentioned McIntyre during the alleged assault. 	Pl.’s
Dep. at p. 69. 	Finally, Plaintiff testified that Defendant Spence “always talked trash
about a grievance I wrote” and added “that’s why you get assaulted.” Pl.’s Dep. at p.
69. This testimony, if credited by a jury, could support a finding that Defendants were
“substantially motivated to act because of Plaintiff’s grievances.” 	Williams v. Hesse,
2020 WL 1480105, at *7 (N.D.N.Y. Feb. 19, 2020), report and recommendation
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adopted, 2020 WL 1470800 (N.D.N.Y. Mar. 26, 2020). The Court, therefore, disagrees
that the record does not provide evidentiary support for Plaintiff’s retaliation claim.
Plaintiff did profess a lack of recall about whether specific grievances were
mentioned in some instances. Pl.’s Dep. at p. 75. Defendants place significant emphasis
on those lapses of memory regarding what may have been said to him by whom during
the actual assault, but those “lapses” do more to establish questions of fact than
demonstrate Defendants’ entitlement to summary judgment. “While in the present case
the Plaintiff’s deposition testimony is somewhat internally inconsistent, it is not so
overtly contradictory that the determination of his credibility could be made by the Court
at this juncture and the more prudent course would be to delay this credibility
determination for the jury.” 	Brandt v. Raphael, 2016 WL 1572439, at *6 (N.D.N.Y.
Mar. 25, 2016), report and recommendation adopted, 2016 WL 1559595 (N.D.N.Y.
Apr. 18, 2016). Instead, such issues go more to the strength of the Plaintiff’s credibility
and “on a motion for summary judgment, the Court cannot assess issues of credibility;
such questions of fact are for a jury to resolve.” 	Congemi v. Wal-Mart Stores E., LP,
2021 WL 4066653, at *8 (S.D.N.Y. Sept. 7, 2021).
Moreover, the temporal proximity here – just a few weeks between the filing of
the grievance and the alleged assault – also provides additional evidence of the potential
causation in support of the retaliation claim. See Vega v. Artus, 610 F. Supp. 2d at 207.
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The Court, therefore, recommends that the Motion be denied.
IV. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, 	that 	the 	Motion 	for 	Partial 	Summary 	Judgment 	be
DENIED; and it is further
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)4 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, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72
4 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. 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. C IV. P. 6(a)(1)(C).
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& 6(a).
Date: 	April 13, 2026
Albany, New York
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