Barnes v. Tatro et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JESSIE J. BARNES,
Plaintiff,
v.
JOHN G. TATRO, Lieutenant, Upstate Corr.
Facility; TREVOR N. DUNNING, Sergeant, 	9:23-CV-0578
Upstate Corr. Facility; DARREN E. BASFORD, 	(ML)
Sergeant, Upstate Corr. Facility; JASON A.
PAIGE, Correction Officer, Upstate Corr.
Facility; NATHAN T. LOCKE, Correction
Officer, Upstate Corr. Facility; JOSHUA T.
BARNES, Correction Officer, Upstate Corr.
Facility; ROBERT J. LAMICA, II, Correction
Officer, Upstate Corr. Facility; TY MAILLOUX,
Correction Officer, Upstate Corr. Facility; and
DARRIN JEFFREY, Correction Officer, Upstate
Corr. Facility,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
JESSIE J. BARNES
Pro Se Plaintiff
Lakeview Shock Incarceration Correctional Facility
Post Office Box T
Brocton, New York 14716
LETITIA A. JAMES 	AIMEE COWAN, ESQ.
Attorney General for the State of New York 	Assistant Attorney General
Counsel for Defendants
300 South State Street, Suite 300
Syracuse, New York 13202
MIROSLAV LOVRIC, United States Magistrate Judge
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DECISION & ORDER
Currently before the Court, in this civil rights action filed by Jessie J. Barnes (“Plaintiff”)
against John G. Tatro, Trevor N. Dunning, Darren E. Basford, Jason A. Paige, Nathan T. Locke,
Joshua T. Barnes, Robert J. Lamica, Ty Mailloux, and Darrin Jeffrey (collectively
“Defendants”), are (1) Defendants’ motion for summary judgment (Dkt. No. 115), and (2)
Plaintiff’s cross-motion for summary judgment and motion to compel or to defer consideration
of Defendants’ motion for summary judgment (Dkt. No. 149). For the reasons set forth below,
Defendants’ motion is granted, Plaintiff’s cross-motion for summary judgment is denied, and
Plaintiff’s motion to compel or to defer consideration of Defendants’ motion for summary
judgment is denied.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
At this procedural posture, Plaintiff asserts the following two claims: (1) claims of
excessive force and failure to intervene against Defendants pursuant to the Eighth Amendment
and 42 U.S.C. § 1983 related to a cell extraction that took place on May 18, 2020, and (2) claims
of retaliation against Defendants Basford, Dunning, Locke, and Lamica pursuant to the First
Amendment and 42 U.S.C. § 1983. (Dkt. Nos. 1, 6, 70, 73, 76, 77.)
B. 	Parties’ Briefing on the Pending Motions for Summary Judgment
1. 	Defendants’ Motion for Summary Judgment
Generally, in support of their motion for summary judgment, Defendants assert the
following two arguments: (1) Plaintiff’s Eighth Amendment excessive force and failure to
intervene claims should be dismissed, and (2) Plaintiff’s First Amendment retaliation claims
should be dismissed. (See generally Dkt. No. 115, Attach. 1.)
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More specifically, with respect to their first argument, Defendants assert that all
excessive force claims against Defendants Mailloux and Dunning should be dismissed because
Plaintiff testified that they did not use any force on him on May 18, 2020. (Dkt. No. 115, Attach.
1 at 9 n.1.)
Defendants argue that Plaintiff’s excessive force claims regarding the use of a chemical
agent—which are only asserted against Defendants Tatro and Basford—should be dismissed
because administering two, 1-second bursts of chemical agent on an incarcerated individual who
is refusing direct orders is not malicious or sadistic. (Dkt. No. 115, Attach. 1 at 13-17.) In
addition, Defendants argue that if Plaintiff’s underlying excessive force claim related to the use
of a chemical agent is dismissed, then the failure to intervene claims must be dismissed as well.
(Dkt. No. 115, Attach. 1 at 17-19.) In the alternative, Defendants argue that even if the Court
declines to dismiss the underlying excessive force claim, the failure to intervene claims should
be dismissed because the record lacks evidence from which a jury could conclude that
Defendants had an opportunity to intervene where the chemical agents were deployed in two, 1-
second bursts. (Id. at 18.) Moreover, Defendants argue that in the alternative, they are entitled
qualified immunity because under the circumstances, it was objectively reasonable for
Defendants Basford and Tatro to believe that their conduct did not violate a clearly established
right. (Id.)
Defendants argue that Plaintiff’s excessive force claims regarding the handcuffs should
be dismissed against all Defendants except Defendant Lamica for lack of personal involvement.
(Dkt. No. 115, Attach. 1 at 20.) Defendants argue that Plaintiff’s excessive force handcuff claim
against Defendant Lamica fails because (a) Plaintiff did not complain about his handcuffs or
wrists until the nurse arrived to evaluate him, and (b) examination of Plaintiff’s wrists revealed a
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full range of motion, sufficient blood flow, and no noted swelling, bruising, lacerations, or
marks. (Id. at 21.) Defendants argue that Plaintiff’s failure to intervene claims regarding the
tight handcuffs should be dismissed because the underlying excessive force claim should be
dismissed. (Id. at 22-23.) Moreover, Defendants argue that in the alternative, Plaintiff’s failure
to intervene claim against Defendant Paige should be dismissed because he did not have a
realistic opportunity to intervene to prevent the harm. (Id. at 23.) Finally, Defendants argue that,
in the alternative, they are entitled to qualified immunity because under the circumstances, it was
objectively reasonable for them to believe that their actions did not violate clearly established
law. (Id. at 24.)
Defendants argue that Plaintiff’s excessive force claim regarding the decontamination
shower should be dismissed because the video is clear that Plaintiff was able to speak to the
officers the entire time that he was in the decontamination room and he was not dropped on the
floor. (Dkt. No. 115, Attach. 1 at 24-25.) Further, Defendants argue that Defendant Paige was
not present in the decontamination room and thus, cannot be liable for any excessive force or
failure to intervene claim related to conduct that took place there. (Id. at 25.) Defendants argue
that Plaintiff’s failure to intervene claims regarding the decontamination shower should be
dismissed because the underlying excessive force claim should be dismissed. (Id. at 25-26.)
With respect to their second argument, Defendants assert that Plaintiff’s retaliation claims
against Defendants Basford, Locke, Lamica, and Dunning should be dismissed because they are
premised on the underlying excessive force claims, which should be dismissed and thus, Plaintiff
cannot demonstrate that Defendants took an adverse action against him. (Dkt. No. 115, Attach. 1
at 27.) Defendants argue in the alternative that Plaintiff’s retaliation claim against Defendant
Locke should be dismissed because (a) Plaintiff cannot show that Defendant Locke took an
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adverse action against him, (b) Plaintiff cannot show that the incident on May 18, 2020, deterred
him from exercising his First Amendment rights, (c) Plaintiff cannot show a causal connection
between his alleged protected conduct in filing a lawsuit in January 2019, and the incident on
May 18, 2020, (d) Plaintiff cannot show a causal connection between the unidentified grievances
he filed against Defendant Locke and the incident on May 18, 2020, and (e) Plaintiff cannot
show that his prior grievances or lawsuit were a substantial or motivating factor in Defendant
Locke’s alleged retaliation. (Id. at 28-31.) Defendants argue that in the alternative, Plaintiff’s
retaliation claim against Defendant Basford should be dismissed because Plaintiff fails to
establish a causal connection between his alleged protected conduct and the adverse action in
that (a) Plaintiff cannot show that the incident on May 18, 2020, deterred him from exercising his
First Amendment rights, (b) even though Plaintiff filed a grievance on May 6, 2020, that
Defendant Basford responded to, it had “no bearing on the incident that took place on May 18,
2020,” and (c) Plaintiff testified that he filed claims against Defendant Basford only after the
incident on May 18, 2020. (Id. at 31-33.) Defendants assert that in the alternative, Plaintiff’s
retaliation claim against Defendant Dunning should be dismissed because (a) Plaintiff admits
that Defendant Dunning did not use any force against him on May 18, 2020, and thus he cannot
demonstrate that Defendant Dunning took an adverse action against him, (b) Plaintiff cannot
show that the incident on May 18, 2020, deterred him from exercising his First Amendment
rights, and (c) Plaintiff cannot establish a causal connection between his alleged protected
conduct and the adverse action where the only lawsuit that Defendant Dunning was aware of was
filed seven years before the subject incident. (Id. at 33-35.) Defendants assert that in the
alternative, Plaintiff’s retaliation claim against Defendant Lamica should be dismissed because
(a) Plaintiff cannot establish that the retaliatory action was adverse enough to deter him from
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exercising his constitutional rights, (b) Plaintiff cannot show a causal connection between the
alleged protected conduct and the alleged adverse action where (i) the only lawsuits that
Defendant Lamica was aware of were filed either (A) after the subject incident, or (B)
approximately sixteen months before the subject incident, and (ii) Defendant Lamica does not
recall responding to grievances that Plaintiff filed against him. (Id. at 35-36.)
2. 	Plaintiff’s Response and Cross-Motion for Summary Judgment
Generally, in opposition to Defendants’ motion for summary judgment and in support of
his cross-motion for summary judgment, Plaintiff asserts the following sixteen arguments: (1)
Defendant Basford’s conduct on May 18, 2020, was in close temporal proximity to Plaintiff’s
protected conduct of filing grievance UST-0295-20 on May 15, 2020; (2) Defendant Dunning
filed a false official reports, refused to answer Plaintiff’s interrogatories, and withheld critical
fixed surveillance camera footage; (3) Defendant Locke filed questionable reports that are tailor-
made based on Defendants’ video, while withholding unfavorable evidence from May 18, 2020;
(4) Defendant Lamica admitted that he handcuffed and escorted Plaintiff to the decontamination
room only based on the doctored videotape from May 18, 2020, while failing to provide the fixed
surveillance; (5) Plaintiff demonstrated that Defendant Basford’s actions on May 18, 2020, were
premeditated and done maliciously and sadistically to cause harm; (6) Plaintiff adequately stated
a claim against Defendant Tatro who ordered the use of a chemical agent on Plaintiff unrelated to
any correctional goals; (7) Plaintiff sufficiently stated a claim against Defendant Locke for his
malicious and sadistic use of excessive force; (8) Plaintiff presented ample proof to establish that
Defendant Lamica applied control of the handcuffs maliciously and sadistically to cause harm;
(9) Plaintiff demonstrated that Defendants Barnes, Paige, and Jeffreys filed obscure reports to
cover up the excessive force used against Plaintiff based on the hand-held video tape while
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withholding the fixed surveillance from May 18, 2020; (10) Plaintiff has presented ample
evidence to sustain his failure to intervene claim against Defendant Basford; (11) Plaintiff has
presented ample evidence to sustain his failure to intervene claim against Defendant Dunning for
his coverup like the incident that occurred on June 18, 2019; (12) Plaintiff has submitted ample
evidence to support his motion for summary judgment against Defendants Mailloux and Basford
based on their failure to intervene and camera angling to cover up the excessive force used
against Plaintiff on May 18, 2020, and withholding critical evidence; (13) Plaintiff has
demonstrated sufficient evidence to sustain a failure to intervene claim against Defendants
Barnes, Paige, and Jeffrey for filing false reports to cover up the excessive force that they or their
co-Defendants used against Plaintiff relying on a sham videotape and withholding damaging
fixed videotape from May 18, 2020; (14) Defendants lack credibility because (a) Defendant
Basford’s papers are fantasy and bonehead insanity, (b) Defendants Lamica and Locke make a
partial admission five years after the subject incident, (c) Defendant Dunning fails to
acknowledge being a party to Barnes v. Dominic, 9:22-CV-0062, (d) Defendants Tatro, Paige,
Barnes, and Jeffrey filed questionable reports, and (e) Defendants Tatro, Basford, Dunning,
Paige, Barnes, Jeffrey, Locke, Lamica, and Maillouix, and Attorney Cowan have withheld the
fixed camera footage from the incident on May 18, 2020 willfully; (15) Defendants are not
entitled to qualified immunity; and (16) discovery issues remain and must be addressed before
trial because Plaintiff seeks (a) sick callout request slips from May 19, 2020, to July 1, 2020, (b)
the Log Book for May 18, 2020, (c) fixed surveillance videotape, (d) an in camera review of
Defendants’ employee files, and (e) complete answers to Plaintiff’s interrogatories and subparts.
(See generally Dkt. No. 149, Attach. 3.)
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3. 	Defendants’ Reply in Further Support of Their Motion for Summary
Judgment and Opposition to Plaintiff’s Cross-Motion for Summary
Judgment
Generally, in further support of their motion for summary judgment and opposition to
Plaintiff’s cross-motion for summary judgment, Defendants assert the following four arguments:
(1) Plaintiff’s cross motion for summary judgment should be denied because he failed to submit
a statement of material facts in support of his motion pursuant to N.D.N.Y. L.R. 56.1(a); (2)
Plaintiff’s discovery disputes are untimely and improper; (3) Plaintiff’s Eighth Amendment
excessive force and failure to intervene claims should be dismissed; and (4) Plaintiff’s First
Amendment retaliation claims should be dismissed. (See generally Dkt. No. 161, Attach. 1.)
More specifically, with respect to their third argument, Defendants assert that Plaintiff’s
opposition failed to address Defendants’ argument that Plaintiff is not alleging that Defendants
Mailloux and Dunning did not use any force on May 18, 2020, and thus, any excessive force
claim against Defendants Mailloux and Dunning should be deemed abandoned and dismissed.
(Dkt. No. 161, Attach. 1 at 10.) Further, Defendants argue that the use of chemical agents to
assist with extracting Plaintiff from his cell on May 18, 2020, was a constitutional and acceptable
use of force against a recalcitrant incarcerated individual and Plaintiff has not demonstrated a
genuine issue of material fact that the use of the chemical agent was malicious or sadistic. (Id. at
10-12.) Defendants argue that, in any event, the chemical agents were administered in two, 1-
second bursts, which did not provide any of the other Defendants a reasonable opportunity to
intervene. (Id. at 12-13.) Defendants assert that they are also entitled to qualified immunity
because any rational juror must conclude that it was objectively reasonable for them to believe
their actions did not violate clearly established law. (Id. at 13.)
Defendants argue that Defendant Lamica was the officer who escorted Plaintiff from his
cell to the decontamination room and thus, any excessive force claims based on his handcuff
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claims should be dismissed against all other Defendants and Plaintiff offered no argument to the
contrary. (Id. at 13-14.) Defendants assert that with respect to Plaintiff’s excessive force claim
against Defendant Lamica, Plaintiff fails to demonstrate that his handcuffs were “unreasonably
tight,” and his opposition failed to address Defendants’ argument that Plaintiff did not complain
that his handcuffs were tight or that anyone was twisting or pulling his handcuffs. (Id. at 14.)
Hence, Defendants argue, that Plaintiff cannot establish that the handcuffs were applied in a way
that was “maliciously and sadistically to cause harm” and any alleged injury was de minimis and
insufficient to establish an Eighth Amendment claim. (Id. at 14-15.) Defendants argue that
Plaintiff cannot demonstrate that Defendant Paige had a realistic opportunity to intervene and
prevent the alleged harm. Further, Defendants argue that Plaintiff has not established that a
reasonable person in the shoes of Defendants Tatro, Basford, Barns, Mailloux, Jeffrey, Dunning,
and Locke would have known that Plaintiff’s constitutional rights were being violated. (Id. at
15.) Further, Defendants argue that they are entitled to qualified immunity. (Id.)
Defendants argue that the video is clear that Plaintiff was able to speak to Defendants
during the entire duration that he was in the decontamination room, which was only
approximately 60 seconds. (Dkt. No. 161, Attach. 1 at 15-16.) In addition, Defendants assert
that the video is clear that no one lifts Plaintiff up in the air, drops him on the floor, or places him
under the shower head. (Id. at 16.) Defendants argue that they did not intervene because
Plaintiff’s allegations regarding what took place in the decontamination shower are false. (Id. at
17.)
With respect to their fourth argument, Defendants argue that Plaintiff’s retaliation claim
against Defendant Locke should be dismissed because (a) Plaintiff now alleges that the
retaliation was based on grievances that Plaintiff filed after the subject incident, (b) Plaintiff has
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not demonstrated that Defendant Locke personally took any adverse action against Plaintiff, (c)
Plaintiff was not deterred from exercising his constitutional rights because he filed a grievance
about the incident on May 18, 2020, the very same day, and (d) Plaintiff fails to establish a
causal connection between any grievances he filed or pending litigation and the incident on May
18, 2020. (Dkt. No. 161, Attach. 1 at 17-19.)
Defendants assert that Plaintiff’s retaliation claim against Defendant Basford should be
dismissed because (a) Plaintiff has not demonstrated that Defendant Basford had knowledge of
Plaintiff’s protected conduct in filing grievances on June 14, 2019, and July 18, 2019, (b)
Plaintiff has not established that Defendant Basford retaliated against him based on grievances
that Plaintiff filed against other security staff, (c) Plaintiff fails to establish that Defendant
Basford’s alleged retaliatory action was adverse enough to deter him from exercising his
constitutional rights where he continued to file dozens of grievances after the date of the
incident, and (d) Plaintiff cannot show a causal connection between his alleged protected conduct
and the alleged adverse action. (Dkt. No. 161, Attach. 1 at 19-20.)
Defendants argue that Plaintif’s retaliation claim against Defendant Lamica should be
dismissed because (a) to the extent that Plaintiff alleges that Defendant Lamica retaliated against
him on February 11, 2022, that claim was not pled in this matter and Plaintiff cannot amend his
complaint via his opposition to a motion for summary judgment, (b) Plaintiff fails to establish
that Defendant Lamica’s alleged retaliatory action was adverse enough to deter him from
exercising his constitutional rights where he continued to file dozens of grievances after the date
of the incident, and (c) Plaintiff cannot establish that Defendant Lamica was aware of any other
pending lawsuits against him brought by Plaintiff at the time of the subject incident and Plaintiff
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himself does not recall when he filed grievances against Defendant Lamica. (Dkt. No. 161,
Attach. 1 at 21-23.)
4. 	Plaintiff’s Reply in Further Support of His Cross-Motion for
Summary Judgment and Opposition to Defendants’ Motion for
Summary Judgment
Generally, in further support of his cross-motion for summary judgment and opposition
to Defendants’ motion for summary judgment, Plaintiff asserts the following nine arguments: (1)
Defendants submitted an inauthentic hand-held videotape made by Defendant Mailloux that is
spliced together and withheld the fixed surveillance videotape of the incident on May 18, 2020;
(2) Plaintiff is unaware of the requirement that parties file “dual” statements of material facts not
in dispute pursuant to Local Rule 56.1 but to the extent such a requirement exists, Plaintiff’s may
be found “intertwined with [his] declaration and memorandum of law”; (3) Defendant Lamica
“has brutalized [Plaintiff] in three separate litigations,” which is relevant to Defendant Lamica’s
motivation; (4) Defendants have failed to completely respond to Plaintiff’s interrogatories, which
is now “ripe for [the Court’s] review”; (5) Plaintiff filed sick call slips about hand pain related to
the handcuffs that Defendant Lamica placed on him on May 18, 2020; (6) Defendant Paige’s
declaration is contradictory with his failure to respond to interrogatories, the fixed surveillance
videotape, and other evidence that Plaintiff submitted; (7) Defendants are not entitled to qualified
immunity; (8) Defendant Locke admitted to being in the decontamination room with Plaintiff
and Defendant Lamica; and (9) Plaintiff can be heard screaming on the video of him in the
decontamination room. (See generally Dkt. No. 164.)
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C. 	Defendants’ Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Defendants in
their Statement of Material Facts and not denied by Plaintiff in his response.1 (Compare Dkt.
No. 115, Attach. 2, with Dkt. No. 149, Attach. 1.)
1. 	Plaintiff is currently incarcerated at Lakeview Shock Correctional Facility for
multiple felony convictions, including burglary in the second degree, reckless endangerment in
the first degree, and criminal mischief in the second degree.
2. 	Plaintiff is an experienced litigator, having filed approximately thirteen actions in
the Northern District of New York alone.2
3. 	On May 5, 2020, Plaintiff was incarcerated at Upstate Correctional Facility
(“Upstate C.F.”).3
1 	The Court notes that several facts asserted by Defendants were supported by citations to
exhibits that were introduced by Attorney Cowan, who does not appear to possess personal
knowledge sufficient to admit the exhibit into evidence. However, “under modern summary
judgment practice, documents need only be presented in a form that, if authenticated, could be
admissible at trial.” Murphy v. Onondaga Cnty., 18-CV-1218, 2024 WL 1614327, at *5 n.1
(N.D.N.Y. Apr. 2, 2024) (Hurd, J.)
2 	Plaintiff’s response admits the statement then improperly adds words intended to
controvert the facts asserted or to place them in context. (Dkt. No. 149, Attach. 1 at ¶ 2); CA,
Inc. v. New Relic, Inc., 12-CV-5468, 2015 WL 1611993, at *2 n.3 (E.D.N.Y. Apr. 8, 2015)
(“[T]he Court will consider the statement provided by [Plaintiff] as undisputed because
[Defendant’s] initial response in each instance is, in fact, ‘Undisputed.’”); Washington v. City of
New York, 05-CV-8884, 2009 WL 1585947, at *1 n.2 (S.D.N.Y. June 5, 2009) (holding that “the
statement provided by Defendants is taken as true because Plaintiff[’]s initial response in each
instance is ‘Admit’”); Goldstick v. The Hartford, Inc., 00-CV-8577, 2002 WL 1906029, at *1
(S.D.N.Y. Aug. 19, 2002) (striking plaintiff’s Rule 56.1 Statement, in part, because plaintiff
added “argumentative and often lengthy narrative in almost every case the object of which is to
‘spin’ the impact of the admissions plaintiff has been compelled to make”).
3 	See, supra, note 2. Defendants cite to Dkt. No. 115, Attach. 5 at 26 for support of this
fact. However, the citation should be to Dkt. No. 115, Attach. 5 at 26-27.
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4. 	Plaintiff received two misbehavior reports dated May 5, 2020.4
5. 	Upstate Correctional Officer J. MacGregor issued Plaintiff a misbehavior report
on May 5, 2020, for obstructing his cell window with a towel and failing to comply with direct
orders to remove the towel at approximately 3:40 a.m.5
6. 	After the area supervisor responded, Plaintiff complied and removed the towel.6
7. 	Plaintiff was placed on a towel deprivation and his cell was searched.7
8. 	Plaintiff was escorted back to his cell after the search and at approximately 9:30
a.m., he refused to present his hands so that Officer M. Carbone could remove his handcuffs.8
9. 	After an extraction process was started, plaintiff agreed to have the handcuffs
removed.9
10. 	Plaintiff received a misbehavior report for that incident as well.10
11. 	Plaintiff filed a grievance dated May 6, 2020, following the cell search on May 5,
2020.11
4 	See, supra, note 2.
5 	See, supra, note 2.
6 	See, supra, note 2.
7 	See, supra, note 2. Defendants cite to Exhibit G of Defendant Basford’s declaration in
support of this fact asserted. (Dkt. No. 115, Attach. 2 at ¶ 7.) However, the docket only reflects
Exhibits A-F attached to Defendant Basford’s declaration. (See generally Dkt. No. 115.)
Notwithstanding, Plaintiff admits the fact asserted and thus, it is deemed admitted.
8 	See, supra, note 2.
9 	See, supra, note 2.
10 	See, supra, note 2.
11 	See, supra, note 2.
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12. 	Defendant Basford responded to the grievance in a memorandum dated May 15,
2020.12
Plaintiff’s Eighth Amendment Excessive Force and Failure to Intervene Claims
13. 	Plaintiff alleges that on May 18, 2020, Defendants Basford and Tatro
“approached plaintiff’s cell” wearing gas masks, accompanied by Defendants Dunning,
Mailloux, Paige, Locke, Barnes, Lamica, and Jeffery.13
14. 	Plaintiff alleges that “without justification” Defendant Basford “sprayed the
plaintiff with chemical agent excessively” while the other Defendants “intently watched.”14
15. 	Plaintiff further alleges that handcuffs were placed on him that were too tight, and
that as he was escorted to the decontamination shower, the officer holding the cuffs pushed down
to “inflict unnecessary pain and suffering.”15
16. 	Plaintiff alleges that the officers picked him up and held him under the shower
head in the decontamination room “so that water can run directly up his nose and down [his]
throat at the same time.”16
17. 	Plaintiff further alleges that Defendants dropped him on the floor twice, picked
him back up, and placed him under the shower head.17
12 	See, supra, notes 2, 7.
13 	See, supra, note 2.
14 	See, supra, note 2.
15 	See, supra, note 2.
16 	See, supra, note 2.
17 	See, supra, note 2.
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18. 	On May 18, 2020, at approximately 8:30 p.m., Plaintiff refused to hand out his
meal trays despite multiple orders to do so, in violation of DOCCS Directives 106.10 and
107.10.18
19. 	At approximately 8:40 p.m., Defendant Basford was notified by staff that Plaintiff
was refusing to return his mess hall items from his Ramadan evening meal.
20. 	Defendant Basford reported to Plaintiff’s cell and gave Plaintiff a direct order to
return the items.19
21. 	Plaintiff refused to return the items.20
22. 	Defendant Basford observed milk cartons, sporks, and “draglines” on Plaintiff’s
desk.21
18 	Plaintiff denies this fact but appears to instead place in context why he refused to hang
out his tray. (Dkt. No. 149, Attach. 1 at ¶ 18 [“Deny this because I was missing my peanut butter
at 7:30 pm when Ramadan was served I beat and banged they ignored me to assemble abuse”].)
Moreover, the citations to the record that Plaintiff provides do not support his denial. (Dkt. No.
149, Attach. 1 at ¶ 18 [citing Dkt. No. 1, Attach. 3 at 1-3, 78-79].)
19 	Plaintiff denies this fact and cites to his Declaration at paragraphs 31-32 (Dkt. No. 141,
Attach. 1 at ¶ 20 [citing Dkt. No. 141, Attach. 2 at ¶¶ 31-32]), which does not contradict the fact
asserted or create a genuine dispute. (Id.)
20 	See, supra, note 19.
21 	Plaintiff denies this allegation. (Dkt. No. 141, Attach. 1 at ¶ 23.) Plaintiff appears to
admit that he had his two breakfast milks but that Defendant Basford “concocted the sporks and
dragline story to stage a bogus cell search in retaliation.” (Id. [citing Dkt. No. 141, Attach. 2 at
¶¶ 28-32].) Plaintiff’s declaration states that Defendant Basford used “the plaintiff’s missing
peanut butter together with his religious meal as a spring board or pawn to threaten plaintiff and
schedule another ‘reign of terror cell search’ under false pretense of a cock-and-bull-story of the
two milks I had for my breakfast meal was contraband on May 18, 2020.” (Dkt. No. 141,
Attach. 2 at ¶ 31.) This does not contradict the fact asserted or create a genuine dispute of
material fact. As a result, the fact is deemed admitted.
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23. 	“Draglines” are a term for items constructed by incarcerated individuals out of
ripped or torn materials like clothing, paper, or bedsheets.22
24. 	Incarcerated individuals toss draglines over to an adjacent or nearby cell to drag
items back to their cell.23
25. 	Incarcerated individuals often use draglines to exchange contraband.24
26. 	Defendant Basford directed Plaintiff to come out of his cell so that a cell frisk
could be performed.
27. 	Plaintiff was not permitted to keep the milk cartons, sporks, and draglines in his
cell for security and safety reasons. The items needed to be confiscated since Plaintiff refused to
return them to staff.25
22 	Plaintiff denies this fact but then indicates that he lacks knowledge, which is insufficient
to create a genuine dispute. (Dkt. No. 141, Attach. 1 at ¶ 24); Davis v. City of Syracuse, 12-CV-
0276, 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, 2015) (“On a motion for summary judgment,
denials of fact that are based on a lack of personal knowledge, mere information or belief, and/or
inadmissible evidence are insufficient to create a genuine dispute.”); In re Horowitz, 14-CV-
36884, 2016 WL 1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (“On a motion for
summary judgment, denials based on a lack of knowledge or information sufficient to form a
belief are insufficient to contest a disputed fact . . . . Similarly, a response contending to neither
admit or deny an allegation does not create a genuine issue of fact.”). Plaintiff also points out
that there is “no documentation that the plaintiff possessed a ‘dragline’ on May 18, 2020.” (Dkt.
No. 141, Attach. 1 at ¶ 24.) However, the fact asserted does not relate to Plaintiff’s possession of
a dragline and instead is merely defining what a dragline is.
23 	Plaintiff denies this fact as immaterial but that is the province of the Court to deem
materiality. As a result, the fact is deemed admitted. Zhao-Royo v. New York State Educ. Dep’t,
14-CV-0935, 2017 WL 149981, at *2, n.2 (N.D.N.Y. Jan. 13, 2017) (“As a result, where a non-
movant has merely objected to the materiality of a fact, and the Court has concluded that the fact
is material, the fact will be deemed admitted.”).
24 	See, supra, notes 22, 23.
25 	Plaintiff denies this fact and argues that he was supposed to have the milks but does not
address the sporks or draglines that Defendants assert also needed to be confiscated.
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28. 	Plaintiff continued to refuse to exit his cell.26
29. 	DOCCS Directive 4903 states that chemical agents may be used in the extraction
of incarcerated individuals from cells or rooms.27
30. 	According to Directive 4903, section IV, a staff member must be designated to
authorize the use of chemical agents.28
31. 	Before using a chemical agent, the highest available authority present at the
facility must be consulted and grant permission for the use of a chemical agent.29
32. 	In this case, Upstate C.F. Captain Gravlin authorized the use of chemical agents
on May 18, 2020.30
33. 	In addition, on May 18, 2020, a nurse was notified before Plaintiff’s cell
extraction.
34. 	In this case, the nurse approved the use of chemical agents as part of the
extraction.
26 	Plaintiff denies this fact and asserts that Defendants have not produced all of the
videotapes. (Dkt. No. 141, Attach. 1 at ¶ 29.) However, Defendants produced admissible
evidence to support this fact. (Dkt. No. 115, Attach. 17 at ¶ 6.) Plaintiff’s citations to his
declaration do not create a dispute of fact that Plaintiff refused to leave his cell. (Dkt. No. 141,
Attach. 2 at ¶¶ 32, 42, 48.)
27 	See, supra, note 22.
28 	See, supra, note 22.
29 	See, supra, note 22.
30 	Plaintiff denies this fact because “regardless [of] who authorized this use of force it was
all staged by Basford in retaliation.” (Dkt. No. 194, Attach. 1 at ¶ 33.) Plaintiff’s denial does
not create a dispute of fact.
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35. 	In accordance with Directive 4903, Defendant Basford notified the Watch
Commander at approximately 8:42 p.m., that Plaintiff was refusing to exit his cell so that a cell
search could be completed.31
36. 	Defendant Tatro was notified and responded to Plaintiff’s cell.
37. 	Defendant Tatro gave Plaintiff several direct orders to comply with staff direction,
but Plaintiff refused to comply.32
38. 	Plaintiff testified that Defendants Basford and Tatro ordered him to exit his cell so
that a search could be performed. However, Plaintiff then testified that he could not recall if
Defendants Basford and Tatro gave those orders.33
39. 	At approximately 8:50 p.m., medical staff were notified that force may be
necessary to extract Plaintiff from his cell.34
40. 	Nurse Holcombe determined that it was safe to use chemical agents on Plaintiff to
assist with the cell extraction.
41. 	DOCCS’s Crisis Intervention Unit was notified and spoke with Plaintiff at
approximately 9:10 p.m., before any use force was utilized to extract him from his cell.35
31 	See, supra, note 22.
32 	Plaintiff denied this fact asserted. However, Plaintiff’s citations to his declaration do not
support his assertion that he followed orders. (Dkt. No. 149, Attach. 1 at ¶ 38 [citing Dkt. No.
149, Attach. 2 at ¶¶ 42-44, 49].)
33 	Plaintiff denies this fact “[b]ecause they had no [l]egitimate basis to do this other than
Basford[’]s retaliatory motives.” (Dkt. No. 149, Attach. 1 at ¶ 39.) I deem this fact admitted
because Plaintiff’s denial does not create a genuine dispute as to the fact asserted.
34 	See, supra, note 23.
35 	See, supra, note 22.
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42. 	Since this incident took place after business hours, other civilian staff members—
such as clergy staff and Plaintiff’s Offender Rehabilitation Coordinator—were unavailable to
assist in communicating with Plaintiff to attempt to persuade him to exit his cell.36
43. 	Because Plaintiff continued to refuse to exit his cell, a cell extraction team was
assembled.37
44. 	Defendant Mailloux was tasked with operating a handheld camera to record the
cell extraction.
45. 	Defendant Dunning was tasked with recording information for the Cell Extraction
Checklist.38
46. 	Defendant Paige was not part of the extraction team.39
36 	Plaintiff denies this fact based on his belief that Defendants did not have “a reason to use
force on [him] on May 18, 2020.” (Dkt. No. 149, Attach. 1 at ¶ 43.) However, this denial does
not create a genuine dispute as to the fact asserted.
37 	See, supra, note 36.
38 	Plaintiff denies this fact based on his opinion of Defendant Dunning’s character. (Dkt.
No. 149, Attach. 1 ¶ 46 [“Deny because this man is a ‘vile’ racist corrupt liar and they had no[
]basis to do any of this including filing false reports.”].) This denial does not create a genuine
dispute as to the fact asserted. McCullough v. Wyandanch Union Free Sch. Dist., 187 F.3d 272,
280 (2d Cir. 1999) (explaining that a plaintiff does not create a genuine issue of fact merely by
“impugning [a witness’s] honesty”); Zito v. Fried, Frank, Harris, Shriver & Jacobson, LLP, 869
F. Supp.2d 378, 391 (S.D.N.Y. 2012) (“Neither conclusory assertions, nor contentions that the
affidavits supporting the motion are not credible, create a genuine issue of material fact.”);
Chem. Bank v. Hartford Acc. & Indem. Co., 82 F.R.D. 376, 378 (S.D.N.Y.1979) (“[A] naked
attack upon the affidavits of a moving party is, without more, insufficient to place the credibility
of the affiant in issue.”).
39 	Plaintiff denies this fact because he believes that the reports from the incident are
“suspect.” (Dkt. No. 149, Attach. 1 at ¶ 47.) This denial does not create a genuine dispute as to
the fact asserted. See, supra, note 39.
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47. 	Defendant Paige was directed to attend the cell extraction to open Plaintiff’s cell
door in the event that Plaintiff continued to refuse to exit his cell, and the extraction team was
required to enter the cell to remove him.40
48. 	Defendant Paige’s role was noted on the Cell Extraction Checklist as “CO w/T
Handle from Cart” at the bottom of the form.41
49. 	Once the extraction team was assembled and gathered at Plaintiff’s cell,
Defendant Tatro gave Plaintiff one final direct order to comply but Plaintiff refused.42
50. 	Plaintiff was given ample time and ample warning that a cell extraction would
take place if he did not comply with staff directions.43
51. 	Plaintiff admits that he knew an extraction team had assembled outside of his cell.
52. 	At approximately 9:52 p.m., Defendant Tatro authorized Defendant Basford to
administer one application of two-one second bursts of chemical agents through the cell door
hatch.44
53. 	Plaintiff complied, exited his cell, and all force ceased at that time.45
40 	Plaintiff denies this fact because the use of force memorandum did not contain this
information. (Dkt. No. 149, Attach. 1 at ¶ 48.) However, this denial does not create a genuine
dispute as to the fact asserted.
41 	Plaintiff denies this fact because he believes that the language used in Defendant Paige’s
use of force memorandum and his declaration attached to the motion for summary judgment
differ. (Dtk. No. 149, Attach. 1 at ¶ 49.) However, this denial does not create a genuine dispute
as to the fact asserted.
42 	Plaintiff’s denial does not create a genuine dispute as to the fact asserted.
43 	See, supra, note 42.
44 	See, supra, note 2.
45 	See, supra, note 2.
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54. 	Plaintiff was escorted to the decontamination shower.
55. 	Plaintiff testified that the handcuffs placed on him after the cell extraction were
“real tight.”46
56. 	Plaintiff further testified that after he was handcuffed, someone was “twisting the
cuffs, pulling on them. I don’t know which ones was doing it . . . . I don’t know if it was
Lamica, I don’t know if it was Jason Paige. I don’t know if it was Joshua Barnes.”47
57. 	Defendant Lamica was the officer who escorted Plaintiff from his cell to the
decontamination room.48
58. 	At no point while Plaintiff was being handcuffed or during his escort to the
decontamination room did Plaintiff complain that his handcuffs were too tight or that anyone was
twisting or pulling on his handcuffs.49
59. 	Defendant Lamica declared under penalty of perjury that Plaintiff’s handcuffs
were not applied in an unreasonably tight manner, were applied in accordance with DOCCS
directives, and that he never twisted or pulled on them.50
46 	See, supra, note 2.
47 	See, supra, note 2.
48 	See, supra, note 2.
49 	Plaintiff denies this fact because he asserts that he has not been “afforded an opportunity
to view and inspect the video tapes.” (Dkt. No. 149, Attach. 1 at ¶ 59.) On January 7, 2025, the
Court directed Defendants’ counsel to arrange through DOCCS for Plaintiff to view the videos
concerning the events on May 18, 2020. (Dkt. No. 93.) Plaintiff appealed this order. (Dkt. Nos.
96, 98.) Plaintiff’s appeal was dismissed by the Second Circuit for lack of jurisdiction because
the District Court has not issued a final order as contemplated by 28 U.S.C. § 1291. (Dkt. No.
146.) At this juncture, the Court has no reason to believe that Defendants’ counsel did not
comply with the Court’s directive on January 7, 2025. (See generally docket sheet.) The video
is clear and supports the fact asserted.
50 	See, supra, note 42.
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60. 	Defendants maintain that Plaintiff did not complain about his handcuffs while
being led from his cell to the decontamination shower and that no one was twisting or pulling on
his handcuffs.51
61. 	Defendant Paige did not accompany Plaintiff to the decontamination room.52
62. 	Defendant Paige left the area after Plaintiff exited his cell and returned to his role
as a resource officer.53
63. 	While Plaintiff alleges that he complained that his handcuffs were too tight in the
decontamination room, that contention is contradicted by the video footage.54
64. 	Plaintiff did not complain about his handcuffs or his wrists until the nurse arrived
to evaluate him.55
65. 	Upon examination of his wrists, the nurse noted a full range of motion and good
capillary refill.56
66. 	No swelling, bruising, lacerations, or marks were noted.57
51 	See, supra, note 2.
52 	See, supra, note 42.
53 	See, supra, note 42. Defendants cite to Defendant Paige’s declaration at paragraph 8 in
support of this asserted fact. (Dkt. No. 115, Attach. 2 at ¶ 63 [citing Dkt. No. 115, Attach. 35 at
¶ 8].) However, support for this fact is found in Defendant Paige’s declaration at paragraph 7.
(Dkt. No. 115, Attach. 35 at ¶ 7.)
54 	See, supra, note 42.
55 	See, supra, note 42. Plaintiff’s denial is contradicted by the video.
56 	See, supra, note 42.
57 	See, supra, note 2.
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67. 	Plaintiff’s handcuffs were removed approximately seven minutes after his
complaint that they were tight during which time he was examined by medical staff and
photographed.58
68. 	Plaintiff was further evaluated by medical staff on multiple occasions in the
month following this incident for other medical complaints, but there is no documentation that he
complained of any wrist pain or other injuries pertaining to his allegations that the handcuffs
were too tight or that Defendants twisted/pulled on his handcuffs.59
69. 	No injuries related to Plaintiff’s wrists are noted in his medical records for the
month following May 18, 2020.60
70. 	Plaintiff testified that it “had to be the John Doe, Jason—Jason Paige, Lamica,
and Joshua Barnes” who “picked him up” and moved him closer to the shower head in the
decontamination room.61
58 	See, supra, note 42.
59 	Plaintiff denies this fact and asserts that he “filed numerous sick call out request slips that
A[ttorney] Cowan and defendants have withheld and the plaintiff complain[ed] about pressure on
[his] ear for months.” (Dkt. No. 149, Attach 2 at ¶ 69.) First, this denial does not create a
genuine dispute about the fact alleged: the medical documentation does not reflect complaints
about wrist pain or other injuries related to the use of handcuffs on May 18, 2020. Second, the
medical records provided by Defendants also reflect his numerous complaints about ear pressure
and pain. (See generally Dkt. No. 115, Attach. 9.) Hence, the documents provided by
Defendants do not reflect a withholding of records as Plaintiff contends.
60 	The citations to the record that Plaintiff provides do not create a genuine dispute of fact.
Plaintiff includes additional medical records covering dates beyond one month following May
18, 2020.
61 	See, supra, note 2.
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71. 	Plaintiff alleges that Defendants dropped him on the floor twice, picked him back
up, and placed him under the shower head.62
72. 	The video is clear that Plaintiff was able to speak to Defendants while he was in
the decontamination room, which lasted approximately sixty-seconds.63
73. 	The video does not depict Plaintiff being lifted in the air or dropped on the floor.64
74. 	Appropriate decontamination procedures were followed after the cell extraction
pursuant to DOCCS Directive 4903.65
75. 	After Plaintiff was decontaminated, he was placed in the lower holding pen where
he was evaluated by medical staff and photographs were taken.66
76. 	The force used on Plaintiff was pursuant to Directive 4903 and within department
guidelines.67
77. 	Plaintiff does not allege that Defendant Tatro used any physical force on him on
May 18, 2020. Instead, Plaintiff alleges that Defendant Tatro “gave orders” to Defendant
Basford to use the chemical agents.68
62 	See, supra, note 2.
63 	See, supra, note 42.
64 	See, supra, note 42; see also note 22.
65 	See, supra, note 22.
66 	See, supra, note 2.
67 	See, supra, notes 2, 22.
68 	See, supra, note 2.
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78. 	Plaintiff testified at his deposition that he is not alleging that Defendants Mailloux
or Dunning used any force on him on May 18, 2020.69
79. 	Defendants did not intervene at any point because they did not believe that any
other officer was violating Plaintiff’s constitutional rights.70
Plaintiff’s First Amendment Retaliation Claims
80. 	Plaintiff alleges that Defendant Locke retaliated against him based on “pending
litigation” for an incident that happened in 2018, and because Plaintiff had “written him up” in
the past.71
81. 	Plaintiff filed numerous grievances after the date of this incident while still at
Upstate C.F.72
82. 	Plaintiff filed a grievance about the incident on May 18, 2020, the same day.73
83. 	Defendant Locke denies retaliating against Plaintiff for any reason.74
84. 	The “pending litigation” against Defendant Locke that Plaintiff filed before the
incident on May 18, 2020, is Barnes v. Annucci, 9:19-CV-0109 (“Barnes 1”).75
69 	See, supra, note 2.
70 	See, supra, note 2.
71 	See, supra, note 2.
72 	See, supra, note 2.
73 	See, supra, note 2.
74 	See, supra, note 2.
75 	Plaintiff denies this fact “with clarification” and cites to an action that was commenced in
2023, more than three years after the incident that is the subject of this action. (Dkt. No. 149,
Attach. 1 at ¶ 85 [citing, inter alia, Barnes v. Finnegan, 9:23-CV-1490].)
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85. 	Barnes I was commenced on or about January 28, 2019, approximately sixteen
months before the incident that is the subject of this action.76
86. 	Defendant Locke was served with process for Barnes I on June 18, 2019,
approximately eleven months before the incident on May 18, 2020.77
87. 	Plaintiff has filed grievances against Defendant Locke but has not identified how
many times, the date of the grievance(s), or the date of Defendant Locke’s responses.78
88. 	Defendant Locke avers that neither the lawsuit nor any alleged grievances had any
bearing on the cell extraction, especially in light of the fact that Defendant Locke did not use any
force against Plaintiff.79
89. 	Plaintiff alleges that Defendant Basford used excessive force on May 18, 2020, in
retaliation for a grievance that Plaintiff filed against him before this incident.80
90. 	Plaintiff’s Amended Complaint alleged that Defendant Basford retaliated against
him based on “pending federal court litigation or settled actions.”81
76 	See, supra, note 2; the Court takes judicial notice of the fact that Barnes v. Finnegan, was
filed on or about November 29, 2023.
77 	See, supra, note 2.
78 	See, supra, note 2.
79 	See, supra, note 42; Defendants have supported this fact with a proper citation to the
record.
80 	See, supra, note 2.
81 	Plaintiff denies this and acknowledges that he did not have any pending litigation against
Defendant Basford at the time of the subject incident but asserts that “all staff of DOCCS are
usually hostile against a prisoner with litigation against staff.” (Dkt. No. 149, Attach. 1 at ¶ 91.)
This does not create a genuine dispute as to the fact asserted.
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91. 	Plaintiff filed a grievance dated May 6, 2020, to which, Defendant Basford
responded via memorandum on May 15, 2020.82
92. 	Defendant Basford contends that the grievance dated May 6, 2020, had no bearing
on the incident that took place on May 18, 2020. In addition, the grievance was not found to
have merit.83
93. 	The cell extraction on May 18, 2020, took place because a non-party staff
member informed Defendant Basford that Plaintiff was refusing to return his mess hall items
from his Ramadan evening meal.84
94. 	Even if Plaintiff had not filed the grievance dated May 6, 2020, Defendant
Basford asserts that he still would have used the force that he did on May 18, 2020, because it
was reasonable, appropriate, and within departmental guidelines.85
95. 	Defendant Basford is unaware of any litigation filed against him by Plaintiff
before the incident on May 18, 2020.
96. 	Plaintiff testified that he filed claims against Defendant Basford after the incident
on May 18, 2020.86
97. 	Plaintiff alleges that Defendant Dunning did not use any force against him during
the incident on May 18, 2020, but that he was there “promoting violence.”
82 	See, supra, note 2.
83 	Plaintiff’s response that he denies this fact “because it is crazy” (Dkt. No. 149, Attach. 1
at ¶ 93) does not create a genuine dispute as to the fact asserted. See, supra, note 39.
84 	Plaintiff’s citation to the record (Dkt. No. 149, Attach. 1 at ¶ 94 [citing Dkt. No. 149,
Attach. 2 at ¶¶ 31-32]) do not create a genuine dispute as to the fact asserted.
85 	See, supra, note 84.
86 	See, supra, note 2.
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98. 	Plaintiff alleges that Defendant Dunning retaliated against him based on “pending
federal court litigations or settled actions.”87
99. 	Defendant Dunning denies retaliating against Plaintiff for any pending litigation.
100. 	The only lawsuit that Defendant Dunning is aware of that Plaintiff filed against
him before the incident on May 18, 2020, was Barnes v. Fischer, 9:13-CV-0164 (“Barnes II”).88
101. 	Barnes II was commenced on or about February 12, 2013, over seven years
before the incident on May 18, 2020.89
102. 	Barnes II was resolved as a result of a jury trial held in September 2022.90
103. 	The jury found in the defendants’ favor in Barnes II.91
104. 	Defendant Dunning avers that even if Plaintiff had not filed Barnes II, he still
would have attended the cell extraction as directed by the watch commander and maintained the
information required for the Checklist.92
87 	See, supra, note 2.
88 	Plaintiff denies this fact asserted and cites to an action that he filed in 2022, Barnes v.
Dominic, 9:22-CV-0062. As a result, Plaintiff’s denial does not create a genuine dispute as to
the fact asserted.
89 	See, supra, note 2.
90 	See, supra, note 2.
91 	See, supra, note 2.
92 	Plaintiff denies this fact and states that Defendant “Dunning was working in 9 building at
Upstate with Basford and non-party Jarred Bulloch fro perhaps fifteen (15) years or more.”
(Dkt. No. 149, Attach. 1 at ¶ 105 [errors in original].) This denial does not create a genuine
dispute as to the fact asserted.
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105. 	Defendant Dunning contends that he did not intervene because the minimal
amount of force used on Plaintiff, which was memorialized on video, was reasonable,
appropriate, and within departmental guidelines.93
106. 	Plaintiff alleges that Defendant Lamica used excessive force on May 18, 2020, in
retaliation for “pending litigation against him.”94
107. 	Plaintiff alleges that Defendant Lamica used excessive force on May 18, 2020, in
retaliation for filing grievances against him.95
108. 	Defendant Lamica denies retaliating against Plaintiff based on any pending
litigation.96
109. 	Other than the instant action, the only other lawsuits that Defendant Lamica is
aware of that Plaintiff filed against him are Barnes I, and Barnes v. Hochul, 9:23-CV-1490
(“Barnes III”).97
110. 	Barnes I was commenced on or about January 28, 2019, approximately sixteen
months before the incident that is the subject of this action.98
93 	Plaintiff’s denies this fact asserted, which he characterizes as a “cock-and-bull story” and
he objects to because Defendant Dunning does not specify which video he is referring to (Dkt.
No. 149, Attach. 1 at ¶ 106 [citing Dkt. No. 117].) This denial does not create a genuine dispute
as to the fact asserted. See, supra, note 39.
94 	See, supra, note 2.
95 	See, supra, note 2.
96 	See, supra, note 2.
97 	See, supra, note 2.
98 	See, supra, note 2.
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111. 	Barnes III was commenced on or about November 29, 2023, over three years after
the incident on May 18, 2020.99
112. 	Defendant Lamica recalls responding to grievances Plaintiff filed against him but
does not recall the exact dates of the grievances or the dates that he responded to his grievances.
113. 	Plaintiff does not recall when he filed grievances against Defendant Lamica.100
114. 	None of the grievances against Defendant Lamica were ever found to have
merit.101
115. 	Defendant Lamica avers that he did not retaliate against Plaintiff in any way
because he filed grievances.102
116. 	Defendant Lamica did not retaliate against Plaintiff by using excessive force
because he did not use any force against Plaintiff on May 18, 2020, except to handcuff him in
accordance with DOCCS directives.103
117. 	Defendant Lamica avers that even if Plaintiff had not filed the grievances or prior
lawsuit, he would not have intervened on May 18, 2020, because the minimal amount of force
99 	Plaintiff denies this fact “because the accrual of Barnes v. Finnegan was actually 2020
and 2022 with Basford, Lamica and Locke.” (Dkt. No. 149, Attach. 1 at ¶ 112.) This denial
does not create a genuine dispute as to the fact asserted.
100 	See, supra, note 2.
101 	Plaintiff denies this fact “because these grievance investigations are bias and prejudice
mared with sargent culprit overseeing investigation to assure all reports are collaborated.” (Dkt.
No. 149, Attach. 1 at ¶ 115 [errors in original].) This denial does not create a genuine dispute as
to the fact asserted. See, supra, note 39.
102 	See, supra, note 42.
103 	Plaintiff improperly denies this fact by questioning the credibility of Defendant Lamica.
See, supra, note 39.
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used on Plaintiff, which was memorialized on video, was reasonable, appropriate, and within
departmental guidelines.104
118. 	Plaintiff received a misbehavior ticket as a result of the incident on May 18, 2020,
charging him with violating DOCCS Directives 107.10 (interference with employee), 106.10
(refusing direct order), and 115.10 (refuse search or frisk).105
119. 	After Plaintiff was found guilty on all charges, he appealed the decision, and the
punishment was modified from 90 days in the Special Housing Unit to 45 days in the Special
Housing Unit.106
D. 	Plaintiff’s Statement of Undisputed Material Facts
Plaintiff did not file a statement of material facts in support of his cross-motion for
summary judgment as required by N.D.N.Y. L.R. 56.1(a). (Dkt. No. 164 at 1-2 [acknowledging
that Plaintiff filed a response to Defendants’ statement of material facts but had “no knowledge”
of the requirement that he file his own]; see Dkt. No. 149.)
II. 	RELEVANT LEGAL STANDARDS
A. 	Standard Governing a Motion for Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty
104 	See, supra, note 103.
105 	See, supra, note 2.
106 	See, supra, note 2.
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Lobby, Inc., 477 U.S. 242, 248 (1986).107 As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e). Moreover, “[i]n instances where a video indisputably establishes certain facts,
contrary evidence is insufficient to create a genuine dispute of material fact and may be
disregarded.” I.S. by and through Disla v. Binghamton City Sch. Dist., 19-CV-0513, 2024 WL
3804110, at *13 (N.D.N.Y. Feb. 1, 2024) (Suddaby, J.) (citing Scott v. Harris, 550 U.S. 372, 380
(2007) (“When opposing parties tell two different stories, one of which is blatantly contradicted
by the record, so that no reasonable jury could believe it, a court should not adopt that version of
the facts for purposes of ruling on a motion for summary judgment.”); Jeffreys v. City of New
York, 426 F.3d 549, 554-55 (2d Cir. 2005) (noting that, while it is not the duty of a district court
to weigh the credibility of the parties on a summary judgment motion, a court may disregard a
version of events that is based solely on the party’s own contradictory and incomplete testimony
107 	As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to
create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation
omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
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so long as there is no evidence in the record upon which a reasonable factfinder could find in the
party’s favor)).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute–even if that non-
movant is proceeding pro se.108 (This is because the Court extends special solicitude to the pro
se litigant largely by ensuring that he or she has received notice of the consequences of failing to
properly respond to the motion for summary judgment.)109 As has often been recognized by both
the Supreme Court and Second Circuit, even pro se litigants must obey a district court’s
procedural rules.110
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 56.1. What the non-movant’s failure to respond to the motion does is lighten the
movant’s burden.
108 	Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.)
(citing cases).
109 	Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases).
110 	Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
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For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set
forth in a movant’s statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement111–even when the non-movant was proceeding pro se.112
Similarly, in this District, where a non-movant has willfully failed to respond to a
movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that memorandum of law under Local
Rule 7.1(a)(3).113 Stated another way, when a non-movant fails to oppose a legal argument
asserted by a movant, the movant may succeed on the argument by showing that the argument
possesses facial merit, which has appropriately been characterized as a “modest” burden. See
N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
111 	Among other things, Local Rule 56.1 (previously contained in Local Rule 7.1(a)(3))
requires that the non-movant file a response to the movant’s Statement of Material Facts, which
admits or denies each of the movant’s factual assertions in matching numbered paragraphs, and
supports any denials with a specific citation to the record where the factual issue arises.
N.D.N.Y. L.R. 56.1.
112 	Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan,
253 F. Supp. 2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to
“perform an independent review of the record to find proof of a factual dispute.”).
113 	See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004)
(McCurn, J.) (deeming plaintiff’s failure to respond to “aspect” of defendant’s motion to exclude
expert testimony as “a concession by plaintiff that the court should exclude [the expert’s]
testimony” on that ground).
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30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009
WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
B. 	Standard Governing an Excessive Force or Failure to Intervene Claim
Pursuant to the Eighth Amendment
A prisoner raising an excessive force claim pursuant to 42 U.S.C. § 1983 must show that
there has been a violation of the Eighth Amendment’s prohibition against the use of cruel and
unusual punishment. See Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). “A claim of cruel
and unusual punishment in violation of the Eighth Amendment has two components—one
subjective, focusing on the defendant’s motive for his conduct, and the other objective, focusing
on the conduct’s effect.” Wright, 554 F.3d at 268 (citing Hudson v. McMillian, 503 U.S. 1, 7-8,
(1992)). “The subjective component of the claim requires a showing that the defendant had the
necessary level of culpability, shown by actions characterized by ‘wantonness’ in light of the
particular circumstances surrounding the challenged conduct,” which, in this context, depends on
“whether the force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Harris v. Miller, 818 F.3d 49, 63 (2d Cir. 2016)
(internal quotation marks and citations omitted). Several factors are relevant to the analysis of
the subjective element, including: “the extent of the injury and the mental state of the defendant,
as well as ‘the need for the application of force; the correlation between that need and the
amount of force used; the threat reasonably perceived by the defendants; and any efforts made by
the defendants to temper the severity of a forceful response.’” Scott v. Coughlin, 344 F.3d 282,
291 (2d Cir. 2003) (quoting Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993)).
The objective component “focuses on the harm done, in light of ‘contemporary standards
of decency,’” and “[i]n assessing this component, the court must ask whether ‘the alleged
wrongdoing was objectively “harmful enough” to establish a constitutional violation.’” Wright,
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554 F.3d at 268 (citations omitted). However, “when prison officials use force to cause harm
maliciously and sadistically, ‘contemporary standards of decency always are violated . . . . This
is true whether or not significant injury is evident.’” Id. at 268-69 (citing Hudson, 503 U.S. at 9).
Furthermore, “[p]rison officials can be held liable under 42 U.S.C. § 1983 for failing to
intervene in a situation where another official is violating an inmate’s constitutional rights,
including the use of excessive force, in their presence.” Randolph v. Griffin, 816 F. App’x 520,
523 (2d Cir. 2020) (citing Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001)). A
corrections officer may be liable under a failure-to-intervene theory if: “(1) the officer had a
realistic opportunity to intervene and prevent the harm; (2) a reasonable person in the officer’s
position would know that the victim’s constitutional rights were being violated; and (3) the
officer does not take reasonable steps to intervene.” Jean-Laurent v. Wilkinson, 540 F. Supp. 2d
501, 512 (S.D.N.Y. 2008) (citing O'Neill v. Krzeminski, 839 F.2d 9, 11-12 (2d Cir. 1998)), aff'd
sub nom. Jean-Laurent v. Wilkerson, 461 F. App’x 18 (2d Cir. 2012).
C. 	Standard Governing a Retaliation Claim Pursuant to the First Amendment
To establish a claim of retaliation under the First Amendment, a plaintiff must present
evidence that: (1) he engaged in speech or conduct that was “protected;” (2) the defendants took
an “adverse action” against the plaintiff—namely, action that would deter a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was
a causal connection between the protected speech and the adverse action—in other words, that
the protected conduct was a “substantial or motivating factor” in the defendant’s decision to take
action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). The Second Circuit
has stated that courts must approach prisoner retaliation claims “with skepticism and particular
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care,” since “virtually any adverse action taken against a prisoner by a prison official—even
those otherwise not rising to the level of a constitutional violation—can be characterized as a
constitutionally proscribed retaliatory act.” Dawes v. Walker, 239 F.3d 489,491 (2d Cir. 2001),
overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (citing
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)).
Indeed, “a plaintiff asserting such a claim bears a heightened burden of proof and must
plead the claim with particularity.” Rucano v. Annucci, 18-CV-0218, 2021 WL 3293504
(N.D.N.Y. May 19, 2021) (citing Green v. Phillips, 04-CV-10202, 2006 WL 846272, at *3
(S.D.N.Y. Mar. 31, 2006)); 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, 03-CV-0480, 2006 WL
1133247, at *3 (N.D.N.Y. Apr. 24, 2006) (internal quotation marks and citations omitted).
It is undisputed that filing a grievance or commencement of a lawsuit constitute protected
activity. See Zimmerman v. Racette, 17-CV-0375, 2020 WL 3038275, at *16 (N.D.N.Y. Jan. 24,
2020), report and recommendation adopted, 2020 WL 1329138 (N.D.N.Y. Mar. 23, 2020).
III. 	ANALYSIS
At the outset, Plaintiff’s cross-motion for summary judgment (Dkt. No. 149) is denied
pursuant to N.D.N.Y. L.R. 56.1(a), which states that “[f]ailure of the moving party to submit an
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accurate and complete Statement of Material Facts shall result in a denial of the motion.”
N.D.N.Y. L.R. 56.1(a) (emphasis in original). In the alternative, Plaintiff’s cross motion for
summary judgment is denied for the reasons set forth below.
A. 	Eighth Amendment Excessive Force/Failure to Intervene Claims
After carefully considering the matter, Defendants’ motion for summary judgment
seeking dismissal of Plaintiff’s Eighth Amendment excessive force and failure to intervene
claims is granted for the reasons stated in their memoranda of law. (Dkt. No. 115, Attach. 1 at 9-
26.) The following is intended to supplement—not supplant—those reasons.
1. 	Use of Chemical Agents
The only Defendants that Plaintiff alleges used excessive force with respect to the use of
chemical agents are Defendants Tatro and Basford. More specifically, Plaintiff alleges that
Defendant Tatro authorized the chemical agent and Defendant Basford deployed the chemical
agent.
A court’s review of an officer’s use of a chemical agent will depend on the manner in
which the chemical agent was used. See Quinones v. Rollison, 18-CV-1170, 2020 WL 6420181,
at *4-5 (S.D.N.Y. Nov. 1, 2020) (explaining that the inquiry is “context specific’”) (citations
omitted). Courts have found that the use of a chemical agent to maintain or restore discipline
among incarcerated individuals does not amount to excessive force “if the force was applied in a
good-faith effort.” Stinson v. City of New York, 18-CV-0027, 2021 WL 3438284, at *13
(S.D.N.Y. July 6, 2021); see also Beauvoir v. Falco, 345 F. Supp. 3d 350, 369 (S.D.N.Y. 2018)
(granting defendants summary judgment in a § 1983 case because the “use of the pepper spray . .
. was permissible in the context of needing to maintain a baseline of order in the prison system,”
where “Plaintiff repeatedly resisted multiple officers’ orders”); Berry v. City of New York, 12-
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39
CV-7819, 2014 WL 2158518, at *5 (S.D.N.Y. May 22, 2014) (granting summary judgment in
favor of officer where he used pepper spray to break up violent fight between inmates); Boomer
v. Lanigan, 00-CV-5540, 2002 WL 31413804, at *5-6 (S.D.N.Y. Oct. 25, 2002) (holding that
correction officer did not use excessive force when he sprayed “chemical agent” at pre-trial
detainee, after detainee refused to follow repeated orders to remove his arm from food slot in his
cell).
The record is clear that Defendant Basford sprayed the chemical agent into Plaintiff’s
cell. (Dkt. No. 115, Attach. 17 at ¶ 10.) “He alone, therefore, could be the proper Defendant to
such a claim.” Mason v. Moore, 17-CV-1086, 2020 WL 555943, at *3 (N.D.N.Y. Jan. 13, 2020)
(Stewart, M.J.), report and recommendation adopted, 2020 WL 554816 (N.D.N.Y. February 4,
2020) (Sharpe, J.).
The record fails to establish any degree of the wantonness required to assert an Eighth
Amendment claim. The cell extraction resulted from Plaintiff’s refusal to leave his cell. (Dkt.
No. 115, Attach. 5 at 45 [“Q: Did -- did Sergeant Basford then order you to exit your cell so that
they could search the cell? A: Right.”]; Dkt. No. 117 at 00:24; Dkt. No. 115, Attach. 17 at ¶¶ 6-
10; Dkt. No. 115, Attach. 15 at ¶ 6; Dkt. No. 115, Attach. 24 at ¶ 6; Dkt. No. 115, Attach. 27 at ¶
6; Dkt. No. 115, Attach. 29 at ¶ 9; Dkt. No. 115, Attach. 31 at ¶ 7; Dkt. No. 115, Attach. 33 at ¶
6; Dkt. No. 115, Attach. 35 at ¶ 6; Dkt. No. 115, Attach. 39 at ¶¶ 6-8.) The record establishes
that security staff made numerous attempts to get Plaintiff to exit his cell before resorting to an
extraction, including (1) direct orders from Defendant Tatro, (2) direct orders from other
DOCCS employees, (3) DOCCS’s Crisis Intervention Unit spoke with Plaintiff, and (4) the
assembly of a cell extraction team. (Dkt. No. 115, Attach. 39 at ¶¶ 5-8; Dkt. No. 115, Attach. 17
at ¶ 9; Dkt. No. 115, Attach. 20; Dkt. No. 115, Attach. 5 at 48 [“Q: Were you aware that there
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was an extraction team that was outside your cell on May 18th? A: What you mean extraction?
Yes. . . . Q: So, officers waiting to extract you out of your cell? A: Right. Q: Okay. So you
were aware that there was officers outside your cell? A: I could see them.”].) After the incident,
Plaintiff was immediately taken to a decontamination shower. (Dkt. No. 117 at 02:15-03:12;
Dkt. No. 115, Attach. 5 at 50; Dkt. No. 115, Attach. 15 at ¶ 6; Dkt. No. 115, Attach. 17 at ¶ 10;
Dkt. No. 115, Attach. 24 at ¶ 6; Dkt. No. 115, Attach. 27 at ¶ 6; Dkt. No. 115, Attach. 29 at ¶ 9;
Dkt. No. 115, Attach. 31 at ¶ 7; Dkt. No. 115, Attach. 33 at ¶ 6; Dkt. No. 115, Attach. 35 at ¶ 6;
Dkt. No. 115, Attach. 39 at ¶ 8.)
“In evaluating the use of a chemical agent in a prison setting, courts have refused to find
actionable conduct where, as here, the deployment was used in a good-faith effort to maintain or
restore discipline.” Mason v. Moore, 2020 WL 555943, at *3 (quoting Anderson v. Darby, 15-
CV-0635, 2017 WL 933085, at *5 (E.D.N.Y. Feb. 13, 2017), report and recommendation
adopted, 2017 WL 927611 (E.D.N.Y. Mar. 6, 2017)).
Moreover, because Plaintiff’s primary excessive force claim regarding the use of
chemical agents is dismissed, the corresponding failure to intervene claim must also be
dismissed. Posner v. City of New York, 11-CV-4859, 2014 WL 185880, at *8 (S.D.N.Y. Jan. 16,
2014); Matthews v. City of New York, 889 F. Supp. 2d 418, 443-44 (E.D.N.Y. 2012). In the
alternative, as set forth in Defendants’ moving memorandum of law, Plaintiff “has not and
cannot present any evidence from which a jury could conclude that Defendants were in a
position to prevent any harm from occurring” where the “chemical agents were deployed in two,
1-second bursts, which did not provide any of the other defendants an opportunity to intervene.”
(Dkt. No. 115, Attach. 1 at 18-19.)
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For each of these reasons, Defendants’ motion for summary judgment is granted as to any
Eighth Amendment claim regarding the use of chemical agents.
2. 	Handcuffs
“[W]hile handcuffs must be reasonably tight to be effective, overly tight handcuffing may
constitute excessive force.” Lynch ex rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459,
468 (S.D.N.Y. 2008). Rather, courts have held that tight handcuffing gives rise to an Eighth
Amendment claim when “1) the handcuffs were unreasonably tight; 2) the defendants ignored
the [plaintiff's] pleas that the handcuffs were too tight; and 3) [there is a] degree of injury to the
wrists.” Boyd v. Doe #1, 18-CV-1333, 2019 WL 1771501, at *8 (N.D.N.Y. Apr. 23, 2019)
(McAvoy, J.) (quoting Lynch ex rel. Lynch, 567 F. Supp. 2d at 468; citing Benitez v. Locastro,
04-CV-0423, 2010 WL 419999, at *1, *12 (N.D.N.Y. Jan. 29, 2010) (Mordue, C.J.) (dismissing
Eighth Amendment claim based on tight handcuffing where plaintiff failed to “allege for how
long the handcuffs and shackles were applied, [ ]or the circumstances of their application”)).
As set forth by Defendants, at no point while being handcuffed or during his escort to the
decontamination room did Plaintiff complain that his handcuffs were too tight or that anyone was
twisting or pulling on the handcuffs. (Dkt. No. 117 at 01:20-03:03.) Although Plaintiff’s
handcuffs are not visible for the entire duration of his escort to the decontamination room, when
they are out of view, it is still clear that no one was twisting or pulling on the handcuffs based on
the body positioning of Defendants. (Id.) In addition, Plaintiff’s allegation that he complained
about his handcuffs while in the decontamination room is contradicted by the video footage. (Id.
at 03:04-04:17.) It was not until Plaintiff was examined by the nurse that he complained about
his handcuffs or wrists. (Id. at 06:58.) Plaintiff’s handcuffs were removed approximately seven
minutes later after he was photographed. (Id. at 14:38.)
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Thus, Plaintiff fails to establish the subjective prong that the handcuffs were applied in a
way that was “maliciously or sadistically to cause harm.” Harris, 818 F.3d at 63. Moreover,
Plaintiff fails to present evidence that he sustained more than a de minimis injury from the
allegedly tight handcuffs.
Further, because Plaintiff’s primary excessive force claim regarding the use of handcuffs
is dismissed, the corresponding failure to intervene claim must also be dismissed. Posner v. City
of New York, 11-CV-4859, 2014 WL 185880, at *8.
In the alternative, any claims against Defendant Paige are dismissed for lack of personal
involvement. (Dkt. No. 115, Attach. 1 at 23; Dkt. No. 115, Attach. 36.) Any failure to intervene
claims against Defendants Tatro, Basford, Barnes, Mailloux, Jeffrey, Dunning, and Locke are
dismissed, in the alternative, because Plaintiff fails to demonstrate that a reasonable person in
their position would know that Plaintiff’s constitutional rights were being violated.
For each of these reasons, Defendants’ motion for summary judgment is granted as to any
Eighth Amendment claim regarding the use of handcuffs.
3. 	Decontamination Shower
The video establishes that Plaintiff was able to speak to Defendants while in the
decontamination room and was only in the decontamination room for approximately 60 seconds.
(Dkt. No. 117 at 03:15-04:15.) Although Plaintiff is not visible in the video, he is right off
screen and the video is clear that Plaintiff was not lifted in the air or dropped on the floor as he
alleges. (Id.) Although Plaintiff complains during the video of difficulty breathing (Dkt. No.
117 at 03:20), he continues to vocalize complaints about breathing even after exiting the
decontamination room (id. at 06:25, 7:19).
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To the extent that Plaintiff’s decontamination claim is premised on Defendants
“drowning” him in the shower it must also be dismissed. Defendants can be heard in the video
instructing Plaintiff to look up at the water to flush his eyes of the chemical agent. (Dkt. No. 117
at 03:25, 03:40, 03:53.) Hence, the objective of the decontamination process involved Plaintiff’s
head being under the water.
Further, because Plaintiff’s primary excessive force claim regarding the decontamination
shower is dismissed, the corresponding failure to intervene claim must also be dismissed.114
Posner v. City of New York, 11-CV-4859, 2014 WL 185880, at *8.
For each of these reasons, Defendants’ motion for summary judgment is granted as to any
Eighth Amendment claim regarding the decontamination shower.
B. 	First Amendment Retaliation Claims
After carefully considering the matter, Defendants’ motion for summary judgment
seeking dismissal of Plaintiff’s First Amendment retaliation claims is granted.115
As an initial matter, the adverse action that Plaintiff asserts Defendants Locke, Basford,
Lamica, and Dunning took was using excessive force. Because Plaintiff’s underlying excessive
114 	In the alternative, Plaintiff’s claim against Defendant Paige is dismissed for lack of
personal involvement. (Dkt. No. 115, Attach. 1 at 25; Dkt. No. 115, Attach. 36.)
115 	To the extent that Defendants argue that Plaintiff “cannot set forth sufficient evidence
that the alleged retaliatory action was adverse enough to deter him from exercising his
constitutional rights,” the Court rejects that argument. (Dkt. No. 115, Attach. 1 at 28, accord
Dkt. No. 115, Attach. 1 at 33-35; Dkt. No. 161, Attach. 1 at 18, 20, 21, 22.) Plaintiff must
demonstrate that Defendants took an adverse action against him that would “deter a similarly
situated individual of ordinary firmness from exercising his or her constitutional rights.” Wrobel
v. Cnty. of Erie, 692 F.3d 22, 31 (2d Cir. 2012) (quoting Zelnik v. Fashion Inst. of Tech., 464
F.3d 217, 225 (2d Cir. 2006)); accord Persaud v. City of New York, 22-CV-2919, 2024 WL
2159852, at *4 (S.D.N.Y. May 14, 2024) (citing Specht v. City of New York, 15 F.4th 594, 604
(2d Cir. 2021)). “[T]his objective test applies even where a particular plaintiff was not himself
subjectively deterred; that is, where he continued to file grievances and lawsuits.” Gill v.
Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004).
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force claims are dismissed, he fails to establish that Defendants Locke, Basford, Lamica, and
Dunning took any adverse action against him.
1. 	Defendant Locke
Moreover, in the alternative, Plaintiff fails to establish a causal connection between his
alleged protected conduct—in commencing Barnes I—and the incident at issue in this action.
Plaintiff only raises temporal proximity as a basis for inferring a causal connection. (Dkt. No.
149, Attach. 3.) However, temporal proximity alone “is insufficient to defeat [a motion for]
summary judgment.”116 Schmiege v. Stachowski, 22-CV-1371, 2026 WL 698799, at *5
(N.D.N.Y. Mar. 12, 2026) (Coombe, J.) (citing Williams v. King, 763 F. App'x 36, 38-39 (2d Cir.
2019) (“The only evidence demonstrating a retaliatory motive is temporal proximity which,
alone, is insufficient to defeat summary judgment.”).
116 	Moreover, even if temporal proximity alone was sufficient to defeat a motion for
summary judgment, the proximity of Barnes I to the events on May 18, 2020, does not strongly
favor an inference of causation. While the Second Circuit “has not drawn a bright line to define
the outer limits” of temporal proximity in retaliation cases, Espinal v. Goord, 558 F.3d 119, 129
(2d Cir. 2009), a gap of approximately sixteen-months is longer than most that are found to
support a causal connection. See, e.g., Gorman–Bakos v. Cornell Co-op Ext. of Schenectady
Cty., 252 F.3d 545, 554 (2d Cir. 2001) (finding five-month gap sufficiently short to support
inference of causal connection); Espinal, 558 F.3d at 129 (finding six-month gap sufficiently
short). However, it is relevant that Barnes I was ongoing at the time of the incident on May 18,
2020. See Cruz v. Lee, 14-CV-4870, 2016 WL 1060330, at *7 (S.D.N.Y. Mar. 15, 2016)
(finding temporal proximity sufficient to support retaliation for filing lawsuit where lawsuit was
ongoing). Given that the Barnes I was ongoing, but Plaintiff does not identify anything relevant
occurred in the lawsuit near in time to the alleged retaliatory acts, and the suit was filed
approximately sixteen months prior to the alleged acts, this factor would not strongly favor an
inference of causation. See Lewis v. Hanson, 18-CV-0012, 2022 WL 991729, at *21 (N.D.N.Y.
Mar. 31, 2022) (Kahn, J.) (finding that because the underlying lawsuit “was ongoing, but nothing
occurred in the lawsuit near in time to the alleged retaliatory acts, and the suit was filed ten
months prior to the alleged acts, the Court finds this factor does not strongly favor, nor disfavor,
an inference of causation.”).
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2. 	Defendant Basford
In the alternative, as set forth above, in part III.B.1., temporal proximity alone is
insufficient to withstand a motion for summary judgment. Plaintiff’s only purported basis for
establishing a causal connection between Plaintiff’s protected conduct in filing grievance UST-
0295-20 and the incident on May 18, 2020, is temporal proximity. (Dkt. No. 149, Attach. 3 at 10
[“this constitutionally protected conduct engagement on May 15, 2020 its close proximity of
three(3) days after investigation of defendant Basford is eerily shocking to conscience . . .”]; Dkt.
No. 149, Attach. 3 at 20 [“plaintiff engaged in constitutionally protected conduct [that] is just so
chillingly shockingly eerie how close of a causal connection the proximity is of Basford
retaliation and the totality of the heartlessness of his extremes.”].)
3. 	Defendant Lamica
In the alternative, as set forth above, in part III.B.1., temporal proximity alone is
insufficient to withstand a motion for summary judgment. Moreover, as set forth above in note
116, even if temporal proximity alone was sufficient to defeat a motion for summary judgment,
the proximity of Barnes I to the events on May 18, 2020, does not strongly favor an inference of
causation. (Dkt. No. 149, Attach. 3 at 21.) To the extent that Plaintiff attempts to assert that the
filing of Barnes III was the protected conduct, it post-dates the alleged adverse action here and
thus, cannot be causally connected. (Id.)
4. 	Defendant Dunning
As set forth above, in part III.B.1., temporal proximity alone is insufficient to withstand a
motion for summary judgment. Moreover, as set forth above in note 116, even if temporal
proximity alone was sufficient to defeat a motion for summary judgment, the proximity of
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Barnes II, which was commenced in 2013, to the events on May 18, 2020, does not strongly
favor an inference of causation.
For each of these reasons, Defendants’ motion for summary judgment is granted as to any
First Amendment retaliation claims.
IV. 	MOTION TO COMPEL
A mandatory pretrial discovery and scheduling order was issued on October 4, 2023.
(Dkt. No. 27.) The Court ordered that discovery shall be completed by April 4, 2024. (Id. at 5.)
That deadline was later extended until May 20, 2024 (Dkt. No. 53), July 19, 2024 (Dkt. No. 55),
September 17, 2024 (Dkt. No. 61), November 1, 2024 (Dkt. No. 65), and January 3, 2025 (Dkt.
No. 72). Local Rule 16.2 provides in relevant part that “[p]arties shall file and serve motions to
compel discovery no later than fourteen (14) days after the discovery cut-off.” To the extent that
Plaintiff’s cross-motion for summary judgment and response in opposition to Defendants’
motion for summary judgment is construed as a motion to compel pursuant to Fed. R. Civ. P. 37
(Dkt. No. 149, Attach. 3 at 16-17), it was filed more than nine months after the discovery
deadline. Plaintiff’s motion is therefore untimely.117
Even if timely filed, Plaintiff’s Fed. R. Civ. P. 37 motion to compel, which the Court
treats as a motion pursuant to Fed. R. Civ. P. 56(d), is nevertheless denied. Under Fed. R. Civ.
P. 56(d), “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any
117 	Plaintiff’s motion to compel is perplexing considering that he simultaneously filed a
cross-motion for summary judgment. (See generally Dkt. No. 149.) “Having filed a motion for .
. . summary judgment, logic dictates that Plaintiff must have determined that he did not require
any additional information to advance his legal and/or factual arguments.” Rodriguez v.
Gusman, 22-CV-0181, 2024 WL 4463459, at *12 n.7 (N.D.N.Y. July 24, 2024) (Katz, M.J.)
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47
other appropriate order.” Fed. R. Civ. P. 56(d). A party resisting summary judgment on the
basis that it needs discovery must submit an affidavit showing the following: “(1) what facts are
sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably
expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain
them, and (4) why the affiant was unsuccessful in those efforts.” Miller v. Wolpoff & Abramson,
L.L.P., 321 F.3d 292, 303 (2d Cir. 2003) (internal quotations and citation omitted). Relatedly, a
discovery schedule set by the court can only be modified for good cause, which “depends on the
diligence of the moving party.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.
2000).
Plaintiff has made no showing that he has been deprived of any information that is
germane to the prosecution of his cross motion for summary judgment or to the defense of
Defendants’ motion for summary judgment. Absent from Plaintiff’s submission is any plausible
explanation as to how the information he seeks is relevant to the alleged deprivation of his
constitutional rights and how Defendants retaliated and used excessive force. The information
Plaintiff seeks production of is not material to whether Defendants used unreasonable force
sadistically and maliciously on May 18, 2020.
Under these circumstances, Plaintiff has not shown good cause for reopening discovery at
this late stage. Accordingly, Plaintiff's request is denied. See Lundstedt v. JP Morgan Chase
Bank, N.A., 853 F. App’x 704, 708 (2d Cir. 2021) (upholding the district court’s decision to not
reopen discovery where the pro se plaintiff had “ample time to identify and disclose an expert
witness during the discovery period”).
ACCORDINGLY, it is
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48
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 115) is
GRANTED; and it is further
ORDERED that Plaintiff’s cross-motion for summary judgment (Dkt. No. 149) is
DENIED; and it is further
ORDERED that the Amended Complaint (Dkt. No. 77) is DISMISSED; and it is further
ORDERED that Plaintiff’s motion to compel discovery (Dkt. No. 149) and motion to
defer consideration of Defendants’ motion for summary judgment is DENIED; and it is further
ORDERED that the Clerk of Court shall enter Judgment for Defendants and close this
action; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Decision and Order on the
docket of this case and serve a copy upon the parties in accordance with the local rules.118
Dated: March __, 2026
Binghamton, New York
118 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
24
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Anderson v. Darby, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Urena v. City of New York, S.D.N.Y., September 10,
2024
2017 WL 933085
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Kyle D. ANDERSON, Plaintiff,
v.
DARBY, Officer Badge #3767, Ludewig,
officer, and Paz, Sgt. Badge #26, Defendants.
CV 15-0635 (JFB) (GRB)
|
Signed 02/13/2017
Attorneys and Law Firms
Kyle D. Anderson, Hempstead, NY, pro se.
Thomas Lai, Nassau County Attorney Office, Mineola, NY,
for Defendants.
REPORT AND RECOMMENDATION
GARY R. BROWN, United States Magistrate Judge
*1 Plaintiff, KYLE D. ANDERSON, proceeding pro
se, filed this action pursuant to 42 U.S.C. § 1983,
seeking redress for alleged improper treatment during
his incarceration at the Nassau County Correctional
Center (“NCCC”), most notably, the use of “O.C.
Spray,” 1 by the defendants during an altercation. Defendants,
CORRECTION OFFICER MICHAEL DALY, Shield #3076
s/h/a DARBY, Officer Badge #3767; CORRECTION
OFFICER GLENN LUDEWIG, Badge #2760 s/h/a
LUDEWIG, officer, and SERGEANT PAV, Shield #296
s/h/a PAZ, Sgt. Badge #26, (hereinafter referred to as
the “Defendants”) move for summary judgment, which
motion has been referred to the undersigned for report
and recommendation. For the reasons set forth herein, it is
respectfully recommended that the Court grant that motion in
all respects. For avoidance of doubt or confusion, plaintiff
is hereby cautioned, as discussed in the Objections
section at the end of this Report and Recommendation,
that failure to file objections within fourteen (14)
days will preclude further review of this report and
recommendation either by the District Court or Court of
Appeals.
Procedural History
Plaintiff commenced this action by the filing of a complaint
on or about February 2, 2015, seeking compensatory damages
in the amount of $1.8 million. 2 DE 1. Defendants filed
an answer on May 4, 2015. DE 11. Consistent with the
Scheduling Order and the rules of this Court, plaintiff filed a
narrative statement on June 17, 2015, which he later revised,
and defendants filed a responsive statement on July 29, 2015.
DEs 14-15, 21. On March 23, 2016, defendants filed the
instant motion for summary judgment, which included all
of the requisite notices and filings, including the mandated
notice to a pro se as well as a 56.1 statement. DE 29. On
October 6, 2016, the motion was referred to the undersigned
for report and recommendation. DE 31.
On May 2, 2016, plaintiff requested an extension to respond
to the summary judgment motion, which request was granted,
and the Court allowed plaintiff until June 17, 2016 to file his
opposition papers. DE 30; Electronic Order dated 5/4/2016.
No response was filed by that date. On November 28, 2016,
plaintiff filed a letter seeking a second extension of time to
respond to the summary judgment motion, which extension
was granted, allowing plaintiff to file a response by January
20, 2017. DEs 32-33. Notwithstanding the grant of two
extensions of time, and the failure of plaintiff to comply with
the first court-imposed deadline, to date no response to the
motion has been received by the Court.
Facts
*2 The uncontested facts, largely taken from defendants'
statement pursuant to Local Rule 56.1, include the following:
Plaintiff was an inmate at NCCC in or around December
2014, during which time an altercation occurred resulting
in the plaintiff being sprayed with pepper spray. DE 29-12,
¶ 1. Well before the incident, upon admission to NCCC,
consistent with standard practice, plaintiff was issued a copy
of a booklet entitled “Inmate Handbook,” which is also
known as the Inmate Rules and Regulations, receipt of which
was acknowledged by the plaintiff. Id. ¶¶ 6-7 (citing Ex.
C thereto). Importantly, the handbook contains instructions
concerning grievance procedures at the facility. Id.
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Anderson v. Darby, Not Reported in Fed. Supp. (2017)
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On or about December 18, 2014, 3 defendant Daly (“CO
Daly”) was assigned to the NCCC, working as a Patrol Officer
in the E02-E housing area. Id. ¶¶ 9-10. CO Daly advised
Plaintiff that he needed to return his shaving razor because
medical unit staff was on post to distribute medication. Id. ¶
11. Although plaintiff complied with CO Daly’s directive to
return his shaving razor, he became enraged and aggressive.
Id. ¶¶ 12-13. CO Daly ordered Plaintiff to lock in his
cell during the medication distribution, and plaintiff again
complied with this directive. Id. ¶¶ 14-15. CO Daly escorted
the nurse over to Plaintiff’s cell, and opened the “feeding slot”
to supervise Plaintiff receiving his medication, but plaintiff
refused his medication. Id. ¶¶ 16-18.
At this point, according to all accounts (including the
plaintiff’s own characterization of his behavior), plaintiff
stated “Go f**k yourself pig!” to Daly and the nurse. Id. ¶
19; cf. DE 21. Plaintiff contends that his aggressive behavior
toward the guards was incited, in part, by their use of
inappropriate language with him. DE 21. After escorting the
nurse from the area, Daly returned to secure the feeding slot.
DE 29-12, ¶¶ 20-21. Plaintiff continued to act aggressively,
stating “F**k you pigs, I don't respect you;” “I will bury all of
you p*ssies on this floor;” and “I hope you open my gate.” Id.
¶ 22. Daly directed Plaintiff to move his hands so that he could
close the feeding slot. Id. ¶ 23. Not only did plaintiff refuse,
but plaintiff proceeded to grab CO Daly’s right arm and pulled
CO Daly into the feeing slot and attempted to spit at CO Daly
through the side crack in the cell gate. Id. ¶¶ 24-25.
Daly issued loud verbal commands for Plaintiff to let go
of his arm. Id. Notwithstanding loud verbal commands to
release the corrections officer, Anderson continued to pull CO
Daly into the feeding slot. Id. ¶¶ 26-27. Still being held by
the plaintiff, Daly deployed four bursts of pepper spray to
Plaintiff’s face, causing plaintiff to release the officer. Id. ¶¶
28-29. According to medical records, Plaintiff was provided
with medical treatment, and the only injury received was a
burning sensation to both eyes. Id. ¶¶ 30-31; see Exhibit J.
Plaintiff alleges little more injury other than this. See DE 1 at
4 (complaining of “burning” of face and broken skin on nose).
Daly was not as fortunate, receiving injuries that required
hospital treatment. Id. ¶¶ 32-33; see Exhibit G.
*3 On January 5, 2015, Plaintiff filed a grievance arguably
related to this incident. DE 29-12, ¶ 34; see Exhibit D.
The substance of that grievance related not to the use of
force, but rather the fact that he had to wait nine and a half
hours before a mattress was provided to him. See DE 29-12,
¶¶ 36-37. At the same time, the grievance also requested
that unspecified “misconduct” of correction officers on E2-
E block be investigated. Id. ¶¶ 38-39. Consistent with
the facility’s policy, the grievance was reviewed by a
grievance coordinator, who decided to forward the grievance
for the purpose of investigating Plaintiff’s claims of staff
misconduct. Id. ¶ 40. Plaintiff signed the grievance form
acknowledging his acceptance of the grievance coordinator’s
decision. Id. ¶ 41. No appeal was ever taken from the
grievance decision. Id.
Discussion
Standard of Review
When considering a dispositive motion made against pro se
litigants, the Court is mindful that a pro se party’s pleadings
must be liberally construed in favor of that party and are held
to “less stringent standards than formal pleadings drafted by
lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)). Where, as here,
a party seeks summary judgment against a pro se litigant,
the situation “demands that the Court liberally construe
plaintiff’s submissions to ‘raise the strongest arguments that
they suggest.’ ” Parris v. Acme Bus Corp., 956 F. Supp. 2d
384, 389 (E.D.N.Y. 2013) (quoting Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). Nonetheless,
“[p]roceeding pro se does not otherwise relieve a litigant
of the usual requirements of summary judgment, and a
pro se party’s bald assertions unsupported by evidence, are
insufficient to overcome a motion for summary judgment.”
Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348 (S.D.N.Y. 2002).
In all other respects, this motion for summary judgment is
decided under the oft-repeated and well understood standard
for review of such matters, as discussed in Bartels v. Inc. Vill.
of Lloyd Harbor, 97 F. Supp. 3d 198, 211 (E.D.N.Y. 2015),
aff'd sub nom. Bartels v. Schwarz, 643 Fed.Appx. 54 (2d Cir.
2016), which discussion is incorporated by reference herein.
Determining the Undisputed Facts
As noted, despite repeated adjournments granted to plaintiff
over many months, plaintiff has supplied no response to
the instant motion. This includes the filing of a Rule 56.1
counterstatement, the absence of which may justify accepting
all of the facts in defendant’s statement as true. However, as
the Court held in Young v. Nassau University Medical Center:
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Anderson v. Darby, Not Reported in Fed. Supp. (2017)
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The Court notes that plaintiff has failed to file and
serve a response to defendant's Rule 56.1 statement of
facts, in violation of Local Civil Rule 56.1. Generally, a
“plaintiff['s] failure to respond or contest the facts set forth
by the defendants in their Rule 56.1 statement as being
undisputed constitutes an admission of those facts, and
those facts are accepted as being undisputed.” Jessamy v.
City of New Rochelle, 292 F.Supp.2d 498, 504 (S.D.N.Y.
2003) (quoting NAS Elecs., Inc. v. Transtech Elecs. PTE
Ltd., 262 F.Supp.2d 134, 139 (S.D.N.Y. 2003)). However,
“[a] district court has broad discretion to determine whether
to overlook a party's failure to comply with local court
rules.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.
2001) (citations omitted); see also Gilani v. GNOC Corp.,
No. 04 Civ. 2935(ILG), 2006 U.S. Dist. LEXIS 23397, at
*4–5, 04 Civ. 2935 (E.D.N.Y. Apr. 25, 2006) (exercising
court's discretion to overlook the parties' failure to submit
statements pursuant to Local Civil Rule 56.1). Accordingly,
in the exercise of its broad discretion and given plaintiff's
pro se status, the Court will overlook this defect and
will deem admitted only those facts in defendant's Rule
56.1 statement that are supported by admissible evidence
and not controverted by other admissible evidence in the
record. See Jessamy, 292 F.Supp.2d at 504. Thus, in the
instant case, although plaintiff has failed to submit any
opposition to defendant's motion, the Court has carefully
reviewed the evidence submitted in the moving papers and
determined that the undisputed facts demonstrate that her
claims create no material issues of fact and cannot survive
summary judgment ....
*4 No. 10-cv-00649 (JFB)(ARL), 2011 WL 6748500, at n.2
(E.D.N.Y. Dec. 22, 2011). In a similar exercise of discretion,
the undersigned has carefully reviewed the factual assertions
contained in defendants' 56.1 statement against all filings on
record, including the complaint, various narrative statements
and summary judgment exhibits. By and large, there is little
dispute over the facts herein, and no material issues are
apparent.
Failure to Exhaust Administrative Remedies under the
PLRA
Defendants' principal argument on this motion is that plaintiff
failed to exhaust his administrative remedies, such that the
claims herein are barred under the Prisoner Litigation Reform
Act (“PLRA”). As this Court recently observed:
The PLRA states that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983],
or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). “The PLRA exhaustion requirement
‘applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.’
Prisoners must utilize the state's grievance procedures,
regardless of whether the relief sought is offered through
those procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d
Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 532,
122 S.Ct. 983, 152 L.Ed.2d 12 (2002)). “Proper exhaustion
demands compliance with an agency's deadlines and other
critical procedural rules because no adjudicative system
can function effectively without imposing some orderly
structure on the course of its proceedings” Woodford v.
Ngo, 548 U.S. 81, 90–91, 126 S.Ct. 2378, 165 L.Ed.2d 368
(2006). Therefore, the exhaustion inquiry requires a court
to “look at the state prison procedures and the prisoner's
grievance to determine whether the prisoner has complied
with those procedures.” Espinal, 558 F.3d at 124 (citing
Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166
L.Ed.2d 798 (2007); Woodford, 548 U.S. at 88–90, 126
S.Ct. 2378).
Prior to Woodford, the Second Circuit
recognized some nuances in the exhaustion requirement:
(1) administrative remedies that are ostensibly
‘available’ may be unavailable as a practical matter, for
instance, if the inmate has already obtained a favorable
result in administrative proceedings but has no means
of enforcing that result, or if the inmate has been
deterred by intimidation; (2) similarly, if prison officials
inhibit the inmate's ability to seek administrative review,
that behavior may equitably estop them from raising
an exhaustion defense; (3) imperfect exhaustion may
be justified in special circumstances, for instance if
the inmate complied with his reasonable interpretation
of unclear administrative regulations, or if the inmate
reasonably believed he could raise a grievance in
disciplinary proceedings and gave prison officials
sufficient information to investigate the grievance.
Reynoso v. Swezey, 238 Fed.Appx. 660, 662 (2d Cir.
2007)(internal citations omitted); see also Davis v. New
York, 311 Fed.Appx. 397, 399 (2d Cir. 2009) (citing
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Anderson v. Darby, Not Reported in Fed. Supp. (2017)
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Hemphill v. New York, 380 F.3d 680, 686, 691 (2d
Cir. 2004)). Initially, it was unclear whether the above-
discussed considerations would be impacted by Woodford.
See, e.g., Reynoso, 238 Fed.Appx. at 662 (“Because we
agree with the district court that [plaintiff] cannot prevail
on any of these grounds, we have no occasion to decide
whether Woodford has bearing on them.”); Ruggiero v.
Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (“We
need not determine what effect Woodford has on our case
law in this area, however, because [plaintiff] could not
have prevailed even under our pre-Woodford case law.”).
However, even after Woodford, the Second Circuit has
continued to hold that an inmate's failure to comply with the
exhaustion requirement may be excused on these grounds.
See Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011)
(citing Hemphill factors).
*5 Angulo v. Nassau County, 89 F. Supp. 3d 541, 549–
50 (E.D.N.Y. 2015)(granting summary judgment for a pro
se plaintiff’s failure to exhaust administrative remedies).
Applying this analysis to the instant case reveals that, like
the plaintiff in Angulo, plaintiff has failed to exhaust his
administrative remedies.
Plaintiff’s administrative filing proves deficient in three ways.
First, irrespective of whether counted from December 14
or 18, the filing of a grievance by plaintiff on January
5, 2015 failed to comport with the five-day deadline for
filing. Thus, the grievance was not timely filed, and therefore
represents an insufficient effort to exhaust state remedies.
This, however, may be overlooked, as prison officials
processed the grievance notwithstanding its untimeliness.
Second, the grievance filed deals only with the failure to
promptly supply him with a mattress on the date in question,
and makes no mention of the use of force in the body of
the grievance. Thus, with respect to the principal claim here
—to wit: the use of pepper spray—plaintiff did not even
take the first step in pursing administrative remedies. In his
complaint, plaintiff essentially acknowledges this fact: he
alleges exhaustion by “writing grievance of another matter,”
which resulted in an “Internal Affairs Unit Investigation into
defendants.” DE 1 at 2.
The final procedural lapse on the part of defendant was
his failure to appeal the grievance decision. Thus, even if
plaintiff’s oblique reference to officer “misconduct” were
construed as encompassing the excessive force alleged herein,
he has still failed to exhaust his administrative remedies
by failing to appeal. Plaintiff reviewed and signed the
grievance decision, having checked a box that notes he had
“read and accept[ed]” that decision, while checking the box
immediately below it would have reflected his intention to
“appeal.” There is no dispute that the handbook provides
for a multi-step process, including appeals. DE 29-12, Ex.
C; compare Angulo, 89 F. Supp. 3d at 546–47 (describing
NCCC’s “three-part grievance process” including right to
appeal). “[P]roper exhaustion” requires a prisoner to use “ ‘all
steps that the agency holds out, and doing so properly (so that
the agency addresses the issues on the merits).’ ” Ruggiero,
467 F.3d at 176 (quoting Woodford, 548 U.S. at 90) (emphasis
in original). This requires a plaintiff, as a prerequisite to
bringing an action “to exhaust all levels of administrative
appeal of those grievances.” Angulo, 89 F. Supp. 3d at 551.
The only remaining question, then, is whether any of the
Hemphill factors would warrant excusing the non-exhaustion.
Plaintiff makes a half-hearted attempt at such a justification:
in the complaint, he mentions endeavors to justify his failures
by noting “direct grievance against officers would have severe
repercussions for me.” DE 1 at 2. On the unusual facts of this
case, this justification is unpersuasive: plaintiff grievanced
requesting “misconduct of E2-E officers handling of inmates
in their custody,” but now claims to have feared unspecified
retaliation from filing such a grievance. DE 29-5.
The Merits
Due to plaintiffs' undisputed failure to exhaust his state
administrative remedies, the action is precluded by the terms
of the PLRA. However, even assuming, arguendo, the Court
were to consider the underlying merits, summary judgment
would be equally appropriate. The undisputed facts here
describe a situation in which an inmate physically attacked
and injured a prison guard; the defendant’s use of pepper
spray in this situation appears to have been more than
reasonable under the circumstances, and certainly could not
be construed as a violation of plaintiff’s rights. In evaluating
the use of a chemical agent in a prison setting, courts
have refused to find actionable conduct where, as here, the
deployment was used “ ‘in a good-faith effort to maintain or
restore discipline.’ ” Little v. Mun. Corp., 51 F. Supp. 3d 473,
501 (S.D.N.Y. 2014) (quoting Lewis v. Clarkstown Police
Dep't, No. 11-CV-2487, 2014 WL 1364935, at *4 (S.D.N.Y.
Mar. 31, 2014)). As to the “objective” element of an excessive
force claim, the injury alleged here, consisting of nothing
more than “a chemical agent which cause[d] burning to [his]
eyes and skin,” without more, similarly fails to rise to the level
of a constitutional claim. Id. at 500. Thus, summary judgment
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in favor of defendants is warranted both because of procedural
defaults under the PSRA and as a substantive matter.
CONCLUSION
*6 For the foregoing reasons, it is respectfully recommended
that defendants' motion for summary judgment be
GRANTED in all respects.
OBJECTIONS
A copy of this Report and Recommendation is being provided
to counsel for the defendants via ECF, and a copy is being
mailed to the plaintiff. Any written objections to this Report
and Recommendation must be filed with the Clerk of the
Court within fourteen (14) days of service of this report. 28
U.S.C. § 636(b)(1) (2006 & Supp. V 2011); Fed. R. Civ. P.
6(a), 72(b). Any requests for an extension of time for filing
objections must be directed to the district judge assigned to
this action prior to the expiration of the fourteen (14) day
period for filing objections. Failure to file objections within
fourteen (14) days will preclude further review of this
report and recommendation either by the District Court
or Court or Appeals. Thomas v. Arn, 474 U.S. 140, 145
(1985) (“[A] party shall file objections with the district court
or else waive right to appeal.”); Caidor v. Onondaga Cnty.,
517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure to object timely
to a magistrate’s report operates as a waiver of any further
judicial review of the magistrate’s decision.”).
All Citations
Not Reported in Fed. Supp., 2017 WL 933085
Footnotes
1 The parties' repeated references to “O.C.” apparently refers to oleoresin capsicum, the active ingredient in
the self-defense product commonly known as pepper spray.
2 Some time later, plaintiff filed an action against three other guards which involved, among other things,
a separate incident involving use of pepper spray. DE 10, referencing 15-CV-1961. That action has been
dismissed for lack of prosecution. See generally Anderson v. Carr, Docket 15-CV-1961 (JFB)(GRB).
3 There is some question about whether the events at issue occurred on December 14 or 18, a dispute I find
immaterial for present purposes. See id, ¶ 8.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Anderson v. Darby, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 927611
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Kyle D. ANDERSON, Plaintiff,
v.
DARBY, Officer Badge #3767, Ludewig,
officer, and Paz, Sgt. Badge #26, Defendants.
CV 15-635 (JFB)(GRB)
|
Signed 03/06/2017
Attorneys and Law Firms
Kyle D. Anderson, Hempstead, NY, pro se.
Thomas Lai, Nassau County Attorney Office, Mineola, NY,
for Defendants.
ORDER
Joseph F. Bianco, United States District Judge
*1 Before the Court is a Report and Recommendation
(“R&R,” ECF No. 59) from Magistrate Judge Brown
recommending that the Court grant defendants Darby,
Ludewig, and Paz's (“defendants”) motions for summary
judgment (ECF No. 29). The R&R instructed that any
objections to the R&R be submitted within fourteen (14) days
of service of the R&R. (See R&R, dated February 13, 2017,
at 10.) The Court mailed the R&R to plaintiff on February 13,
2017, and the date for filing any objections has accordingly
since expired. See Sherlock v. Montefiore Med. Ctr., 84 F.3d
522, 525 (2d Cir. 1996) (“Normally it is assumed that a
mailed document is received three days after its mailing.”).
Plaintiff has not filed any objections to the R&R. Therefore,
for the reasons set forth below, the Court adopts the thorough
and well-reasoned R&R in its entirety and grants defendants'
motion for summary judgment.
Where there are no objections, the Court may adopt the
report and recommendation without de novo review. See
Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear
that Congress intended to require district court review of a
magistrate's factual or legal conclusions, under a de novo
or any other standard, when neither party objects to those
findings.”); see also Mario v. P & C Food Mkts., Inc., 313 F.3d
758, 766 (2d Cir. 2002) (“Where parties receive clear notice
of the consequences, failure timely to object to a magistrate's
report and recommendation operates as a waiver of further
judicial review of the magistrate's decision.”); cf. 28 U.S.C. §
636(b)(1)(c) and Fed. R. Civ. P. 72(b)(3) (requiring de novo
review after objections). Because the failure to file timely
objections is not jurisdictional, however, a district judge may
still excuse the failure to object in a timely manner and
exercise its discretion to decide the case on the merits to, for
example, prevent plain error. See Cephas v. Nash, 328 F.3d
98, 107 (2d Cir. 2003) (“[B]ecause the waiver rule is non
jurisdictional, we ‘may excuse the default in the interests of
justice.’ ” (quoting Thomas, 474 U.S. at 155)).
Although plaintiff has waived any objections to the R&R
and thus de novo review is not required, the Court has
conducted a de novo review of the R&R in an abundance of
caution. Having conducted a review of the full record and
the applicable law, and having reviewed the R&R de novo,
the Court adopts the findings and recommendations contained
in the well-reasoned and thorough R&R in their entirety.
Accordingly, IT IS HEREBY ORDERED that defendants'
motion for summary judgment is granted.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 927611
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Benitez v. Locastro, Not Reported in F.Supp.2d (2010)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 419999
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Henry BENITEZ, Plaintiff,
v.
J. LOCASTRO, Lt.; Lt. Miller; D. Selsky, Dir. of
Shu; J. Burns; Sgt. Martens; C. Gummerson, Capt.;
J. Rourke, Capt.; M. Bradt; C. Parmiter; J. Burge; T.
Eagen, Dir. of Corrections; J. Wilkinson; R. Smith;
C.O. Baranska; R.N.S. Lennox; J.Porten; J. Mcnamara;
John Does 1–6, C.O.s; R. Smith, R.N.; W. Chilson,
Sgt.; Sergeant Colon; R. Considine, C.O.; Psych.
Kneeland; V. Konecny; C.O. Clarke; S. Crozier; John
Doe, XII, C.O.; Cho Wolczyk; Sergeant Smith; C.O.
Miller; S. Yorkey, Sgt.; Sgt. Murley; Lt. Easterbrook;
C.O. Loomis; T. Quinn; Sgt. Christopher; C.O. Roux;
C.O. Leonello; C.O. Meyers; M. Kessel; G. Maccucci,
C.O.; E. Amberman; and M. Melindez, Defendants.
No. 9:04–CV–423 (NAM/RET).
|
Jan. 29, 2010.
Attorneys and Law Firms
Henry Benitez, Malone, NY, pro se.
Hon Andrew M. Cuomo, Attorney General of the State
of New York State, Ed. J. Thompson, Assistant Attorney
General, Syracuse, NY.
Hon. Andrew M. Cuomo, Attorney General for the State
of New York, Timothy P. Mulvey, Esq., Assistant Attorney
General, of Counsel, Albany, N.Y., for Defendants.
MEMORANDUM–DECISION AND ORDER
Hon. NORMAN A. MORDUE, Chief Judge.
*1 Plaintiff, an inmate in the custody of the New York State
Department of Correctional Services (“DOCS”), brought this
action under 42 U.S.C. § 1983. The amended complaint
(Dkt. No. 5) alleges various constitutional deprivations in
connection with several incidents at Auburn Correctional
Facility in 2001 and 2002. Defendants moved for summary
judgment dismissing the action (Dkt. No. 118). Upon referral
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c),
United States Magistrate Judge Randolph F. Treece issued
a thorough Report and Recommendation (Dkt. No. 139)
recommending that summary judgment be granted in part and
denied in part. Specifically, regarding the Eighth Amendment
excessive force/medical indifference claims stemming from
the events of July 9, 2002, Magistrate Judge Treece finds
questions of fact regarding exhaustion and recommends as
follows: that the claims against Nurse R. Smith be dismissed;
that summary judgment be denied as to all other July 9,
2002 excessive force claims (i.e., the claims against J. Rourke
and the John Doe defendants); and that plaintiff be granted
leave to file a second amended complaint to substitute
named defendants for the John Doe defendants. Magistrate
Judge Treece recommends dismissal of plaintiff's Eighth
Amendment conditions-of-confinement claims relative to
the following: deprivation orders issued in November 2001
and July 2002; poor cell ventilation due to cell shield;
denial of meals; and injuries from tight shackles and cuffs.
Magistrate Judge Treece further recommends dismissal of
plaintiff's claims that the deprivation, restraint, and cell shield
orders were retaliatory. In addition, Magistrate Judge Treece
recommends dismissal of plaintiff's due process claims
regarding the disciplinary hearings of November 21, 2001,
July 11, 2002, and July 16, 2002.
Plaintiff filed an objection (Dkt. No. 140) to certain aspects
of the Report and Recommendation. As to all other portions
of the Report and Recommendation, by failing to object,
plaintiff waives further judicial review. See Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993). Pursuant to 28 U.S.C. §
636(b)(1)(C), this Court conducts a de novo review of the
portions of the Report and Recommendation to which plaintiff
objects, specifically the recommendations that the Court
dismiss plaintiff's medical indifference claim against Nurse
R. Smith stemming from the July 9, 2002 incident, and his
Eighth Amendment claims stemming from the deprivation
orders issued in November 2001 and July 2002. Upon de
novo review, the Court agrees with Magistrate Judge Treece's
factual summary, analysis, and recommendation regarding
these issues. Accordingly, the Court accepts the Report and
Recommendation in its entirety.
It is therefore
ORDERED that United States Magistrate Judge Randolph
F. Treece's Report and Recommendation (Dkt. No. 139) is
accepted in its entirety; and it is further
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ORDERED that defendants' motion for summary judgment
(Dkt. No. 118) is granted to the extent of dismissing all claims
except the Eighth Amendment excessive force claims against
Rourke and John Does Nos. 1–6 stemming from the events of
July 9, 2002; and it is further
*2 ORDERED that plaintiff is granted 30 days from the date
of this Memorandum–Decision and Order to file a motion to
amend his amended complaint in order to identify John Does
Nos. 1–6, which shall include a proposed second amended
complaint attached thereto.
IT IS SO ORDERED.
REPORT–RECOMMENDATION and ORDER
RANDOLPH F. TREECE, United States Magistrate Judge.
Pro se Plaintiff Henry Benitez filed this civil rights action,
pursuant to 42 U.S.C. § 1983, alleging that his constitutional
rights were violated during several events that allegedly
occurred at Auburn Correctional Facility in 2001 and 2002.
Specifically, Plaintiff alleges violations of his constitutional
rights as guaranteed by the First Amendment (retaliation),
Eighth Amendment (excessive force and conditions of
confinement), and Fourteenth Amendment (due process).
Dkt. No. 5, Am. Compl. Presently before the Court is
Defendants' Motion for Summary Judgment, Dkt. No. 118,
which Plaintiff opposes, Dkt. Nos. 137–38.
Previously, this Court issued a Report–Recommendation
and Order addressing Defendants' Motion for Judgment
on the Pleadings, which was adopted in its entirety
by the Honorable Norman A. Mordue, Chief United
States District Judge for the Northern District of New
York. Dkt. Nos. 106 & 108. Chief Judge Mordue's
Order dismissed the following Defendants: Amberman,
Christopher, Colon, Easterbrook, Kessel, Konecny, Lennox,
Leonello, Loomis, Maccucci, McNamara, Melindez, Meyers,
C.O. Miller, Murley, Parmiter, Porten, Quinn, Roux, Sgt.
Smith, Wilkinson, and Yorkey. Dkt. No. 108, Order at p. 2.
Defendants' current Motion is brought on behalf of the
remaining Defendants. 1 For the reasons that follow, it
is recommended that Defendants' Motion for Summary
Judgment be GRANTED in part and DENIED in part. 2
I. DISCUSSION
A. Summary Judgment Standard
Pursuant to FED. R. CIV. P. 56(c), summary judgment is
appropriate only where “there is no genuine issue as to any
material fact and [the moving party] 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)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
“When a party has moved for summary judgment on the basis
of asserted facts supported as required by [Federal Rule of
Civil Procedure 56(e) ] and has, in accordance with local
court rules, served a concise statement of the material facts
as to which it contends there exist no genuine issues to be
tried, those facts will be deemed admitted unless properly
controverted by the nonmoving party.” Glazer v. Formica
Corp., 964 F.2d 149, 154 (2d Cir.1992).
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. FED. R. CIV.
P. 56(e); 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 Flaherty v. Coughlin, 713 F.2d 10, 13
(2d Cir.1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d
Cir.1995)).
*3 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 Group of Am., Inc., 164 F.3d 736, 742 (2d
Cir.1998). “[T]he 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
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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 Residential 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), accord, Soto v. Walker, 44 F.3d 169,
173 (2d Cir.1995). Nonetheless, mere conclusory allegations,
unsupported by the record, are insufficient to defeat a motion
for summary judgment. See Carey v. Crescenzi, 923 F.2d 18,
21 (2d Cir.1991).
B. Eighth Amendment Claims
1. Excessive Force and the Events of July 9, 2002
Plaintiff asserts that “[o]n July 9, 2002, [he] threw a liquid
substance through the narrow food port of his cell, striking
[Defendants] Lennox and Martens.” Dkt. No. 5, Am. Compl.
at ¶ 26. Shortly thereafter
Porten, McNamara, and various other guards approached
Benitez's cell and ordered him to submit to mechanical
restraints. Benitez then requested to be allowed to speak
to a captain. Sergeant Vasile (not a defendant) refused,
whereupon Benitez threw a liquid substance though the
narrow food port on the gate of his cell.
About 10 minutes after the incident described [ ]
[above], [Defendant] Rourke walked past Benitez's cell
and gave Benitez the finger. Shortly thereafter, Rourke and
Defendants John Does Nos. 1–6 approached Benitez's cell.
Rourke then asked Benitez whether or not he would come
out of his cell. Benitez responded in the affirmative. With a
callous and malicious intent to subject Benitez to gratuitous
humiliation and punishment, Rourke ordered John Does
Nos. 1–6 to forcibly remove Benitez from his cell.
Acting on Rourke's order, John Does Nos. 1–4 rushed into
Benitez's cell, whereupon John Doe No. 1 maliciously and
sadistically struck Benitez on the top of his head with a
large body shield [made of] plexiglas, knocking Benitez on
his bed face down and breaking his eyeglasses. John Does
Nos. 1–4 then maliciously and sadistically punched Benitez
in his face, head, neck, back, rib cage and arms rapidly and
repetitiously, and Benitez passed out.
* * *
While punching Benitez about his body, John Does Nos.
1–4 maliciously and sadistically twisted Benitez's hands,
fingers, and feet while simultaneously using enormous
pressure to tighten too tightly handcuffs and leg irons that
had been placed on Benitez.
*4 John Does Nos. 1–6 forcibly removed Benitez from
his cell and placed him in a strip cell.... There, John
Does 1–6 cut Benitez's clothes off of his person. Benitez,
who was then experiencing enormous pain about his
entire body, was then “examined” by Defendant Nurse
R. Smith.... Nurse Smith willfully and knowingly
falsely wrote in Benitez's medical chart that he had
minor injuries. Nurse Smith willfully refused to provide
Benitez pain relieving medicine, even though she knew
that Benitez was then suffering from extreme pain.
Thereafter, John Does Nos. 1–6 walked Benitez naked
cuffed and shackled with a restraining strap from P3–
cell into A1–cell. There, John Does 1–3 maliciously and
violently slammed Benitez against a metal bed frame,
causing Benitez to severely strike his face against the
metal bed frame. While forcibly holding Benitez['s]
face down on the metal frame, John Does Nos. 1–3
maliciously and sadistically punched Benitez on his face,
head, back, rib cage, and arms, even though he did not
struggle nor resist. John Does Nos. 1–3 then removed the
handcuffs, shackles, and restraining strap from Benitez's
person and rushed out of the cell.
Id. at ¶¶ 26–33.
Plaintiff alleges to have suffered several injuries as a
consequence of the above incidents, including a “laceration
in the front of his head,” bruising all over his body, and
“permanent nerve damage [to his] [ ] wrists, hands, fingers,
and ankles.” Id. at ¶¶ 34–35.
Defendants assert Plaintiff has failed to exhaust all of his
claims arising out of the July 9, 2002 incident. The Prisoner
Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. §
1997(e)(a), states that “[n]o action shall be brought with
respect to prison conditions under [section 1983], or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.” This exhaustion requirement
“applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and
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whether they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Ziemba
v. Wezner, 366 F.3d 161, 163 (2d Cir.2004).
The New York State Department of Corrections has created a
three-step grievance process known as the Inmate Grievance
Program (“IGP”). See Abney v. McGinnis, 380 F.3d 663,
668 (2d Cir.2004). First, the inmate must file a grievance
complaint with the Grievance Clerk within twenty-one (21)
days of the incident. N.Y. COMP.CODES R. & REGS. tit.
7, § 701.5(a)(1) (2007). The complaint is then submitted
to the Inmate Grievance Resolution Committee (IGRC) to
review the grievance. Id. at § 701.5(b). Second, if the inmate
disagrees with the IGRC decision, then the inmate may appeal
to the Superintendent. See id. at § 701.5(c). Third, if the
inmate disagrees with the Superintendent's determination, an
appeal may be taken to the Central Office Review Committee
(CORC) who renders a final administrative determination.
Id. at § 701.5(d). Upon the completion of all three steps, an
inmate may “seek relief pursuant to 42 U.S.C. § 1983.” Colon
v. Harvey, 344 F.Supp.2d 896, 897 (W.D.N.Y.2004) (citing
Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001) & Santos v.
Hauck, 242 F.Supp.2d 257, 259 (W.D.N.Y.2003)).
*5 The Second Circuit has suggested a three-step inquiry
when, as here, the inmate opposes a defendant's assertion that
the inmate did not exhaust his remedies.
Depending on the inmate's explanation for the alleged
failure to exhaust, the court must ask whether
administrative remedies were in fact “available” to the
prisoner. Abney v. McGinnis, 380 F.3d 663, 667–68 (2d
Cir.2004). The court should also inquire as to whether the
defendants may have forfeited the affirmative defense of
non-exhaustion by failing to raise or preserve it, Johnson v.
Testman, 380 F.3d 691, 695 (2d Cir.2004), or whether the
defendants' own actions inhibiting the inmate's exhaustion
of remedies may estop one or more of the defendants from
raising the plaintiff's failure to exhaust as a defense, Ziemba
v. Wezner, 366 F.3d 161, 163 (2d Cir.2004). If the court finds
that administrative remedies were available to the plaintiff,
and that the defendants are not estopped and have not
forfeited their non-exhaustion defense, but that the plaintiff
nevertheless did not exhaust available remedies, the court
should consider whether “special circumstances” have
been plausibly alleged that justify “the prisoner's failure
to comply with administrative procedural requirements.”
Giano v. Goord, 380 F.3d 670, 676 (citing Berry v. Kerik,
366 F.3d 85, 88 (2d Cir.2003)[.]
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004); see
also Braham v. Clancy, 425 F.3d 177, 181–82 (2d Cir.2005).
In response to Defendants' exhaustion argument, Plaintiff
asserts that he was unable to exhaust these claims because (1)
he was denied a pen and paper from July 9 through August
8, 2002; (2) from August 8–17, 2002, various Defendants
refused to submit his outgoing mail and grievances; and (3) on
September 4, 2002, he submitted a seven (7) page Grievance
concerning the events of July 9th to Officer Hnatiw, 3 but
Defendant Parmiter did not process that Grievance in order
to obstruct his filing of a federal civil action. Dkt. No. 137,
Pl.'s Mem. of Law at pp. 6–9 & Henry Benitez Decl., dated
July 15, 2009, at ¶¶ 4–9; see also Am. Compl. at ¶¶ 51, 53,
55 & 86.
With respect to Plaintiff's first allegation, Defendants have
submitted copies of Deprivation Orders indicating that
Plaintiff was denied all in-cell property from, at the latest,
July 14, 2002, through, at the earliest, July 25, 2002. 4 Dkt.
No. 118–7, Mark L. Bradt Aff., dated Dec. 9, 2008, Ex. C,
Deprivation Orders, dated July 9–25, 2002.
As per Plaintiff's second allegation, the record shows that he
filed a Grievance, dated August 17, 2002, complaining that
several Defendants refused to take his outgoing mail from
August 8–17, 2002. Benitez Decl., Ex. B, Grievance, dated
Aug. 17, 2002. The record also reflects that two of Plaintiff's
Grievances, dated August 8, 2002, were not stamped received
by the IGRC until August 21, 2002. Dkt. No. 118–5, Defs.' 7.1
Statement, Ex. P, Grievances, dated Aug. 8, 2002 (stamped
received by the IGRC on Aug. 21, 2002). In one of those
Grievances, Plaintiff asserted: “[o]n July 9, 2002, I was
forcibly moved from SHU cell G–2 to SHU cell A–1 by an
extraction team that, among other things, allegedly broke my
glasses,” and requested information about the status of the
repairs to his broken glasses. Id., Ex. P, Grievance, dated
Aug. 8, 2002. That Grievance contains no other allegations
concerning the events of July 9.
*6 With respect to Plaintiff's claim that Parmiter refused
to process a Grievance he filed on September 4, 2002, there
is no evidence presented before us by either side to support
or rebut that claim. However, such allegation was arguably
raised, albeit with less specificity, in Plaintiff's Amended
Complaint: “from August 8, 2002 to September 12, 2002,
Parmiter willfully and knowingly wrongly refused to file
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numerous formal grievances submitted by Benitez.” Am.
Compl. at ¶ 86. 5
Considering the above allegations about the obstruction
of Plaintiff's grievances, and lack of evidence before us
regarding those claims, we find that questions of fact
exist with respect to whether the Defendants' own actions
inhibited Plaintiff's ability to exhaust available administrative
remedies, and therefore, whether they should be estopped
from asserting the affirmative defense of failure to exhaust.
The record shows that Plaintiff was deprived of all in-
cell property for most of July 2002 and, as he points
out, DOCS regulations require that grievances be submitted
within twenty-one (21) days of the alleged occurrence. N.Y.
CODES COMP. R. & REGS, tit. 7, § 705.1(a). Thus, it is
possible that even if Plaintiff had filed a grievance after the
Deprivation Orders were lifted it may have been denied as
untimely. As such, there are also questions as to whether
“special circumstances” exist that might justify Plaintiff's
failure to exhaust. Therefore, we shall proceed to the merits
of Plaintiff's claims surrounding the events of July 9, 2002.
Defendants assert that Plaintiff's excessive force claims
against John Does Nos. 1–6 should be dismissed for failure
to allege personal involvement on the part of any named
Defendant. Defs.' Mem. of Law at p. 27. In response, Plaintiff
argues that the Defendants' failure to timely respond to his
discovery requests delayed the revelation of the John Doe
Defendants' identities. Pl.'s Mem. of Law at pp. 2–3. We note
that in an Order, dated August 29, 2006, this Court granted
Plaintiff's Motions to Compel Defendants to respond to his
outstanding discovery requests, some of which concerned the
identities of the John Does. Dkt. No. 88 at pp. 6–7. Then,
on June 12, 2007, this Court addressed Plaintiff's unopposed
Motion for Sanctions against Defendants for their alleged
failure to comply with our August 2006 Order; we denied
Plaintiff's Motion for Sanctions, but ordered Defendants'
compliance with our August 2006 Order. Dkt. No. 91, Order
at p. 3.
Plaintiff now asserts that the “Defendants recently complied
with the Court's June 12, 2007 Order by disclosing to Benitez
the identities of the Defendants at issue.” Dkt. No. 137,
Pl.'s Mem. of Law at p. 3. 6 Moreover, Plaintiff asserts
his intention to seek leave to file a motion to amend his
Amended Complaint to assert claims against these would-be
Defendants. Id. Given the mixed and prolonged history of
discovery in this case, we believe it is appropriate to allow
Plaintiff to submit a motion to amend his Amended Complaint
in order to identify John Does Nos. 1–6. 7 Therefore,
Defendants' Motion is denied as to Plaintiff's excessive force
claims against John Does Nos. 1–6. Should this Report–
Recommendation and Order be adopted by the District Court,
we shall afford Plaintiff thirty (30) days from the date of such
adoption to file a motion to amend his Amended Complaint
to include the names of John Does Nos. 1–6.
*7 Plaintiff's claim against Defendant Rourke should also
survive the Defendants' Motion. Although Plaintiff does not
allege that Rourke physically participated in the alleged use
of excessive force, he claims that Rourke maliciously ordered
John Does 1–6 to forcibly remove him from his cell despite
his willingness to leave, and then shouted “stop resisting”
in order to “encourage John Does Nos. 1–4 to continue to
inflict gratuitous humiliation and extreme physical pain on
Benitez, even though he knew that Benitez was not resisting
John Does Nos. 1–4.” Am. Compl. at ¶¶ 29–30. Liberally
interpreted, Plaintiff has asserted a claim that Rourke failed
to protect him once the alleged beating commenced, and
then encouraged the John Does to continue in that conduct.
Although the documents Defendants have attached as Exhibit
C to their 7.1 Statement support their contention that Rourke
had Plaintiff extracted from his cell in order to place him in a
different cell with a more secure food hatch so as to prevent
his continued throwing of feces on prison staff, 8 nothing in
the record answers Plaintiff's allegations that Rourke allowed
and encouraged the use of excessive force against him during
that extraction. Therefore, it is recommended that the Motion
be denied as to Plaintiff's claims against Rourke.
However, Plaintiff's claims against Defendant Nurse R.
Smith should be dismissed. Plaintiff's Eighth Amendment
claim against Defendant Nurse Smith is that after he was
allegedly beaten by John Does Nos. 1–6 during the cell
extraction, “Nurse Smith willfully refused to provide Benitez
pain relieving medicine, even though she knew that Benitez
was then suffering from extreme pain.” Am. Compl. at
¶ 32. “In order to establish an Eighth Amendment claim
arising out of inadequate medical care, a prisoner must
prove deliberate indifference to [his] serious medical needs.”
Smith v.. Carpenter, 316 F.3d 178, 183 (2d Cir.2003)
(internal quotation marks and citations omitted) (alteration in
original). This standard contains both objective and subjective
elements. Id. “The objective ‘medical need’ element measures
the severity of the alleged deprivation, while the subjective
‘deliberative indifference’ element ensures that the defendant
prison official acted with a sufficiently culpable state of
mind.” Id. at 183–84 (citing Chance v. Armstrong, 143 F.3d
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698, 702 (2d Cir.1998) & Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir.1996)).
Defendants argue that Plaintiff has failed to allege that he
suffered from a serious medical injury. Defs.' Mem. of Law at
pp. 28–29. Plaintiff alleges that at the time he was presented
before Nurse Smith, he was suffering from “extreme pain,”
but he does not allege the nature of that pain, its location,
nor whether he communicated to Nurse Smith the nature or
location of any injury he might have suffered or his need for
pain medication. Plaintiff does allege that as a result of the
excessive force used against him, he suffered a “laceration
to the front of his head, and abrasions and multiple areas of
bright red bruising on his nose, back, chest, stomach, arms,
hands, legs and feet,” as well as “permanent nerve damage [to
his] [ ] wrists, hands, fingers, and ankles.” Am. Compl. at ¶¶
34–35. However, Plaintiff does not allege that Nurse Smith
was made aware of any of those aforementioned injuries, nor
does he provide any factual basis for his conclusion that he
suffered nerve damage. With respect to his claims of bruises
and a laceration (the size and depth of which he does not
allege), those generally pleaded injuries do not constitute
serious medical conditions under the Eighth Amendment.
See, e.g., Dawes v. Coughlin, 159 F.3d 1346 (2d Cir.1998)
(holding that a small laceration on an inmate's elbow was not a
serious injury under the Eighth Amendment); see also Dallio
v. Hebert, 2009 WL 2258964, at *16 (N.D.N.Y. July 28, 2009)
(holding that black eyes, bruising, red spots, kick marks,
and lacerations did not constitute a serious medical need).
Therefore, we agree with Defendants that Plaintiff's claim
that he suffered from a serious medical injury is conclusory
and for that reason his claim against Nurse Smith should be
dismissed. 9
2. Deprivation Orders
*8 Plaintiff alleges that in November 2001 and July 2002,
various Defendants issued Deprivation Orders against him in
violation of the Eighth Amendment. 10 Plaintiff's allegations
regarding November 2001 are as follows:
Upon Benitez's arrival at Auburn prisoner's SHU on
November 14, 2001, Defendant J. Burns [ ] wantonly
filed a Deprivation Order ... against Benitez in retaliation
for his having sued Burns and various other Auburn
prison employees in 1989. As a result, Benitez was denied
the following items and services from November 14 to
November 26, 2001: all allowable in-cell property; sink and
toilet water; showers; one-hour outdoor exercise period;
and, among other things, law library services.
Am. Compl. at ¶ 8.
As for the July 2002 allegations, we summarized those
claims in our previous Report–Recommendation addressing
Defendants' Motion for Judgment on the Pleadings as follows:
Plaintiff claims that Defendants Bradt
and Chilson either approved or issued
unspecified deprivation orders causing
Plaintiff to be without the following
items and services from July 9
through July 14, 2002: all in-cell
property, pen, bed sheets, mattress,
toilet tissue, running water, showers,
exercise periods, and law library
services. Am. Compl. at ¶ 51. Plaintiff
also claims that from July 14 through
July 25, 2002, and from July 25
through August 8, 2002, Defendants
Bradt, Chilson, and Martens approved
or issued more unspecified orders
depriving him of the same items and
services listed above. 11 Id. at ¶¶ 53 &
55.
Dkt. No. 106 at pp. 12–13.
Plaintiff also claims in his Amended Complaint that
the above-mentioned July 2002 Deprivation Orders were
approved of by Defendants Burge, Kneeland, Rourke,
Gummerson, and Wolczyk. Am. Compl. at ¶¶ 52, 54, & 56.
In order to state a valid conditions of confinement claim
under the Eighth Amendment, a plaintiff must allege: (1) the
conditions were so serious that they constituted a denial of the
“minimal civilized measure of life's necessities,” and (2) the
prison officials acted with “deliberate indifference.” Wilson
v. Seiter, 501 U.S. 294, 297–99 (1991) (citation omitted)
(cited in Branham v. Meachum, 77 F.3d 626, 630–31 (2d
Cir.1996)). With respect to deprivation orders, the Second
Circuit has held that it is appropriate to consider whether the
order in question “was reasonably calculated to restore prison
discipline and security and, in that purposive context, whether
the officials were deliberately indifferent to [plaintiff's] health
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and safety.” Trammell v. Keane, 338 F.3d 155, 163 (2d
Cir.2003).
Defendants assert that the Deprivation Orders enforced
against Plaintiff were issued for valid penological reasons.
Mark L. Bradt was a Deputy Superintendent of Security
(“DSS”) at Auburn from January 7, 2002 through April
30, 2004. Bradt Aff. at ¶ 1. Bradt avers that “in order to
make determinations regarding appropriate levels of security
and restraint for the inmates in the prison, [he] frequently
consulted the disciplinary histories of the inmates at the
prison.” Id. at ¶ 5. Prior to his arrival at Auburn, Plaintiff had
a lengthy disciplinary history, which included the following
violations of DOCS rules:
*9 1. creating a disturbance (5 times);
2. assault on staff (4 times); 3. lewd
conduct (8 times); 4. threats (6 times);
5. unhygienic act (11 times); 6. arson
(2 times); 7. flooding (2 times); 8. loss
or damage to property (3 times); and 9.
violent conduct (2 times).
Id. & Ex. A, Pl.'s Disciplinary History.
Bradt states that upon Benitez's arrival at Auburn on
November 14, 2001, he was issued an order that deprived
him of water, all cell property, bucket, and personal property
from November 14–25, 12 2001, because of his history of
disruption and throwing things. Bradt Aff. at ¶ 7 & Ex. C,
Deprivation Order, dated Nov. 22, 2001. That Deprivation
Order was issued by then-DSS John Burns, who rescinded the
order on November 26, 2001. Id.
On July 9, 2002, Bradt issued Plaintiff an order depriving him
of cell water because Plaintiff had thrown “liquid substances
on two (2) occasions from his cell onto Auburn C.F. staff
members,” and had flooded his and other cells in his section.
Bradt Aff. at ¶¶ 8–9 & Ex. C, Deprivation Order, dated July
9, 2002. In his Amended Complaint, Plaintiff confirms that
he engaged in such conduct. Am. Compl. at ¶¶ 26 (“Benitez
threw a liquid substance through the narrow food port of
his cell, striking Lennox and Martens.”) & 28 (“Benitez
[again] threw a liquid substance through the narrow food
port on the gate of his cell.”). Based on his judgment that
Plaintiff continued to pose a security threat, Bradt continued
the Deprivation Order until July 14th. Bradt Aff. at ¶ 9. On
July 14th, Defendant Sgt. Martens recommended that the
July 9th Deprivation Order be renewed because “on 7–9–02
[Benitez] threw feces on staff/nurse” and on “7–10–02 spit
on staff while being served misbehavior reports.” Id. at ¶ 10
& Ex. C, Deprivation Order. On July 16th, Bradt authorized
the renewal of the July 9th Deprivation Order, which was
apparently expanded 13 to include showers, cell property,
sheets and mattress, and renewed it again on July 20, 22, 23,
and 24, 2002, “because plaintiff posed a continued threat to
the safety and security of staff, inmates, or State property.”
Bradt Aff. at ¶¶ 10–11 & Ex. C, Deprivation Order, dated July
20, 2002.
For his part, Plaintiff alleges that these deprivation orders
were retaliatory in nature. He points to a July 24, 2002 letter
Bradt sent to Kate Rainbolt, a Staff Attorney for Prisoner's
Legal Services of New York, in which he stated:
In response to your concerns be
advised that inmate Benitez ... is
house[d] in “A” tank in the Special
Housing Unit at Auburn. He was
involved in an Unusual Incident
on 7/9/02 involving aggravated
harassment. The throwing of ones
own human waste on another person
isn't normal. He was placed in A–
1 cell as it has a more secure feed
up hatch. A Mental Health referral
was submitted and OMH advised that
because of his agitated state that he
be deprived of any item that he could
use to harm himself. He has been given
all of his entitled property. Inmate
Benitez was placed on a restricted
diet in accordance with procedures
established in Deputy Commissioner
LeClaire's memo dated 4/24/00.
*10 Benitez Decl., Ex. D, Lt., dated July 24, 2002 (emphasis
added).
Plaintiff argues that the italicized portion of the above letter
undermines Bradt's statement that the Deprivation Orders
were implemented due to his behavior. Pl.'s Mem. of Law
at p. 11. That argument is without merit. The above letter
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provides additional confirmation of Benitez's gross acts,
which Bradt asserts were the basis for the Deprivation Orders.
Although Bradt mentions that certain objects were removed
due to concerns over Plaintiff's mental health, that does not
contradict his averment that the water, sheets, and other items
were removed due to Plaintiff's behavior.
It is clear from the record that the above Deprivation
Orders were issued in response to Plaintiff's own actions and
history of misbehavior. See Hudson v. McMillan, 503 U.S.
1, 6 (1992) (noting that “[p]rison administrators ... should
be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment
are needed to preserve internal order and discipline and to
maintain institutional security.” (internal quotation marks and
citation omitted)). Plaintiff has offered no evidence beyond
his own accusations to suggest otherwise. Because there is no
evidence of any deliberate indifference on Defendants' part,
it is recommended that these Eighth Amendment claims be
dismissed.
3. Cell Ventilation
Plaintiff alleges he filed a Grievance on January 26, 2002,
complaining about lack of ventilation in his cell that was
causing him “bronchospasm and great difficulty breathing.”
Am. Compl. at ¶ 15. Plaintiff asserts that Defendants J. Burge
and T. Eagen reviewed his Grievance and failed to remedy
the situation, which caused Plaintiff to suffer, on July 1, 2002,
“great difficulty breathing and lost consciousness,” and a
severely injured head. Id. at ¶¶ 16–17 & 24.
The record reflects that Plaintiff filed a Grievance, dated
January 26, 2002, in which he complained that the plexiglass
shield used to cover the opening in his cell did not provide
adequate ventilation. Defs.' 7.1 Statement, Ex. K, Grievance,
dated Jan. 26, 2002. In a Memorandum, dated April 13, 2002,
Sgt. Martens noted that “[t]here are numerous holes drilled in
[the] cell shield for adequate ventilation,” and that he noticed
upon inspection that Benitez “had piled in front of his cell
shield four (4) bags of legal work—blocking his ventilation
holes.” Id., Mem., dated Apr. 13, 2002. Plaintiff appealed
the January 26th Grievance to Superintendent Burge, who
denied his appeal on April 15, 2002, stating that “[a] private
contractor completed a scientific survey of the air quality of
all cells in SHU,” and that “[a]ll cells meet or exceed air
quality standards.” Id., Sup't Decision, dated Apr. 15, 2002.
CORC also denied Plaintiff's Grievance on appeal. Id., CORC
Decision, dated May 15, 2002.
In another Grievance, dated July 1, 2002, Plaintiff complained
that
*11 [o]n July 1, 2002, at about 7[ ]
p.m., I began to sweat profusely and
to experience great difficulty breathing
normally (I suffer from asthma).
Thereafter, I “blacked out” (lost
consciousness) and fell from my bed
onto the floor, causing injury to
my head. I have been experiencing
difficulty in breathing normally and
have been drifting in and out of
[consciousness] for the past 6 months
due to inadequate ventilation on the
plexiglass which covers the entire
front of my assigned cell.
Defs.' 7.1 Statement, Ex. N, Grievance, dated July 1, 2002.
That Grievance was denied after Nurse Administrator A.
Driscoll reported that her examination of Plaintiff on July 3,
2002, had revealed no abnormality in Plaintiff's lungs, nor
did he exhibit any difficulty breathing. Id., Investigative Rep.,
dated July 10, 2002.
As Defendants point out, Plaintiff does not allege the
nature of his alleged head injury, nor any other ventilation-
related incident that occurred during the six-month period
from January through July 2002 during which Plaintiff
alleges to have been deprived of adequate ventilation. In
addition, Plaintiff offers no evidence to substantiate his
claims that he was denied adequate ventilation. The evidence
available indicates that the protective plexiglass shield, which
was imposed due to Plaintiff's affinity for throwing liquid
substances from his cell, had holes in it, and that Plaintiff
never presented to medical staff with breathing problems.
Given the evidence before us, we find that no questions of
material fact exist with respect to these ventilation claims.
Therefore, these claims should be dismissed.
4. Denial of Meals
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In our previous Report–Recommendation addressing
Defendants' Motion for Judgment on the Pleadings, we
recommended dismissal of the majority of Plaintiff's claims
regarding his alleged denial of meals. Dkt. No. 106 at
pp. 11–12. However, we recommended against dismissal of
Plaintiff's allegation that he was wantonly deprived breakfast
and lunch on January 28, 2002, by Defendants Smith and
Baranska, respectively. Id. at p. 12; Am. Compl. at ¶¶ 22–23.
Defendants have now submitted a Grievance, dated January
28, 2002, in which Plaintiff asserts that
[o]n 1/28/02, Sgt. Murler informed
me that he had been advised that
Sgt. Cooper or Lt. Easterbrook had
placed me on a so-called pre-hearing
restricted diet. I informed Sgt. Murler
that any such pre-hearing diet would
violate Directive 4933, § 304.2(b)
(1)-(4) because that section does not
authorize[d] imposition of a pre-
hearing diet, and because I have
not engage[d] in any misconduct
that would warrant imposition of a
restricted or pre-hearing restricted diet.
Nevertheless, I was offered a restricted
diet for breakfast and for lunch, both
of which I refused.
Defs.' 7.1 Statement, Ex. J, Grievance, dated Jan. 28, 2002
(emphasis added).
Thus, by Plaintiff's own admission, he was offered both
breakfast and lunch on January 28, 2002. Therefore, it
is recommended that Plaintiff's remaining meal-deprivation
claims be dismissed.
5. Tightness of Shackles and Cuffs
*12 Plaintiff alleges that on August 17, 23, 27, 28, and
September 3, 2002, Defendant Considine “willfully and
wantonly” placed handcuffs and shackles on his ankles and
wrists too tightly, causing him “great pain and permanent
nerve damage.” Am. Compl. at ¶¶ 58–61. Plaintiff also alleges
that on September 7, 2002, Defendant Clarke placed shackles
on him too tightly, also causing him pain and nerve damage.
Id. at ¶ 82. Defendants assert that the above allegations are
conclusory and insufficient to state a valid claim under the
Eighth Amendment as a matter of law. Defs.' Mem. of Law
at pp. 30–33. We agree.
Although a cause of action may lie under the Eighth
Amendment for injuries caused by the wanton use of
extremely tight handcuffs and/or shackles, see, e.g., Davidson
v. Flynn, 32 F.3d 27 (2d Cir.1994), in this case, Plaintiff does
not state enough facts to state a valid claim. Plaintiff does not
allege for how long the handcuffs and shackles were applied,
nor the circumstances of their application. He simply alleges
that they were applied “wantonly” and caused severe pain
and nerve damage, without any explanation as to how the
nerve damage was caused or how he learned of such injury.
See Jemzura v. Public Service Com'n, 961 F.Supp. 406, 413
(N.D .N.Y.1997) (citing Zemsky v. City of New York, 821 F.2d
148, 151 (2d Cir.1987) for the proposition that “[e]ven a pro
se Complaint must be dismissed if it contains only conclusory,
vague or general allegations”) (internal quotations omitted).
Therefore, it is recommended that these conclusory
allegations be dismissed as a matter of law and pursuant to 28
U.S.C. § 1915(e) (2)(B)(ii), which gives the Court the power
to dismiss at any time a complaint brought by a prisoner
proceeding in forma pauperis for failure to state a claim.
D. Retaliation
Plaintiff alleges that the Deprivation, Restraint, and Cell
Shield Orders discussed above were issued against him
in retaliation for lawsuits he filed in 1989. The Second
Circuit has stated that courts must approach prisoner
retaliation claims “with skepticism and particular care,”
since “virtually any adverse action taken against a prisoner
by a prison official-even those otherwise not rising to the
level of a constitutional violation-can be characterized as a
constitutionally proscribed retaliatory act.” Dawes v. Walker,
239 F.3d 489, 491 (2d Cir.2001) (citing Flaherty v. Coughlin,
713 F.2d 10, 13 (2d Cir.1983) & Franco v. Kelly, 854 F.2d
584, 590 (2d Cir.1988)), overruled on other grounds by
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
In order to prevail on a retaliation claim, a plaintiff bears
the burden to prove that (1) he engaged in constitutionally
protected conduct; (2) prison officials took an adverse action
against him; and (3) a causal connection exists between the
protected speech and the adverse action. Bennett v. Goord,
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343 F.3d 133, 137 (2d Cir.2003) (citations omitted); see also
Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004) (citation
omitted).
*13 A plaintiff may meet the burden of proving an
inappropriate retaliatory motive by presenting circumstantial
evidence of a retaliatory motive, such as temporal proximity,
thus obviating the need for direct evidence. Bennett v. Goord,
343 F.3d at 138–39 (holding that plaintiff met his burden
in proving retaliatory motive by presenting circumstantial
evidence relating to, inter alia, the temporal proximity
of allegedly false misbehavior reports and the subsequent
reversal of the disciplinary charges on appeal as unfounded).
Other factors that can infer an improper or retaliatory
motive include the inmate's prior good disciplinary record,
vindication at a hearing on the matter, and statements by
the defendant regarding his motive for disciplining plaintiff.
McEachin v. Selsky, 2005 WL 2128851, at *5 (N.D.N.Y. Aug.
30, 2005) (citing Colon v. Coughlin, 58 F.3d 865, 872–73 (2d
Cir.1995)).
1. Deprivation Orders
Plaintiff asserts that the November 2001 and July 2002
Deprivation Orders were issued in retaliation for lawsuits he
filed against Burns and other Auburn employees in 1989. Am.
Compl. at ¶¶ 8–11. The filing of lawsuits is conduct protected
by the First Amendment, however, Plaintiff has failed to show
a causal connection between the lawsuits he filed in 1989 and
the issuance of the Depravation Orders. As discussed above,
Plaintiff has offered no evidence to rebut Defendants proof
that the Deprivation Orders were precipitated by Plaintiff's
own actions and history of misbehavior. Furthermore, there
is no evidence that the Deprivation Orders issued in 2001
were motivated by lawsuits he filed in 1989. Indeed, such
a significant temporal gap undermines any allegation of a
causal connection. Therefore, it is recommended that these
retaliation claims be dismissed.
2. Restraint and Cell Shield Orders
Plaintiff asserts that Defendant Burns issued retaliatory
Restraint and Cell Shield Orders against him on November
14, 2001, which were renewed through June 25, 2002, by
Burns, Gummerson, Rourke, and Bradt. Am. Compl. at ¶¶
8–11. Restraint orders “designate what restraints need to be
placed on inmates when they are out of their cells, including
hand cuffs and leg irons.” Bradt Aff. at ¶ 20. A cell shield
is “a transparent cell front covering, equipped to provide
adequate ventilation,” which are ordered to, inter alia, protect
against “[s]pitting through the cell door, or the throwing of
feces, urine, food, or other objects through the cell door.” N.Y.
COMP.CODES R. & REGS. tit. 7, § 305.6(a)-(b).
Bradt asserts that Plaintiff was issued Restraint and Cell
Shield Orders upon his arrival at Auburn on November 14,
2001, due to “Benitez's extensive record of threats, violence,
and unhygienic acts toward staff” and history of disruptive
behavior. Bradt Aff. at ¶¶ 14, 18, 21 & Exs. D–E, Shield and
Restraint Orders, dated Nov. 14, 2001 through Sept. 10, 2002.
Those Orders were subsequently renewed by Defendants
Burns, Rourke, Gummerson, and Bradt on a weekly basis due
to Plaintiff's disciplinary history. Id. at ¶¶ 15 & 22.
*14 Thus, Defendants have provided evidence that the
Shield Orders were imposed for valid penological reasons.
Beyond his allegations, Plaintiff offers no proof that the
Shield and Restraint Orders were issued for any improper
reason. Also, as mentioned above, the fact that he sued several
Defendants in 1989 is not sufficient to demonstrate a causal
connection to the Shield and Restraint Orders issued in 2001
and 2002. Therefore, it is recommended that these retaliation
claims be dismissed.
E. Due Process Claims
Plaintiff alleges that his due process rights were violated
during the course of three separate Disciplinary Hearings
conducted in November 2001 and July 2002. Am. Compl. at
¶¶ 2–7 & 41–50. In order to state a procedural due process
claim pursuant to the Fourteenth Amendment, an inmate must
first establish that he enjoys a protected liberty interest. Arce
v. Walker, 139 F.3d 329, 333 (2d Cir.1998) (citing Kentucky
Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). Such
interests are derived from the Fourteenth Amendment Due
Process Clause itself or from state statute or regulations. Id.
However, because Defendants do not challenge Plaintiff's
assertion of a liberty interest, we move directly to the
question of whether Plaintiff, prior to his confinement, was
afforded the minimum requirements of due process. Wolff v.
McDonnell, 418 U.S. 539, 556 (1974).
A prisoner placed in administrative segregation must be
provided (1) advanced written notice of the charges against
him at least twenty-four (24) hours prior to the hearing; (2)
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the opportunity to appear at the hearing, call witnesses, and
present rebuttal evidence; and (3) a written statement as to
the evidence relied upon and the reasons for the disciplinary
action taken. Id. at 564–66; see also Freeman v. Rideout, 808
F.2d 949, 953 (2d Cir.1986); Taylor v. Rodriguez, 238 F.3d
188, 192 (2d Cir.2001) (quoting Hewitt v. Helms, 459 U.S.
460, 476 (1983)).
1. November 2001 Disciplinary Hearing
Plaintiff alleges Defendant Locastro violated his due process
rights at a Disciplinary Hearing that commenced on
November 21, 2001. Am. Compl. at ¶¶ 1–6. Specifically,
Plaintiff alleges that (1) he was denied the right to present a
video as documentary evidence; and (2) Locastro improperly
took confidential testimony from Wayne Crozier and, without
offering any justification, refused to disclose the substance of
such testimony. Id.
Plaintiff was transferred from Clinton Correctional Facility
to Auburn on November 14, 2001. Am. Compl. at ¶ 8.
On November 8, 2001, while still incarcerated at Clinton,
Plaintiff was issued a Misbehavior Report accusing him
of squirting a brown liquid that smelled like feces from a
toothpaste tube on C.O. R. Duprey, 14 and charging him with
the following violations: assault, threats, disruptive behavior,
harassment, and committing an unhygienic act. Defs.' 7.1
Statement, Ex. B, Misbehavior Rep., dated Nov. 8, 2001.
*15 During the Disciplinary Hearing, which was held at
Auburn after Plaintiff's transfer, Plaintiff requested a copy of a
security videotape from Clinton that would show the incident
and allegedly prove his innocence. Id., Ex. S, Disciplinary
Hr'g Tr., dated Mar. 21, 2002, at p. 10. Defendant Locastro,
who presided over the Hearing, adjourned the proceeding
so Plaintiff could make his evidentiary requests through
an assistant. Id. at pp. 11–12. When the Hearing resumed,
Locastro read into the record a memo from Defendant Lt.
Miller indicating that “there is no videotape of the incident
available” because the “system which would normally record
all the areas of our Special Housing Unit was not operating
on 11/08/01.” Id. at p. 13. Locastro noted that he couldn't
“produce something that's unavailable.” Id. at p. 14.
Later in the Hearing, Plaintiff asserted that in another recent
Disciplinary Hearing held at Auburn concerning charges
against him that also stemmed from events occurring at the
SHU in Clinton on November 8, 2001, he was provided a
videotape of that incident and was able to prove his innocence
therewith. Id. at pp. 30–33. Notwithstanding that argument
and Plaintiff's production of proof of the favorable disposition
he received in that Hearing, Locastro still found Plaintiff
guilty of creating a disturbance, assault on staff, committing
an unhygienic act, and harassment; Locastro found Plaintiff
not guilty of making threats. Id. at p. 34. In rendering his
decision, Locastro relied on the testimony of C.O. Duprey and
the confidential testimony of Mr. Wayne Crozier. Id.
Plaintiff alleges that Locastro's failure to produce a videotape
of the November 8, 2001 incident at Clinton violated his
due process rights. The record shows that Locastro attempted
to obtain the video, but was informed of its unavailability
in a memo from Defendant Miller. Locastro did not violate
Plaintiff's due process rights when he relied upon Miller's
statement that the videotape was unavailable. See, e.g.,
Hodges v. Jones, 873 F.Supp. 737, 744 (N.D.N.Y.1995) (“Due
Process does not require that the hearing officer's credibility
assessments or weighing of the evidence be evaluated; rather,
the relevant standard is whether there is some evidence
in the record to support the disciplinary decision.”) (citing
Superintendent, Massachusetts Corr. Inst. v. Hill, 472 U .S.
445, 455 (1985)). After reviewing the Hearing Transcript,
it is clear that Locastro's disposition was based on “some
evidence,” which included Officer Duprey's testimony that
Plaintiff squirted liquid fecal matter at him using a toothpaste
tube. Defs.' 7.1 Statement, Ex. S, Disciplinary Hr'g Tr. at pp.
26–27. Finally, Plaintiff was provided notice of the charges
against him, an opportunity to present other evidence and to
question witnesses, and Locastro's disposition statement that
included the evidence relied upon. Id. at pp. 1–35.
*16 Plaintiff also alleges that Locastro violated his due
process rights when he took confidential testimony from
Wayne Crozier. With respect to that testimony, Defendant
Locastro has submitted an Affidavit asserting that
[a]fter reviewing the record and hearing from plaintiff, I
decided to conduct a confidential interview, via telephone,
of the Mental Health Staff at Clinton CF. I did so
to determine if there were any medical or legitimate
psychiatric reasons that would mitigate any penalty I might
impose on Plaintiff. I excluded plaintiff from the interview
as standard DOCS procedure at the time, to protect the
mental health care staff from any possible retaliation and
to insure their candor in relating whether or not an inmate's
behavior could be excused or explained as resulting from
mental illness.
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I did not seek any evidence related directly to the charges
in conducting the confidential interview. I only sought to
determine if there were mental health concerns that might
have been relevant to plaintiff's behavior.
Dkt. No. 132, Joseph Locastro Aff., dated June 1, 2009, at ¶¶
3–4. 15
Defendants note that pursuant to DOCS regulations, “[w]hen
an inmate's mental state or intellectual capacity is at issue,”
the hearing officer “shall consider evidence regarding the
inmate's mental condition or intellectual capacity.” N.Y.
COMP.CODES R. & REGS., tit. 7, § 254.6(b). Plaintiff has
not offered any response to Locastro's averments. There is
no evidence to suggest that Plaintiff's due process rights
were in any way violated when Locastro interviewed Crozier
to ascertain if there existed any mitigating circumstances
occasioned by Plaintiff's mental health.
Therefore, it is recommended that these due process claims
be dismissed.
2. July 11, 2002 Disciplinary Hearing
On July 11, 2002, Defendant Gummerson presided over a
Disciplinary Hearing concerning three separate Misbehavior
Reports all issued on July 9, 2002. Plaintiff alleges that on July
11, 2002, Defendants C. Clarke and S. Crozier “willfully and
knowingly falsely told Gummerson that Benitez had refused
to attend [the hearing].” Am. Compl. at ¶ 41. Benitez asserts
that Gummerson
wilfully and wantonly commenced
the hearing ... without making an
attempt to interview [him] personally
in order to ascertain (a) whether
Benitez had been provided a copy
of the misconduct reports ...; (b)
whether Benitez had made a knowing,
voluntary, and intelligent waiver of
his right to attend the hearing; and
(c) whether Benitez had been advised
of the consequences of his failure to
attend the hearing.
Id. at ¶ 42.
Furthermore, Plaintiff asserts that after he was found guilty
of charges, Clarke and Crozier refused to provide him with a
copy of the hearing disposition sheet. Id. at ¶ 44.
Defendants have provided a copy of a Waiver Form,
dated July 11, 2002, signed by Defendant Crozier, which
indicates that Plaintiff refused to attend the Hearing and also
refused to sign the waiver form acknowledging such refusal.
Defs.' 7.1 Statement, Ex. D, Waiver Form, dated July 11,
2002. Defendants have also submitted a copy of an Inter–
Departmental Communication from Clarke to Gummerson,
in which Clarke states that on July 11, 2002, he delivered
a copy of the disposition rendered in the July 11th Tier III
Disciplinary Hearing as well as an appeal form to Benitez. Id .,
Inter–Dep't Comm., dated July 11, 2002. Finally, a case data
worksheet reflects that Plaintiff was provided copies of the
three Misbehavior Reports on July 10, 2002. Id., Case Data
Worksheet, dated July 10, 2002.
*17 Beyond his own accusations, Plaintiff has offered
nothing to rebut the Defendants' documentary case. See Pl.'s
Mem. of Law at pp. 16–19. Although Plaintiff alleges that
Gummerson knew that he did not have copies of the July
9th Misbehavior Reports because he was under Deprivation
Orders and “that Clarke and Crozier had falsely notified him
[on July 11, 2002] that Benitez had refused to attend the
hearing,” Pl.'s Mem. of Law at p. 17, there is nothing in the
record to substantiate those claims. See 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.”). Furthermore, Plaintiff has offered
no legal support for his conclusion that a hearing officer
is required to personally interview an inmate in order to
assure the voluntariness of his waiver of appearance, nor
has the Court's research revealed any precedents supporting
such conclusion. Therefore, because Plaintiff received a
copy of the Misbehavior Report, waived his right to attend
the Disciplinary Hearing, and was provided a copy of
its disposition, it is recommended that these claims be
dismissed. See Dawes v. Carpenter, 899 F.Supp. 892, 897
(N . D.N.Y.1995) (citing Boddie v. Connecticut, 401 U.S.
371 (1971) for the proposition that “[d]ue process requires
only that an accused have an opportunity to be heard, an
opportunity that can be waived”).
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3. July 16, 2002 Disciplinary Hearing
Plaintiff makes similar allegations concerning his July 16,
2002 Disciplinary Hearing: (1) John Doe No. 7 denied him
a copy of the Misbehavior Report; (2) Clarke and Considine
“falsely told Defendant Wolcyzk [ ] that Benitez had refused
to attend” the Disciplinary Hearing; (3) Wolcyzk “wantonly
commenced the hearing without making an attempt to
interview Benitez personally” in order to determine if his
waiver was voluntarily and intelligently made; and (4) Clarke
and Crozier “refused to provide [him] a copy of the hearing
disposition sheet.” Am. Comp. at ¶¶ 45–47 & 49.
The July 16, 2002 Disciplinary Hearing concerned a
Misbehavior Report issued against Plaintiff on July 10, 2002.
Defs.' 7.1 Statement, Ex. E, Misbehavior Rep., dated July 10,
2002. Once again, Defendants have submitted documentary
evidence that Plaintiff waived his right to be present at
the Disciplinary Hearing and was provided a copy of the
disposition. A “Refusal to Attend Hearing” Form, dated July
16, 2002, reflects that Plaintiff refused to attend the July 16
Tier III Hearing and also refused to sign the refusal form. Id.,
Refusal to Attend Hr'g Form, dated July 16, 2002. Also in the
record is an Inter–Departmental Communication from Clarke
to Wolcyzk indicating that he delivered Plaintiff a copy of
Wolcyzk's disposition on July 17, 2002, as well as an appeal
form. Id., Inter–Dep't Comm., dated July 16, 2002. Finally, a
Case Data Worksheet shows that Plaintiff was given a copy
of the July 10 Misbehavior Report. Id., Case Data Worksheet,
dated July 11, 2002.
*18 Contrariwise, Plaintiff has offered no evidence in
support of his allegations. Therefore, because Plaintiff has
failed to show a material question of fact exists with respect
to these due process claims, it is recommended that they be
dismissed.
F. Failure to Serve
Under Federal Rule of Civil Procedure 4(c)(1), the plaintiff
is responsible for service of the summons and complaint for
each defendant within a specified time period. Specifically,
the plaintiff must effectuate service of process within 120
days of the filing of the complaint. FED. R. CIV. P. 4(m). 16
Failure to properly serve any defendant in accordance with
the Federal Rules will result in the court, upon motion or on
its own initiative, to dismiss the case without prejudice as to
that defendant. Id.
In this case, there is no indication that the Defendants John
Does Nos. 1–7, and C.O. Smith 17 were properly served.
Because Plaintiff's claims against John Doe No. 7 and
C.O. Smith lack merit, granting Plaintiff the opportunity to
properly serve these unnamed Defendants would be futile.
Thus, it is recommended that Plaintiff's claims against John
Doe No. 7 and C.O. Smith be dismissed. As previously
discussed, we have recommended that Plaintiff's claims
against John Does Nos. 1–6 not be dismissed. Should the
District Court adopt that recommendation, we will afford
Plaintiff the opportunity to file a motion to amend his
Amended Complaint in order to name John Does Nos. 1–6. If
such motion is submitted and granted, we would at that time
direct the effectuation of service on John Does Nos. 1–6.
III. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that the Defendants' Motion for
Summary Judgment (Dkt. No. 118) be GRANTED in part
and DENIED in part in accordance with the above opinion;
and it is further
RECOMMENDED, that should the District Court adopt this
Report–Recommendation, the only remaining Defendants
will be Rourke and John Does Nos. 1–6; and it is further
ORDERED, that should the District Court adopt this Report–
Recommendation, Plaintiff shall be afforded thirty (30) days
from the date of such adoption to file a motion to amend his
Amended Complaint in order to identify John Does Nos. 1–6,
which shall include a proposed Second Amended Complaint
attached thereto; 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 ten
(10) 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 TEN (10) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
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Benitez v. Locastro, Not Reported in F.Supp.2d (2010)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 14
(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); FED. R. CIV. P. 72, 6(a), & 6(e).
All Citations
Not Reported in F.Supp.2d, 2010 WL 419999
Footnotes
1 The remaining Defendants are: Locastro, Lt. Miller, Selsky, Burns, Martens, Gummerson, Rourke, Bradt,
Burge, Eagen, R. (C.O.) Smith, Baranska, (R.N.) Smith, Chilson, Kneeland, Clarke, Considine, Crozier, and
Wolczyk. See generally Dkt.
2 Because of the volume of claims and Defendants, the Court will recite the undisputed/disputed material facts
as it addresses each claim.
3 Officer Hnatiw is not a Defendant in this action.
4 The first Deprivation Order, dated July 9, 2002, indicates that Plaintiff was deprived only of cell water. Bradt
Aff., Ex. C, Deprivation Order, dated July 9, 2002. On July 16, 2002, Bradt signed a Deprivation Order
Renewal of the original July 9 Order, but also listed “cell property” as one of the deprivations. Id., Deprivation
Order, dated July 16, 2002. Thus, it is unclear if the “cell property” was omitted from the original July 9 Order,
or if it was added as an additional deprivation upon renewal of that Order. Also, although Plaintiff alleges that
these Deprivation Orders were continued through August 8, 2002, the copies of the Orders provided to the
Court run only to July 25, 2002. Am. Compl. at ¶¶ 53 & 55; Brad Aff., Ex. C.
5 In our previous Report–Recommendation, we dismissed any due process claim Plaintiff might have intended
to assert concerning the failure to process grievances as an independent constitutional violation. Dkt. No.
106 at pp. 20–21.
6 In that respect, the Court notes that documents submitted in support of the Defendants' current Motion clearly
indicate the names of the correctional officers involved in the July 9, 2002 cell extraction. See Defs.' 7.1
Statement, Ex. C.
7 The Court is aware that any such motion to amend will face serious and possibly fatal hurdles. The Second
Circuit's interpretation of the “relation back” doctrine imbedded in Federal Rule of Civil Procedure 15 may
leave Plaintiff no recourse as his failure to identify the John Doe Defendants was arguably not do to a
mistake, but rather, to his own lack of knowledge. See Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470
(2d Cir.1995) (“Rule 15(c) does not allow an amended complaint adding new defendants to relate back if
the newly-added defendants were not named originally because the plaintiff did not know their identities.”).
However, several courts in this Circuit, including this one, have held that the aforementioned rule may not be
applicable in all circumstances, particularly when a defendant has prevented the plaintiff from discovering the
identity of the John Doe defendants and the plaintiff has taken reasonable affirmative steps to discover their
identities. See Jennings v. Dep't of Justice Serv., 2008 WL 2967533, at *5 (N.D.N.Y. Mar. 26, 2008) (Report–
Recommendation and Order) adopted in part and rejected in part on other grounds sub nom. by Jennings v.
Ciciarelli, 2008 WL 2967530 (N.D.N.Y. July 30, 2008); see also, e.g., Byrd v. Abate, 964 F.Supp. 140, 146
(S.D .N.Y.1997) (stating that “[t]o hold that Rule 15(c) does not permit relation back in such circumstances
would permit defense counsel to eliminate claims against any John Doe defendant merely by resisting
discovery requests until the statute of limitations has ended”); Maccharulo v. Gould, 2009 WL 2495780, at
*6 (S.D.N.Y. Aug. 14, 2009) (“Where a plaintiff tries diligently during the limitations period to ascertain the
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Benitez v. Locastro, Not Reported in F.Supp.2d (2010)
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identities of the intended defendants, failure to ascertain the correct names within the period, combined with
some ‘John Doe’ or other generic identification in the pleading, may suffice to establish a factual ‘mistake’
supporting relation back.”). Therefore, it would be rash at this juncture for the Court to rule out the possibility
that Plaintiff's forthcoming second amended complaint will not relate back to his original Complaint under
Rule 15.
8 For example, in a copy of a memorandum from Rourke to Deputy Superintendent of Security Bradt dated
July 9, 2002, Rourke states that he “went to SHU to help facilitate the move of [Benitez] to A–1 cell which
has a more secure cell hatch. On 7/9/02 this inmate had already thrown on (4) staff members in SHU.” Defs.'
7.1 Statement, Ex. C–9, Mem. dated July 9, 2002.
9 Plaintiff does not allege that Nurse Smith participated in or was witness to any of the alleged acts of excessive
force taken against him.
10 Plaintiff also asserts these Deprivation Orders were motivated by retaliatory animus. We address his
retaliation claims below in Part I.D.
11 In addition to the items listed, Plaintiff asserts he was denied “a water bucket” from July 25 though August
8, 2002. Am. Compl. at ¶ 55.
12 The original Deprivation Order was to last from November 14–22, but was renewed on November 23, 24,
and 25, 2002. Bradt Aff., Ex. C, Deprivation Order.
13 See supra footnote 4.
14 R. Duprey is not a Defendant in this action.
15 In their Motion for Summary Judgment, Defendants submitted separately to Chambers for an in camera
review a portion of the November 2001 Disciplinary Hearing Transcript that contained the confidential
testimony of Wayne Crozier, which was identified as Exhibit T. Dkt. No. 118. Thereafter, the Court returned
Exhibit T to Defendants' counsel and ordered that it would only approve an in camera review upon the
submission of a formal request from Defendants. Dkt. No. 119. Thereafter, Defendants filed a Formal
Application for permission to submit Exhibit T for an in camera review, which was denied. Dkt. Nos. 120 &
129. Subsequently, Defendants submitted Locastro's Affidavit in lieu of submitting Exhibit T. Dkt. No. 132.
16 Under the Local Rules for the Northern District of New York, a plaintiff must effectuate service within sixty
(60) days. N.D.N.Y.L .R. 4.1(b).
17 C.O. Smith is named “R. Smith” on the Docket, but we have referred to him as “C.O. Smith” in order distinguish
him from Defendant Nurse R. Smith. See Dkt. No. 106 at p. 4 n. 3. Nurse R. Smith has been served with
process, Defendant C.O. Smith has not. Dkt. Nos. 13 & 37.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Berry v. City of New York Dept. of Corrections, Not Reported in F.Supp.3d (2014)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Blake v. Israel Sexton, Sergeant, New York City Police
Department, S.D.N.Y., March 24, 2016
2014 WL 2158518
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Shawn M. BERRY, Plaintiff,
v.
CITY OF NEW YORK DEPARTMENT
OF CORRECTIONS, Co. Castro # 7800,
and Co. L. Beckwith # 1983, Defendants.
No. 12 Civ. 7819(RWS).
|
Signed May 22, 2014.
Attorneys and Law Firms
Shawn M. Berry, Comstock, NY, pro se.
Jeffrey D. Friedlander, Acting Corporation Counsel for the
City of New York, by: James Horton, Esq., New York, NY,
for the Defendants.
OPINION
SWEET, District Judge.
*1 Defendants City of New York Department of Corrections
(the “DOC”) and Correction Officers Castro (“Castro”) and
Beckwith (“Beckwith”) (collectively, “Defendants”) have
moved pursuant to Federal Rules of Civil Procedure 56
for summary judgment to dismiss the pro se Plaintiff
Shawn M. Berry's (“Berry” or “Plaintiff”) Second Amended
Complaint (“SAC”). Based on the conclusions set forth
below, Defendants' motion is granted.
Prior Proceedings
This action was initiated by Plaintiff on October 18, 2012
with the filing of the initial Complaint arising out of an
incident that allegedly occurred on August 30, 2012 at
the Mental Health Assessment Unit for Infracted Inmates
(“MHAUII”) at the George R. Vierno Center (“GRVC”) at
Rikers Island. (SAC ¶ II.D). The Plaintiff filed an Amended
Complaint on January 2, 2013, and the SAC on March
20, 2013. The SAC alleges a 42 U.S.C. § 1983 claim
against the Defendants for failing to protect him from another
inmate. Defendants submitted their Answer on June 28, 2013.
Plaintiff's deposition was taken on November 20, 2013, and
fact discovery was ordered completed on November 25, 2013.
Defendants filed the instant motion for summary judgment on
January 9, 2014. Briefing was submitted and the matter was
marked fully submitted on March 12, 2014.
The Facts
The facts have been set forth in Defendants' Rule 56.1
Statement and Plaintiff's Statement of Undisputed Facts
contained in his Declaration In Opposition to Defendants'
Motion for Summary Judgment. The facts described below
are undisputed except as noted.
Berry was a detainee at MHAUII. On August 30, 2012
at approximately 12:00 p.m., Plaintiff was assisting with
the lunchtime food service in the MHAUII. According to
Plaintiff, he was working as a Suicide Preventive Aide in the
MHAUII, but was ordered to work out of his job description
to assist with the lunch-time feeding.
While assisting non-party Correction Officer Velez (“Velez”)
with the lunch feeding, Plaintiff was punched in the head
by another inmate, Oscar Punter (“Punter”). The attack on
Plaintiff by Punter was a surprise attack. Upon being punched
by Punter, Plaintiff began to “defend” himself by “swinging
crazy,” and threw three or four punches in the direction
of Punter. According to Plaintiff, when he began to defend
himself he was scared and in shock pain.
Additional correction officers arrived on the scene and issued
orders for the two inmates to stop fighting. Plaintiff was
unable to hear these commands because of the commotion,
and Plaintiff continued to throw punches at Punter until
he was sprayed with OC spray by Beckwith. According to
Plaintiff, none of the correction officers at the scene gave
Plaintiff an order to stop use of force. Plaintiff's version
of the events contends that Beckwith came from behind
Plaintiff and deliberately sprayed Plaintiff with OC spray in
both of Plaintiff's eyes. Suicide Preventive Aid and House
Infracted Inmates wear different clothing in the MHAUII
(gray jumpsuit and bright orange jumper, respectively), and
according to Plaintiff, Beckwith witnessed Plaintiff in gray
defending himself from Punter before he chose to spray
Plaintiff.
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*2 Plaintiff was then taken to decontamination, where the
OC spray residue was rinsed from his body. According to
Plaintiff, he was then taken to see a doctor, but was issued
eyeglasses weeks later.
At the time Plaintiff was sprayed with OC, Plaintiff was still
fighting with Punter. Prior to the fight between Plaintiff and
Punter, Plaintiff had never had any interaction or exchanged
words with Punter.
The Applicable Standards
Summary judgment is appropriate only where “there is no
genuine issue as to any material fact and ... the moving party
is entitled to a judgment as a matter of law.” Fed.R.Civ.P.
56(c). A dispute is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The relevant
inquiry on application for summary judgment is “whether
the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Id. at 251–52. A court
is not charged with weighing the evidence and determining its
truth, but with determining whether there is a genuine issue
for trial. Westinghouse Elec. Corp. v. N.Y. City Transit Auth.,
735 F.Supp. 1205, 1212 (S.D.N.Y.1990) (quoting Anderson,
477 U.S. at 249. Moreover, if the evidence for the nonmoving
party is a mere scintilla or “not significantly probative,” the
court may grant summary judgment. Anderson, 477 U.S. at
249–50. A fact is “material” only if it will affect the outcome
of the suit under applicable law, and such facts “properly
preclude the entry of summary judgment.” Id. at 248. Disputes
over irrelevant facts will not preclude summary judgment. Id.
The goal is to “isolate and dispose of factually unsupported
claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986).
While the moving party bears the initial burden of showing
that no genuine issue of material fact exists, Atl. Mut. Ins.
Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir.2005),
in cases where the non-moving party bears the burden of
persuasion at trial, “the burden on the moving party may be
discharged by ‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the
nonmoving party's case.” Celotex, 477 U.S. at 325. “It is
ordinarily sufficient for the movant to point to a lack of
evidence ... on an essential element of the non-movant's
claim.... [T]he nonmoving party must [then] come forward
with admissible evidence sufficient to raise a genuine issue
of fact for trial .... “ Jaramillo v. Weyerhaeuser Co., 536 F.3d
140, 145 (2d Cir.2008) (internal citations omitted); see also
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d
14, 18 (2d Cir.1995) (“Once the moving party has made a
properly supported showing sufficient to suggest the absence
of any genuine issue as to a material fact, the nonmoving
party ... must come forward with evidence that would be
sufficient to support a jury verdict in his favor.”).
The Motion For Summary Judgment Is Granted
The Plaintiff's Failure To Protect Claim Against Beckwith
And Castro Is Dismissed
*3 The Supreme Court has found that “[a] prison official's
‘deliberative indifference’ to a substantial risk of serious harm
to an inmate violates the Eighth Amendment.” Farmer v.
Brennan, 511 U.S. 825, 828, 114 S.Ct. 1970, 128 L.Ed.2d
811 (19994); Avincola v. Maldonado, No. 04–3529–pr, 2005
U.S.App. LEXIS 25423, at *3, 2005 WL 3116760 (2d Cir.
Nov. 22, 2005)). To successfully plead a failure to protect
claim, a plaintiff must show that the deprivation is so
sufficiently serious that it results in a denial of “the minimal
civilized measure of life's necessities,” Wilson v. Seiter, 501
U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)
(citation omitted), and that the prison officials acted with a
“sufficiently culpable state of mind.” Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir.1996) (citation omitted); Farmer,
511 U.S. at 832 (prison officials must provide “humane
conditions of confinement” and take “reasonable measures
to guarantee the safety of the inmates.”) (internal quotation
marks and citation omitted)). Prison officials may neither
deprive a prisoner of “basic human needs, e.g., food, clothing,
shelter, medical care, and reasonable safety,” nor expose
an inmate to conditions that “pose an unreasonable risk of
serious damage to his future health.” Helling v. McKinney,
509 U.S. 25, 32, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)
(citation omitted); see also Phelps v. Kapnolas, 308 F.3d 180,
185 (2d. Cir.2002); Sharriff v. Coombe, 655 F.Supp.2d 274,
297 (S.D.N.Y.2009). The deliberate indifference standard
consists of both a subjective prong and an objective prong.
See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994), cert.
denied, 513 U.S. 1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074
(1995); see also Buffaloe v. Fein, No. 12 Civ. 9469(GBD)
(AJP), 2013 U.S. Dist. LEXIS 153840, at *11, 2013 WL
5815371 (S.D.N.Y. Oct. 24, 2013).
To satisfy the objective prong, plaintiff must show that the
“alleged deprivation ... in objective terms, [was] sufficiently
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serious.” Hathaway, 37 F.3d at 66. The Second Circuit has
defined sufficiently serious as “a condition of urgency, one
that may produce death, degeneration, or extreme pain.” Id.
“[T]he inmate must show that the risk of future harm is ‘so
grave that it violates contemporary standards of decency.’
“ Braxton v. Nichols, 08 Civ. 08568(PGG), 2010 U.S. Dist.
LEXIS 25652, at *11, 2010 WL 1010001 (S.D.N.Y. Mar.
18, 2010) (quoting Helling, 509 U.S. at 36). Plaintiff must
demonstrate that this grave harm was “actual or imminent.”
Benjamin v. Fraser, 343 F.3d 35, 51 (2d Cir.2003); see also
Carr v. Canty, No. 10 Civ. 3829(JPO), 2012 U.S. Dist. LEXIS
117204, at *8, 2012 WL 3578742 (S.D.N.Y. Aug. 16, 2012).
The “subjective element of deliberate indifference ‘entails
something more than mere negligence ... [but] something less
than acts or omissions for the very purpose of causing harm
or with knowledge that harm will result.’ “ see Hathaway, 99
F.3d at 553 (quoting Farmer, 511 U.S. at 835); see also Cole
v. Fischer, No. 10–2548–pr, 2011 U.S.App. LEXIS 6182, at
*2, 2011 WL 1086902 (2d Cir. Mar. 25, 2011) (equating the
necessary state of mind to that of “criminal recklessness”);
Whitfield v. O'Connell, 402 F. App'x 563, 565 (2d. Cir.2010)
(same). To be found “sufficiently culpable,” the prison official
must “know[ ] of and disregard[ ] an excessive risk to inmate
health and safety; the official must both be aware of facts from
which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 834, 837; Ventura v. Sinha, 379 F. App'x
1, 3 (2d. Cir.2010).
*4 Plaintiff has failed to demonstrate either the objective
or subjective prongs. With respect to the objective prong,
Plaintiff cannot establish that he was incarcerated under
conditions positing a substantial risk of serious harm as
a matter of law. Substantial risk of serious harm can be
demonstrated where there is evidence of a previous altercation
between a plaintiff and an attacker, coupled with a complaint
by plaintiff regarding the altercation or a request by plaintiff to
be separated from the attacker. See Hopkins v. Allard, No. 08–
CV–0001 (DNH)(DEP), 2010 U.S. Dist. LEXIS 114368, at
*74 (N.D.N.Y. Aug. 23, 2010) (citing Desulma v. City of New
York, No. 98 Civ.2078(RMB)(RLE), 2001 U.S. Dist. LEXIS
9678, at *21, 2001 WL 798002 (S.D.N.Y. Jul. 6, 2001)). Here,
Plaintiff admits that he had never spoken to his attacker prior
to the incident on August 30, 2012, and there were no prior
altercations between Plaintiff and Punter. Consequently, there
is no genuine issue of material fact as to whether Plaintiff
faced a substantial risk of harm at MHAUII on the day of the
incident.
With regards to the subjective element, a reasonable jury
cannot conclude from the evidence in the record that either
Beckwith or Castro knew that Plaintiff faced a substantial risk
of harm and disregarded that risk. Plaintiff has provided “no
evidence that [the Defendants were] aware of any prior acts of
violence committed against [P]laintiff or any other inmates.”
Hopkins, 2010 U.S. Dist. LEXIS 114368, at *75. Plaintiff
never complained to any correction officer, expressed concern
for his safety or otherwise made known of any impending
danger from Punter to correction officers. Moreover, Plaintiff
readily concedes that Punter's attack was a surprise. As such,
the record does not allow a conclusion that Beckwith or
Castro “knew of and disregarded a substantial risk of serious
harm to [P]laintiff posed by” Punter. Id.
The evidence raises no genuine issue of fact regarding the
objective and subjective prongs of deliberate indifference,
and no reasonable jury could find deliberate indifference with
the evidence currently in the record. There is no genuine issue
of fact for trial. Given such, Plaintiff's failure to protect claim
against Beckwith and Castro is dismissed.
Plaintiff's Excessive Force Claim Is Dismissed
To set forth a claim for excessive force, a plaintiff must
sufficiently allege that, viewed subjectively, a defendant had
a wanton state of mind at the time of the alleged incident
and that, by objective standards, the effect of a defendant's
conduct was sufficiently serious. Sims v. Artuz, 230 F.3d 14,
21 (2d Cir.2000). Both the subjective and objective standards
must be met. See Hudson v. McMillian, 503 U.S. 1, 8, 112
S.Ct. 995, 117 L.Ed.2d 156 (1992).
The subjective component requires a plaintiff to show that a
defendant's conduct was not “applied in a good faith effort
to maintain or restore discipline” but rather “maliciously
or sadistically to cause harm.” Rosales v. Fischer, 07 Civ.
10554(LAP)(DFE), 2009 U.S. Dist. LEXIS 35033, at *23,
2009 WL 928260 (S.D.N.Y. Mar. 31, 2009) (citing Hudson,
503 U.S. at 7). The defendant must have acted with “a
sufficiently culpable state of mind,” meaning that he acted
in a “wanton manner in light of the particular circumstances
surrounding the challenged conduct.” McCrory v. Belden, No.
01 Civ. 0525(MHD), 2003 WL 22271192, at *5 (S.D.N.Y.
Sept.30, 2003) (internal quotation marks omitted).
*5 Objectively, a plaintiff must show that the harm incurred
was more than de minimis. Rosales, 2009 U.S. Dist. LEXIS
35033, at *24, 2009 WL 928260. Not “ever malevolent touch
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by a prison guard gives rise to a federal cause of action,”
Hudson, 503 U.S. at 9, and “not every push or shove, even
if it may later seem unnecessary in the peace of a judge's
chambers, violates a prisoner's constitutional rights.” Johnson
v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973). However,
when a prison official acts “maliciously and sadistically”,
the objective component is satisfied provided that the force
applied was more than de mimimis or else was of a nature
“repugnant to the conscience of mankind.” Hudson, 503 U.S.
at 9–10. “When prison officials maliciously and sadistically
use force to cause harm, contemporary standards of decency
always are violated whether or not significant physical injury
is evident.” Hudson, 503 U.S. at 6–7; see Sims, 230 F.3d at
21; Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir.1999).
It is uncontroverted that Beckwith used OC spray to subdue
Plaintiff. The use of pepper spray “constitutes a significant
degree of force,” Tracy v. Freshwater, 623 F.3d 90, 98 (2d
Cir.2010), and can amount to an excessive use of force.
See, e.g., United States v. Praisner, No. 3:09cr264 (MRK),
2010 WL 2574103 (D.Conn. Apr. 27, 2010) (denying motion
to dismiss indictment premised on excessive force where
pretrial detainee “was sprayed six times on four separate
occasions over approximately 40 minutes, and was not
decontaminated during that period”). However, if the force
was “applied in a good-faith effort to maintain or restore
discipline, it is unlikely to be repugnant to the conscience
of mankind, and will not amount to excessive force under
Second Circuit law.” Adilovic v. Cnty. of Westchester, No. 08
Civ. 10971(PGG), 2011 WL 2893101, at *6 n. 12 (S.D.N.Y.
July 14, 2011) (internal citation omitted) (quoting Sims v.
Artuz, 230 F.3d 14, 21 (2d Cir.2000).
Plaintiff has not alleged nor puts forward any evidence that
suggests that the application of OC spray was done in a way
other than “to ensure the compliance of an uncooperative.
inmate.” Id ., at *6. Plaintiff contends that he was “swinging
crazy” when Beckwith responded to the scene and made the
decision to spray the Plaintiff. Plaintiff asserts that none of
the correction officers that arrived on the scene gave plaintiff
an order to stop use of force, Pl. Decl. ¶ 14, but Plaintiff, in
his deposition, indicated that in the middle of the fight it may
have been near impossible for correction officers to verbally
issue commands audible to Plaintiff. See Pl. Dep. Tr. 31:7–22
(“[W]hen an incident like this is going on ... that's noise on
top of noise, so you could come in and say whatever you want
to say, I won't hear it, nobody else will hear it ...”). Plaintiff's
allegation is belied by Castro's report of the incident, made on
the same day as the incident, which states that Castro “gave
several direct orders for both inmates to stop fighting” but that
Punter and Plaintiff ignored Castro's orders. (SAC Ex. B).
*6 While no evidence has been provided to the Court as to
the length or amount of OC spray applied by Beckwith on
Plaintiff, Plaintiff's testimony in his deposition suggests that
Beckwith's application was not excessive. Plaintiff noted in
his deposition that correction officer Velez grabbed Punter
at one point in the fight, incapacitating Punter's ability to
defend himself, and Plaintiff became the “aggressor” as he
continued to wildly throw punches at Punter. See Pl. Dep.
Tr. 30:9–25. Beckwith applied the OC spray on Plaintiff
shortly thereafter. In addition, no evidence has been presented
that suggests anything excessive about the application of the
OC spray. While Punter and Plaintiff were wearing different
colored clothing, Plaintiff was attacking Punter at the same
time as Velez was restraining Punter. Plaintiff has provided
no evidence or allegations as to why Beckwith should have
assumed, based on the fact that two inmates were fighting
with different colored clothing, that application of OC spray
was not necessary or that Plaintiff was not the “aggressor.”
Nothing in the record suggests that Beckwith acted in a way
other than to “ensure compliance of an uncooperative ...
inmate,” Adilovic, 2011 WL 2893101, at *6, and there is
no genuine issue of material fact as to whether Beckwith
acted maliciously or sadistically to cause Plaintiff harm.
Accordingly, the motion to dismiss must be granted on this
issue. See, e.g., Kopy v. Howard, Civ. No. 9:07–CV–417
(DNH/RFT), 2010 WL 3808677, at *3 (N.D.N.Y. Aug.11,
2010) (“Thus, by Plaintiff's own admission, he refused several
direct orders to return to his cell and, as a consequence, was
forcibly moved there by use of pepper spray. There being
absolutely no evidence or indication of bad faith on the part
of Defendants, this claim must fail.”).
Beckwith And Castro Are Entitled To Qualified Immunity
Under 42 U.S.C. § 1983, a public official is entitled
to qualified immunity if her acts did not violate clearly
established rights of which a reasonable officer would have
known, or if she reasonably believed that her conduct did not
violate those rights. See Harlow v. Fitzgerald, 457, U.S. 800,
818 (1982); Young v. County of Fulton, 160 F.3d 899, 903
(2d Cir.1998); Brown v. City of Oneonta, N.Y., Police Dept.,
106 F.3d 1125, 1130–31 (2d Cir.1997). Qualified immunity
is “an immunity from suit rather than a mere defense to
liability.” Spavone v. N.Y. State Dep't of Corr., 719 F.3d 127,
133 (2d Cir.2013) (quoting Mitchell v. Forsyth, 472 U.S.
511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (internal
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Berry v. City of New York Dept. of Corrections, Not Reported in F.Supp.3d (2014)
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quotation marks omitted) (emphasis removed from original).
It protects government employees from civil liability where
performance of their discretionary functions does not violate
clearly established statutory or constitutional rights of which
a reasonable person should have known, or if the official
reasonably believed that her conduct did not violate those
rights. See Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct.
808, 172 L.Ed.2d 565 (2009); Harlow v. Fitzgerald, 457 U.S.
800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1992). It protects
“all but the plainly incompetent or those who knowingly
violate the law.” Saucier v. Katz, 553 U.S. 194, 202 (2001).
*7 In the summary judgment phase of a proceeding,
dismissal will be granted on the basis of qualified immunity
only if “no reasonable jury, looking at the evidence in the light
most favorable to, and drawing all inferences most favorable
to, the plaintiff, could conclude that it was objectively
reasonable for the defendant to believe that he was acting in
a fashion that did not clearly violate an established federally
protected right.” Lennon v. Miller, 66 F.3d 416, 420 (2d
Cir.1995) (quoting Robison v. Via, 821 F.2d 913, 921 (2d
Cir.1987)). “[i]f any reasonable trier of fact could find that the
defendants' actions were objectively unreasonable, then the
defendants are not entitled to summary judgment.” Lennon,
66 F.3d at 420.
Beckwith and Castro's actions were objectively reasonable.
Plaintiff admits that the attack upon him by Punter was
a surprise attack. 1 At one point in the fight, Velez had
restrained Punter while Plaintiff continued his counterattack.
No other evidence or allegation have been provided by
Plaintiff that suggests that Beckwith and Castro believed
that they were acting in a way that clearly violated an
established federally protected right. Given the situation,
no reasonable jury could find that the Defendants actions
were objectively unreasonable, and Castro and Beckwith are
entitled to qualified immunity.
The Claims Against The DOC And City Are Dismissed
DOC is an agency of the City of New York (the “City”) and
lacks an independent legal existence. The New York City
Charter provides that “[a]ll actions and proceedings for the
recovery of penalties for the violation of any laws shall be
brought in the name of the City of New York and not in that of
any agency, except where otherwise provided by law.” N.Y.C.
Charter § 396. “[A]s an agency of the City of New York,
the DOC is not a suable entity.” White v. Vance, No. 10 Civ.
6142(NRB), 2011 U.S. Dist. LEXIS 67799, at *14, 2011 WL
2565476 (S.D.N.Y. June 21, 2011). Accordingly, the claims
against DOC is dismissed.
Plaintiffs contend that the Court should construe the SAC as
including a claim against the City given the Plaintiff's pro se
status, citing Monell v. Department of Social Services, 436
U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A pro se
plaintiff's complaint is “to be liberally construed.” Erickson v.
Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d
1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106,
97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). “[A] pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Id., 551
U.S. at 94, 127 S.Ct. at 2200. The Court will consider the
SAC as alleging a claim against the City, but even liberally
construed, Plaintiff's claims must be dismissed against the
City.
It is not clear from the SAC what exact claims it is bringing
against the City. Liberally construed, and supported by his
citation Monell, Plaintiff seeks to bring a Monell § 1983 claim
against the City. In a Monell claim, the City can be held liable
“if a plaintiff can plead and prove both (1) the existence of a
municipal policy or custom, and (2) that the policy or custom
directly caused the constitutional violation.” Bektic–Marrero
v. Goldberg, 850 F.Supp.2d 418, 429 (S.D.N.Y.2012). An
employment relationship between an offending officer and
the municipality is insufficient to establish liability. Id.
*8 Plaintiff has not alleged and the record has evidenced no
facts regarding the existence of a municipal policy or custom
that caused a constitutional violation. “Conclusory allegations
of a municipality's pattern or policy of unconstitutional
behavior are insufficient to establish a Monell claim, absent
evidence to support such an allegation.” Jeanty v. Cnty. of
Orange, 379 F.Supp.2d 533, 545 (S.D.N.Y.2005) (quoting
McAllister v. New York City Police Dep't, 49 F.Supp.2d 688,
705 (S.D.N.Y.1999). Here, Plaintiff lacks evidence or even
an allegation of pattern or practice of excessive application
of OC spray. Discovery has ended and there is no evidence
adduced by Plaintiff as to any such pattern or practice.
Moreover, as concluded above, no constitutional violations
can be found as a matter of law. Given the lack of evidence,
there is no issue of material fact as to whether a pattern or
practice regarding excessive application of OC spray existed,
and the claim against the City must be dismissed.
Conclusion
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Based on the conclusions set forth above, Defendants' motion
for summary judgment and dismissal of the SAC is granted.
It is so ordered.
All Citations
Not Reported in F.Supp.3d, 2014 WL 2158518
Footnotes
1 Courts in this District have denied deliberate indifference claims based upon surprise attacks. See Fernandez
v. New York City Dep't of Corr., 2010 U.S. Dist. LEXIS 12499, at *5 (S.D.N.Y. Aug. 21, 2001); Zimmerman
v. Macomber, 2001 U.S. Dist. LEXIS 12499, at *5, 2001 WL 946383 (S.D.N.Y. Aug. 21, 2001) (same); Grant
v. Burroughs, 2000 U.S. Dist. LEXIS 12917, at *9, 2000 WL 1277592 (S.D.N.Y. Sept. 8, 2000) (same).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Boomer v. Lanigan, Not Reported in Fed. Supp. (2002)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2002 WL 31413804
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Rodney BOOMER, Plaintiff,
v.
Gary M. LANIGAN, Commissioner of N.Y.C. D.O.C.S.;
Warden Grant, OBCC/CPSU; Deputy Warden Angelo
Rivituso, OBCC/CPSU; Deputy Moran, OBCC/
CPSU; Captain Randy Wheeler “140”, OBCC/
CPSU; C.O. Andre White “9256”, OBCC/CPSU;
C.O. Ervin Weatherl “14416”, OBCC/CPSU; C.O.
Ronnie Santana “14985”, OBCC/CPSU; C.O. Elliot
Martin “122227”, OBCC/CPSU; Peter Conquet
“15369”, OBCC/CPSU; Dr. Patel, M.D., OBCC/
CPSU; and St. Barnabas Hospital, Defendants.
No. 00 Civ. 5540(DLC)
|
Oct. 25, 2002.
Synopsis
Pre-trial detainee brought pro se action against city prison
officials, physician, and hospital, alleging excessive force
and deprivation of medical treatment in violation of the
Fourteenth Amendment in connection with a cell extraction.
On defendants' motions for summary judgment, the District
Court, Cote, J., held that: (1) correction officer did not use
excessive force, in violation of due process clause of the
Fourteenth Amendment, when he sprayed chemical agent
at detainee, after detainee refused to follow repeated orders
to remove his arm from food slot in his cell; (2) cell
extraction team did not use excessive force, in violation
of the due process clause of the Fourteenth Amendment,
when extracting detainee from his cell; (3) fact questions as
to whether officials ignored requests by detainee, who was
known to be an epileptic, for medical care, and thus whether
they were deliberately indifferent to detainee's medical needs,
precluded summary judgment on detainee's due process claim
under the Fourteenth Amendment; (4) fact question as to
whether physicians were deliberately indifferent to detainee's
medical needs, precluded summary judgment on detainee's
due process claim under the Fourteenth Amendment; (5) fact
questions as to whether officials prevented detainee from
pursuing grievance, precluded summary judgment on issue
of whether detainee exhausted his administrative remedies
under Prison Litigation Reform Act (PLRA); (6) defense
of qualified immunity was not available to any defendants,
who were allegedly deliberately indifferent to detainee's
medical needs in violation of the Fourteenth Amendment;
and (7) New York statutory requirement that notice of claims
against city employee had to be filed with city comptroller,
as condition precedent to maintaining tort claims against
employees, applied only to claims against employees for
which employees had right to indemnification from city.
Motions granted in part, and denied in part.
West Headnotes (9)
[1] Constitutional Law Safety and security
Prisons Use of force
Correction officer did not use excessive force, in
violation of due process clause of the Fourteenth
Amendment, when he sprayed chemical agent
at pre-trial detainee, after detainee refused to
follow repeated orders to remove his arm from
food slot in his cell; officer's actions were
not characterized by wantonness, in that officer
used minimal, one-second burst of agent, after
receiving authorization from physician to do so.
U.S.C.A. Const.Amend. 14.
4 Cases that cite this headnote
[2] Constitutional Law Safety and security
Prisons Use of force
Cell extraction team did not use excessive
force, in violation of the due process clause
of the Fourteenth Amendment, when extracting
pre-trial detainee from his cell; video tape
of incident showed that team did not act
with wantonness and that their use of force
did not constitute objectively sufficient serious
deprivation of detainee's constitutional rights.
U.S.C.A. Const.Amend. 14.
9 Cases that cite this headnote
[3] Civil Rights Criminal law enforcement;
prisons
Summary Judgment Prisons and jails
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Boomer v. Lanigan, Not Reported in Fed. Supp. (2002)
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Fact questions as to whether city prison officials
ignored requests by pre-trial detainee, who was
known to be an epileptic, for medical care,
and thus as to whether they were deliberately
indifferent to detainee's medical needs,
precluded summary judgment on detainee's due
process claim under the Fourteenth Amendment.
U.S.C.A. Const.Amend. 14.
9 Cases that cite this headnote
[4] Civil Rights Criminal law enforcement;
prisons
Summary Judgment Prisons and jails
Fact question as to whether city hospital
physician's authorization of use of chemical
agent on pre-trial detainee, who was an
epileptic, constituted deliberate indifference to
detainee's medical needs, precluded summary
judgment on detainee's due process claim
under the Fourteenth Amendment. U.S.C.A.
Const.Amend. 14.
8 Cases that cite this headnote
[5] Civil Rights Criminal law enforcement;
prisons
Summary Judgment Prisons and jails
Fact question as to whether physicians were
deliberately indifferent to pre-trial detainee's
medical needs, in failing to treat extreme
pain that detainee was experiencing following
his epileptic seizure, precluded summary
judgment on detainee's due process claim
under the Fourteenth Amendment. U.S.C.A.
Const.Amend. 14.
[6] Civil Rights Criminal law enforcement;
prisons
Summary Judgment Prisons and jails
Fact questions as to whether pre-trial detainee
was unable to appeal prison official's refusal
to accept his grievance, asserting that officials
and physicians were deliberately indifferent
to his medical needs, because of restrictions
imposed on him, and as to whether prison
staff failed to handle grievance properly,
precluded summary judgment on issue of
whether detainee sufficiently exhausted his
administrative remedies under Prison Litigation
Reform Act (PLRA) before bringing due process
claim under the Fourteenth Amendment against
officials and physicians. U.S.C.A. Const.Amend.
14; 42 U.S.C.A. § 1997e(a).
1 Case that cites this headnote
[7] Civil Rights Prisons, jails, and their
officers; parole and probation officers
Defense of qualified immunity was not available
to any prison official or physicians, who were
allegedly deliberately indifferent to pre-trial
detainee's medical needs in violation of the due
process clause of the Fourteenth Amendment;
it was clearly established at time of alleged
conduct that deliberate indifference to inmate's
medical needs violated inmate's constitutional
rights. U.S.C.A. Const.Amend. 14; 42 U.S.C.A.
§ 1983.
13 Cases that cite this headnote
[8] Health Particular procedures
Under New York law, pre-trial detainee,
who was epileptic, was required to present
expert medical opinion evidence to support his
medical malpractice claim against hospital and
physicians, arising out of their treatment of him
in connection with cell extraction.
1 Case that cites this headnote
[9] Municipal, County, and Local
Government Particular claims
New York statutory requirement that notice of
claims against city employee had to be filed
with city comptroller as condition precedent
to maintaining tort claims against employees,
applied only to claims against employees for
which employees had right to indemnification
from city. McKinney's General Municipal Law §
50-k.
1 Case that cites this headnote
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Boomer v. Lanigan, Not Reported in Fed. Supp. (2002)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Attorneys and Law Firms
Rodney Boomer, Elmira, NY, pro se.
Concepcion A. Montoya, Corporation Counsel of the City of
New York, New York, NY, for defendants Lanigan, Grant,
Rivituso, Moran, Wheeler, White, Weather, Santana, Martin,
and Conquet.
Andrew Zwirling, Garbarini & Scher, New York, NY, for
defendants Patel and St. Barnabas Hospital.
OPINION AND ORDER
COTE, J.
*1 Plaintiff Rodney Boomer (“Boomer”), who is proceeding
pro se, brought this action on July 26, 2000, pursuant to
42 U.S.C. § 1983 (“Section 1983”), alleging excessive force
and deprivation of medical treatment in violation of the
Fourteenth Amendment in connection with a cell extraction
which occurred on the night of September 14, 1999, at
the Central Punitive Segregation Unit (“CPSU”) of the Otis
Bantum Correctional Center at Riker's Island, where Boomer
was a pre-trial detainee. Boomer also alleges assault, battery,
and negligence under state law. On August 29, 2001, Dr.
Patel (“Patel”) and St. Barnabas Hospital (“St.Barnabas”)
(collectively, the “Hospital Defendants”) moved to dismiss.
By Opinion and Order dated December 17, 2001, this
Court denied that motion. Boomer v. Lanigan, No. 00 Civ.
5540(DLC), 2001 U.S. Dist. LEXIS 20838 (S.D.N.Y.2001).
Following discovery, Gary Lanigan (“Lanigan”), L. Grant
(“Grant”), Randy Wheeler (“Wheeler”) and Andre White
(“White”), Ervin Weatherl (“Weatherl”), Ronnie Santana
(“Santana”), Elliot Martin (“Martin”), and Peter Conquet
(“Conquet”) (collectively, the “DOCS Defendants”) moved
for summary judgment. The Hospital Defendants also moved
for summary judgment. For the reasons stated below,
defendants' motions for summary judgment are granted in part
and denied in part.
BACKGROUND
The following facts are undisputed or as described by Boomer
unless noted otherwise. 1 Boomer has a history of epilepsy
resulting from a head injury sometime in 1996 or 1997, and
walks with a cane because of an injury sustained during a fight
with an inmate. Boomer also has a long history of back pain
for which he has received physical therapy.
On September 14, 1999, Boomer was a pre-trial detainee
housed in an isolation cell in the CPSU. At approximately
noon on September 14, Boomer began feeling “dizzy
headed,” which he described in his deposition testimony as
“the same feeling when I'm about to go into a seizure.”
In his verified second amended complaint, Boomer states
that, at approximately 2:00 p.m. and again at approximately
7:00 p.m., he told corrections officers, whom he is unable
to identify, of his condition. The DOCS Defendants state
that they have no record that Boomer informed anyone of
his condition. According to Boomer, the corrections officer
to whom he spoke at approximately 7:00 p.m. left the food
slot of his cell door open and told him “to get some air”
until medical personnel arrived. 2 In his second amended
complaint, Boomer states that no medical staff visited his
cell. Boomer thereafter refused to remove his arm from the
food slot of his cell door and was generally being loud and
disruptive.
At approximately 9:45 p.m., a cell extraction team consisting
of Captain Wheeler and Corrections Officers White,
Weatherl, Santana, Martin, and Conquet (the “Extraction
Team”) assembled outside Boomer's cell. Boomer states that
he attempted to explain to Wheeler that he was epileptic
and feeling sick, but that Wheeler “swiftly cut [him] off
by spraying chemical agent into [his] eyes, face and hair.”
A video tape made of the incident, which begins at 9:45
p.m., shows that Wheeler gave several orders to Boomer to
remove his left arm from the food slot, but Boomer refused
to do so. Wheeler then stated to the video camera that he
received authorization from Assistant Deputy Warden Moran
to remove plaintiff from his cell, and that he had received
authorization from Igwe to use a chemical agent, but not an
electronic immobilization shield. 3
*2 According to the video tape evidence, at approximately
9:49 p.m., the Team opened the door of Boomer's cell slightly
and Wheeler sprayed a one-second burst of a chemical agent.
The Team then closed the door and waited for the chemical
agent to take effect. Wheeler occasionally attempted to guide
Boomer's arm back through the food slot. At approximately
9:53, Boomer began to slap his hand against the outside of the
cell door below the food slot. At approximately 9:55 p.m., his
left arm began to shake spasmodically.
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In his second amended complaint, Boomer states that Wheeler
ordered the Team to open and close the cell door several
times while he was having convulsions and his arm was
still hanging out of the food slot. According to the video
tape evidence, however, the door to Boomer's cell remained
closed until approximately 9:56 p.m., when the Team entered
Boomer's cell, handcuffed Boomer, who was apparently
unconscious, and carried him to an elevator, took him to
another floor of the CPSU, and placed him on a stretcher. At
approximately 10:04 p.m., the Team removed Boomer from
the stretcher and carried him to a shower cell. At 10:05, the
video tape of the incident temporarily stops.
Igwe states that at approximately 10:25 p.m., he examined
Boomer at the shower area because Boomer refused to go to
the examination room. Boomer states in his second amended
complaint that although he was experiencing “severe head
and neck pain and could have suffered a serious life
threatening head concus[s]ion or brain damage[ ] during
his extreme violent seizure attack,” Igwe did not conduct
an examination of him. Igwe's notes indicate that Boomer
refused a “full evaluation.” There is no video tape evidence
of Igwe's examination.
At approximately 11:04 p.m., the video tape resumed and
continued to record until 11:33 p.m. Wheeler stated to the
video camera that Boomer had been examined by medical
personnel and was being escorted to the “housing area.”
Boomer appears on the tape standing in the shower cell and
does not appear to be in any pain. He waited patiently and
watched through the shower cell door as the Team attempted
to determine which key opened the door. Upon opening the
door, the video tape shows the Team escorting Boomer to an
elevator and then to another floor. Boomer walked without
any apparent pain and appeared to be calm.
The video tape shows that when the Team then attempted
to insert Boomer into another holding cell, Boomer became
physically aggressive, threatening and spitting at a corrections
officer not pictured. The tape shows that a scuffle ensued
between Boomer and the Team, which consisted essentially
of the Team leaning into Boomer to hold him against the wall
until he settled down. While they were holding him against
the wall, various Team members sought to talk Boomer into
voluntarily entering the holding cell. The video tape further
shows that after a few minutes, at approximately 11:12 p.m.,
the Team pushed him into the holding cell, and that Boomer
never lost his footing when they did so. The video tape shows
that inside the cell, the Team attempted to uncuff Boomer,
but he resisted. The Team responded by again leaning against
Boomer, who was now seated on a bench in the cell, to hold
him in place until he again settled down. The video tape shows
that at approximately 11:15 p.m., the Team ceased leaning
against Boomer. They stood around him with only their hands
resting on his shoulders and talked with him as he said that he
would not stay in the holding cell and wanted to be returned
to his original cell.
*3 The tape shows that at 11:22 p.m., Wheeler attempted
to explain to Boomer why he would remain in the holding
cell. Boomer responded with aggressive language. The Team
continued to stand around Boomer until 11:30 p.m., when
they escorted him to the medical clinic. Boomer walked
without any apparent pain or injury. At 11:33 p.m., Boomer
was inserted without incident into a holding cell in the
medical clinic. The tape then temporarily stops.
At 12:18 p.m., the video tape resumes. At 12:20 a.m. on
September 15, Boomer was escorted out of the holding cell in
the medical clinic to an examining table. The tape shows that
at 12:21 a.m., Boomer was secured to the examining table.
The tape then temporarily stops.
At 12:25 a.m., Boomer was examined by Patel. This
examination is not recorded on tape. In his second amended
complaint, Boomer states that he was “only verbally
interviewed but once again obtain[ed] no medical treatment
or exam” with regard to his epileptic condition.
The video tape resumes at 12:27 a.m. It shows the Team
waiting for the examination to conclude. At 12:28 a.m., the
tape temporarily stops. It resumes at 12:29 a.m. and shows the
Team escorting Boomer to his original cell without incident.
At 12:32 a.m., the tape recording concludes.
Boomer states in his second amended complaint that on
September 20, 1999, he filed an “institutional grievance
complaint” with respect to the cell extraction of September
14, 1999. Boomer states, however, that the grievance was
returned to him and that he was “informed that [the CPSU]
Grievance program do[es] not handle matters of staff assault,
misuse of force and lack or denial in medical issues.” Boomer
does not specify who gave him this information. In this
connection, Boomer has submitted an affidavit by inmate
Ronald Henderson (“Henderson”) in which Henderson states
that DOCS' staff frequently mishandles inmate grievances.
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In his “Second Opposition,” Boomer states that he is unable
to submit a copy of the grievance because his legal documents
were taken from him while he was an inmate at Sing Sing
Correctional Facility. In connection with the St. Barnabas
Defendants' Motion to Dismiss, however, Boomer did submit
a copy of the grievance that he states he filed. See Boomer,
2001 U.S. Dist. LEXIS 20838, at *7. In that grievance, which
Boomer erroneously dated September 14, 1998, Boomer
writes that he informed a corrections officer that he was
epileptic and feeling ill. Thereafter,
[t]he officer left my food slot
open[ ] telling me to get some air
while he contact[s the] medical unit.
Medical staff never showed up, and
approximately (30) minutes later a[n]
unknown captain and several officers
showed up in full riot gear. As I started
to explain[ ] to [the] captain that I am
feeling ill and that I am a[n] epileptic
person, [t]his captain swiftly cut me
off by spraying chemical agent in my
eyes, nose and face. I immediately
went into a violent seizure attack while
one of my arms remained extended
out of [the] food slot. I was flopping
around violently during my seizure
attack and one could eas[i]ly see that
I was undergoing an epileptic attack.
However, this captain continued to
order the cell door open while one
of my arms remained extended out
of [the] slot. They continued their
assault while I remained unconscious
and undergoing my seizure attack. I
was taken to CPSU clinic and verbally
interviewed by [a] doctor. I received
no examination despite th[e] fact that
I told him my back, head, [and] neck
was hurting severely.
*4 The DOCS Defendants' records do not reflect any filing
of a grievance by Boomer in connection with the September
14, 1999 extraction. Their records show that Boomer filed
three grievances from September 1999 to August 2000, and
that none of these addressed the September 14 extraction.
Boomer admits in his “Second Opposition” that he took
no action to appeal the CPSU staff's refusal to accept his
grievance. Boomer states, however, that he “was powerless in
this matter because he was CPSU-confined (23) twenty-three
hours a day with absolutely no available hands on access to
IGP [Inmate Grievance Procedure] Department, committee,
warden or IGP staff person.”
In his second amended complaint, Boomer further states that
on September 21, an “investigator from the New York City
Commission Department of Investigation for DOCS” named
Willoughby (“Willoughby”) visited Boomer's cell to obtain a
written statement regarding the cell extraction. Boomer states
that Willoughby also interviewed an inmate who witnessed
the extraction.
Boomer states that he contacted Jonathan Chasan (“Chasan”)
of the New York City Prisoners' Rights Project and that
Chasan obtained the video tape recordings of the September
14 cell extraction. Boomer states that he did not thereafter
receive any more information from either Willoughby or
Chasan.
Standard
Summary judgment may not be granted unless the
submissions of the parties, taken together, “show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Rule 56(c), Fed.R.Civ.P. The substantive law governing the
case will identify those issues that are material, and “only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry
of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1987).
The moving party bears the burden of demonstrating the
absence of a material factual question, and in making this
determination the Court must view all facts in the light most
favorable to the nonmoving party. Abdu–Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 465–66 (2d Cir.), cert. denied, 534
U.S.993, 122 S.Ct. 460, 151 L.Ed.2d 378 (2001). When the
moving party has asserted facts showing that the nonmovant's
claims cannot be sustained, the opposing party must “set
forth specific facts showing that there is a genuine issue for
trial,” and cannot rest on the “mere allegations or denials”
of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v.
March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d
Cir.1995). In deciding whether to grant summary judgment,
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this Court must, therefore, determine (1) whether a genuine
factual dispute exists based on the evidence in the record,
and (2) whether the facts in dispute are material based on the
substantive law at issue. Where, as here, a party is proceeding
pro se, this Court has an obligation to “read [the pro se
party's] supporting papers liberally, and ... interpret them to
raise the strongest arguments that they suggest.” McPherson
v. Coombe, 174 F.3d 276, 280 (2d Cir.1999). 4
DISCUSSION
*5 Boomer argues that the defendants used excessive force
against him and were deliberately indifferent to his medical
needs. Boomer further argues that defendants committed
assault and battery on him and were negligent in their
medical care of him. The defendants deny these claims and
respond that Boomer failed to exhaust his administrative
remedies, that they are immune from liability under the
doctrine of qualified immunity, and, with respect to the state
law claims, that Boomer failed to file a notice of claim with
the Comptroller of the City of New York. Each of these issues
is considered in turn.
I. Federal Claims
A. Excessive Force
[1] “[T]he right of pretrial detainees to be free from
excessive force amounting to punishment is protected by
the Due Process Clause of the Fourteenth Amendment.”
United States v. Walsh, 194 F.3d 37, 47 (2d Cir.1999). In
the Second Circuit, the same standard applies to excessive
force claims under the Fourteenth Amendment as applies
under the Eighth Amendment. Id. at 48. To establish a
constitutional violation under either amendment, an inmate
must meet both a subjective and an objective requirement.
Id. at 48–49. “[T]he subjective requirement is satisfied if
the defendant has a sufficiently culpable state of mind,
shown by actions characterized by wantonness.” Id. at 50
(citations omitted). The core of the inquiry is “whether force
was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.”
Hudson v. McMillan, 503 U.S. 1, 7, 112 S.Ct. 995, 117
L.Ed.2d 156 (1992). As to the objective requirement, it is
well established in this Circuit that “[n]ot every push or
shove, even if it may later seem unnecessary in the peace
of a judge's chambers, violates a prisoner's constitutional
rights.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997)
(citation omitted). The plaintiff must show that the violation is
“objectively sufficiently serious or harmful enough,” Walsh,
194 F.3d at 50, and not de minimis, id.
Boomer argues that the DOCS Defendants used excessive
force when they (1) used a chemical agent on him, (2)
opened and closed his cell door repeatedly while he was
experiencing a seizure, (3) entered his cell, and (4) pushed
him into the holding cell. With respect to the use of the
chemical agent, Boomer asserted in his second amended
complaint that Wheeler used the spray as he was attempting
to explain his medical problems to him. Boomer has failed
to address, however, the video tape evidence that covers the
approximately four minutes before the spray was used. It
shows, and Boomer has not disputed, that the Wheeler used
a chemical agent only after repeated orders to Boomer that
he remove his arm from the food slot. In his opposition,
Boomer argues that Wheeler simply ordered him to close his
food slot without asking him why he refused to do so, and
that this somehow constitutes excessive force. Boomer has
failed to explain, however, why he should not have obeyed
a repeated order of a corrections officer or why Wheeler,
the commanding officer of a cell extraction team who had
received authorization to extract Boomer from his cell, was
obligated to listen to Boomer's complaint.
*6 The DOCS Defendants have also shown, and Boomer
has not disputed, that Wheeler used a minimal, one-second
burst of the agent, after receiving authorization to do so
from Igwe. Given these undisputed facts, Boomer has not
presented evidence to raise an issue of fact that, as a subjective
matter, the DOCS Defendants' actions were “characterized by
wantonness.”
[2] With respect to the other incidents which Boomer alleged
in his pleadings constituted excessive force, Boomer has
failed to address the video tape evidence that the Team did
not open and close his cell door repeatedly, that the Team
entered his cell when he was unconscious and applied no
force whatsoever to him at that time, and that when the Team
pushed him into the holding cell, it did so with minimal force
and only after holding him in place for several minutes in an
effort to settle him down. In his submissions in opposition to
the motions for summary judgment, Boomer has essentially
abandoned his excessive force allegations with respect to
these incidents. He has presented no evidence in response to
the DOCS Defendants' video tape or motion papers. Given
this undisputed evidence, Boomer cannot establish that the
Team acted with “wantonness” or that their use of force
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constituted an objectively sufficiently serious deprivation of
his constitutional rights. For these reasons, Boomer's claims
of excessive force must be dismissed.
B. Deliberate Indifference to Medical Needs
[3] While a convicted prisoner's right to medical care stems
from the Eighth Amendment's ban on cruel and unusual
punishments, see Farmer v. Brennan, 511 U.S. 825, 827,
114 S.Ct. 1970, 128 L.Ed.2d 811 (1994), the analogous right
of a pretrial detainee arises under the Due Process Clause
of the Fourteenth Amendment. Henderson v. Sheahan, 196
F.3d 839, 845 n. 2 (7th Cir.1999); Lopez v. LeMaster, 172
F.3d 756, 764 (10th Cir.1999); Weyant v. Okst, 101 F.3d
845, 856 (2d Cir.1996); Ali v. Szabo, 81 F.Supp.2d 447,
463 (S.D.N.Y.1999). “[W]hile the Supreme Court has not
precisely limned the duties of a custodial official under the
Due Process Clause to provide needed medical treatment to
a pretrial detainee, it is plain that an unconvicted detainee's
rights are at least as great as those of a convicted prisoner.”
Weyant, 101 F.3d at 856.
“[T]he official custodian of a pretrial detainee may be found
liable for violating the detainee's due process rights if the
official denied treatment needed to remedy a serious medical
condition and did so because of his deliberate indifference
to that need.” Id. To prove a violation, a plaintiff must show
deliberate indifference under an objective and a subjective
test. Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996).
To satisfy the objective prong, the alleged deprivation must be
of a “sufficiently serious” condition, one that “may produce
death, degeneration, or extreme pain.” Morales v. Mackalm,
et al., 278 F.3d 126, 132 (2d Cir.2002) (citation omitted).
The subjective prong requires the plaintiff to demonstrate that
the official acted with a sufficiently culpable state of mind,
which must be “the equivalent of criminal recklessness,”
namely, when the official “knows of and disregards an
excessive risk to inmate health or safety.” Hathaway, 99
F.3d at 553 (citation omitted). Mere negligence or medical
malpractice does not constitute deliberate indifference, id.,
nor do mere differences of opinion between the prisoner and
the defendants concerning the proper course of treatment.
Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir.1998).
Rather, officials must “intentionally deny[ ] or delay[ ] access
to medical care or intentionally interfere with the treatment
once prescribed.” Estelle, 429 U.S. at 104–05.
*7 Boomer argues that defendants were deliberately
indifferent to his medical needs when they (1) failed to
provide him with medical attention after he initially reported
feeling dizzy, (2) used a chemical agent upon him despite his
epileptic condition, (3) failed thoroughly to examine him in
the shower cell, and (4) failed thoroughly to examine him at
12:25 a.m.
With respect to the first issue, Boomer has raised a material
question of fact as to whether he informed corrections
personnel that he was feeling dizzy at 2:00 p.m. and 7:00 p.m.
on September 14, and as to whether any medical personnel
visited his cell before the Team approached his cell at
approximately 9:45 p.m. Ignoring requests for medical care
made by a prisoner known to be an epileptic may constitute
deliberate indifference to serious medical needs, particularly
when it is undisputed that the inmate suffered a seizure after
making those requests.
[4] As to the use of the chemical agent, it is undisputed
that Igwe was aware of Boomer's history of epilepsy when
he authorized the use of a chemical agent during the cell
extraction. In light of the undisputed facts that Boomer
experienced a seizure upon being sprayed with the agent and
that he required medical attention after that seizure, Boomer
has raised a question of fact as to whether the authorization to
use a chemical agent on an inmate with a history of epilepsy
constituted deliberate indifference to that inmate's medical
needs.
[5] With respect to the final two issues, the thoroughness
of the examinations, Boomer does not dispute that Igwe
examined him at approximately 10:25 p.m. and that Patel
examined him at approximately 12:25 a.m. Boomer's
argument is that the examinations, neither of which was
recorded on video tape, were not thorough enough given
his epileptic condition and given the “excruciating” pain
he states he was experiencing. The medical records do not
reflect that Boomer was given any pain medication after his
seizure. Boomer has raised a question of fact as to whether
Igwe and Patel were deliberately indifferent to his medical
needs in failing to treat the extreme pain he states he was
experiencing. Boomer has not identified other treatment that
his condition required and that he was denied during these
two examinations.
C. Exhaustion
The Prison Litigation Reform Act (“PLRA”) provides that
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no action shall be brought with respect
to prison conditions under section
1983 of this title, or any other Federal
law, by a prisoner confined in any jail,
prison, or other correctional facility
until such administrative remedies as
are available are exhausted.
42 U.S.C. § 1997e(a) (1994) (emphasis supplied). In Nussle
v. Porter, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12
(2002), the Supreme Court held that “the PLRA's exhaustion
requirement applies to all suits about prison life, whether
they involve general circumstances or particular episodes,” id.
at 532. Because Boomer's remaining deliberate indifference
to medical needs claims fall within Section 1997(e)(a)'s
exhaustion requirement, Boomer must have exhausted his
administrative remedies for those claims prior to filing his
complaint.
*8 [6] Each of the deliberate indifference claims that has
survived defendants' motions for summary judgment was
sufficiently identified in the copy of the grievance Boomer
asserts that he submitted to the prison. Boomer states that
the grievance was returned to him and that he was told, in
effect, that the CPSU grievance process did not handle the
claims he was grieving. Boomer failed to appeal this refusal
to accept his grievance, but contends that he was unable to do
so because of the restrictions associated with his confinement
in CPSU. Boomer has also presented evidence, in the form
of Henderson's affidavit, that the CPSU staff often failed
properly to handle grievances. Boomer presents this evidence
in support of the argument that but for the CPSU staff's failure
to handle his grievance properly, he would have exhausted
his administrative remedies. This evidence creates issues
of fact regarding Boomer's exhaustion of his administrative
remedies.
D. Qualified Immunity
[7] Defendants argue that they are immune from liability
under the doctrine of qualified immunity. “Qualified
immunity shields public officials from liability for civil
damages if their actions were objectively reasonable, as
evaluated in the context of legal rules that were clearly
established at the time.” Poe v. Leonard, 282 F.3d 123, 132
(2d Cir.2002) (citation omitted). The first step in a qualified
immunity analysis is to “determine whether the plaintiff[ ]
ha[s] alleged a violation of a constitutional right.” African
Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d
Cir.2002); see also Caldarola v. Calabrese, 298 F.3d 156,
160 (2d Cir.2002). The second step is to “determine whether
the right was clearly established at the time of the alleged
violation.” African Trade, 294 F.3d at 359. Thus “a qualified
immunity defense is established when ... the defendant's
action did not violate clearly established law.” Poe, 282 F.3d
at 133 (citation omitted). Because it was clearly established at
the time of the alleged conduct that deliberate indifference to
an inmate's medical needs violates an inmate's constitutional
rights, the defense of qualified immunity is not available to
any defendant who was deliberately indifferent.
II. State Law Claims
A. Assault and Battery
Under New York law, an assault is “an intentional placing
of another person in fear of imminent harmful or offensive
contact,” and a battery is “an intentional wrongful physical
contact with another person without consent.” United Nat'l
Ins. Co. v. Waterfront N.Y. Realty Corp., 994 F.2d 105,
108 (2d Cir.1993); see also Johnson v. Suffolk County
Police Department, 245 A.D.2d 340, 665 N.Y.S.2d 440, 440
(N.Y.App.Div.1997). Neither tort requires a physical injury.
See Hassan v. Marriott Corp., 243 A.D.2d 406, 663 N.Y.S.2d
558, 559 (N.Y.App.Div.1997) (“Physical injury need not be
present for an assault”); Zgraggen v. Wilsey, 200 A.D.2d 818,
606 N.Y.S.2d 444, 445 (N.Y.App.Div.1994) (“An action for
battery may be sustained without a showing that the actor
intended to cause injury as a result of the intended contact.”).
The DOCS Defendants have not responded to Boomer's
assault and battery claim other than to argue that it is barred
by his failure to file a notice of claim with the Comptroller of
the City of New York, which is addressed below.
B. Negligence
*9 [8] Boomer's claim that the Hospital Defendants were
“negligent” in their treatment of him is governed by New
York's medical malpractice law. “To establish a claim of
medical malpractice under New York law, a plaintiff must
prove (1) that the defendant breached the standard of care in
the community, and (2) that the breach proximately caused
the plaintiff's injuries.” Milano v. Freed, 64 F.3d 91, 95 (2d
Cir.1995) (citation omitted). “New York law further provides
that, except as to matters within the ordinary experience and
knowledge of laymen, expert medical opinion evidence is
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required to make out both of these elements.” Id. (citing state
court cases). See also Barnes v. Anderson, 202 F.3d 150,
259–60 (2d Cir.1999); Einaugler v. Supreme Court, 109 F.3d
836, 841 (2d Cir.1997). The requirement for expert medical
testimony applies to pro se inmate plaintiffs. See, e.g., Perez
v. State of New York, 293 A.D.2d 918, 742 N.Y.S.2d 140, 142
(3d Dep't 2002).
Boomer has failed to present any expert medical testimony in
support of this claim. Since Boomer's analogous Fourteenth
Amendment claims have survived summary judgment, he
will be given a further opportunity to obtain expert medical
testimony to support his state law claims of medical
malpractice.
C. Notice of Claim
[9] Defendants argue that Boomer's state law claims should
be dismissed because he failed to file a notice of claim with
the Comptroller of the City of New York. In federal court,
state law notice of claim requirements apply to pendent state
law claims such as Boomer's. Hardy v. N.Y. City Health &
Hosps. Corp., 164 F.3d 789, 793 (2d Cir.1999). It is well
established that a plaintiff suing a New York City employee
must serve a notice of claim on the City if, at the time the
alleged injury occurred, the employee was acting within the
scope of his duty such that the City may be required to
indemnify the employee. See, e.g., Silverman v. City of N.Y.,
98 Civ. 6277(ILG), 2001 WL 218943, at *8 (E.D.N.Y. Feb. 2,
2001); Ortega v. City of N.Y., 95 Civ. 7206(LMM), 2000 WL
358459, at *2 (S.D.N.Y. Apr. 7, 2000); Sussman v. N.Y. City
Health & Hosp. Corp., 94 Civ. 8461(DBS), 1997 WL 334964,
at *17 (S.D.N.Y. June 16, 1997); D'Angelo v. City of N.Y., 929
F.Supp. 129, 135 (S.D.N.Y.1996); Alifieris v. Am. Airlines,
Inc., 63 N.Y.2d 370, 377, 482 N.Y.S.2d 453, 472 N.E.2d 303
(1984) (interpreting Section 50–j); cf. Shakur v. McGrath, 517
F.2d 983, 985 (2d Cir.1975) (notice of claim required in suit
against employee doctors and the City “as their indemnitor”).
Under New York General Municipal Law Sections 50–e and
50–i, a plaintiff may not maintain a tort claim against a
municipality unless that claim has been preceded by a notice
of claim served upon the municipality within ninety days of
the time the cause of action arose. See N.Y. Gen. Mun. Law §§
50–e, -i (McKinney 1999). A plaintiff required to file a notice
of claim fails to state a cause of action if he does not plead the
following in the complaint: “that (1) the plaintiff has served
the notice of claim; (2) at least thirty days have elapsed since
the notice was filed (and before the complaint was filed); and
(3) in that time the defendant has neglected to or refused to
adjust or to satisfy the claim.” Hardy, 164 F.3d at 793.
*10 While the notice of claim requirement is applicable
to certain claims against municipal employees, it does not,
however, apply to all such claims. Section 50–e(1) does not
itself create an obligation to file a notice of claim, but sets
a ninety-day time limit for filing the notice “[i]n any case
founded upon tort where a notice of claim is required by law
as a condition precedent to the commencement of an action ...
against a public corporation ... or any ... employee thereof.”
N.Y. Gen. Mun. Law § 50–e(1)(a).
It appears that Section 50–k is the source of the duty to file
a notice of claim when suing City employees. Section 50–k,
entitled “Civil actions against employees of the city of New
York,” provides for the defense and indemnification of City
employees for certain tort claims. Indemnification is limited
to acts that
occurred while the employee was
acting within the scope of his public
employment and in the discharge of his
duties and w[ere] not in violation of
any rule or regulation of his agency
at the time the alleged damages were
sustained; the duty to indemnify ...
shall not arise where the injury
or damage resulted from intentional
wrongdoing or recklessness on the part
of the employee.
Id. § 50–k(3) (McKinney 1999) (emphasis supplied). Section
50–k(6) then provides that “no action or proceeding instituted
hereunder ... shall be prosecuted or maintained against the
city or any agency or an employee unless notice of claim
shall have been made and served upon the city in compliance
with section fifty-e of this chapter.” Id. § 50–k(6). Although
Section 50–k(6) does not specify what constitutes an action
“instituted hereunder,” that provision is best understood to
apply only to claims against a City employee for which the
employee has a right to indemnification. Int'l Shared Servs.,
Inc. v. County of Nassau, 222 A.D.2d 407, 634 N.Y.S.2d 722,
724 (2d Dep't 1995); Bardi v. Warren County Sheriff's Dep't,
194 A.D.2d 21, 603 N.Y.S.2d 90, 92 (3d Dep't 1993); see also
Reed v. Powers, 97 Civ. 7152(DLC), 2002 U.S. Dist. Lexis
5125, at *19 (S.D.N.Y. Mar. 28, 2002); Hemrie v. City of N.Y.,
96 Civ. 213(DLC), 2000 WL 1234594, at *2–3 (S.D.N.Y.
Aug. 31, 2000).
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Defendants have not cited or discussed Section 50–k(6) or
shown that they may be entitled to indemnification by the
City. Accordingly, summary judgment on Boomer's state law
claims based on his failure to plead the filing of a notice of
claim is not available without a further showing.
CONCLUSION
For the reasons stated, defendants' motions for summary
judgment are granted in part and denied in part. They are
granted with respect to Boomer's excessive force claim. They
are denied with respect to Boomer's deliberate indifference
to medical needs claims and negligence claims arising from
the alleged failure timely to provide Boomer with medical
attention after he reported feeling dizzy, the authorization of
the use of a chemical agent, and the failure to treat his pain
at the 10:25 p.m. and 12:25 a.m. examinations. They are also
denied with respect to the assault and battery claims. 5 A
Scheduling Order governing the further litigation of these
issues will also be issued.
*11 SO ORDERED:
All Citations
Not Reported in Fed. Supp., 2002 WL 31413804
Footnotes
1 Boomer has submitted numerous papers in connection with summary judgment motions filed in the instant
action as well as another action before this Court, Boomer v. Lanigman, et al., 00 Civ. 4709(DLC). In
connection with the instant action, Boomer has submitted two hand-written versions of his opposition under
the title “Response in opposition to Defendants' Summary Judgment [motion].” The versions appear to be
verbatim copies, although the pagination is different. Boomer has also submitted a sur-reply under the
title “Continuation Attachment Opposition response of plaintiff[']s (3) three part response to both counsels[']
Summary Judgments” and a further “Declaration of Rodney Boomer.”
2 The DOCS Defendants state that at approximately 8:00 p.m., Boomer was visited by Dr. Okechukwu Igwe
(“Igwe”) of St. Barnabas. Igwe's notes, which are largely illegible, record that Boomer refused treatment at
that time.
3 The use of an electronic immobilization shield was contraindicated because of Boomer's history of epilepsy.
4 Both the Court and the defendants provided Boomer with a formal notice of the Rule 56 requirements for
opposing defendants' summary judgment motions.
5 A separate Opinion will be issued relating to St. Barnabas's claim that it cannot be held liable under Section
1983 because it lacks policymaking authority with respect to inmate health services.
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Boyd v. Doe #1, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 1771501
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Nyjee L. BOYD, Plaintiff,
v.
John DOE #1, et al., Defendants.
9:18-CV-1333 (TJM/ATB)
|
Signed 04/23/2019
Attorneys and Law Firms
NYJEE L. BOYD, Plaintiff, Pro Se, 15-B-2063, Clinton
Correctional Facility, P.O. Box 2001, Dannemora, NY 12929.
DECISION AND ORDER
Thomas J. McAvoy, Senior, U.S. District Judge
I. INTRODUCTION
*1 Plaintiff Nyjee L. Boyd commenced this action pursuant
to 42 U.S.C. § 1983 (“Section 1983”) by filing a pro se civil
rights complaint together with an application for leave to
proceed in forma pauperis. Dkt. No. 1 (“Compl.”); Dkt. No.
4 (“IFP Application”). By Decision and Order of this Court
filed January 2, 2019, plaintiff's IFP Application was granted,
and following review of the complaint pursuant to 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), some of plaintiff's
claims and some of the named defendants were dismissed
and the Court directed service and a response for the claims
against the named defendants that survived sua sponte review.
Dkt. No. 6 (the “January 2019 Order”).
Presently before this Court is plaintiff's motion to amend
his complaint, together with a proposed amended complaint.
Dkt. No. 18 (“Motion to Amend”); Dkt. No. 18-1 (“Am.
Compl.”). At the time plaintiff submitted these documents,
service was not completed on all of the defendants who
remained in the action following the January 2019 Order, and
none of the defendants who had been served had responded
to the complaint. Thus, plaintiff was not required to obtain
the Court's leave or defendants' consent before amending
his complaint. As a result, the Court will consider plaintiff's
proposed amended complaint as an amended complaint filed
as of right in accordance with Rule 15(a)(1) of the Federal
Rules of Civil Procedure. 1
II. DISCUSSION
A. The Complaint and January 2019 Order
In his original complaint, plaintiff asserted claims arising
while he was in the custody of the New York State Department
of Corrections and Community Supervision (“DOCCS”) at
Clinton Correctional Facility (“Clinton C.F.”). See generally
Compl. Plaintiff named as defendants DOCCS Commissioner
Anthony Annucci, Superintendent of Clinton C.F. E. Bell, as
well as several corrections officials who allegedly worked at
Clinton C.F. between April 2018 and August 2018. Id.
The complaint was construed to assert the following claims:
(1) First Amendment free exercise claims against defendants
C.O. John Doe #2, Baer, C.O. John Doe #3, W ood, and Sgt
John Doe #1; (2) First Amendment retaliation claims against
defendants C.O. John Doe #2, Baer, C.O. John Doe #3, Sgt
John Doe #1, Wood, Hunt, Young, Holland, C.O. John Doe
#4, and C.O. John Doe #5; (3) Eighth Amendment conditions-
of-confinement claims against defendants Baer, C.O. John
Doe #2, Wood, Young, and C.O. John Doe #3; (4) Eighth
Amendment excessive force and failure-to-intervene claims
against defendants Hunt, Baer, Sgt John Doe #1, Sgt John
Doe #2, C.O. John Doe #1, and John Doe #6; (5) Fourteenth
Amendment due process claims against defendants Wood and
Baer based on the issuance of false misbehavior reports; (6) a
Fourteenth Amendment destruction of property claim against
defendant Wood; and (7) supervisory liability claims against
defendants Bell and Annucci. See January 2019 Order at 9-10.
*2 Following review of the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), the
following claims were found to survive sua sponte review
and require a response: (1) plaintiff's free exercise claims
against defendants C.O. John Doe #2, Baer, C.O. John Doe
#3, Sgt John Doe #1, Wood, Annucci, and Bell; (2) plaintiff's
retaliation claims against defendants C.O. John Doe #2, Baer,
C.O. John Doe #3, W ood, Hunt, Young, Holland, Annucci,
and Bell; and (3) plaintiff's excessive force and failure-to-
intervene claims against defendants Sgt John Doe #1, Sgt
John Doe #2, C.O. John Doe #1, C.O. John Doe #6, Baer,
Hunt, Annucci, and Bell. See January 2019 Order at 25-26.
All remaining claims were dismissed without prejudice for
failure to state a claim upon which relief may be granted, and
defendants John Doe #4 and John Doe #5 were dismissed as
defendants from the action without prejudice. Id. at 26.
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B. Review of the Amended Complaint
Because plaintiff is proceeding in forma pauperis and is an
inmate suing government employees, his amended complaint
must be reviewed in accordance with 28 U.S.C. § 1915(e)(2)
(B) and 28 U.S.C. § 1915A(b). The legal standard governing
the dismissal of a pleading for failure to state a claim pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) was
discussed at length in the January 2019 Order and it will not be
restated in this Decision and Order. See January 2019 Order
at 2-4.
Plaintiff's amended complaint is substantially the same as his
original complaint with a few exceptions.
First, plaintiff has withdrawn his claims against defendants
John Doe #4 and John Doe #5. See generally, Am. Compl.
Second, plaintiff has added the following claims for
relief against existing defendants based on the same
allegations contained in the original complaint: (1) an Eighth
Amendment failure-to-intervene claim against defendant
John Doe #3 based on the alleged events that occurred
on April 6, 2018; (2) an Eighth Amendment failure-to-
protect claim against defendant Holland based on the alleged
events that occurred on April 26, 2018; and (3) an Eighth
Amendment medical indifference claim against defendant
Wood based on an alleged event that occurred on May 1, 2018.
See Am. Compl. at 13-16, 20.
Third, plaintiff has added Corrections Officer Dubrey and
Corrections Officer Hill as defendants and asserted the
following claims against them based on the same allegations
contained in the original complaint: (1) a First Amendment
free exercise claim against defendant Dubrey based on
the alleged event that occurred on July 18, 2018; (2) a
First Amendment retaliation claim against defendant Dubrey
based on the alleged event that occurred on July 18, 2018;
(3) an Eighth Amendment conditions-of-confinement claim
against defendant Dubrey based on the alleged event that
occurred on July 18, 2018; (4) an Eighth Amendment
excessive force claim against defendant Dubrey based on the
alleged event that occurred on July 18, 2018; and (5) an
Eighth Amendment conditions-of-confinement claim against
defendant Hill based on the alleged event that occurred on
August 5, 2018. See Am. Compl. at 15-16.
Fourth, plaintiff has asserted new claims against defendants
Baer, Bell, and Annucci, and added Corrections Officer John
Doe #7 as a defendant, based on new allegations about an
event that occurred on March 29, 2018. The following new
facts are set forth as alleged in the amended complaint.
On March 29, 2018, at approximately 2:30 pm, plaintiff
“returned from a law library call-out to Lower F-Block[.]”
Am. Compl. at 8. Upon arriving at the Lower F-Block,
plaintiff and another inmate were forced to wait on “two
company by the A-man[,]” defendant Corrections Officer
John Doe #7 (“John Doe #7”), for approximately thirty
minutes before John Doe #7 gave them “a direct order” to
return to their company. Id. Before leaving, plaintiff asked
defendant John Doe #7 to place him on “the list for chow and
gym[.]” Id. Defendant John Doe #7 cursed at plaintiff and told
him to “lock in” to his cell. Id.
*3 Defendant Baer, who was standing nearby, then ordered
plaintiff to “get on the ... wall.” Compl. at 8. Plaintiff
“obeyed” the order and defendant Baer proceeded to berate
plaintiff for questioning staff. Id. Defendant Baer then
searched plaintiff while two other unknown corrections
officers stood behind him. Id. During the search, defendant
Baer “stuck his hand in [plaintiff's] boxers” and “pulled
[plaintiff's] testicles causing [him] severe pain[.]” Id. Plaintiff
notified defendants Annucci and Bell about the events of
March 29, 2018, but his complaint was “disregarded[.]” Id.
at 10, 19.
The Court construes these allegations to assert an Eighth
Amendment excessive force claim against defendant Baer,
an Eighth Amendment failure-to-intervene claim against
defendant John Doe #7, and supervisory liability claims
against defendants Bell and Annucci.
The remainder of the amended complaint is materially similar
to the original complaint, and re-asserts all of the same claims
asserted in the original complaint against all of the same
defendants (with the exception of defendants John Doe #4
and John Doe #5). See generally Am. Compl. For a more
complete statement of plaintiff's claims, reference is made to
the amended complaint.
1. Claims Based on Events of March 29, 2018
The Eighth Amendment protects prisoners from “cruel
and unusual punishment” at the hands of prison officials.
Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v.
Gamble, 429 U.S. 97, 104 (1976). This includes punishments
that “involve the unnecessary and wanton infliction of
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pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).
The Eighth Amendment's prohibition against cruel and
unusual punishment encompasses the use of excessive force
against an inmate, who must prove two components: (1)
subjectively, that the defendant acted wantonly and in bad
faith, and (2) objectively, that the defendant's actions violated
“contemporary standards of decency.” Blyden v. Mancusi, 186
F.3d 252, 262-63 (2d Cir. 1999) (internal quotations omitted)
(citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). 2
“The Eighth Amendment [also] requires prison officials to
take reasonable measures to guarantee the safety of inmates
in their custody.” Hayes v. New York City Dept. of Corrs., 84
F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511
U.S. 825, 832 (1994)). Law enforcement officials, including
prison officials, can be held liable under § 1983 for failing to
intervene in a situation where another official is violating an
inmate's constitutional rights, including the use of excessive
force, in their presence. Curley v. Vill. of Suffern, 268 F.3d 65,
72 (2d Cir. 2001); see also Anderson v. Branen, 17 F.3d 552,
557 (2d Cir. 1994) (prison official's Eighth Amendment duty
to take reasonable measures to guarantee the safety of inmates
in their custody includes a duty to protect inmates from harm
threatened by other officers).
*4 At this stage of the proceeding, and mindful of the
Second Circuit's direction that a pro se plaintiff's pleadings
must be liberally construed, see e.g. Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 191 (2d Cir. 2008), the Court finds
that plaintiff's excessive force claim against defendant Baer
survives sua sponte review and requires a response. In so
ruling, the Court expresses no opinion as to whether this claim
can withstand a properly filed dispositive motion.
The Court, however, reaches a different conclusion with
respect to plaintiff's claims against defendants John Doe #7,
Annucci, and Bell. With respect to defendant John Doe #7,
the amended complaint does not allege any facts regarding
the nature or duration of defendant Baer's alleged use of
force during the frisk, or where defendant John Doe #7
was physically located in relation to plaintiff, making it
impossible for the Court to determine the plausibility of
whether defendant John Doe #7 had a realistic opportunity to
stop the alleged use of excessive force before its completion.
See Rosen v. City of New York, 667 F. Supp. 2d 355, 360
(S.D.N.Y. 2009) (“In the context of a failure to intervene
claim, an officer displays deliberate indifference when he has
adequate time to assess a serious threat against an inmate
and a fair opportunity to protect the inmate without risk to
himself, yet fails to intervene.”); Dean v. New York City,
No. 15-CV-8825, 2017 WL 3670036, at *4 (S.D.N.Y. July
6, 2017) (denying as futile leave to amend to add failure-
to-intervene claim against corrections official where the
proposed amended complaint was “devoid of any factual
allegations against P.O. Myers with respect to the failure to
intervene claim, such as, for example, where P.O. Myers was
located and what she was doing when P.O. Baksh pepper
sprayed the plaintiff's face”); Cusamano v. Sobek, 604 F.
Supp.2d 416, 429 (N.D.N.Y. 2009) (excusing an officer from
liability “despite his presence, if the assault is ‘sudden and
brief,’ such that there is no real opportunity to prevent
it”). Moreover, the amended complaint lacks any allegations
which plausibly suggest that defendant John Doe #7 knew
(or had a basis for knowing) prior to the alleged use of force
that plaintiff was at risk of being harmed by defendant Baer.
See Blandon v. Capra, No. 17-CV-65, 2017 WL 5624276,
at *8 (S.D.N.Y. Nov. 20, 2017) (“[A]side from a conclusory
allegation that ‘[D]efendants[ ] w[ere] fully aware of [the]
unsafe condition and refused to take any measures whatsoever
to protect the safety of the most vulnerable mental health
offenders,’ the Complaint is devoid of any allegations that any
Defendant specifically knew that Ebanks was infected with
HIV or Hepatits C, that he had a propensity to assault other
inmates, or that Plaintiff personally was in danger of being
assaulted by Ebanks.... The Complaint therefore fails to allege
that Defendants were ‘aware of facts from which the inference
could be drawn that’ Ebanks specifically posed a substantial
risk of harm to Plaintiff, or that Defendants in fact drew such
an inference.”).
With respect to defendants Bell and Annucci, the Second
Circuit held prior to Supreme Court's decision in Ashcroft
v. Iqbal, 556 U.S. 662 (2009), that supervisory personnel
may be considered “personally involved” only if they (1)
directly participated in the violation, (2) failed to remedy that
violation after learning of it through a report or appeal, (3)
created, or allowed to continue, a policy or custom under
which the violation occurred, (4) had been grossly negligent
in managing subordinates who caused the violation, or (5)
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that the violation
was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.
1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir.
1986)). 3
*5 Here, plaintiff alleges only that he complained to
defendants Bell and Annucci about the events of March
29, 2018, and his complaints were “disregarded[.]” Am.
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Compl. at 10, 19. Plaintiff has not alleged any facts which
plausibly suggest that his complaints about the events of
March 29, 2018, raised concerns about ongoing or continued
misconduct. Nor has plaintiff attached to his amended
complaint copies of his complaints regarding this alleged
incident from which the Court could potentially draw such an
inference. Thus, there is no basis for the Court to infer that,
at the time defendants Bell and Annucci were made aware
of the alleged events of March 29, 2018, they also became
aware that plaintiff was experiencing an ongoing violation of
his constitutional rights.
Moreover, a “failure to remedy” theory of liability is not
available against a supervisor with respect to discrete and
completed violations. See Jackson, 256 F.3d at 96 (citing
Blyden, 186 F.3d at 259, 264 and Wright, 21 F.3d at 501);
see also Young v. Kihl, 720 F. Supp. 22, 23 (W.D.N.Y. 1989)
(“[T]he wrong must have been ongoing or otherwise capable
of mitigation at the time the supervisory official was apprised
thereof.”). “If the official is confronted with a violation that
has already occurred and is not ongoing, then the official will
not be found personally responsible for failing to ‘remedy’
a violation.” Harnett v. Barr, 538 F. Supp. 2d 511, 524
(N.D.N.Y. 2008).
Accordingly, plaintiff's Eighth Amendment claims against
defendants John Doe #7, Bell, and Annucci based on the
alleged events of March 29, 2018, are dismissed pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for
failure to state a claim upon which relief may be granted.
2. Failure-to-Intervene Claim
Against Defendant John Doe #3
Plaintiff's failure-to-protect claim against defendant John Doe
#3 is based on an allegation that he stood nearby while
defendant Hunt subjected plaintiff to excessive force during
a pat frisk. Am. Compl. at 20. Plaintiff, however, does not
allege any facts regarding the nature or duration of the alleged
use of force during the frisk, or defendant John Doe #3's
proximity to defendant Hunt, making it impossible for the
Court to determine the plausibility of whether defendant John
Doe #3 had a realistic opportunity to stop the alleged use of
excessive force before its completion. Moreover, the amended
complaint lacks any allegations which plausibly suggest that
defendant John Doe #3 knew (or had a basis for knowing)
prior to the alleged use of force that plaintiff was at risk of
being harmed by defendant Hunt.
Accordingly, plaintiff's Eighth Amendment failure-to-
intervene claim against defendant John Doe #3 based on the
alleged events of April 6, 2018, is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted.
3. Failure-to-Protect Claim Against Defendant Holland
Plaintiff's failure-to-protect claim against defendant Holland
is based on an allegation that he refused plaintiff's protective
custody request and instead threatened plaintiff for making
complaints on April 26, 2018. Am. Compl. at 13-14.
In order to establish a “failure to protect,” the plaintiff must
show that he was incarcerated under conditions posing a
substantial risk of serious harm, and prison officials acted
with deliberate indifference to that risk and the inmate's
safety. Farmer, 511 U.S. at 836. Deliberate indifference exists
when “the official knows of and disregards an excessive risk
to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Id. at 837. “Neither mere negligence nor a
prison guard's mere failure to act reasonably is enough to
state an Eighth Amendment deliberate indifference claim.”
Sawyer v. New York State Depat. of Corr. Servs., No. 11-
CV-0152, 2015 WL 6644112, at *7 (W.D.N.Y. June 30,
2015) (citing Garcia v. Witkowski, 988 F. Supp. 2d 360,
361 (W.D.N.Y. 2013)), report and recommendation adopted
in pertinent part by 2015 WL 6641471 (W.D.N.Y. Oct. 28,
2015); Shell v. Brun, 585 F. Supp. 2d 465, 469-70 (W.D.N.Y.
2008) (“In failure to protect cases, a prisoner normally proves
actual knowledge of impending harm by showing that he
complained to prison officials about a specific threat to his
safety. Mere negligence (for example if a prison guard should
know of a risk but does not) is not enough....”); Jones v.
Kelly, 918 F. Supp. 74, 80 (W.D.N.Y. 1995) (“[D]efendant
Morrissey's April, 1993 denial of plaintiff's transfer under the
‘automatic’ transfer evaluation provision of DOCS Directive
No. 4948, Protective Custody Status, ¶ III(A) ... does not
subject Morrissey to § 1983 liability in the absence of
any proof that he deliberately, rather than negligently or
inadvertently, disregarded a substantial risk to plaintiff's
safety.”).
*6 Here, plaintiff does not allege any facts which plausibly
suggest that, at the time he requested protective custody,
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defendant Holland was aware of a specific threat to plaintiff's
safety. Moreover, plaintiff does not allege that he requested
protective custody out of fear for his safety at that time.
Rather, plaintiff alleges in conclusory fashion that he
requested protective custody because corrections officials
were “denying [him] meals and retaliating against [him].”
Am. Compl. at 13. Thus, there is no basis for the Court to infer
that defendant Holland deliberately disregarded an excessive
risk to plaintiff's safety in denying him protective custody.
Accordingly, plaintiff's Eighth Amendment failure-to-protect
claim against defendant Holland is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted. 4
4. Medical Indifference Claim Against Defendant Wood
Claims that prison officials have intentionally disregarded an
inmate's medical needs fall under the umbrella of protection
from the imposition of cruel and unusual punishment afforded
by the Eighth Amendment. Estelle, 429 U.S. at 102, 104.
The Eighth Amendment prohibits punishment that involves
the “unnecessary and wanton infliction of pain” and is
incompatible with “the evolving standards of decency that
mark the progress of a maturing society.” Id.; see also Whitley
v. Albers, 475 U.S. 312, 319 (1986) (citing, inter alia, Estelle).
While the Eighth Amendment does not mandate comfortable
prisons, neither does it tolerate inhumane treatment of those
in confinement. Farmer, 511 U.S. at 832 (citing Rhodes v.
Chapman, 452 U.S. 337, 349 (1981)).
“In order to establish an Eighth Amendment claim arising out
of inadequate medical care, a prisoner must prove ‘deliberate
indifference to [his] serious medical needs.’ ” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (quoting Estelle,
429 U.S. at 104). “First, the alleged deprivation must be, in
objective terms, sufficiently serious.” Chance, 143 F.3d at 702
(internal quotation marks and citations omitted). Addressing
the objective element, to prevail a plaintiff must demonstrate
a violation sufficiently serious by objective terms, “in the
sense that a condition of urgency, one that may produce death,
degeneration, or extreme pain exists.” Hathaway v. Coughlin,
99 F.3d 550, 553 (2d Cir. 1996). “Second, the defendant must
act with a sufficiently culpable state of mind,” Chance, 143
F.3d at 702 (internal quotation marks and citations omitted);
that is, the plaintiff must demonstrate that the defendant
“kn[ew] of and disregard[ed] an excessive risk to inmate
health or safety.” Farmer, 511 U.S. at 837; see also Blyden,
186 F.3d at 262 (With respect to the subjective element,
a plaintiff must also demonstrate that defendant had “the
necessary level of culpability, shown by actions characterized
by ‘wantonness.’ ”).
*7 Non-medical personnel may be held liable for deliberate
indifference to medical needs where a plaintiff demonstrates
that the prison personnel intentionally denied or delayed
access to medical care or intentionally interfered with medical
treatment once it was prescribed. See Banks v. No. 8932 Corr.
Officer, No. 11-CV-8359, 2013 WL 673883, at *4 (S.D.N.Y.
Feb. 25, 2013) (“A prison guard's deliberate indifference to
a serious medical need of a prisoner means intentionally
denying or delaying access to medical care or intentionally
interfering with medical treatment once it was prescribed.”);
Davidson v. Scully, No. 83-CV-2025, 1994 WL 669549,
at *12 (S.D.N.Y. Nov. 30, 1994) (“Evidence of deliberate
indifference may be found in: a lengthy delay in arranging
for medically indicated treatment for a prisoner's serious
medical problem, ... deliberate interference with a prisoner's
prescribed treatment, ... the refusal of prison officials to
provide necessary medical care as punishment for misconduct
unrelated to the prisoner's medical condition, ... and a serious
failure to provide needed medical attention when prison
officials are fully aware of that need....” (internal quotation
marks and citations omitted)); see also Estelle, 429 U.S. at
104-05 (1976) (noting that deliberate indifference may be
manifested when prison guards intentionally deny or delay
access to medical care).
Here, plaintiff alleges that while he was “being moved
to Upper F from Lower F[,]” he informed defendant
Wood, “who was transporting [plaintiff] to [his] knew [sic]
location[,]” that he “couldn't carry [his] bags due to medical
issues with [his] lower back and left knee[.]” Am. Compl. at
15. In response, defendant Wood stated that if plaintiff did not
carry his bags, he would not receive his property. Id. Plaintiff
then reiterated his “medical issues” and was escorted to his
new cell without his bags because defendant Wood “refused”
to carry them. Id.
Plaintiff's allegations regarding his “medical issues” are
entirely conclusory. Plaintiff does not allege, for example,
that a medical professional diagnosed him with an injury
or condition that would worsen if he lifted objects over a
certain weight. Nor does he allege that he was medically
excused from lifting objects over a certain weight. Thus, there
is no basis for inferring either that plaintiff suffered from a
sufficiently serious medical condition at the time he requested
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assistance from defendant Wood, or that defendant Wood, in
not agreeing to carry plaintiff's property, acted with deliberate
indifference to plaintiff's serious medical needs.
Accordingly, plaintiff's Eighth Amendment medical
indifference claim against defendant Wood is dismissed
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b) for failure to state a claim upon which relief may
be granted. 5
5. Excessive Force Claim Against Defendant Dubrey
*8 Plaintiff's excessive force claim against defendant
Dubrey is based on an allegation that defendant Dubrey
placed “mechanical restraints on [him] tight.” Am. Compl. at
15.
Placing an inmate in handcuffs is not a per se constitutional
violation. Rather, courts have held that tight handcuffing
gives rise to an Eighth Amendment claim when “1) the
handcuffs were unreasonably tight; 2) the defendants ignored
the [plaintiff's] pleas that the handcuffs were too tight; and
3) [there is a] degree of injury to the wrists.” Lynch ex
rel. Lynch v. City of Mount Vernon, 567 F. Supp. 2d 459,
468 (S.D.N.Y. 2008) (internal quotation marks and citations
omitted); see also Benitez v. Locastro, No. 9:04-CV-423
(NAM/RFT), 2010 WL 419999, at *1, *12 (N.D.N.Y. Jan. 29,
2010) (dismissing Eighth Amendment claim based on tight
handcuffing where plaintiff failed to “allege for how long the
handcuffs and shackles were applied, [ ]or the circumstances
of their application”).
Here, the amended complaint lacks any allegations which
plausibly suggest that defendant Dubrey applied handcuffs
maliciously and sadistically to cause harm. Moreover,
plaintiff does not allege that he experienced any pain or injury
as a result of the “tight” restraints. Nor does he allege that he
complained to defendant Dubrey about the tightness after the
restraints were placed on him.
Accordingly, plaintiff's Eighth Amendment excessive force
claim against defendant Dubrey is dismissed pursuant to 28
U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) for failure
to state a claim upon which relief may be granted.
6. Free Exercise and Retaliation
Claims Against Defendant Dubrey
At this stage of the proceeding, and mindful of the Second
Circuit's direction that a pro se plaintiff's pleadings must
be liberally construed, the Court finds that plaintiff's free
exercise and retaliation claims against defendant Dubrey
survive sua sponte review and require a response. In so ruling,
the Court expresses no opinion as to whether these claims can
withstand a properly filed dispositive motion.
7. Conditions-of-Confinement Claims
Against Defendants Dubrey and Hill
Plaintiff's conditions-of-confinement claims against
defendants Dubrey and Hill are based on allegations that on
one occasion, defendant Dubrey denied him access to the
gym, and on a separate occasion, defendant Hill denied him
access to a meal. Am. Compl. at 15-16. As noted in the
January 2019 Order, such limited deprivations are insufficient
to state an Eighth Amendment violation. See January 2019
Order at 17-19.
Accordingly, plaintiff's Eighth Amendment conditions-of-
confinement claims against defendants Dubrey and Hill are
dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted.
8. Remaining Claims
In addition to the claims discussed above, plaintiff also
reasserts the following claims in the amended complaint that
he set forth in the original complaint: (1) First Amendment
free exercise claims against defendants C.O. John Doe #2,
Baer, C.O. John Doe #3, W ood, and Sgt John Doe #1; (2) First
Amendment retaliation claims against defendants C.O. John
Doe #2, Baer, C.O. John Doe #3, Sgt John Doe #1, Wood,
Hunt, Young, Holland; (3) Eighth Amendment conditions-
of-confinement claims against defendants Baer, C.O. John
Doe #2, Wood, Young, and C.O. John Doe #3; (4) Eighth
Amendment excessive force and failure-to-intervene claims
against defendants Hunt, Baer, Sgt John Doe #1, Sgt John
Doe #2, C.O. John Doe #1, and John Doe #6; (5) Fourteenth
Amendment due process claims against defendants Wood
and Baer based on the issuance of false misbehavior reports;
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(6) a Fourteenth Amendment destruction of property claim
against defendant Wood; and (7) supervisory liability claims
against defendants Bell and Annucci based on the alleged
wrongdoing that occurred between April 2018 and August
2018. See generally Am. Compl.
*9 The Court found in the January 2019 Order that the
following claims survived sua sponte review and required
a response: (1) plaintiff's free exercise claims against
defendants C.O. John Doe #2, Baer, C.O. John Doe #3,
Sgt John Doe #1, Wood, Annucci, and Bell; (2) plaintiff's
retaliation claims against defendants C.O. John Doe #2, Baer,
C.O. John Doe #3, Wood, Hunt, Young, Holland, Annucci,
and Bell; and (3) plaintiff's excessive force and failure-to-
intervene claims against defendants Sgt John Doe #1, Sgt
John Doe #2, C.O. John Doe #1, C.O. John Doe #6, Baer,
Hunt, Annucci, and Bell. See January 2019 Order at 25-26.
For the reasons set forth in the January 2019 Order, these
claims once again survive sua sponte review and require a
response.
Upon review, and with due regard for plaintiff's status as a
pro se litigant, the Court finds that plaintiff's remaining claims
are subject to dismissal for the same reasons set forth in the
January 2019 Order. See generally, January 2019 Order.
C. Defendants' Motion to Dismiss
In light of the Court's decision to treat the proposed amended
complaint as an amended complaint filed as of right, and
because certain claims in the amended complaint that were
not pled in the original complaint have survived initial
review, defendants' Motion to Dismiss portions of the original
complaint is denied without prejudice and with leave to renew
upon the completion of service on all of the named defendants
who remain in this action.
The deadline for the defendants who have already been served
to respond to the amended complaint is stayed pending the
completion of service on all of the named defendants who
remain in this action. Upon the completion of service on all of
the named defendants who remain in this action, the deadline
for all of the named defendants to respond to the amended
complaint shall be reset in accordance with the Federal Rules
of Civil Procedure.
III. CONCLUSION
WHEREFORE, it is hereby
ORDERED that the Clerk shall docket plaintiff's proposed
amended complaint (Dkt. No. 18-1) as the amended
complaint, which is accepted for filing and is the operative
pleading; and it is further
ORDERED that the Clerk shall update the docket to add
the following parties as defendants: (1) Corrections Officer
Dubrey; (2) Corrections Officer Hill; and (3) Corrections
Officer John Doe #7; and it is further
ORDERED that the following claims SURVIVE sua sponte
review and require a response: (1) plaintiff's free exercise
claims against defendants Dubrey, C.O. John Doe #2, Baer,
C.O. John Doe #3, Sgt John Doe #1, Wood, Annucci,
and Bell; (2) plaintiff's retaliation claims against defendants
Dubrey, C.O. John Doe #2, Baer, C.O. John Doe #3, W
ood, Hunt, Young, Holland, Annucci, and Bell; and (3)
plaintiff's excessive force and failure-to-intervene claims
against defendants Sgt John Doe #1, Sgt John Doe #2, C.O.
John Doe #1, C.O. John Doe #6, Baer, Hunt, Annucci, and
Bell; and it is further
ORDERED that all remaining claims are DISMISSED with
prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) for failure to state a claim upon which
relief may be granted; 6 and it is further
*10 ORDERED that the Clerk shall issue summonses and
forward them, along with copies of the amended complaint, to
the United States Marshal for service upon defendants Dubrey
and Holland; 7 and it is further
ORDERED that the deadline for defendants Annucci,
Baer, Bell, Hunt, Wood, and Young to respond to the
amended complaint is STAYED pending the completion
of service on defendants Dubrey and Holland. Upon the
completion of service on defendants Dubrey and Holland,
defendants Annucci, Baer, Bell, Hunt, Wood, Young,
Holland, and Dubrey must respond to the amended complaint
in accordance with the Federal Rules of Civil Procedure; and
it is further
ORDERED that plaintiff take reasonable steps to ascertain
the identity of the “Doe” defendants, and when identified,
seek to amend the complaint to add the individuals as
defendants in this action pursuant to Federal Rule of Civil
Procedure 15(a); 8 and it is further
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ORDERED that the Motion to Dismiss (Dkt. No. 20) is
DENIED without prejudice and with leave to renew upon
the completion of service on defendants Holland and Dubrey;
and it is further
ORDERED that all pleadings, motions and other documents
relating to this action be filed with the Clerk of the United
States District Court, Northern District of New York, 7th
Floor, Federal Building, 100 S. Clinton St., Syracuse, New
York 13261-7367. Plaintiff must comply with any requests
by the Clerk's Office for any documents that are necessary to
maintain this action. All parties must comply with Local Rule
7.1 of the Northern District of New York in filing motions.
All motions will be decided on submitted papers without oral
argument unless otherwise ordered by the Court. Plaintiff is
also required to promptly notify, in writing, the Clerk's
Office and all parties or their counsel of any change in
plaintiff's address; his failure to do so may result in the
dismissal of this action; and it is further
ORDERED that the Clerk serve a copy of this Decision and
Order on plaintiff and counsel for the defendants who have
appeared in this action.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 1771501
Footnotes
1 One week after plaintiff's Motion to Amend was docketed, counsel for certain of the named defendants filed a
motion to dismiss portions of the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
See Dkt. No. 20 (“Motion to Dismiss”).
2 In this regard, while “a de minimis use of force will rarely suffice to state a constitutional claim,” Romano v.
Howarth, 998 F.2d 101, 105 (2d Cir. 1993), the malicious use of force to cause harm constitutes an Eighth
Amendment violation per se because in such an instance “contemporary standards of decency are always
violated.” Blyden, 186 F.3d at 263 (citing Hudson, 503 U.S. at 9). The key inquiry into a claim of excessive
force is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Hudson, 503 U.S. at 7 (citing Whitley v. Albers, 475 U.S. 312, 321-22 (1986));
see also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973).
3 The Second Circuit has not yet addressed how the Supreme Court's decision in Iqbal affected the standards
in Colon for establishing supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d
Cir. 2013) (noting that Iqbal may have “heightened the requirements for showing a supervisor's personal
involvement with respect to certain constitutional violations” but not reaching the impact of Iqbal on Colon
because the complaint “did not adequately plead the Warden's personal involvement even under Colon);”
see also Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) (expressing “no view on the extent to which
[Iqbal] may have heightened the requirements for showing a supervisor's personal involvement with respect
to certain constitutional violations[.]” (citing Grullon, 720 F.3d at 139)). For purposes of this Decision and
Order, the Court assumes that all five categories under Colon remain valid.
4 To the extent plaintiff has attempted to assert an Eighth Amendment claim against defendant Holland based
on alleged harassment, the law is clear that verbal harassment and name calling, absent physical injury,
are not constitutional violations cognizable under Section 1983. See Purcell v. Coughlin, 790 F.2d 263, 265
(2d Cir. 1986) (per curiam); Aziz Zarif Shabazz v. Pico, 994 F. Supp. 460, 474 (S.D.N.Y. 1998) (“verbal
harassment or profanity alone, unaccompanied by any injury no matter how inappropriate, unprofessional,
or reprehensible it might seem, does not constitute the violation of any federally protected right and therefore
is not actionable under 42 U.S.C. § 1983”) (quotation omitted); see also Rivera v. Goord, 119 F. Supp. 2d
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327, 342 (S.D.N.Y. 2000) (collecting cases). “While under extreme circumstances the Eighth Amendment's
prohibition against cruel and unusual punishment may encompass intentionally inflicted psychological injury,
necessarily excluded from this protection is conduct causing only de minimis psychological harm.” Johnson v.
Brown, No. 9:09-CV-0002 (GTS/DEP), 2010 WL 6243352, at *6 (N.D.N.Y. Sept. 3, 2010) (collecting cases),
report and recommendation adopted by 2011 WL 1097864 (N.D.N.Y. Mar. 22, 2011); see also Jermosen
v. Coughlin, No. 87-CV-6267, 1993 WL 267357, at *6 (S.D.N.Y. July 9, 1993), aff'd, 41 F.3d 1501 (2d Cir.
1994) (officers approaching inmate with nightsticks raised in a threatening position caused only de minimus
psychological pain). In this case, the amended complaint fails to allege facts which plausibly suggest that
the alleged comments made by defendant Holland subjected plaintiff to psychological harm which rises to
the level of a constitutional violation.
5 Analyzing plaintiff's allegations as a conditions-of-confinement claim would fare no better for plaintiff because
depriving him of unidentified personal property does not constitute a per se deprivation of a basic human
need, and there are no allegations in the amended complaint that defendant Wood refused to carry plaintiff's
property despite knowing that plaintiff would be deprived of a basic human need. See Bowens v. Smith,
No. 9:11-CV-784 (GLS/ATB), 2013 WL 103575, at *10 (N.D.N.Y. Jan. 8, 2013) (“In order to show that
conditions of confinement violate the Eighth Amendment, the plaintiff must demonstrate that the conditions
result in an ‘unquestioned and serious deprivation of basic human needs,’ and that defendants imposed those
conditions with deliberate indifference.”) (quoting Jolly v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996)), report
and recommendation adopted by 2013 WL 103596 (N.D.N.Y. Jan. 8, 2013). Furthermore, plaintiff alleges
that he received his property the next day. Am. Compl. at 15. While he also alleges that his property was
“damaged[,]” plaintiff does not identify what property was “damaged,” or how it was “damaged.” Nor does
plaintiff allege any facts from which an inference could be drawn that the “damage” occurred out of deliberate
indifference to one of his basic human needs.
6 Generally, when a district court dismisses a pro se action sua sponte, the plaintiff will be allowed to amend his
action. See Gomez v. USAA Fed. Savings Bank, 171 F.3d 794, 796 (2d Cir. 1999). However, an opportunity
to amend is not required where the plaintiff has already been afforded the opportunity to amend. See Shuler
v. Brown, No. 9:07-CV-0937 (TJM/GHL), 2009 WL 790973, at *5 & n.25 (N.D.N.Y. March 23, 2009) (“Of
course, an opportunity to amend is not required where the plaintiff has already amended his complaint.”),
accord, Smith v. Fischer, No. 9:07-CV-1264 (DNH/GHL), 2009 WL 632890, at *5 & n.20 (N.D.N.Y. March 9,
2009); Abascal v. Hilton, No. 9:04-CV-1401 (LEK/GHL), 2008 WL 268366, at *8 (N.D.N.Y. Jan. 13, 2008); see
also Yang v. New York City Trans. Auth., 01-CV-3933, 2002 WL 31399119, at *2 (E.D.N.Y. Oct. 24, 2002)
(denying leave to amend where plaintiff had already amended complaint once); Advanced Marine Tech. v.
Burnham Sec., Inc., 16 F. Supp. 2d 375, 384 (S.D.N.Y. 1998) (denying leave to amend where plaintiff had
already amended complaint once); cf. Foman v. Davis, 371 U.S. 178, 182 (1962) (denial of leave to amend
not abuse of discretion movant has repeatedly failed to cure deficiencies in pleading).
7 Because David A. Rosenberg, on behalf of the Office of the New York State Attorney General, has appeared
in this action as counsel for defendants Annucci, Baer, Bell, Hunt, Wood, and Young, the Clerk need not
issue summonses for these defendants.
8 Summonses will not issue for the “Doe” defendants because the U.S. Marshal cannot effect service on an
individual who has not been identified by name.
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2026 WL 698799
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
BRIAN E. SCHMIEGE, Plaintiff,
v.
DEPUTY SECURITY
STACHOWSKI, et al., Defendants.
9:22-cv-1371 (ECC/PJE)
|
Filed 03/12/2026
Attorneys and Law Firms
Appearances:
Brian E. Schmiege, Pro Se Plaintiff
Aimee Cowan, Asst. Att'y Gen., for Defendants
Brian E. Schmiege, Youngstown, NY, Pro Se.
Aimee Cowan, Office of the Attorney General - Syracuse
Regional Office, Syracuse, NY, for Defendants.
MEMORANDUM-DECISION AND ORDER
Elizabeth C. Coombe U.S. District Judge
I. INTRODUCTION
*1 Plaintiff Brian Schmiege commenced this civil rights
action under 42 U.S.C. § 1983 asserting claims for the
violation of his constitutional rights at Auburn Correctional
Facility (C.F.). Dkt. No. 1. On August 26, 2024, Defendants
Harvey, Howard, Marren, Pflueger, Stachowski, and Vitale
filed a motion for summary judgment pursuant to Fed. R.
Civ. P. 56(a), seeking dismissal of Plaintiff's claims against
them. Dkt. No. 57. On April 28, 2025, Defendant Hamilton
filed a motion for summary judgment pursuant to Fed. R.
Civ. P. 56(a), also seeking dismissal of the claims against
him. Dkt. No. 83. This matter was assigned to United States
Magistrate Judge Paul J. Evangelista, who issued Report-
Recommendations recommending that the respective motions
for summary judgment be granted in part and denied in
part. Dkt. Nos. 80, 95. Defendants Pflueger and Harvey filed
timely objections on April 25, 2025. Dkt. No. 81.
II. STANDARD OF REVIEW
This Court reviews de novo those portions of the Magistrate
Judge's findings and recommendations that have been
properly preserved with a specific objection. Petersen v.
Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); 28 U.S.C.
§ 636(b)(1)(C). “A proper objection is one that identifies
the specific portions of the [report-recommendation] that
the objector asserts are erroneous and provides a basis for
this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F.
Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks
omitted). Properly raised objections must be “specific and
clearly aimed at particular findings” in the report. Molefe
v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487
(S.D.N.Y. 2009). “[E]ven a pro se party's objections to a
Report and Recommendation must be specific and clearly
aimed at particular findings in the magistrate's proposal ....”
Machicote v. Ercole, No. 06-cv-13320, 2011 WL 3809920
at *2 (S.D.N.Y. Aug. 25, 2011) (citation omitted). Findings
and recommendations as to which there was no properly
preserved objection are reviewed for clear error. Id.
III. BACKGROUND
Chief U.S. District Judge Brenda K. Sannes initially reviewed
Plaintiff's pro se Complaint pursuant to 28 U.S.C. §§
1915(e) and 1915A, and determined that the following claims
survived the Court's sua sponte review under those standards:
(1) Eighth Amendment excessive force claims against
Defendants Pflueger, Marren, Vitale, Howard, Harvey, and
Hamilton, arising from (a) an alleged assault of Plaintiff in his
cell on July 27, 2022, and (b) another inmate's alleged assault
of Plaintiff on August 12, 2022; (2) Eighth Amendment
failure-to-protect claim against Defendant Stachowski; and
(3) First Amendment retaliation claims arising from (a)
Defendants Hamilton, Howard, Marren, Vitale, and Pflueger's
alleged incitement of another inmate to assault Plaintiff
in August 2022 in retaliation for Plaintiff's letters and
complaints related to a March 2020 assault, and (b) Defendant
Pflueger's alleged issuance of a false misbehavior report in
retaliation for Plaintiff's July 2022 grievance against Pflueger.
Dkt. No. 10.
*2 Defendants moved for summary judgment, seeking
dismissal of the Complaint in its entirety. Dkt. Nos. 57, 83.
With respect to Defendants’ argument concerning Plaintiff's
failure to exhaust his administrative remedies, Magistrate
Judge Evangelista determined that Plaintiff failed to raise
a question of material fact as to whether he exhausted his
administrative remedies for the alleged assault on July 27,
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2022. Dkt. Nos. 80 at 16-33; 95 at 16-31. Magistrate Judge
Evangelista also found that Plaintiff failed to raise a question
of material fact as to whether he exhausted his administrative
remedies with respect to Defendant Stachowski's alleged
failure to protect him. Dkt. No. 80 at 22-24, 30. Accordingly,
Magistrate Judge Evangelista recommended dismissal of
these claims. Magistrate Judge Evangelista further deemed
Plaintiff's retaliation claim against Pflueger arising from an
alleged false misbehavior report issued on July 27, 2022 to be
abandoned. Dkt. No. 80 at 7 n. 8.
Alternatively, Magistrate Judge Evangelista determined that
Plaintiff exhausted his administrative remedies with respect to
his retaliation claim surrounding the August 12, 2022 assault.
Dkt. Nos. 80 at 24-25; 95 at 22-24. With respect to the merits
of Plaintiff's retaliation claim, Magistrate Judge Evangelista
concluded that Plaintiff failed to raise a question of material
fact as to Defendants Howard, Vitale, and Marren's lack of
personal involvement, but that summary judgment should be
denied as to Plaintiff's retaliation claims against Defendants
Pflueger, Harvey, and Hamilton. Dkt. Nos. 80 at 33-42; 90 at
31-39.
IV. DISCUSSION
A. First Amendment Retaliation
1. Failure to Exhaust Administrative Remedies
Defendants Pflueger and Harvey 1 object to Magistrate
Judge Evangelista's determination that Plaintiff properly
exhausted his administrative remedies with respect to the First
Amendment retaliation claim arising from the August 12,
2022 assault. Dkt. No. 81 at 7. Specifically, they contend that
Plaintiff's grievance did not properly alert the facility to the
existence of a retaliation claim against Pflueger and Harvey,
who were not specifically named in the grievance. Defendants
contend that the underlying facts are analogous to the court's
determination in Solano v. Aubin, No. 20-cv-1378 (BKS/ML),
2023 WL 5200397 (N.D.N.Y. Aug. 14, 2023).
On August 31, 2022, Plaintiff prepared a “Grievance
Complaint” alleging that he was assaulted by another
incarcerated individual at Auburn C.F. who was “told to kill”
Plaintiff by “orders of security staff at Auburn C.F.” Dkt. No.
57-15 at 4. Plaintiff did not identify the corrections officers
by name in his grievance. Id. He did, however, provide other
information, including that they were the same corrections
officers against whom he had previously been awarded a court
settlement, who were facing criminal charges related to a
prior assault on Plaintiff, and that the corrections officers were
“caught on audio and video camera footage” inciting the “hit”
on Plaintiff. Id.
Plaintiff's grievance was denied in a September 30, 2022
Superintendent Response, which stated in relevant part:
The Grievant states on 8/12/22 they were violently
assaulted by another [incarcerated individual] at Auburn
CF. They state security told the [incarcerated individual]
to kill them. They state this happened because they filed a
lawsuit against staff and won.
Per the investigation, when interviewed grievant was
uncooperative, refusing to speak with the [sergeant], and
no staff were identified in his grievance, therefore, based
on this investigation, grievant's allegations could not be
substantiated.
Dkt. No. 57-15 at 5.
Plaintiff appealed the decision of the Superintendent,
indicating that the “audio [and] video camera footage” his
lawyer obtained via a FOIL request depicted the security
staff involved in the incident. Dkt. No. 57-15 at 5. Plaintiff
further stated that “no one ever came to talk” to him about
the grievance. Id. A memorandum in the record suggests that
Plaintiff refused to speak to an investigating sergeant about
this grievance because he was not of a “high enough rank.”
Id. at 6.
*3 On these facts, Magistrate Judge Evangelista properly
denied the Defendants’ motion to dismiss Plaintiff's relation
claim for failure to exhaust his administrative remedies. As
the court in Solano noted, “[A] claim may be exhausted when
it is closely related to, but not explicitly mentioned in an
exhausted grievance,” Barnes v. Annucci, No. 15-cv-0777,
2019 WL 1387460, at *10 (N.D.N.Y. March 12, 2019), and
a grievance need not identify by name those accused of
misconduct, see Espinal v. Goord, 558 F.3d 119, 127 (2d
Cir. 2009). As explained by the Second Circuit, a grievance
is sufficient to “advance the benefits of exhaustion” where
“prison officials had the necessary information to investigate
the complaints and the opportunity to learn which officers
were involved in the alleged incident.” Espinal, 558 F.3d
at 127. In this case, Plaintiff's August 31, 2022 grievance
placed prison officials on notice of his claim that he had
been assaulted by another incarcerated inmate at the direction
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of other corrections officers because of his prior actions.
Although it did not identify the corrections officers by
name, it provided other information from which investigating
officials could learn their identity, including notice of relevant
video footage. There is also no question that the facility
knew the identity of the incarcerated individual who attacked
Plaintiff on August 12 th , and that Plaintiff was subject to
a disciplinary hearing as a result of the assault. Dkt. No.
57-14 at 103-04. Defendants do not contend that they pursued
any information other than attempting an interview with
Plaintiff, and Plaintiff disputes their contention that he refused
an interview regarding the grievance. Moreover, Defendants
cannot meaningfully argue that the grievance did not give
adequate notice of Plaintiff's retaliation claim, in light of the
Superintendent's summary of the grievance explicitly noting
Plaintiff's claim that the assault was because of Plaintiff's prior
lawsuits.
In Solano, the factual allegations in plaintiff's grievance
were limited to a single claim of assault against a specific
corrections officer. 2023 WL 5200397, at *6. Solano
subsequently filed suit against other corrections officers for
excessive force and failure to intervene, allegedly related to
the incident cited in the grievance. Id. at *7. Under those
circumstances, the court found that “[p]laintiff's grievance,
which does identify by name one individual and makes no
mention of the presence—let alone the actions or inaction
—of any others, fails to provide the requisite notice.” Id. at
*7. The court cited to caselaw suggesting that the deficiency
was based in large part on plaintiff's failure to alert prison
officials that his complaint in any way exceeded the scope
of the isolated allegation of assault by a single corrections
officer. See id. (citing Thousand v. Corrigan, No. 15-cv-1025,
2017 WL 1093275, at *4 (N.D.N.Y. Mar. 23, 2017) (“Plaintiff
concedes that the grievance ‘makes no mention of any other
correction officer being present or taking part in the assault.’
Plaintiff also conceded that his grievance made no mention
of any bystander who witnessed the assault[ ] and did not
mention any failure to protect or intervene by any correction
official. In light of these and other admissions, ... Plaintiff's
grievance was insufficient to alert ‘the prison officials that
he was alleging some wrongdoing beyond that alleged
against the individual or individuals specifically named in
the grievance.’ ” (citations omitted)); Peele v. Donah, No.
15-cv-317, 2016 WL 4400473, at *5–6 (N.D.N.Y. June 14,
2016) (recommending denial of the defendants’ motion for
summary judgment where the plaintiff had failed to identify
some correction officer defendants by name in his grievance
but had alleged that “other officers” were involved in the
incident), report and recommendation adopted, 2016 WL
4386019 (N.D.N.Y. Aug. 17, 2016)).
Here, however, the conduct that Plaintiff complained of –
assault and retaliation – was sufficiently identified in his
grievance. To the extent the defendants are not specifically
identified, the grievance provided “the necessary information
to investigate the complaints and the opportunity to learn
which officers were involved in the alleged incident.”
Espinal, 558 F.3d at 127. Defendants Pflueger and Harvey
thus fail to meet their burden on summary judgment of
proving failure to exhaust. Accordingly, the Court accepts
Magistrate Judge Evangelista's recommendation denying
summary judgment to Defendants Pflueger and Harvey on
Plaintiff's First Amendment retaliation claims for failure to
exhaust administrative remedies, and their motion is denied
in this respect.
2. Merits
Defendants Pflueger and Harvey object to Magistrate Judge
Evangelista's determination that a genuine issue of material
fact exists regarding their retaliatory intent, precluding
summary judgment on the merits of Plaintiff's retaliation
claims against them. Dkt. No. 81 at 10-13. Defendants
contend that Magistrate Judge Evangelista improperly
expanded the scope of the alleged retaliation to include
protected conduct other than the letters/complaints Plaintiff
filed in August 2022 about his March 2020 assault, and
that no reasonable factfinder could conclude that the assault
happened as a result of Pflueger's retaliatory intent. Dkt. No.
81 at 11-13. Defendants further contend that Magistrate Judge
Evangelista erred in construing a retaliation claim against
Defendant Harvey, and that Harvey cannot be liable for
retaliation because he was not working at the facility on the
date of the assault. Id. at 13-15.
*4 The Complaint alleges that on August 8, 2022,
incarcerated individual Quick approached Plaintiff and
threatened him because “the C.O.’s” were complaining that
Plaintiff
was a problem [and] ... making D-
Block-5 Company “hot” by dropping
grievances and writing letters to
Deputy Security Stachowski [and]
Superintendent Corey about [Plaintiff]
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being a victim of a racist hate crime
[and] ... being violently assaulted
by the C.O.’s back on 3/19/2020 at
Auburn C.F.
Dkt. No. 1 at 7-8. The Complaint further alleges that on
August 12, 2022, Defendants Howard, Hamilton, Marren,
Vitale, and Pflueger “all gave [Quick] orders to assault
[Plaintiff and] stab [him] to death[.]” Id. at 8. Quick attacked
Plaintiff that morning.
At his deposition, Plaintiff testified that Quick “threatened
to kill” him prior to the assault. Dkt. No. 57-14 at 76-77.
Specifically, Quick told Plaintiff on August 8, 2012 that
Defendants Harvey and Hamilton had approached Quick and
stated that Plaintiff was “making it fucking hot.” Id. at 78.
Quick told Plaintiff, “they're telling me that I can't do what I
want to do if you keep on making the block hot, and they're
telling me that I got to get you the fuck out of here.” Id. at 79.
Plaintiff further testified that he observed Defendants
Hamilton and Harvey standing outside Quick's cell the
morning of August 12, 2022. Dkt. No. 57-14 at 100-01.
Plaintiff did not hear their conversation, and testified that the
corrections officers stopped at Quick's cell every morning
to “get an update or something of that nature.” Id. at 103.
Plaintiff then observed Quick come out of his cell and walk
down toward the corrections officers, to have a conversation
with them. Id. When the corrections officers subsequently
announced the chow run, Plaintiff's cell was the only cell
out of the forty cells on the block that opened, which was
not normal. Id. Plaintiff testified that all of the corrections
officers named in the Complaint were standing at the end
of the company. Dkt. No. 57-14 at 92-93, 95. 2 During the
assault, they “were just standing there, watching it. They
weren't trying to help [Plaintiff] .... They stood there and let
it happen.” Id. Plaintiff testified that the assault by Quick
was retaliation for his grievance complaining about Pflueger's
conduct on July 27, 2022. Id. at 114-16; see Dkt. No. 57-5
at 13.
To establish a First Amendment retaliation claim, a plaintiff
must show: “that (1) the conduct at issue was constitutionally
protected, (2) the alleged retaliatory action adversely affected
his constitutionally protected conduct, and (3) a causal
relationship existed between the constitutionally protected
conduct and the retaliatory action.” Wrobel v. Cnty. of
Erie, 692 F.3d 22, 27 (2d Cir. 2012) (citation omitted).
Moreover, he must establish the personal involvement of each
defendant. See Raspardo v. Carlone, 770 F.3d 97, 115-16
(2d Cir. 2014). As Magistrate Judge Evangelista correctly
noted, Plaintiff's grievances and letters complaining about the
Defendant corrections officers’ conduct constitute protected
conduct. Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003).
Furthermore, inciting one incarcerated individual to attack
another may constitute adverse action. Brandon v. Kinter, 938
F.3d 21, 42 (2d Cir. 2019) (“We not doubt that exposing a
prisoner to potential assault by another inmate can constitute
an adverse action[.]”).
*5 Pflueger denies ever directing or requesting that Quick
assault Plaintiff, and contends that he is unaware of any
complaints filed in August 2022 about an alleged March
2020 assault. Dkt. No. 57-11 ¶¶ 7-8. According to Plaintiff's
testimony, Pflueger is not one of the corrections officers
Quick identified on August 8 th as directing the assault for
retaliatory purposes, nor did Pflueger approach Quick's cell
immediately before the assault on August 12 th . Dkt. No.
57-14 at 78, 100-01. The only evidence linking Pflueger
to the assault is Plaintiff's testimony that Pflueger was
one of many corrections officers present on the block, he
observed the assault take place, and failed to take any action.
Even if this evidence was sufficient to maintain an Eighth
Amendment claim for failure to intervene, there is nothing in
the record to suggest that Pflueger's conduct – standing and
watching the assault – was for retaliatory purposes beyond
the temporal proximity between Plaintiff's grievances/letters
about Pflueger, and the assault by another incarcerated
individual to whom Pflueger has no apparent connection.
This is insufficient to defeat summary judgment. See Williams
v. King, 763 F. App'x 36, 38–39 (2d Cir. 2019) (“The
only evidence demonstrating a retaliatory motive is temporal
proximity which, alone, is insufficient to defeat summary
judgment.”). Accordingly, the Court rejects Magistrate Judge
Evangelista's recommendation denying summary judgment to
Defendant Pflueger on Plaintiff's First Amendment retaliation
claim against him, and Defendant Pflueger's motion is granted
in this respect.
The Court reaches a different conclusion with respect to
Defendant Harvey. 3 Harvey denies directing or requesting
that Quick assault Plaintiff on August 12, 2022. Dkt. No.
81-1 ¶ 4. Harvey also maintains, and submits evidence,
indicating that he was not working at the facility on August
12 th . Dkt. Nos. 81-1 at ¶ 5, 81-2 at 1-3. Nevertheless,
even if Harvey has established he was not at the facility
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the morning of the attack, a genuine dispute of material
fact exists as to whether he instructed Quick to assault
Plaintiff prior to that day. Viewing the evidence in the
light most favorable to Plaintiff, Harvey and Hamilton
approached Quick sometime prior to August 12 th directing
him to attack Plaintiff because of the effect his grievances
were having on them, i.e. making the block “hot.” These
statements, coupled with the temporal proximity between
plaintiff's grievances/letters and the assault on August 12 th ,
are sufficient to create a genuine dispute of material fact
as to the First Amendment retaliation claim against Harvey.
Accordingly, the Court adopts Magistrate Judge Evangelista's
recommendation denying summary judgment to Defendant
Harvey on Plaintiff's First Amendment retaliation claim, and
Defendant Harvey's motion is denied in this respect.
B. Eighth Amendment Claims Premised on August 12,
2022 Assault
The Court seeks to clarify the status of Plaintiff's Eighth
Amendment claims arising from the August 12, 2022 assault.
Chief Judge Sannes previously determined that Plaintiff's
Eighth Amendment excessive force claims against Pflueger,
Marren, Vitale, Howard, Harvey, and Hamilton survived sua
sponte review and require a response. Dkt. No. 10 at 11-12.
Although not explicitly stated in the decision and order, this
included Plaintiff's allegations arising from the Defendants’
alleged incitement of an attack on Plaintiff by another
incarcerated individual. Chief Judge Sannes specifically
noted in her decision permitting these claims to proceed
that “[a]llegations that a correctional officer made statements
intending to incite others to attack an inmate may state a claim
under the Eighth Amendment.” Id. (citing Phillips v. Cortland
Cnty. Sheriff's Dep't, No. 5:13-CV-00955, 2013 WL 5464908,
at *4 (N.D.N.Y. Sept. 30, 2013), report and recommendation
adopted, 2013 WL 6799342 (N.D.N.Y. Dec. 20, 2013)).
*6 Although the Defendants’ motions for summary
judgment seek dismissal of the Complaint in its entirety,
the Defendants do not address or request relief concerning
Plaintiff's Eighth Amendment claims arising from the August
12, 2022 assault. Notably, in reciting the claims surviving
Chief Judge Sannes’ review of the Complaint, the Defendants
only refer to the Eighth Amendment excessive force claims
arising from the alleged incident on July 27, 2022. Dkt.
No. 57-2 at 8-9. The Court has some concerns that this
oversight may have implicated Defendants’ obligation to
provide mandatory disclosures relevant to this claim, which
at this juncture is still posed to proceed to trial. Accordingly,
Defendants are directed to provide the Court with a status
update within 20 days of the date of this decision and order,
indicating whether they satisfied their discovery obligations
with respect to this claim. Defendants should also state their
position on whether the Court should grant leave to file a
motion for summary judgment limited to this claim.
C. Remainder of the Report-Recommendations
The Court otherwise reviews the remainder of the Report-
Recommendations for clear error and, having found none,
adopts the remainder of the Report-Recommendations in their
entirety.
V. CONCLUSION
For these reasons, it is hereby
ORDERED that Magistrate Judge Evangelista's Report-
Recommendations, Dkt. Nos. 80, 95, are ADOPTED in part
and REJECTED in part; 4 and it is further
ORDERED that Defendants’ motions for summary
judgment, Dkt. Nos. 57, 83, are GRANTED in part and
DENIED in part; 5 and it is further
ORDERED that, within twenty (20) days of this
Memorandum-Decision and Order, Defendants shall file a
status update indicating whether they satisfied their discovery
obligations with respect to Plaintiff's surviving Eighth
Amendment claims stemming from an alleged assault by
another incarcerated individual on August 12, 2022, as well as
Defendants’ position on whether the Court should grant leave
to file a motion for summary judgment limited to this claim;
and it is further
ORDERED that the Clerk of the Court shall serve a copy
of this Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2026 WL 698799
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BRIAN E. SCHMIEGE, Plaintiff, v. DEPUTY SECURITY..., Slip Copy (2026)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
Footnotes
1 Defendant Hamilton did not submit any objections to Magistrate Judge Evangelista's recommendation that
his motion for summary judgment on Plaintiff's retaliation claim based on failure to exhaust be denied.
2 When Plaintiff later responded to a question by defense counsel confirming the list of individuals standing
at the end of the company during the assault, neither counsel nor Plaintiff specifically identified Defendant
Howard. Dkt. No. 57-14 at 95.
3 To the extent Defendants contend there is no surviving retaliation claim against Harvey, the Complaint and
evidence of record are reasonably construed to plausibly allege such a claim. The Complaint refers to “the
C.O.’s” who directed Quick to assault Plaintiff on August 8, 2022, and further discovery clarifies the pro se
Plaintiff's position that Harvey directed the assault on Plaintiff and was at Quick's cell immediately prior to
assault. Moreover, construing such a claim against Harvey presents no prejudice to Defendants, to the extent
the Court has considered the supplemental arguments and exhibits contained in their objections to address
this claim.
4 The Report-Recommendations are rejected insofar as they recommend not dismissing Plaintiff's First
Amendment retaliation claim against Defendant Pflueger relating to the August 12, 2022 assault, and to the
extent they can be construed to limit Defendants’ surviving excessive force claims as not including those
arising from the August 12 th assault by another incarcerated individual.
5 As a result of this Memorandum-Decision and Order, the only remaining claims are Plaintiff's First Amendment
retaliation claims against Defendant Harvey and Hamilton, and Eighth Amendment claims stemming from
the August 12, 2022 assault by another incarcerated individual.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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CA, Inc. v. New Relic, Inc., Not Reported in F.Supp.3d (2015)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2015 WL 1611993
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
CA, INC., d/b/a CA Technologies, Plaintiff,
v.
NEW RELIC, INC., Defendant.
No. CV I2–5468(AKT).
|
Signed March 30, 2015.
|
Filed April 8, 2015.
Attorneys and Law Firms
Barry Shelton, Conor Civins, Matthew Gates, Pillsbury
Winthrop Shaw Pittman LLP, Austin, TX, for Plaintiff.
Craig N. Dee, Elizabeth Mara Aboulafia, Elizabeth Usinger,
Cullen and Dykman, LLP, Garden City, NY, Christa
Anderson, Corey Johanningmeier, Elizabeth Egan, Elizabeth
McCloskey, Jesse P. Basbaum, Matthew Mickle Werdegar,
Matthias A. Kamber, Rebekah Punak, Robert A. Van Nest,
Keker & Van Nest LLP, San Francisco, CA, for Defendant.
MEMORANDUM AND ORDER
A. KATHLEEN TOMLINSON, United States Magistrate
Judge.
I. PRELIMINARY STATEMENT
*1 In this patent infringement action, plaintiff CA, Inc.
(“CA”) alleges that defendant New Relic, Inc. (“New Relic”)
has infringed three patents which deal with monitoring the
performance of software applications, otherwise known as
application performance management (“APM”) software. See
generally Compl. [DE 1]. New Relic asserted in its First
Affirmative Defense that CA's three patents are invalid for
failure to satisfy the conditions of patentability. See Answer
to Compi. ¶ 62 [DE 8].
Presently before the Court is CA's motion for partial summary
judgment seeking to strike New Relic's First Affirmative
Defense as to two of the three patents at issue-U.S. Patent
No. 7,225,361 B2 (“the ′361 Patent”) and U.S. Patent No.
7,797,580 B2 (“the ′580 Patent”)-and to estop New Relic
from contesting the validity of those two patents. See DE
116. CA's motion is premised on the equitable doctrine of
assignor estoppel, which bars an inventor who assigned his
or her patent to another for valuable consideration from later
asserting that the patent is invalid. See Pl.'s Memorandum of
Law in Support of its Motion For Partial Summary Judgment
Based on the Doctrine of Assignor Estoppel (“Pl.'s Mem.”)
at 1 [DE 116–1]. The doctrine also bars companies in privity
with the inventor from asserting the defense of invalidity
where the company relied on the inventor's knowledge and
assistance in creating products accused of infringing the
inventor's patents. See id.
Lewis Cirne (“Cirne”), the sole founder and CEO of
Defendant New Relic, is one of two named inventors of
the ′361 and ′580 Patents. The parties do not dispute that
Cirne would be personally estopped from asserting that the
′361 and ′580 Patents that he co-invented are invalid. See
Defendant New Relic's Corrected Memorandum of Law in
Opposition to CA's Motion for Partial Summary Judgment
(“Def.'s Opp.”) at 16 n. 11 [DE 119]; Plaintiff's Reply to
Defendant's Opposition to Plaintiff's Motion (“Pl.'s Reply”) at
2 [DE 128]. Rather, the sole issue before the Court is whether
New Relic should be estopped from asserting an invalidity
defense because it is in privity with Cirne under the doctrine
of assignor estoppel.
Although the parties generally agree on the applicable law
governing the doctrine of assignor estoppel, they dispute
whether the record supports a finding, as a matter of law,
of privity between New Relic and Cirne. CA argues the
undisputed facts show that New Relic sufficiently availed
itself of Cirne's knowledge and assistance in developing the
accused products to justify finding privity between New Relic
and Cirne. See Pl.'s Mem. at 15–16. New Relic, on the other
hand, asserts that because New Relic did not rely on Cirne's
knowledge or assistance in developing the specific infringing
features of the accused products, there are genuine issues of
material fact which preclude summary judgment on assignor
estoppel grounds. See Def.'s Opp. at 16. Based upon a review
of the parties' submissions and the relevant case law, the
Court concludes that New Relic is in privity with Cirne and
is therefore barred under the doctrine of assignor estoppel
from asserting an invalidity defense against the ′361 and
′580 Patents. Accordingly, for reasons explained below, CA's
motion for partial summary judgment is GRANTED.
II. BACKGROUND
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*2 The Court's account of the facts is derived from the
parties' submissions in support of and in opposition to the
instant motion for partial summary judgment, including:
Plaintiffs Statement of Undisputed Material Facts In Support
Of Motion For Partial Summary Judgment (“Pl.'s Rule
56.1 Stmt.”) [DE 116–2]; Response to CA's Statement of
Undisputed Material Facts in Support of Motion for Partial
Summary Judgment (“Def.'s Rule 56.1 Counterstmt.”) [DE
119–1], as well as the affidavits, deposition testimony, and
other exhibits attached to the motion papers. Where the
parties' Rule 56.1 Statements contain specific citations to
the record as support, those documents are incorporated by
reference and the Court cites to the Rule 56.1 Statement,
rather than the underlying citation to the record. Where the
facts set forth in a party's Rule 56.1 Statement are supported
by testimonial or documentary evidence, and denied by a,
conclusory statement by the other party without citation
to conflicting testimonial or documentary evidence, the
Court finds such facts to be true. See E.D.N.Y. Local Rule
56.1(c); Petito v. Puritan's Pride, Inc., 35 F.Supp.3d 494,
497 (S.D.N.Y.2014). The Court construes the fact in the
light most favorable to New Relic as the nonmoving party.
Viacom Intern., Inc. v. YouTube, Inc., 676 F.3d 19, 30 (2d
Cir.2012); Petito, 35 F.Supp.3d at 502. The following facts
are undisputed unless otherwise noted.
CA is a provider of enterprise technology management
software and solutions. Plaintiff's Statement of Undisputed
Material Facts In Support Of Motion For Partial Summary
Judgment (“Pl.'s Rule 56.1 Stmt.”) ¶ 1. 1 One of its software
products, Introscope, is an APM tool which customers use
to monitor and manage the performance of web applications
written using Java or .NET software languages. Id. New Relic
also provides an APM service that monitors web applications
written in Java and .NET, as well as the Python, Ruby, and
PHP software languages, among others. Id. ¶ 2. CA holds
a number of patents related to its products, including two
patents related to Introscope which are the subject of the
instant motion. Id. ¶ 13. As noted, the patents at issue are
the ′361 Patent, entitled “Detecting a Stalled Routine,” and
the ′580 Patent, entitled “Determining that a Routine has
Stalled” (collectively, the “Stall Detection Patents”). 2 The
Stall Detection Patents were issued to Jeffrey Cobb and Lewis
Cirne in 2007 and 2010, respectively. Id. ¶¶ 19, 25.
Cirne is the founder and Chief Executive Officer of Defendant
New Relic. Id. ¶ 7. 3 Prior to founding New Relic, Cirne
started a company in 1998 called Wily Technologies, Inc.
Id. ¶ 9. Cirne founded Wily in connection with his invention
of a new approach to APM and is considered a pioneer and
driving innovative force in the APM field. Id. ¶¶ 10–11. Cirne
served as Wily's CEO from 1998 to 2001, and as its Chief
Technology Officer until approximately 2006. Id. ¶¶ 8–9.
During his tenure at Wily, Cirne helped develop Introscope,
which became Wily's flagship APM product, although the
parties dispute the scope of Cirne's role in Introscope's
development. Id. ¶ 12; see Def.'s Rule 56.1 Counterstmt.
¶ 12. Wily and its Introscope product were commercially
successful. Pl.'s Rule 56.1 Stmt. ¶ 27.
*3 CA asserts that in 2001, during the development of the
Introscope product, Cirne and Jeff Cobb solved an important
technical issue raised by customers by creating a solution
that helped customers understand when things were slowing
down and backing up in their applications. Id. ¶ 13. The Stall
Detection Patents were implemented in Introscope to address
this problem and solve it. See id. New Relic disputes that
the technical issue purportedly solved by the Stall Detection
Patents was “an important one,” noting that the stall detection
feature in Introscope was not one of the most important
features to customers. Def.'s Rule 56.1 Counterstmt. ¶ 13.
According to New Relic, the Stall Detection Patents, “at most,
patented one particular method of stall detection, and were
therefore not an important solution.” Id. 4
On February 21, 2002, Wily filed an application with the
United States Patent and Trademark Office (“USPTO”)
entitled “Detecting a Stalled Routine,” which would
eventually become the ′361 Patent. Pl.'s Rule 56.1 Stmt. ¶ 14.
Cirne and Cobb are the named inventors on the ′361 patent
application, id., and Wily submitted a “Declaration for Patent
Application” in support of the ′361 Application, id. ¶ 16. Cirne
executed the declaration on May 7, 2002 and declared his
belief that he was the first and joint inventor of the invention
entitled: DETECTING A STALLED ROUTINE....” Id. ¶
16. On June 27, 2005, Wily filed an application with the
USPTO that would eventually become the ′580 Patent. Id.
¶ 20. Cirne and Cobb are the named inventors on the ′580
Application, which was filed as a continuation of the ′361
Patent. Id. Cirne executed an assignment of his rights to the
intellectual property that would eventually become the Stall
Detection Patents to Wily. Id. ¶¶ 18, 23, n. 7. The assignment
of the subject matter of the ′361 Patent to Wily was executed
on May, 7, 2002. Id. ¶ 18. Likewise, Cirne assigned to
Wily for “good and valuable consideration” his rights to the
intellectual property which would eventually become the ′580
Patent. Id. ¶ 23. 5 After the assignment, Cirne continued to
work at Wily, where he received a salary, stock and other
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benefits. Id. ¶¶ 18, 24. The Stall Detection Patents were issued
to Cirne and Cobb on May 29, 2007 and September 14, 2010,
respectively. Id. ¶¶ 19, 25.
In 2006, CA purchased 100 % of the stock in Wily for
approximately $375 million and merged Wily into CA. Id.
¶ 28. According to CA, as part of the acquisition, (i) CA
acquired Introscope-which it continues to sell today-as well
as Wily's intellectual property, including the ′361 and ′580
Patents, and (ii) Wily assigned all its rights in the patents
to CA. Id. ¶¶ 29–30. New Relic points out that the Stall
Detection Patents did not issue until 2007 and 2010 and
thus were pending patent applications, not issued patents, at
the time CA acquired Wily. Def.'s Rule 56.1 Counterstmt. ¶
29. [Redacted]. Pl.'s Rule 56.1 Stmt. ¶ 32; Def.'s Rule 56.1
Counterstmt. ¶ 32. After the acquisition, Cirne continued to
serve as the Chief Technology Officer of CA's Wily Division.
Pl.'s Rule 56.1 Stmt. ¶ 33.
*4 Cirne resigned from CA on July 31, 2007. Id. ¶ 34.
In February 2008, Cirne authorized the incorporation of
New Relic and installed himself as Chief Executive Officer
(CEO), a position he holds to this day. Id. ¶¶ 38, 53;
Def.'s Rule 56.1 Counterstmt. ¶ 38. As explained below,
the parties dispute, among other things, when Cirne began
developing the prototype for the product that eventually
became New Relic's commercial APM service and whether
Cirne's initial programming contributions still survive in New
Relic's commercial offerings. However, there is no dispute
that Cirne was the only person involved in developing the
first prototype used to launch New Relic, demonstrating the
prototype to third parties, and obtaining the first round of
capital to fund New Relic. Pl.'s Rule 56.1 Stmt. ¶ 51; Def.'s
Rule 56.1 Counterstmt. ¶ 51. Cirne also played a key role in
obtaining subsequent rounds of financing for New Relic. Pl.'s
Rule 56.1 Stmt. ¶ 52; Def.'s Rule 56.1 Counterstmt. ¶ 52. New
Relic commercially released its Java agent in October 2009
and its .NET agent in October 2010. Pl.'s Rule 56.1 Stmt. ¶¶
67–68. The parties agree that Cirne [Redacted] Pl.'s Rule 56.1
Stmt. ¶¶ 64–66; Def.'s Rule 56.1 Counterstmt. ¶¶ 64–66.
The parties' generally differ in their assessment of Cirne's
involvement in the creation and development of New Relic's
accused Java and .NET agents. The Court will now consider
the party's respective factual recitations.
A. CA's Recitation of the Facts
CA asserts that, while Cirne was still an employee at CA
and approximately two months prior to his departure, he
began experimenting with the idea of providing APM through
a Software–as–a–Service, or “SaaS” delivery model, as
opposed to the on-premise model used to deliver Introscope.
Pl.'s Local Rule 56.1 Stmt. ¶ 35. 6 According to CA, Cirne
began writing the code for his new company (New Relic)
during that timeframe. Id. ¶ 36. Instead of disclosing his
new invention to CA, Cirne resigned from CA and began
demonstrating his prototype to third parties. Id. ¶ 37. Less
than two months after leaving CA, Cirne formed an LLC in
September 2007 (New Relic's predecessor) before formerly
incorporating New Relic in February 2008. Id. ¶ 38.
CA maintains that New Relic's APM service and its accused
Java and .NET agents “would not exist but for the knowledge
and assistance provided to New Relic by Mr. Cirne.” Id. if 44.
In particular, CA points to the fact that Cirne alone founded
New Relic, authorized the incorporation of the company, and
installed himself as CEO. Id. ¶¶ 38, 45, 53. According to
CA, Cirne conceived of the idea for New Relic and wrote
the original code for the first prototype used to launch the
company in approximately June 2007, while he was still
employed at CA, and developed the first prototype used
to launch the company. Id. ¶ 46. CA asserts that original
code remains part of New Relic's commercial product today.
Id. ¶ 47. CA also notes (and New Relic does not dispute)
that prior to New Relic's incorporation, Cirne was the only
person developing the original prototype for New Relic,
demonstrating that prototype to third parties, and obtaining
the first round of capital funding for New Relic. Id. ¶ 48–
49, 51; Def.'s Rule 56.1 Counterstmt. ¶¶ 48–49, 51. The
parties also do not dispute that Cirne played a key role
in obtaining New Relic's second, third, fourth, and fifth
rounds of financing to fund New Relic's operations. Pl.'s Rule
56.1 Stmt. ¶ 52; Def.'s Rule 56.1 Counterstmt. ¶ 52. CA
contends that the funding was used, among other things, to
hire engineers to build Cirne's product. Id. ¶ 50. Cirne did,
indeed, hire New Relic's first set of engineers as well as its
first business development manager. Id. ¶ 54. 7 Of the first
seven “key” personnel hired by Cirne, six were from CA. Id. if
55. The engineers from CA included Saxon D′Aubin and Jim
Gochee, both of whom CA contends played a “critical role”
in developing New Relic's accused Java and . NET agents. Id.
¶¶ 56. 8
*5 CA further asserts that, from the inception of New
Relic, Cirne has been “substantially involved in developing,
or managing the development of, all of New Relic's products.”
Id. ¶ 60. In particular, CA alleges that Cirne made the decision
to develop the Java agent in order to expand the company's
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footprint beyond a single software language agent. Id. ¶ 71.
Cirne also conducted the early research to determine whether
New Relic could develop a Java agent compatible with its
APM service, and then handed the project to D'Aubin and
Gochee, two engineers whom Cirne recruited directly from
CA. Id. ¶ 72. Cirne put D'Aubin and Gochee in charge
of developing and managing New Relic's Java agent, and
according to CA, Cirne has acknowledged that both engineers
played a critical role in the development and release of the
agent. Id. ¶ 73. CA also asserts that Cirne wrote code for
the Java agent and was directly involved in reaching out to
customers to test the Java agent prior to its release. Id. ¶ 74.
Cirne also made the decision to develop and release New
Relic's .NET agent. Id. ¶ 75.
B. New Relic's Recitation of the Facts
New Relic generally asserts that it did not rely on Cirne's
knowledge or assistance to develop the accused functionality
in the Java and .NET agents. See Def.'s Rule 56.1
Counterstmt. ¶ 157. New Relic describes Cirne's history and
involvement with the company as follows.
1. New Relic's First Product: Ruby–on–Rails
Performance Monitoring
With regard to Cirne's alleged experimentation while still
working at CA, New Relic contends that, in late June or
early July 2007, while on an unpaid leave of absence, Cirne
“began to play around with a new programming language
called Ruby–on–Rails” (“Ruby”). Id. ¶¶ 121. Cirne taught
himself Ruby on his own time and on his own computer by
experimenting and trying to write code. Id. ¶¶ 122–23. After
experimenting with Ruby for a few weeks, Cirne “realized
that he might want to pursue his Ruby idea so he promptly
resigned from CA.” Id. ¶ 129.
After resigning from CA, Cirne joined Benchmark Capital
(“Benchmark”) as an entrepreneur in residence because he
“was not certain what his next step would be.” Id. ¶ 130.
By the end of 2007, Cirne's initial experimenting with
Ruby became “more directional” toward a Ruby–on–Rails
performance monitoring product delivered through an SaaS
model. Id. ¶ 132. In February 2008, after Cirne obtained
funding from Benchmark, New Relic was incorporated. Id. ¶
138. New Relic released its first product, Rails Performance
Monitoring (“RPM”), in June 2008. Id . ¶ 139. New Relic's
RPM product was developed for the small and medium
business market and developers interested in SaaS rather than
on-premises delivery. Id. ¶ 140. According to New Relic,
Cirne's earlier experimentation with Ruby was the beginning
of research toward what, after many revisions by many
people, ultimately became the New Relic RPM product. Id.
¶ 125.
*6 In New Relic's view, Cirne was not obligated to disclose
his early research related to CA because he was on unpaid
leave of absence, and did the work on his own time and
computer. Id. ¶ 37. Likewise, his idea for a Ruby product did
not relate to CA's business. Id. Moreover, New Relic asserts
that Cirne voluntarily discussed his plans and ideas related to
Ruby with certain CA executives over the years in an effort
to be “transparent” with CA. Id. ¶¶ 134, 136–37. The parties
do not dispute that “CA does not accuse any version of New
Relic's Ruby agent of infringement.” Id. ¶ 149; see Plaintiff's
Reply to Defendant's Rule 56.1 Counterstatement (“Pl.'s Rule
56.1 Reply”) ¶ 149. New Relic further points out that CA
does not currently have a Ruby APM product in development.
Def.'s Rule 56.1 Counterstmt. ¶ 144.
2. New Relic's Reliance on Cirne's Knowledge or
Assistance in Developing New Relic's Java or .NET
agents
a. The Java Agent
According to New Relic, CA accuses two features of New
Relic's Java agent of infringing the Stall Detection Patents: (i)
a former stall detection feature; and (ii) certain functionality
relating to “Apdex,” including byte code instrumentation and
Apdex metric data accumulation for selected transactions. Id.
¶ 162. According to New Relic, D'Aubin wrote the Java agent
with “no assistance whatsoever from Mr. Cirne with respect
to the accused Java agent functionality.” Id. ¶ 163.
More specifically, New Relic asserts that, as CEO of New
Relic, Cirne's “role with respect to product development
varied depending on the product or the feature.” Id. ¶ 158.
Cirne, Gochee, and Mike Malloy were all involved in the
decision to develop the Java agent; however, Cirne was
“the primary decision maker.” Id . ¶ 159. Cirne did some
early research work to “enable Java code to connect to
[New Relic's] Ruby on Rails data collection service.” Id. ¶
160 (quotation marks omitted). Cirne then handed the Java
project off to D'Aubin, the engineer primarily responsible for
developing the Java agent. Id. ¶ 161. New Relic contends
that D'Aubin wrote the accused Java agent himself with no
assistance from Cirne “with respect to the accused Java agent
functionality,” id. ¶ 163, and that Cirne's “early research had
nothing to do with the accused Java agent functionality,” id.
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¶ 164. New Relic further maintains that Cirne: (i) “never got
involved in the development of the Java agent to the level
of reviewing code,” id. at ¶ 165; (ii) “did not supervise Mr.
D'Aubin,” who was supervised by Gochee, id. ¶¶ 166, 168;
and (iii) “suggested Mr. D'Aubin for the [Java agent] project,”
but did not make “the ultimate decision” to assign him, id. ¶
167.
According to New Relic, the allegedly infringing stall
detection feature was so minor that D'Aubin wrote it into the
code for the Java agent without discussing it with anyone. Id.
¶ 169. In fact, Cirne testified at his deposition that he was not
aware that the stall detection feature was in the Java agent
until this lawsuit. Id. ¶ 172. New Relic further states that,
when it received notice of this lawsuit, it removed the stall
detection feature in the Java agent “because it was such an
unimportant feature there was no downside to removing it.”
Id. ¶ 182. According to New Relic, removal of the stall feature
has “had no impact on customers or revenues.” Id. ¶ 183.
*7 With regard to the Apdex functionality of the Java
agent, New Relic similarly contends that D'Aubin wrote that
functionality without any assistance from Cirne. Id. ¶ 163.
As with the stall detection feature, New Relic argues that the
Apdex functionality is not an important feature of the Java
agent. Id. ¶ 186.
b. The .NET Agent
With regard to the .NET agent, New Relic asserts that CA
accuses certain functionality related to the Apdex, including
event monitoring and Apdex metric data accumulation for
selected transactions. Id. ¶ 176. New Relic claims that
sometime in early 2010, D'Aubin suggested that he should
also write a NET agent. Id. ¶ 173. After discussions with
Gochee and D'Aubin, Cirne, as CEO, ultimately approved
the decision to develop the .NET agent, but “had no other
involvement in its development,” according to New Relic. Id.
¶ 174. New Relic Points out that “Cirne has never written
a program in C sharp (“C# ”), the programming language
for .NET, so he could not have added any value to the
technical development” of the agent. Id. ¶ 175. New Relic also
asserts that D'Aubin wrote the agent in 2010, including the
accused .NET agent functionality. Id. ¶¶ 176–77.
Finally, with respect to the accused features of both the
Java and .NET agents, New Relic asserts that it has already
determined that “there are a number of non-infringing
alternatives” available. Id. ¶ 187. New Relic contends that it
could implement any of these alternatives easily with no more
than one month of engineering time, id. ¶¶ 187, 189, and that
the cost do so would be “trivial,” id. ¶ 190.
III. PROCEDURAL HISTORY
CA commenced this action against New Relic on November
12, 2012. See DE 1. New Relic filed its Answer asserting
an affirmative defense of invalidity on January 4, 2013.
See DE 8. On February 21, 2013, the parties consented to
the jurisdiction of a United States Magistrate Judge for all
purposes pursuant to 28 U.S.C. § 636(c). See DE 28, 29. Judge
Wiliam D. Wall was then assigned to this case. Upon Judge
Wall's retirement, the case was referred to the undersigned
for all purposes. See DE 93. On May 13, 2014, the parties
appeared before this Court for a status conference, during
which time the Court set a briefing schedule on the parties'
anticipated summary judgment motions. See DE 103. After
the instant motion was fully briefed and filed under seal on
ECF, see DE 116–120, 128, the Court heard oral argument
and reserved decision, see DE 142.
IV. LEGAL STANDARD
A. Summary Judgment
“The standard for summary judgment in a patent case is
the same as in any other case.” CA, Inc. v. Simple.com,
Inc., 780 F.Supp.2d 196, 208 (E.D.N.Y.2009) (citing Desper
Prods., Inc. v. QSound Labs, Inc., 157 F.3d 1325, 1332
(Fed.Cir.1998)). Summary judgment is appropriate where
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986); see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251–252, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); Fed.R.Civ.P. 56(c). In deciding a summary judgment
motion, the role of the court is not “to weigh the evidence
and determine the truth of the matter but to determine whether
there is a genuine issue for trial.” Anderson, 477 U.S. at 249;
see, e.g., Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ.,
444 F.3d 158, 162 (2d Cir.2006). A fact is “material” within
the meaning of Rule 56 if its resolution “might affect the
outcome of the suit under the governing law.” Anderson, 477
U.S. at 248. A dispute over a fact is “genuine” if “the evidence
is such that a reasonable jury, could return a verdict for the
nonmoving party.” Id.
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*8 The moving party bears the burden of establishing
the absence of a genuine issue of material fact. Celotex,
477 U.S. at 322–23; see, e.g, Zalaski v. City of Bridgeport
Police Dept., 613 F.3d 336, 340 (2d Cir.2010); CA, Inc., 780
F.Supp.2d at 209 (quoting Celotex, 477 U.S. at 323). Once the
movant has demonstrated that no genuine issue of material
fact exists, then “the nonmoving party must come forward
with ‘specific facts showing that there is a genuine issue for
trial.’ “ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original).
However, there must exist more than mere “metaphysical
doubt as to the material facts” to defeat a summary judgment
motion. Id. at 586. That is, the non-moving party must
present “concrete evidence from which a reasonable juror
could return a verdict in his favor.” Anderson, 477 U.S. at
256. “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Id. at 247–
248. Thus, only disputes over material facts “that might affect
the outcome of the suit under the governing law” will properly
preclude the entry of summary judgment. Id. at 248; see also
Matsushita, 475 U.S. at 586. The court deciding a summary
judgment motion must draw all reasonable inferences in favor
of the nonmoving party. Anderson, 477 U.S. at 249 (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59, 90 S.Ct.
1598, 26 L.Ed.2d 142 (1970); see also Scott v. Harris, 550
U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)
(internal citation omitted).
B. Assignor Estoppel
“[A]ssignor estoppel is an equitable doctrine that prohibits
an assignor of a patent or patent application, or one
in privity with him, from attacking the validity of that
patent when he is sued for infringement by the assignee.”
Semiconductor Energy Lab. Co. v. Nagata, 706 F.3d 1365,
1369 (Fed.Cir.2013) (citing Diamond Scientific Co. v.
Amrico, Inc., 848 F.2d 1220, 1224 (Fed.Cir.1988) (“Assignor
estoppel is an equitable doctrine that prevents one who has
assigned the rights to a patent (or patent application) from
later contending that what was assigned is a nullity.”)); see
Shamrock Techs., Inc. v. Med. Sterilization, Inc., 903 F.2d 789,
793 (Fed.Cir.1990). “Under the doctrine, an assignor sued for
infringement may not defend or counterclaim that the patent
he assigned is invalid or unenforceable.” Semiconductor
Energy, 706 F.3d at 1370 (citing Diamond Scientific, 848
F.2d at 1226). The doctrine is premised upon the “implicit
representation by the assignor that the patent rights he
is assigning (presumably for value) are not worthless.”
Diamond Scientific, 848 F.2d at 1224. Thus, “the primary
consideration in ... applying the doctrine is the measure
of unfairness and injustice that would be suffered by the
assignee if the assignor were allowed to raise defenses of
patent invalidity.” Id. at 1225; see Pandrol USA, LP v. Airboss
Railway Products, Inc., 424 F.3d 1161, 1166 (Fed.Cir.2005).
The decision to apply assignor estoppel in a particular case
“requires a balancing of the equities between the parties,” a
determination which is “committed to the sound discretion of
the trial court.” Carroll Touch, Inc. v. Electro Mech. Sys., Inc.,
15 F.3d 1573, 1579 (Fed.Cir.1993); see Checkpoint Sys., Inc.
v. All–Tag Sec. S.A., 412 F.3d 1331, 1337 (Fed.Cir.2005); see
also Diamond Scientifc, 848 F.2d at 1225.
*9 The assignor estoppel doctrine “also prevents parties
in privity with an estopped assignor from challenging the
validity of the patent.” Mentor Graphics Corp. v. Quickturn
Design Sys., Inc., 150 F.3d 1374, 1379 (Fed.Cir.1998) (citing
Diamond Scientific, 848 F.2d at 1224); Checkpoint, 412
F.3d at 1337 (same). “Privity, like the doctrine of assignor
estoppel itself, is determined upon a balance of the equities”
and is viewed in light of the alleged acts of infringement.
Shamrock, 903 F.2d at 793; see Mentor Graphics, 150 F.3d
at 1379. Privity can be found as a matter of law. See, e.g.,
Shamrock, 903 F.2d at 796 (upholding district court's grant
of summary judgment on assignor estoppel); L–3 Commc'ns
Corp. v. Jaxon Eng'g & Maint., Inc., No. 10–CV–02868, 2014
WL 4695104, at *5 (D.Colo. Sept. 22, 2014) (finding that
the plaintiff is entitled to summary judgment on all but two
of the defendants' “affirmative defenses of invalidity on the
grounds of assignor estoppel”); BASF Corp. v. Aristo, Inc.,
872 F.Supp.2d 758, 774 (N.D.Ind.2012) (assignor estoppel
and privity are “question[s] for the court to decide and which
can be resolved through summary judgment.”).
“Whether two parties are in privity depends on the nature
of their relationship in light of the alleged infringement.”
Mentor Graphics, 150 F.3d at 1379; see L–3 Commc'ns, 2014
WL 4695104, at *2 (“The question of privity examines the
nature of the relationship between the assignor and the person
sought to be estopped, in light of the alleged infringement.”);
Brocade Commc'ns Sys., Inc. v. A10 Networks, Inc., No. 10–
CV–03428, 2012 WL 2326064, at *4 (N.D.Cal.2012). As the
Federal Circuit explained in Shamrock:
If an inventor assigns his invention to
his employer Company A and leaves
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to join Company B, whether company
B is in privity and thus bound by the
doctrine will depend on the equities
dictated by the relationship between
the inventor and company B in light
of the act of infringement. The closer
that relationship, the more the equities
will favor applying the doctrine to
company B.
Shamrock, 903 F.2d at 793 (emphasis added) (citation
omitted); see Mentor Graphics, 150 F.3d at 1379. To
determine if the relationship is sufficiently close, courts
consider all contacts between the inventor-assignor and the
defendant company. See Mentor Graphics, 150 F.3d at 1379;
Intel Corp. v. U.S. Int'l Trade Comm'n, 946 F.2d 821, 838
(Fed.Cir.1991).
In making a privity determination, the central question
is whether the defendant company availed itself of the
inventor-assignor's “knowledge and assistance' to conduct the
alleged infringement.” Intel Corp., 946 F.2d at 839 (quoting
Shamrock, 903 F.2d at 794); see. Checkpoint, 412 F.3d at 1337
(same). “[T]he assignor's mere status as an employee of a
competitor does not necessarily warrant a finding of privity,”
but “[p]rivity may exist in a corporation that is founded by the
assignor.” L–3 Commc'ns, 2014 WL 4695104, at *2 (citing
Shamrock, 903 F.2d at 793); see Nortel Networks Inc. v.
Foundry Networks, Inc., 01–CV–10442, 2003 WL 26476584,
at *8–9 (D.Mass. Mar.24, 2003); see generally Diamond
Scientific, 848 F.2d at 1224 (“The estoppel also operates to bar
other parties in privity with the assignor, such as a corporation
founded by the assignor.”). Moreover, “[p]rivity does not
require that the assignor directly design the infringing features
of the accused product What is significant is whether the
ultimate infringer availed itself of the inventor's ‘knowledge
and assistance’ to conduct infringement.” Brocade, 2012
WL 2326064, at *5 (internal citations and quotation marks
omitted); see Mentor Graphics, 150 F.3d at 1379 (finding
privity between two companies, even though the assignor
company did not assist in developing the accused product);
Synopsys, Inc. v. Magma Design Automation, Inc., No. C–
04–3923, 2005 WL 1562779, at *6 (N.D.Cal. July 1, 2005)
(“The Federal Circuit ... has not required that the assignor
be personally involved in designing the allegedly infringing
aspects of a product before finding the doctrine of assignor
estoppel applicable”).
V. DISCUSSION
*10 Although the parties agree that Cirne himself is
estopped from asserting that the Stall Detection Patents are
invalid, see Pl.'s Mem. at 9–11; Def.'s Opp. at 16 n. 11;
Pl.'s Reply at 2, they dispute whether the record evidence
supports a finding of privity as a matter of law between
Cirne and New Relic. In determining whether privity exists
between an inventor/assignor and another entity for purposes
of assignor estoppel, the Court must evaluate “all direct
and indirect contacts,” see Mentor Graphics, 150 F.3d at
1379, and evaluate the relationship between the inventor/
assignor and the entity “in light of the act of infringement,”
Shamrock, 903 F.2d at 793. Critical to the determination of
privity is whether the company “availed itself of the inventor's
‘knowledge and assistance’ to conduct infringement.” Intel
Corp., 946 F.2d at 839 (quoting Shamrock, 903 F.2d at 794).
Here, the following facts are undisputed. Cirne is a listed
inventor on the Stall Detection Patents which were assigned
to CA when it acquired Cirne's previous company Wily. Cirne
resigned from CA on July 31, 2007 and went on to found New
Relic. Prior to New Relic's incorporation in February 2008,
Cirne alone (i) worked on developing the prototype product
used to launch the company, (ii) demonstrated that prototype
to third parties, and (iii) obtained the initial capital to fund
New Relic. Cirne also played a critical role in obtaining
subsequent rounds of financing for New Relic's operations.
After founding New Relic and becoming its CEO, Cirne hired
New Relic's first engineers, including former CA engineers
D'Aubin and Gochee. Significantly, Cirne conducted initial
research on the accused Java agent before handing that project
to New Relic engineers, and he served as “primary decision
maker” during the development of that agent. Cirne also
approved the decision to develop the accused .NET agent.
New Relic commercially released its Java agent in October
2009 and its .NET agent in October 2010. Cirne [Redacted]
In light of these undisputed facts, CA argues that New Relic
sufficiently availed itself of Cirne's knowledge and assistance
“in developing its APM service and its Java and .NET agents”
to justify a finding of privity as a matter of law. Pl.'s Mem. at
14. CA further asserts that Cirne's role as CEO and founder
of New Relic, as well as his “significant equity ownership in
the company”-both now and when New Relic was developing
the accused Java and .NET agents-“establishes a sufficiently
close connection, in and of itself, to warrant a finding of
privity.” Id. at 13–14 (citing Mentor Graphics, 150 F.3d at
1379). CA therefore maintains that the doctrine of assignor
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estoppel bars New Relic from challenging the validity of the
Stall Detection Patents.
In response, New Relic argues that, because the record shows
that New Relic did not avail itself of Cirne's knowledge or
assistance to develop the allegedly infringing functionalities
of the accused Java and .NET agents, a genuine issue of fact
exists which precludes the application of assignor estoppel
against New Relic. See Def.'s Opp. at 16. New Relic further
argues that where, at a minimum, the parties dispute whether
New Relic relied on Cirne's knowledge or assistance to
develop the accused functionalities, Cirne's role as founder
and CEO of New Relic, by itself, is insufficient to establish
privity. Id. at 17. New Relic also points to certain “equitable
factors” that, in its view, favor denial of CA's motion,
including New Relic's assertion that the accused features are
minor and could be easily removed. See id. at 16.
*11 As a preliminary matter, the Court concludes that Cirne's
undisputed status as founder and CEO of New Relic, as
well as his considerable ownership stake in the company, are
factors that weigh in favor of finding privity between Cirne
and New Relic. See Shamrock, 903 F.2d at 794. In Shamrock,
the Federal Circuit enumerated several factors which justified
a finding of privity in that case, including that (i) the assignor/
inventor left the plaintiff company for a highlevel position at
the defendant company; and (ii) the assignor/inventor owned
shares in the defendant company. Id.; see Brocade, 2012 WL
2326064 at *5. Here, it is undisputed that Cirne left CA and
founded New Relic, where he serves as CEO and has acted
as the “primary decision maker” in the development of New
Relic's accused Java and .NET agents. As in Shamrock, the
fact that Cirne is “far more than a mere employee” of New
Relic supports a finding of privity between the company and
Cirne. 903 F.2d at 794; see Nortel, 2003 WL 26476584, at *9
(noting that inventor/assignor's “involvement in the founding
of the [defendant] company” as a factor favoring privity
under Shamrock ); Eagle Comtronics, 1991 WL 247551, at
*5 (considering the undisputed fact that the inventor/assignor
was a co-founder of the defendant company as a factor leading
the court “to the inevitable conclusion that privity exists”); see
also L–3 Commc'ns, 2014 WL 4695104, at *3 (finding “fairly
clear evidence of privity” between the defendant company
and three assignors/inventors who left the plaintiff company
to serve in high-level positions with the defendant company,
where they “perform the same functions” as they did for the
plaintiff); Brocade, 2012 WL 2326064, at *5 (finding that
the defendant company “failed to raise a genuine dispute
of material fact as to the first Shamrock factor” where the
assignor/inventor left the plaintiff company to serve as the
defendant's Chief Technology Officer). Moreover, the parties
agree that Cirne [Redacted] Although “the Federal Circuit
has not set a minimum percentage ownership threshold for a
finding of privity,” Brocade, 2012 WL 2326064, at *6, it has
noted that “[e]ven a party that owns less than a majority of a
company's stock can still exercise effective control over the
company's operations,” which may justify a finding of privity.
Mentor Graphics, 150 F.3d at 1379; see also Shamrock,
903 F.2d at 794 (finding the inventor/assignor's ownership
of 50,000 shares of the defendant company's stock, was a
factor favoring privity without considering the percentage of
ownership). In light of this precedent, the Court finds that
Cirne's current and previous ownership stake in New Relic
weighs in favor of finding privity between Cirne and New
Relic. See Brocade, 2012 WL 2326064, at *6 (finding that,
although inventor/assignor's “one million shares or options
to purchase shares” constituted “a less than 1% ownership
stake” of the defendant company, the factor still “weigh[ed]
in favor of a finding of privity”); Eagle Comtronics, Inc.
v. Ne. Filter Co., No. 90–CV–573, 1991 WL 247551, at
*5 (N.D.N.Y. Nov.22, 1991) (considering the undisputed
fact that the inventor/assignor “was at all times at least a
50% shareholder” as a factor leading the court to conclude
that privity exists); see generally L–3 Commc'ns, 2014 WL
4695104, at *3 (considering in the privity analysis the fact
that the three inventors/assignors hold stock in the defendant
company). 9 Accordingly, the Court concludes that, because
New Relic has failed to raise a genuine issue of fact regarding
Cirne's status as founder and CEO of New Relic and his
ownership stake in the company, these factors support the
existence of privity between Cirne and New Relic under the
doctrine of assignor estoppel.
*12 As noted, the most “significant” factor in the privity
analysis “is whether the ultimate infringer availed itself
of the inventor's knowledge and assistance to conduct
infringement.” Intel Corp., 946 F.2d at 839 (quoting
Shamrock, 903 F.2d at 794). Here, Cirne founded New
Relic, conducted initial research on the Java agent, and
created the first prototype product eventually used to launch
the company. After incorporating New Relic, Cirne acted
as the “primary decision maker” in the development of
New Relic's accused Java agent, and, as CEO, he approved
the decision to develop the accused .NET agent. In other
words, Cirne held a “key role” in developing New Relic's
Java and .NET agents that are alleged to infringe the Stall
Detection Patents. Synopsys, 2005 WL 1562779, at *8. In
light of these undisputed facts, the Court concludes that New
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Relic sufficiently availed itself of Cirne's knowledge and
assistance in developing the accused Java and .NET agents
so as to support a finding of privity between New Relic and
Cirne.
New Relic contends that, because the parties dispute whether
New Relic availed itself of Cirne's knowledge and assistance
in developing the alleged infringing functionalities of the
accused agents, the Court should decline to find privity
between New Relic and Cirne as a matter of law. See
Def.'s Opp. at 16. However, “[t]he Federal Circuit does not
require that the assignor directly design infringing features
of an accused product in order to find privity between the
assignor and the defendant company.” Brocade, 2012 WL
2326064, at *7 (citing Mentor Graphics, 150 F.3d at 1379);
see Synopsis, 2005 WL 1562779, at *6. This view originates
from the Federal Circuit's decision in Mentor Graphics,
in which the court found privity between two companies
even though the assignor, Mentor, had no involvement in
the creation of the allegedly infringing product, but only
in the marketing and distribution of the product. 105 F.3d
at 1376. In that case, Mentor had assigned a patent for
hardware emulation technology (“the ′473 patent”) to another
company, Quicktum. See id. Thereafter, Mentor bought a
company, Meta, which had developed hardware emulation
technology independent of Mentor and Quicktum. See id.
When Quicktum asserted that Meta's technology infringed the
′473 patent Quicktum had purchased from Mentor, Mentor
filed an action for a declaratory judgment of invalidity of
the ′473 patent. See id. at 1377. The Federal Circuit applied
the doctrine of assignor estoppel to bar both Mentor and
Meta from challenging the ′473 patent. See id. at 1378–79.
In doing so, the Federal Circuit found Mentor was barred
because it had assigned the patent to Quicktum for value,
and that Meta was also barred because it was in privity with
Mentor. See id. at 1378–79. The court reasoned that privity
existed between the two companies because: Mentor owned
all of Meta's stock, “giving Mentor considerable control over
Meta's operations”; the two companies shared personnel; and
Mentor approved Meta's budget. Id. at 1379. The court also
noted that Mentor acquired Meta for the purpose of marketing
the allegedly infringing device in the United States. Id. Thus,
even though Mentor had no role in creating the allegedly
infringing product, other than its marketing and distribution,
the Court found Mentor was in privity with Meta for purposes
of assignor estoppel. See id.
*13 Courts applying Mentor have consistently held that
“[p]rivity does not require that the assignor directly design
the infringing features of the accused product.” Brocade,
2012 WL 2326064, at *7 (citing Mentor Graphics, 150 F.3d
at 1379); Synopsis, 2005 WL 1562779, at *7 (holding that,
although the defendant company “contends ... the patent
assignor[ ] had little involvement in creating the precise
components that are alleged to infringe, Mentor demonstrates
that assignor estoppel may apply even where the assignor had
no involvement at all in creating the infringing technology.”);
see also Nortel, 2003 WL 26476584, at *8–9 (finding privity
between the assignor-founder and his company where the
founder oversaw the design of the product's hardware, but
the alleged infringement occurred in the product's software,
where the assignor was actively involved in the design of
his company's products during the relevant time period).
Significantly, the district court in Brocade further stated that
the assignor need not have written code for the infringing
device to warrant a finding of privity between the assignor
and his company. See 2012 WL 2326064, at *5 (“Moreover,
whether or not [the inventor-assignor] actually wrote the code
to the accused AX Series is also immaterial.”) (citing BASF
Corp., 2012 WL 1933700, at *15 (finding privity between
consultant and defendant company, even though consultant
did not “actually sit down and operate the [infringing
product]”)).
In light of this line of cases, New Relic has failed to
raise a genuine issue of material fact regarding Cirne's role
in alleged infringement which would preclude a finding
of privity between New Relic and Cirne. It is undisputed
that Cirne, as founder and CEO of New Relic, created the
prototype of New Relic's first product, obtained funding
so that New Relic could develop that. product, contributed
research toward the accused Java agent, and was substantially
involved in the decision to develop both of the company's
accused agents. Under the circumstances of this case, “[n]o
more is required for the application of assignor estoppel.”
Synopsys, 2005 WL 1562779, at *8. New Relic asserts that
it did not avail itself of Cirne's knowledge and assistance
to develop the infringing features of the accused agents.
However, the relevant case law simply does not require
that Cirne be personally and directly involved in developing
the infringing functionalities for assignor estoppel to apply
against New Relic. Thus, even assuming as true New Relic's
assertions that (i) D′Aubin wrote the code for both the stall
detection and Apdex functionalities of the accused Java agent
without Cirne's involvement; (ii) Cirne was not aware that
the accused stall detection feature was in the Java agent until
New Relic received notice of this lawsuit; and (iii) Cirne
neither wrote code nor assisted D'Aubin in the development
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of the .NET agent, Def.'s Opp. at 16–17 (citing Def.'s Rule
56.1 Counterstmt. ¶¶ 157–68, 172, 175, 178), these assertions
do not preclude a finding of privity between New Relic
and Cirne. See, e.g., Brocade, 2012 WL 2326064, at *5,
*7. 10 In other words, even if the Court resolved the parties'
dispute over Cirne's role in the development of the alleged
infringing features in New Relic's favor, this issue would not
“affect the outcome of the suit under the governing law” or
cause a reasonable jury to return a verdict in favor of New
Relic. Anderson, 477 U.S. at 248. Accordingly, the Court
concludes that, in light of the critical and substantial role
Cirne played in founding New Relic (i.e., creating its first
prototype and authorizing the development of the accused
agents, among other undisputed facts), the record evidence
provides sufficient grounds to support a finding that New
Relic is in privity with Cirne under the doctrine of assignor
estoppel.
*14 In further arguing against privity, New Relic asks
the Court to consider the broader equities between Cirne
and CA, and identifies facts that, in New Relic's view, “tip
the equitable balance in favor of New Relic and against
application of the assignor estoppel doctrine.” Def.'s Opp. at
16. In particular, New Relic points out that
(i) New Relic kept CA apprised
of its product development, (ii)
New Relic intentionally focused its
products on a different and emerging
market, (iii) the allegedly infringing
features were known to CA for years
before CA accused those features of
infringement, and (iv) the accused
features are minor and could be easily
removed or redesigned[.]
Id.; see also id. at 21–22. However, as CA notes in its reply,
the determination whether a defendant company is in privity
with the inventor and therefore bound by the doctrine of
assignor estoppel “depend[s] on the equities dictated by the
relationship between the inventor and [defendant] company,
not the relationship between the inventor and the plaintiff.
Shamrock, 903 F.2d at 793 (emphasis added). Moreover,
“the primary consideration” in applying the doctrine of
assignor estoppel is preventing unfairness and injustice to
the assignee, i.e., a plaintiff company like CA. Diamond
Scientific, 848 F.2d at 1225. Here, the Court determines that,
for the reasons explained above, the balance of equities as
well as the relationship between Cirne and New Relic favor
the application of assignor estoppel to bar New Relic from
asserting that the Stall Detection Patents are invalid.
In sum, considering the undisputed facts and drawing all
reasonable inferences in favor of New Relic as the non-
moving party, the Court concludes there is no genuine issue of
material fact on the matter of New Relic being in privity with
Cirne under the doctrine of assignor estoppel. Accordingly,
CA is entitled to partial summary judgment striking New
Relic's affirmative defense of invalidity with respect to the
Stall Detection Patents based on the principle of assignor
estoppel. 11
VI. CONCLUSION
For the foregoing reasons, CA's motion for partial summary
judgment striking New Relic's First Affirmative Defense with
respect to the Stall Detection Patents is GRANTED.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1611993
Footnotes
1 Although New Relic does not dispute this statement of fact, it contends that the evidence cited by CA does
not support its factual assertion. Def.'s Rule 56.1 Counterstmt. ¶ 1. New Relic makes this claim in response
to several of CA's other statements of fact as well. See id. ¶¶ 3, 8, 14, 20. Having reviewed the evidence
cited in support of these statements of fact and on the motion as a whole, the Court is satisfied that the
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record supports CA's assertions. See Vermont Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244
(2d Cir.2004) (citing Giannullo v. City of N.Y., 322 F.3d 139, 143 n. 5 (2d Cir.2003)).
2 This litigation also concerns a third patent held by CA–U.S. Patent No. 7,512,935 B1 (the #935 patent)-which
is not in dispute on the instant motion.
3 Here, and in multiple instances throughout its Rule 56.1 Counterstatement, New Relic responds to CA's
statement of the facts by stating that the facts are “Undisputed” but that “New Relic objects to and asks the
Court to disregard of strike” certain exhibits cited by CA to support its statement and/or certain facts contained
within those exhibits. See, e.g., Def.'s Rule 56.1 Counterstmt. ¶¶ 7, 9, 10, 11, 27, 30, 33, 43, 45, 62, 67, 68.
Where this occurs, the Court will consider the statement provided by CA as undisputed because New Relic's
initial response in each instance is, in fact, “Undisputed.” See Washington v. City of New York, No. 05 CIV.
8884, 2009 WL 1585947, at *1 n. 2 (S.D.N.Y. June 5, 2009) (taking the statement of relevant facts provided
by the defendants “as true” where the plaintiffs initial response in each instance was “Admit, but deny to the
extent the statement cites to inadmissible evidence” and finding that, in any event, the challenged evidence
“would undoubtedly be admissible at trial”). Furthermore, the Court observes that, to the extent New Relic
objects to CA's use of printed statements from New Relic's own website as exhibits-which bear both a time-
and-date stamp and URL, and which have been authenticated in a declaration by CA's counsel, see Decl.
of Matthew K. Gates [DE 118]-those documents are admissible in evidence. See In re Vitamin C Antitrust
Li tig., No. 06–MD–1738, 2013 WL 504257, at *5 (E.D.N.Y. Feb. 8, 2013) (“Statements on a website can
be considered business records within the scope of Rule 803(6).”) (citing Doctors Med. Ctr. of Modesto v.
Global Excel Mgmt., Inc., No 08–CV–1231, 2009 WL 2500546, at *9 (E.D.Cal.Aug.14, 2009) (concluding that
statements on a party's website were admissible, despite hearsay objections, under the business records
exception and as party admissions)); see also Langbord v. U.S. Dep't of Treasury, No. CIV.A. 06–5315, 2011
WL 2621310, at *4 (E.D.Pa. July 5, 2011) (holding that “a 2007 printout from the Mint's website listing the
1933 Double Eagle as a circulating coin, is admissible as a statement of a party opponent, no matter what
the Mint intended by posting the information.”).
4 On this point, New Relic further asserts in its Rule 56.1 Counterstatement that “[t]here are many prior art
methods for detecting a stall,” Def.'s Rule 56.1 Counterstmt. ¶ 93, and that the Stall Detection Patents, at
most, patented specific methods of stall detection, id. ¶ 92.
5 This assignment took place in 2002. The #580 Patent, which is a continuation of the #361 Patent, was
conveyed to Wily by Cime as part of the assignment of the #361 application. Pl's Rule 56.1 Stmt. ¶ 23 n. 7.
6 According to CA, “[t]he fundamental difference between SaaS and on-premise is that SaaS allows customers
to monitor their applications by downloading software agents through a remotely hosted website, whereas
on-premise software must be physically installed on the customers' computers in order to monitor their web
applications.” Pl.'s Rule 56.1 Stmt. ¶ 35 n. 11.
7 Although the parties agree that Cime hired New Relic's first engineers, New Relic disputes CA's
characterization that the engineers were “needed to develop New Relic's APM service.” Pl.'s Rule 56.1 Stmt.
¶ 54; Def.'s Rule 56.1 Counterstmt. ¶ 54.
8 New Relic agrees with CA's assertion only to the extent that D'Aubin played a critical role in the development
of New Relic's Java agent. Def.'s Rule 56.1 Counterstmt. ¶ 56.
9 New Relic correctly notes that Cirne's role as founder/CEO and ownership interest in New Relic alone would
not be sufficient to warrant the application of assignor estoppel, which requires the balancing of multiple
equitable factors. See Def.'s Opp. at 20 n. 17. However, as the Court discusses below, New Relic also availed
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itself of Cirne's knowledge and assistance in developing the accused Java and .NET agents, which tips the
equitable balance in favor of privity.
10 The Court is unpersuaded by New Relic's attempt to distinguish Cirne from one of the assignors at issue in
Brocade, who held the title of “Chief Architect” of the defendant company. See Def.'s Opp. at 20 20, 20 n.
16. New Relic asserts that the court in Brocade found it “immaterial” that the Chief Architect-assignor did not
write code for the accused product because, unlike in this case, “the defendant [company] still availed itself
of [the assignor's] knowledge and assistance to develop the accused product.” Id. at n. 16. However, the
Court finds that, like the assignor in Brocade, New Relic did, in fact, rely on Cirne's knowledge and assistance
to conduct the alleged infringement-i.e., to create and develop the accused agents-despite whether Cirne
himself developed the infringing features of those agents.
11 New Relic argues in the alternative that, even if it is bound by the doctrine of assignor estoppel, it may still
rely on “anticipatory prior art” to defend against CA's infringement claims at trial. Def.'s Opp. at 22–25. CA
responds that “[t]his argument is for another day” and notes that, should New Relic attempt to rely on prior
art “as a defense to infringement (or for any other purpose), CA will file a motion in limine to exclude that
evidence in accordance with the Court's schedule, and New Relic will have an opportunity to respond at that
time.” CA Reply at 7. Having considered these arguments, the Court concludes that the issue of whether (and
to what extent) New Relic may rely on anticipatory prior art as a defense at trial is not ripe for adjudication
on this motion.
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Cruz v. Lee, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 1060330
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Herman CRUZ, Plaintiff,
v.
W. LEE, et. al, Defendants.
14 cv 4870 (NSR)(JCM)
|
Signed 03/15/2016
Attorneys and Law Firms
Herman Cruz, Fallsburg, NY, pro se.
Neil Shevlin, New York State Office of the Attorney General,
New York, NY, for Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
*1 Herman Cruz (“Plaintiff”) brings this action against
defendants Superintendent Lee, Sergeant Valerdo, Sergeant
Malark, Kiernan, and Jackson (collectively, “Defendants”)
for denying him protective custody status, in violation of
his right to access the courts and to petition the government
for the redress of grievances under the First Amendment
and to be free from cruel and unusual punishment under the
Eighth Amendment. Plaintiff alleges that he was the subject
of improper retaliation by prison staff and personnel. Before
the Court is Defendants' motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). For the following reasons,
Defendants' motion to dismiss is GRANTED in part and
DENIED in part.
BACKGROUND
The following facts are derived from the § 1983 Complaint
(“Compl.” ECF No. 1) filed by Plaintiff and all relevant
attached materials. 1
On June 20, 2014, Plaintiff filed this action against
Defendants. Defendant Kiernan worked in Green Haven
Correctional Facility's (“GHCF”) Mental Health Services
Department as a member of the staff, and Defendant Jackson
worked as a Counselor in GHCF.
On May 1, 2014, Plaintiff was transferred from Upstate
Correctional Facility to GHCF. (Compl. at 3.) 2 At that
time, Plaintiff requested protection from defendants Kiernan
and Valerdo, and provided them with “enemy names.” (Id.)
Plaintiff made it known to defendants Kiernan and Valerdo
that he had previously brought lawsuits against non-defendant
employees of the Department of Corrections and Community
Supervision (“DOCCS”) for failing to place him into
protective custody. (Id.) Plaintiff told defendants Kiernan
and Valerdo about the Cruz v. Hillman case, in which
Plaintiff brought claims against non-defendants Sergeant
James Hillman and Corrections Counselor Eddie Lee for
“colluding to deny him protective custody status at [GHCF],
even though he had previously informed Defendants that he
needed protection because his life was in danger.” (Id.) See
Cruz v. Hillman, No. 01 CIV.4169 (DAB) (DF), 2002 U.S.
Dist. LEXIS 17705, 2002 WL 31045864 (S.D.N.Y. May 16,
2002). Plaintiff also told defendants Kiernan and Valerdo
about the Cruz v. Grosso case, in which Plaintiff brought
claims against non-defendant M. Grosso, an employee of
Auburn Correctional Facility, for failing to protect him,
filing a false misbehavior report, and subjecting him to
unconstitutional conditions of confinement. (Compl. at 3.)
See Cruz v. Grosso, No. 913 CV 30 (FJS) (TWD), 2015 WL
4542280 (N.D.N.Y. July 27, 2015).
*2 As to the current Complaint, Plaintiff states that
defendants Kiernan and Valerdo, in retaliation for him
filing the aforementioned lawsuits, failed to forward to their
superiors the list of “enemies” the Plaintiff provided. (Compl.
at 3.) In support of this, Plaintiff states that Kiernan told
him “don't expect any assistance from us because of the case
against Grosso.” (Id.) Plaintiff attempted to file a grievance
regarding the incident involving defendants Kiernan and
Valerdo concerning “the fact that security continues to deny
me protection after I provided names of enemies.” (Id. at
4.) However, the Grievance Clerk could not locate Plaintiff's
grievance and stated that the “staff goes through [the
grievances] first.” (Id.) Plaintiff then attempted to “appeal” by
speaking to his mental health doctor and guidance counselor
and by writing a letter to Superintendent Lee and providing
him a copy of the Hillman case. (Id.)
Following his failed attempts to resolve his issues, while
Plaintiff was at the general library, he was assaulted and
threatened by defendant Sergeant Malark, in retaliation for
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his writing a letter to Superintendent Lee. (Id. at 3.) Sergeant
Malark and two John Doe officers came to the general library
to transport Plaintiff to the Special Housing Unit (“SHU”).
(Id.) Once in the hallway, Sergeant Malark “slammed Plaintiff
against the wall” and “punched Plaintiff in the back.” (Id.)
Sergeant Malark threatened the Plaintiff, stating “you better
not call witnesses or say anything to the Nurse” and advised
him that he would not be receiving protection. (Id.) Finally,
Plaintiff was issued a misbehavior report by Sergeant Malark
and was placed in SHU. (Id. at 3, 5.)
After Sergeant Malark issued Plaintiff a misbehavior
report, Plaintiff asked his counselor, Defendant Jackson, for
assistance with regard to a disciplinary hearing and provided
her with a copy of the Hillman case. (Id. at 3.) Defendant
Jackson refused to assist the Plaintiff and stated, as her reason
why, “we have a code.” (Id.)
In sum, the Plaintiff claims that he was (1) denied placement
into protective custody; (2) assaulted by Sergeant Malark; (3)
given a false misbehavior report by Sergeant Malark; and (4)
denied any assistance in preparing for a disciplinary hearing
from Defendant Jackson (in connection with the misbehavior
report he had received).
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) states that a party
may file a motion to dismiss for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In order
to survive a 12(b)(6) motion to dismiss, a complaint must
include “sufficient factual matter, accepted as true, to 'state a
claim to relief that is plausible on its face.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at
556).
When there are well-pleaded factual allegations in the
complaint, “a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief.” Iqbal, 556 U.S. at 679. The court must “take
all well-plead factual allegations as true, and all reasonable
inferences are drawn and viewed in a light most favorable
to the plaintiff[ ].” Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.
1996). However, the presumption of truth does not extend
to “legal conclusions, and threadbare recitals of the elements
of the cause of action.” Harris v. Mills, 572 F.3d 66, 72 (2d
Cir. 2009) (quoting Iqbal, 556 U.S. at 678) (internal quotation
marks omitted). A plaintiff must provide “more than labels
and conclusions” to show he is entitled to relief. Twombly,
550 U.S. at 555.
Pro se pleadings are held to “less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007). They are construed “liberally”
and interpreted “to raise the strongest arguments that they
suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)
(quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Additionally, this Court “may consider factual allegations
made by a pro se plaintiff in opposition papers and other
additional materials.” Baskerville v. Blot, 224 F. Supp. 2d 723
(S.D.N.Y. 2002). However, pro se status “does not exempt a
party from compliance with relevant rules of procedural and
substantive law.” Boddie v. N.Y. State Div. of Parole, 285 F.
Supp. 2d 421, 426 (S.D.N.Y. 2003) (quoting Traguth v. Zuch,
710 F.2d 90, 95 (2d Cir. 1983)).
DISCUSSION
I. Exhaustion of Administrative Remedies
*3 Under the Prison Litigation Reform Act of 1995
(“PLRA”), “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title ... by a prisoner
confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). “The PLRA's exhaustion requirement
'applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.'”
Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting
Porter v. Nussle, 534 U.S. 516, 532 (2002)).
Exhausting all remedies “means using all steps that the
agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).” Washington v. Chaboty,
No. 09 CIV. 9199 PGG, 2015 WL 1439348, at *6 (S.D.N.Y.
Mar. 30, 2015) (quoting Hernandez v. Coffey, 582 F.3d
303, 305 (2d Cir. 2009)) (internal quotation marks and
citations omitted). “[B]ecause 'it is the prison's requirements,
and not the PLRA, that define the boundaries of proper
exhaustion [,] ... [t]he exhaustion inquiry ... requires that [the
court] look at the state prison procedures and the prisoner's
grievance to determine whether the prisoner has complied
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with those procedures.” Espinal v. Goord, 558 F.3d 119, 124
(2d Cir. 2009) (quoting Jones v. Bock, 549 U.S. 199, 218
(2007)). A plaintiff must invoke all available administrative
mechanisms, including appeals, “through the highest level for
each claim.” Varela v. Demmon, 491 F. Supp. 2d 442, 447
(S.D.N.Y. 2007). See also Veloz v. New York, 339 F. Supp. 2d
505, 514 (S.D.N.Y. 2004). The defendants bear the burden of
demonstrating that Plaintiff's claim is not exhausted. Key v.
Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). Where
a prisoner has failed to exhaust some, but not all, of the
claims included in the complaint, the PLRA does not require
dismissal of the entire complaint. Tafari v. Hues, 539 F.
Supp. 2d 694, 697 (S.D.N.Y. 2008) (citing Jones, 549 U.S. at
219-24). Instead, the court dismisses the unexhausted claims
and proceeds to adjudicate the exhausted claims. Jones, 549
U.S. at 224.
A person detained or incarcerated at a DOCCS facility
must exhaust all of the steps of the DOC Inmate Grievance
Resolution Program (“IGRP”). See Robinson v. Henschel, No.
10 Civ. 6212 (PGG), 2014 WL 1257287, at *10 (S.D.N.Y.
Mar. 26, 2014) (“the PLRA requires complete exhaustion
in accordance with the administrative procedures within
[DOCCS]”) (internal quotation marks and citations omitted).
The IGRP provides a three-tiered process for adjudicating
inmate complaints: (1) the prisoner files a grievance with the
IGRC, (2) the prisoner may appeal an adverse decision by the
IGRC to the superintendent of the facility, and (3) the prisoner
then may appeal an adverse decision by the superintendent
to the Central Office Review Committee (“CORC”). See
Espinal, 558 F.3d at 125 (citing N.Y. Comp. Codes R. &
Regs., tit. 7, § 701.7 (1999)).
The Second Circuit has recognized three situations in which
a Plaintiff is not required to satisfy the PLRA exhaustion
requirement. Hemphill v. New York, 380 F.3d 680, 686 (2d
Cir. 2004). See also Morrison v. Parmele, 892 F. Supp. 2d
485, 488 (W.D.N.Y. 2012), aff'd, 2013 WL 3214625 (2d Cir.
2013). The failure to exhaust administrative remedies may
be excused or Plaintiff's claim may be deemed exhausted:
(1) when administrative remedies are not available to the
prisoner, (2) when the defendants waive the defense by failing
to raise or preserve it, or acted in such a manner that they are
estopped from raising it, or (3) when special circumstances
exist to justify the prisoner's failure to comply with the
exhaustion requirement. Hemphill, 380 F.3d at 686.
*4 With regard to situation (1), to be “available” under
the PLRA, a remedy must afford “the possibility of some
relief for the action complained of.” Abney v. McGinnis, 380
F.3d 663, 667 (2d Cir. 2004). When Plaintiff lacks available
remedies, the PLRA's exhaustion requirement is inapplicable.
Hemphill, 380 F.3d at 686. In some circumstances, a
defendant's behavior will render an administrative remedy
unavailable. Sloane v. Mazzuca, No. 04-CV-8266, 2006 WL
3096031 at *6 (S.D.N.Y. Oct. 31, 2006) (citing Hemphill,
380 F.3d at 687). For example, the exhaustion requirement
is waived “in situations where prison officials fail to timely
advance the inmate's grievance or otherwise prevent him
from seeking his administrative remedies.” Abney, 380 F.3d
at 667 (citation omitted). See also Hemphill, 380 F.3d
at 688-89 (determining that threats from guards which
prevent the filing of a grievance would make the remedy
unavailable) (citing Ziemba v. Wezner, 366 F.3d 161, 162
(2d Cir. 2004)); Santiago v. Westchester Cty., No. 13 CIV.
1886 (LGS), 2014 WL 2048201, at *3 (S.D.N.Y. May 19,
2014) (holding that a factual inquiry is required where the
Complaint has sufficiently alleged that if Plaintiff failed to
exhaust administrative remedies, the failure resulted because
administrative remedies may not have been “available” to
him).
With regards to estoppel—situation (2)—a prisoner may
be excused from exhausting his administrative remedies
when “defendants took affirmative action to prevent him
from availing himself of grievance procedures.” Amador,
655 F.3d at 103 (citing Ruggiero v. County of Orange, 467
F.3d 170, 178 (2d Cir. 2006)). Such “affirmative action”
includes “verbal and physical threats of retaliation, physical
assault, denial of grievance forms or writing implements, and
transfers.” Id. (internal citations omitted). See also Ziemba,
366 F.3d at 162-63 (estopping defendants where they had
prevented exhaustion of remedies by beating and threatening
the inmate, denying him grievance forms, and transferring
him to another prison).
Finally, in situation (3), the Court must consider any special
circumstances that may have frustrated an inmate's grievance.
Hemphill, 380 F.3d at 686. Generally, when procedural
requirements are not clear, are misleading, or are so trivial
as to make exhaustion an ordeal, a prisoner's failure to
comply may not be fatal to his claims. See generally Giano,
380 F.3d at 676; Hemphill, 380 F.3d at 689-90 (2d Cir.
2004). For example, in Giano, the Second Circuit determined
that “there are certain 'special circumstances' in which,
though administrative remedies may have been available
and though the government may not have been estopped
from asserting the affirmative defense of non-exhaustion, the
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prisoner's failure to comply with administrative procedural
requirements may nevertheless have been justified.” Giano,
380 F.3d at 676 (citing Berry v. Kerik, 366 F.3d 85, 87-88 (2d
Cir. 2004)). The court in Giano held that plaintiff's reasonable
interpretation of DOCCS' regulations constituted the “special
circumstances” justifying his failure to exhaust. Giano, 380
F.3d at 676. Specifically, the inmate took a disciplinary appeal
when, under a correct interpretation of the rules, he should
have filed a grievance. Id. The court excused his failure,
holding that prison rules “do not differentiate clearly” and that
therefore the inmate was excused from precise compliance.
Id. at 679.
As an initial matter, it is clear from the face of the Complaint
that Plaintiff has not exhausted claims 2-4: that he was
assaulted, given a false behavior report, and denied assistance
at his disciplinary hearing. Plaintiff has not alleged that
he filed a grievance or even that he attempted to file a
grievance with regards to any of these claims. Therefore,
these claims must be dismissed for Plaintiff's failure to
exhaust his administrative remedies.
However, with regards to claim 1—that Plaintiff was not
placed into protective custody—Plaintiff asserts that he filed
a grievance and made efforts to appeal to the superintendent.
Thus, it is not apparent on the face of the Complaint that
Plaintiff failed to exhaust his administrative remedies with
regard to his retaliation and denial of protection claim.
(See Compl., at 5.) Although Plaintiff did not complete
the IGRP three-step grievance procedure, and thus did not
technically exhaust his administrative remedies, Plaintiff
may be excused from fully complying with the PLRA
requirement of exhaustion because (1) remedies may have
been unavailable to him, and (2) Defendants may be estopped
from asserting the exhaustion defense. See Hemphill, 380 F.3d
at 686. See also Amador, 655 F.3d at 102.
*5 Administrative remedies may not have been available to
the Plaintiff because Plaintiff was unable to file a grievance.
Though Plaintiff attempted to file a grievance with regards
to his retaliation claim that he was not placed into protective
custody, the grievance was never entered into the IGRP
system. (Compl. at 5.) When Plaintiff inquired about his
grievance, the Grievance Clerk stated that it “could not
be located.” (Id.) Plaintiff then attempted to “appeal” by
writing to a Counselor, speaking to a Mental Health Doctor,
and writing to Superintendent Lee, because, in his opinion,
these were the only administrative remedies available to
him. (Id. at 3.) See also Hale v. Rao, 768 F. Supp. 2d
367 (N.D.N.Y. 2011) (holding that a plaintiff's failure to
exhaust his administrative remedies will be excused when a
member of prison staff throws out a grievance and threatens
to assault a plaintiff if he attempts to utilize the grievance
process). Accepting all allegations as true, it is clear that
Plaintiff attempted to grieve his protective custody claim.
When Plaintiff reasonably believed that his grievances were
not being filed, he tried to grieve his complaints by writing
letters of appeal. Further, in light of the fact that Plaintiff has
filed numerous grievances in the past, he is clearly familiar
with the grievance process and aware of the steps he must take
before availing himself of the Court's remedies. Therefore, the
administrative grievance process may have been unavailable
to Plaintiff, and the Court cannot dismiss his retaliation/denial
of protection claim for failure to exhaust.
Additionally, Defendants may be estopped from asserting a
non-exhaustion defense because their conduct—refusing to
file Plaintiff's grievance that was of a serious nature—may
have prevented the Plaintiff from exhausting all remedies.
See Ziemba, 366 F.3d at 162-63 (estopping defendants from
raising failure-to-exhaust-defense where they had prevented
exhaustion of remedies by beating and threatening the inmate,
denying him grievance forms, and transferring him to another
prison). Plaintiff alleges not only that the Grievance Clerk
refused to file or intentionally misplaced his grievance but
also that Defendants assaulted him because he attempted
to file a grievance. Therefore, assuming that Plaintiff's
allegations are true—as the Court must at this stage of
the litigation—Defendants may be estopped from asserting
a non-exhaustion defense pursuant to the second Hemphill
exception. Hemphill, 380 F.3d at 686; Samuels v. Fischer,
et. al., No. 13-CV-8287 (KMK), 2016 WL 827781, at
*19 (S.D.N.Y. Mar. 2, 2016) (holding that it would be
premature to dismiss Plaintiff's claims for failure to exhaust
his administrative remedies where Plaintiff's non-exhaustion
is not clear from the face of the Amended Complaint and
where Plaintiff argued that his “failed attempt to file a
second grievance can be attributed to [defendants refusing]
to provide [P]laintiff with ... grievance forms.”). See also
McClinton v. Connolly, No. 13-CV-2375 (KMW) (DCF),
2014 WL 5020593, at *3 (S.D.N.Y. Oct. 8, 2014) (defendants
may be estopped where Plaintiff claimed that the “Inmate
Grievance Coordinator refused to file [his] grievance of
improper medical care”); Rivera v. Pataki, No. 04–CV–1286,
2005 WL 407710, at *10-11 (S.D.N.Y. Feb. 7, 2005) (citing
Hemphill, 380 F.3d at 688-89) (holding that defendants were
estopped from asserting their non-exhaustion defense because
defendants refused to allow plaintiff to file his grievance).
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Therefore, Plaintiff's claim of retaliation and denial of
protection cannot be dismissed at this stage of the litigation,
as he may be excused from exhausting his administrative
remedies with regards to this claim.
II. Personal Involvement—Defendant Lee
Defendants assert that Plaintiff's claim against Defendant
Lee should be dismissed because Plaintiff failed to allege
Defendant Lee was personally involved in the alleged
wrongdoing. Section 1983 imposes liability for “conduct
which 'subjects, or causes to be subjected' the complainant
to a deprivation of a right secured by the Constitution
and laws.” Rizzo v. Goode, 423 U.S. 362, 370-71 (1976).
Accordingly, “personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.” McKinnon v. Patterson, 568 F.2d
930, 934 (2d Cir.1977). A supervisory defendant may be
personally involved in a constitutional deprivation within
the meaning of 42 U.S.C. § 1983 if he or she: (1) directly
participated in the violation; (2) failed to remedy the violation
after learning of it through a report or appeal; (3) created
a custom or policy fostering the violation or allowed the
custom or policy to continue after learning of it; or (4) was
grossly negligent in supervising subordinates who caused the
violation, including where he or she directly participated in
the infraction and where, after learning of the violation, failed
to remedy the wrong. Williams v. Smith, 781 F.2d 319, 323-24
(2d Cir. 1986) (internal citations omitted). See also Morgan
v. Ward, No. 14 Civ. 7921, 2016 WL 427913, at *6 (S.D.N.Y.
Feb. 2, 2016) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995)); Lloyd v. City of New York, 43 F. Supp. 3d 254,
266 (S.D.N.Y. 2014); Ramey v. Perez, No. 13 Civ. 17, 2014
WL 407097, at *4 (S.D.N.Y. Jan. 31, 2014).
*6 In the instant case, Plaintiff alleges that he wrote a letter
of “appeal” to Superintendent Lee regarding the retaliatory
failure to place him into protected custody and enclosed a
copy of the Hillman case. (See Compl. at 3-4.) Plaintiff states
that Superintendent Lee did not inquire about whether the
Plaintiff had problems, but rather merely directed the staff
“to write him up and take him to SHU.” (See Plaintiff's
Memorandum of Law in Opposition to Defendant's Motion
to Dismiss, ECF No. 40, at 9.) Construing Plaintiff's pro
se complaint liberally, as we must, Plaintiff sufficiently
alleges that Superintendent Lee, after learning of a violation
through Plaintiff's letter of appeal, failed to remedy the
wrong. See United States ex rel. Larkins v. Oswald, 510
F.2d 583, 589 (2d Cir. 1975) (holding the New York State
Corrections Commissioner liable for money damages along
with the prison warden when the former was “chargeable
with knowledge” of the cruel and unusual punishment of one
prisoner).
The Defendants argue that "the mere receipt of a letter is not
sufficient to establish the personal liability of a supervisor
under Sealy v. Giltner, 116 F.3d 47, 51 (2d Cir. 2007)
and Lloyd, 43 F. Supp. 3d at 268. In Sealy, the Court
held that the plaintiff did not produce sufficient evidence
of personal involvement to survive a motion for summary
judgment where the plaintiff wrote a letter of appeal to
the commissioner, and the commissioner referred the appeal
letter to a subordinate for determination. Sealey, 116 F.3d at
51. Similarly, in Lloyd, the supervisory defendant received
the letter and forwarded it to “the appropriate unit for
investigation.” Lloyd, 43 F. Supp. 3d at 268. As the Lloyd
court explained, “[c]ourts have consistently held that, if an
official receives a letter from an inmate and passes it on to
a subordinate for response or investigation, the official will
not be deemed personally involved with respect to the subject
matter of the letter.” Id. (collecting cases) (internal quotation
marks omitted). In the instant case, Plaintiff alleges that he
wrote a letter of appeal to Defendant Lee and that he received
no response. There is no indication from Plaintiff's allegations
that Defendant Lee took any steps to resolve the issue.
Therefore, Plaintiff sufficiently alleges personal involvement
of Defendant Lee at this stage of the litigation, and his claim
for retaliatory failure to place Plaintiff into protective custody
against Defendant Lee cannot be dismissed.
III. First Amendment Retaliation
In order to sustain a First Amendment retaliation claim under
Section 1983, a prisoner must demonstrate the following: “(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.” Espinal, 558 F.3d at 128
(2d Cir. 2009) (citing Gill v. Pidlypchak, 389 F.3d 379, 380
(2d Cir. 2004)) (quoting Dawes v. Walker, 239 F.3d 489,
492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz
v. Sorema N.A., 534 U.S. 506 (2002)). Plaintiff clearly
engaged in constitutionally protected conduct, as filing and
prosecuting a federal lawsuit is a constitutionally protected
activity. See Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988).
Plaintiff alleges that, in retaliation for filing these lawsuits
(i.e. the protected activity), Defendants refused to place
him into protective custody after Plaintiff provided them
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with the names of his enemies. In order to adequately
plead an “adverse action,” Plaintiff must allege that he was
subject to “retaliatory conduct 'that would deter a similarly
situated individual of ordinary firmness from exercising ...
constitutional rights.'” Gill, 389 F.3d at 381 (internal citations
omitted). The Second Circuit has explained that fear is a
key aspect in whether an inmate has suffered adverse action,
specifically when fear is used as a means to stifle a prisoner's
ability or desire to file lawsuits or grievances. See Morales
v. Mackalm, 278 F.3d 126, 131-32 (2d Cir. 2002) (reversing
the dismissal of a complaint alleging that the transfer of
prisoner to a psychiatric facility was an adverse action taken
in retaliation for filing a grievance). Plaintiff alleges that
Defendants' denial of protective custody, or even the denial of
the submission of an accurate protective custody application,
constitutes an adverse action because Plaintiff feared for his
safety without custodial protection. (See Compl. at 6 (“I could
be killed”).) It cannot be said, as a matter of law, that this
fear would not deter a similarly situated individual from
filing further lawsuits or grievances. Therefore, Plaintiff has
sufficiently alleged an adverse action.
*7 Defendants dispute whether Plaintiff has alleged a
causal connection between the lawsuits and Defendants'
denial of protective custody. “Proof of causal connection
can be established indirectly by showing that the protected
activity was followed closely by discriminatory treatment ...
or through other evidence such as disparate treatment of
fellow employees who engaged in similar conduct, or directly
through evidence of retaliatory animus directed against a
plaintiff by the defendant.” DeCintio v. Westchester County
Med. Ctr., 821 F.2d 111, 116 (2d Cir. 1987) (internal citations
omitted). However, as the Second Circuit recently explained:
[P]risoner retaliation claims are
easily fabricated, and ... pose a
substantial risk of unwarranted
judicial intrusion into matters
of general prison administration.
Accordingly, while we have held
that temporal proximity between
protected conduct and an adverse
action constitutes circumstantial
evidence of retaliation, we have
consistently required some further
evidence of retaliatory animus
before permitting a prisoner to
proceed to trial on a retaliation
claim.
Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (internal
citations and quotation marks omitted). With regards to
temporal proximity, the Second Circuit “has not drawn a
bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship
between the exercise of a federal constitutional right and
an allegedly retaliatory action.” Gorman-Bakos v. Cornell
Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001). Compare
Hollander v. American Cyanamid Co., 895 F.2d 80, 85-86
(2d Cir. 1990) (finding a lack of evidence that an adverse
action, taken three months after the plaintiff's complaint, was
in response to the plaintiff's protected activity) with Grant
v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980)
(finding that the lapse of eight months between a complaint
and retaliatory act indicated a causal connection).
In the present case, Plaintiff's earlier federal lawsuits were
filed in 2002 and 2013, and the alleged adverse action
occurred in May of 2014. As to the first federal lawsuit
—Cruz v. Hillman, filed on September 19, 2000 and decided
on May 16, 2002—a time period of 12-14 years between
the protected activity and retaliation (the present complaint
was filed May 1, 2014) is too lengthy and thus the temporal
relationship here is too attenuated to establish a causal
connection. See Cruz v. Hillman, 2002 U.S. Dist. LEXIS
17705, 2002 WL 31045864. See also Shaw v. McDonald, No.
14 CV 5856 (NSR), 2015 WL 8484570, at *6 (S.D.N.Y. Dec.
8, 2015) reconsideration denied, No. 14-CV-5856 (NSR),
2016 WL 828131 (S.D.N.Y. Feb. 22, 2016) ("[w]ithout any
alleged explanation for the delay, a one year gap is too
attenuated to establish a causal relationship.). With regards
to the second lawsuit, however, Plaintiff has adequately
alleged a causal connection. Cruz v. Grosso was filed on
January 9, 2013 and decided on July 27, 2015. See Cruz v.
Grosso, 2015 WL 4542280. The Grosso case was pending
—and the protected activity was therefore ongoing—when
the alleged adverse action occurred. Defendants argue that
no causal connection exists because Grosso did not involve
any of the Defendants here or even any of the staff at
GHCF. While this may be factually true, Plaintiff has also
alleged that (1) he notified Defendants of the Grosso case,
(2) Defendant Kiernan stated that Plaintiff would not get
protective custody “because of the case against Grosso,” and
(3) Defendant Jackson refused to help Plaintiff and stated as
her reason, “we have a code.” (Compl. at 3-4.) Therefore,
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the close temporal proximity taken together with Defendants'
knowledge of the protected activity and statements tending
to demonstrate a retaliatory motive sufficiently establish a
causal connection. Therefore, the Court declines to dismiss
Plaintiffs First Amendment Retaliation Claim.
CONCLUSION
*8 For the foregoing reasons, the Defendants' motion
to dismiss is GRANTED in part and DENIED in part.
Defendants' motion is denied with respect to Plaintiffs
retaliation claim-that Defendants denied him protective
custody in retaliation for his filing of federal lawsuits.
Plaintiffs remaining claims, however, are dismissed.
Defendant shall have until 60 days from the date of this
Order to file responsive pleadings on the remaining claim. An
initial in-person case management and scheduling conference
pursuant to Fed. R. Civ. P. 16 is scheduled for May 20,
2016, at 10:30 a.m., at the United States Courthouse, 300
Quarropas Street, Courtroom 218, White Plains, New York
10601. Plaintiff shall appear via telephone. The parties shall
also complete a Civil Case Discovery Plan and Scheduling
Order and bring it to the conference. The Court respectfully
directs the Clerk to terminate the motion at ECF No. 36.
SO ORDERED:
All Citations
Not Reported in Fed. Supp., 2016 WL 1060330
Footnotes
1 As a pro se Plaintiff, Cruz is subject to a more liberal pleading standard, which requires that the Court consider
factual allegations in Cruz's opposition papers to supplement allegations in his Complaint. See Collins v.
Goord, 438 F.Supp.2d 399, 403 n. 1 (S.D.N.Y. 2006); Fox v. Fischer, No. 04 Civ. 6718, 2005 WL 1423580,
at *2 n. 1 (S.D.N.Y. June 14, 2005); Verley v. Goord, No. 02 Civ. 1182, 2004 WL 526740, at *5 (S.D.N.Y.
Jan. 23, 2004). Therefore, the Court will consider facts alleged in the Complaint and opposition papers as
long as there is no disagreement between the documents.
2 Page number references in the Complaint refer to ECF page numbers to avoid confusion.
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2015 WL 1413362
United States District Court,
N.D. New York.
K. Felicia DAVIS, Plaintiff,
v.
CITY OF SYRACUSE; and
Stephanie A. Miner, Defendants.
No. 5:12–CV–0276 (GTS/DEP).
|
Signed March 27, 2015.
Attorneys and Law Firms
K. Felicia Davis, Syracuse, NY, pro se.
Bond, Schoeneck & King, Plcc, Laura H. Harshbarger,
Esq., Kristen E. Smith, Esq., of Counsel, Syracuse, NY, for
Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in his employment
discrimination action filed by K. Felecia Davis (“Plaintiff”)
against the City of Syracuse and Stephanie A. Miner
(“Defendants”), is Defendants' motion for summary
judgment. (Dkt. No. 63.) For the reasons set forth below,
Defendants' motion is granted.
I. RELEVANT BACKGROUND
A. Summary of Plaintiff's Claims and Defendants'
Counterclaims
Generally, in her Amended Complaint, Plaintiff asserts the
following ten claims arising from her alleged wrongful
termination from the position of Board Administrator of the
City of Syracuse's Citizen Review Board on February 4, 2011,
after she took maternity leave in late October of 2010:(1) a
claim against Defendant City for sex discrimination under
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. (“Title VII”); (2) a claim against
Defendant City for retaliation under Title VII; (3) a claim
against Defendant City for sex discrimination under the New
York State Human Rights Law, New York Executive Law
§ 296 et seq. (“the Executive Law”); (4) a claim against
Defendant City for retaliation under the Executive Law; (5)
a claim against Defendant Miner for aiding and abetting sex
discrimination under the Executive Law; (6) a claim against
Defendant Miner for aiding and abetting retaliation under
the Executive Law; (7) a claim against both Defendants for
violation of the right to due process under the Fourteenth
Amendment and 42 U.S.C. § 1983; (8) a claim against
Defendant Miner for violation of the right to equal protection
under 42 U.S.C. § 1983 and the Fourteenth Amendment; (9)
a claim against Defendant City for violation of the Family
and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”);
and (10) a claim against Defendant Miner for retaliation
under 42 U.S.C. § 1983 and the First Amendment. (Dkt.
No. 6.) Familiarity with the factual allegations supporting
these claims is assumed in this Decision and Order, which is
intended primarily for the review of the parties.
Generally, in their Answer, Defendants assert the following
four counterclaims arising from Plaintiff's alleged practice of
law using a City-paid secretary and City computer during
the hours that she claimed to have worked for the City:
(1) a counterclaim of fraud under New York State common
law; (2) a counterclaim of negligent misrepresentation under
New York State common law; (3) a counterclaim of unjust
enrichment under New York State common law; and (4)
a counterclaim of faithless servant under New York State
common law. (Dkt. No. 8.)
B. Undisputed Material Facts
The following facts were asserted and properly supported by
Defendants in their Statement of Material Facts and were
either admitted or denied without proper support by Plaintiff
in her Response thereto. (Compare Dkt. No. 63, Attach. 1
[Defs.' Rule 7.1 Statement] with Dkt. No. 67, Attach. 10 [Plf.'s
Rule 7.1 Response].)
*2 Before reciting these facts, the Court pauses to explain
the reason for certain deficiencies in Plaintiff's response to
Defendants' Statement of Facts. On a motion for summary
judgment, denials of fact that are based on a lack of
personal knowledge, mere information or belief, and/or
inadmissible evidence are insufficient to create a genuine
dispute. Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration
used to ... oppose a motion [for summary judgment] must
be made on personal knowledge, set out facts that would be
admissible in evidence and show that the affiant or declarant is
competent to testify on matters stated.”); Rodriguez v. Bubnis,
11–CV–1436, 2014 WL 6078529, at *10, n. 25 (N.D.N.Y.
Nov. 13, 2014) (Suddaby, J.) (collecting cases). Moreover,
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the assertion of additional material facts by a non-movant is
permitted only if the additional material facts are both (1) in
dispute and (2) contained in separately numbered paragraphs.
N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response may
also set forth any additional material facts that the non-
movant contends are in dispute in separately numbered
paragraphs.”) (emphasis added) . 1
Plaintiff's Employment by the City
1. Plaintiff was a full-time employee of the City of Syracuse,
and served as the Administrator of the City's Citizen Review
Board (“CRB”). 2
2. Plaintiff was not employed to act as a lawyer for the City
or the CRB. 3
3. Plaintiff's employment was not covered by an individual
employment contract or by any of the City's collective
bargaining agreements; rather, she served at the discretion of
the CRB and was able to be removed by the CRB for good
cause. 4
4. The CRB is comprised of Board members who are
volunteer citizens appointed by the Syracuse Common
Council and the Mayor. 5
Mayor's Early Decisions Regarding the CRB
5. Even before becoming Mayor, as a Common Councilor,
Mayor Stephanie Miner heard comments about the CRB that
were overwhelmingly negative, and heard story after story
about citizens who went to the CRB office and found it closed
or who made complaints to the CRB but did not hear back
from it. 6
6. When Mayor Miner took office, the CRB was one of the
issues she wanted to address. 7
7. In her first month in office (January of 2010), Mayor Miner
denied the CRB's request for authorization to hire a new
employee (to fill a vacant investigator position), because she
was unwilling to devote taxpayer money to a CRB that was
not producing value to the taxpayers, deciding instead that the
City's money would be better spent on commissioning a study
of CRBs in other cities that were more effective. 8
8. As a result, Mayor Miner appointed Christine Fix to
conduct the study. 9
9. After Ms. Fix completed her report of CRB models in
June 2010, Mayor Miner distributed the report within her
administration, with the directive that she wanted to explore
a new model for the CRB that would be more effective and
impactful. 10
Plaintiff's Non–Appearance at the Paulk Trial
*3 10. The Paulk case was a federal lawsuit brought by
a citizen, Martin Paulk, against two SPD officers (Paulk v.
Lester, 06–CV–1343 [N.D.N.Y.] ). 11
11. On October 21, 2010, a process server attempted to
personally serve a subpoena on Plaintiff at her home. 12
12. The subpoena called for CRB documents and for Plaintiff
to testify at the Paulk trial on Monday, November 1, 2010. 13
13. Plaintiff was not home, but her husband reached her by
telephone. 14
14. Plaintiff spoke by telephone to the gentleman attempting
to deliver the papers, and instructed him to deliver the papers
to the City Corporation Counsel's office. 15
15. The process server delivered the papers to the City's
Corporation Counsel office on Friday, October 22, 2010. 16
16. The Paulk trial was scheduled to begin on November 1,
2010. 17
17. Before serving the subpoena, Richard Brickwedde
(Paulk's attorney), had not indicated a desire to call Plaintiff
as a witness . 18
18. On October 22, 2010, Joseph Doyle, a City attorney on
the Paulk case, submitted a letter to the presiding judge,
United States District Judge Charles Kornmann, requesting a
conference to address the subpoena. 19
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19. Doyle's co-counsel, James McGinty, anticipated that
Judge Kornmann would agree with the City's position that
Brickwedde should not be allowed to call Plaintiff as a witness
in the Paulk trial . 20
20. Judge Kornmann did not address the issue of the subpoena
until a pre-trial conference on October 28, 2010, during
which he decided that Brickwedde would be allowed to call
Plaintiff. 21
21. At the time of the pre-trial conference on October
28, 2010, McGinty and Doyle assumed, from the fact that
Plaintiff had told the process server to bring the package to
their office, that Plaintiff knew that the package contained a
subpoena in the Paulk case. 22
22. At the time of the pre-trial conference on October 28,
2010, McGinty and Doyle were not aware that Plaintiff was
pregnant or that she would be going on maternity leave. 23
23. On Friday, October 29, 2010, McGinty called the CRB
office and asked to speak with Plaintiff. 24
24. The CRB secretary told McGinty that Plaintiff was on
maternity leave. 25
25. Plaintiff's maternity leave began on October 29, 2010. 26
26. McGinty explained to Plaintiff's secretary that a subpoena
had been issued to Plaintiff for her to testify in the Paulk trial
on Monday at 9:00 a.m., and that whether she was on leave
from work was immaterial. 27
27. McGinty told Plaintiff's secretary that she needed to
get in touch with and tell her that she needed to appear as
subpoenaed or, if she could not, she needed to call the attorney
who issued the subpoena, Mr. Brickwedde, to make other
arrangements for her testimony. 28
28. Plaintiff's secretary called her that day and informed her
that a man from the Corporation Counsel's office had called
and indicated that she should call an attorney by the name of
Brickwedde . 29
*4 29. Plaintiff called Brickwedde and left a voicemail
informing him that something had been received by the City
for her and that she was going on maternity leave. 30
30. Brickwedde returned Plaintiff's call but missed her and
also left a voicemail. 31
31. Brickwedde advised Plaintiff that he could not speak
to her for ethical reasons and instructed her to speak to
McGinty. 32
32. Plaintiff did not call McGinty or Doyle. 33
33. On the first day of the trial (November 1, 2010),
Brickwedde called Plaintiff as a witness; however, she was
not there. 34
34. When Plaintiff did not appear, McGinty called the CRB
office. 35
35. The CRB secretary answered and told McGinty that
Plaintiff had called her earlier that day to say that she was in
labor and going to the hospital, which information McGinty
relayed to Judge Kornmann. 36
36. Plaintiff was not in the hospital giving birth on November
1, 2010, but was at her doctor's office; she gave birth on
November 9, 2010.
37. Meanwhile, at trial, another issue was occurring: McGinty
and Doyle were informed that Brickwedde had independently
obtained a CRB report stating that the CRB had found his
client's complaint of police misconduct “substantiated.”
38. When questioned by Judge Kornmann as to why McGinty
and Doyle had not produced the document during discovery,
McGinty explained that the CRB had not provided it to them
(after they had requested documents from the CRB during the
course of the Paulk discovery process). 37
39. As a result of Plaintiff's failure to appear, Judge Kornmann
imposed a sanction on the police officers in the form of
allowing the CRB's “substantiated” finding to come into the
record without allowing any testimony to explain or minimize
the impact of the detrimental document on the police officers'
case. 38
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40. After a three-day trial, the jury returned a verdict in favor
of the City's police officers. 39
New Information Emerges
Concerning Plaintiff's Whereabouts
41. On November 8, 2010, Brickwedde filed a motion for a
new trial and for additional sanctions in the Paulk case.
42. The motion was based, in large part, on Plaintiff's non-
appearance at trial and the City's failure to produce all relevant
CRB documents during discovery. 40
43. On November 16, 2010, Brickwedde supplemented his
motion papers on the ground that he had found out that
Plaintiff had voted in an election on November 2, 2010, while
the three-day Paulk trial was still ongoing. 41
44. From the perspective of McGinty and City Corporation
Counsel Juanita Perez–Williams, this fact called into question
the information that Plaintiff's secretary had provided to
McGinty on November 1, 2010, and that McGinty had, in
turn, had provided to Judge Kornmann (i.e., that Plaintiff was
in labor and going to the hospital on November 1, 2010). 42
45. On November 24, 2010, Judge Kornmann issued
a memorandum ordering the production of extensive
documents and information about Plaintiff's whereabouts at
the time of trial, as well as “all records of the office [Plaintiff]
heads which deal in any way with [the Paulk ] case.”
*5 46. To explore these issues, Judge Kornmann scheduled
a hearing for January 24, 2011. 43
47. In a letter to Perez–Williams dated December 3, 2010,
Plaintiff stated, “I made a call to Mr. Brickwedde and left a
voicemail informing him of my late stage of pregnancy and
start of labor (I had begun to dilate), and informed [him] that
I had not seen any subpoena.” 44
48. In response to Judge Kornmann's memorandum of
November 24, 2010, Plaintiff provided Corporation Counsel's
office with a number of CRB documents related to Paulk that
had not been provided in response to earlier requests to her
office for CRD documents related to Paulk. 45
The City's Investigation into Plaintiff
and the Operation of the CRB
49. When Perez–Williams learned in late-November of the
motion for a new trial and for sanctions, she informed Mayor
Miner as to what was occurring; Miner first learned about the
subpoena and Plaintiff's non-appearance only after Plaintiff
had not appeared. 46
50. The Paulk situation was deeply concerning to Mayor
Miner. 47 At the time Miner took office, she believed that
something had to be done about the CRB. 48 The Paulk matter
brought the perceived problem of the CRB into a state of
immediacy for her. 49 As she saw the situation, instead of
merely being a waste of resources, the CRB now was creating
potential liability for the City. 50
51. Upon hearing about the Paulk subpoena incident, Mayor
Miner asked Perez–Williams to “drill down” into what was
going on with Plaintiff and the CRB and to report back to
her. 51
52. The City's investigation indicated the following:
a. As of the end of November 2010, the CRB's
two employees (Plaintiff and her secretary, Carolyn
Williams) had not entered time sheets into the City's
timekeeping/payroll system since June; this meant that,
even though Plaintiff was currently claiming to be on
maternity leave, and had been (according to her) on such
leave since late October, she was allowing the City to
pay her as an active employee, without having to use any
of accrued time-off benefits. 52
b. On December 2, 2010, Plaintiff signed and submitted six
months' worth of time sheets on a single day. 53
c. On December 8, 2010, Plaintiff filled out an FMLA
request form, which “requested” permission to take an
FMLA leave that had begun six weeks earlier. 54
d. Several CRB Board positions were vacant, other Board
members had been appointed but never properly sworn
in, and still other Board members' terms had expired,
such that they were serving terms to which they had
not been appointed; this information led Perez–Williams
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to conclude that the CRB could not legally take action,
because it did not have a quorum of individuals properly
appointed and installed in accordance with the City
charter. 55
e. The CRB had not been forwarding citizen complaints
to the Syracuse Police Department Internal Affairs
Division (“IAD”) on a timely basis so that the complaints
could be properly investigated. 56
*6 f. For example, on December 16, 2010, the CRB sent
12 citizen complaints to IAD. 57
g. The 12 citizen complaints Plaintiff's office forwarded on
December 16, 2010, had been marked as received by the
CRB as much as nine months earlier; before the mass
mailing to IAD on December 16, 2010, the CRB office
had sent only two citizen complaints to IAD for all of
2010. 58
h. The local law requires the CRB to forward citizen
complaints to IAD upon receiving them because IAD has
the first 45 days to conduct its investigation. 59
i. While the CRB may have kept statistical reports at its
office, and given those reports to the Syracuse Common
Council during each budget year, the CRB had not
published monthly and quarterly statistical reports, as
required by the CRB ordinance. 60
j. The last available meeting minutes were from June
2010. 61
k. In early October of 2010, Plaintiff refused to reveal,
to a Common Councilor, the current CRB Board
members' names (which were considered by the
Common Councilor and Perez–Williams to be public
information). 62
l. Several times Plaintiff was late in submitting her budget
requests to the City's Finance Department. 63
53. Perez–Williams shared these and the remainder of her
findings with Mayor Miner. 64
54. Based on these overall findings, including the negligent
handling of the Paulk subpoena and the “numerous
deficiencies in the operation of the CRB, caused in large part
by [her] failure to exercise [her] statutory responsibilities,”
Mayor Miner decided to terminate Plaintiff's employment. 65
The City Discovers Plaintiff's Private
Practice Work in Her City Office on City Time
55. Mayor Miner reached out to the New York State
Comptroller and requested an audit of the CRB office
concerning the issues uncovered in the City's investigation. 66
56. Mayor Miner made this request for an audit within days
of Plaintiff's termination. 67
57. The State Comptroller performed its audit largely in late
2011 and early 2012. 68
58. In connection with the audit process, the City was asked to
provide the State Comptroller with access to the CRB office
and its paper files and electronic records, including the City
computer that had been issued to Plaintiff. 69
59. As a result of the City's review of the data and information
requested in connection with the audit, it was brought to
Mayor Miner's attention that Plaintiff had used the City's
resources (i.e., the City's office space, the City-paid secretary,
the City's fax machine, the City's computer, etc.) to engage in
her private law practice, and that Plaintiff had submitted time
sheets claiming to have worked for the City when she had
been engaged in her private law practice, not City business. 70
60. By the late spring of 2012, Mayor Miner believed
that the City was due potentially significant recompense;
this determination grew out of the documentation the City
reviewed in connection with and in response to the ongoing
audit, which was occurring at the time the City answered the
Complaint. 71
*7 61. The Comptroller's report was published in June 2012
and stated, among other things, that “[t]he analysis found that
the Administrator spent a significant amount of time during
normal business hours engaging in private legal work using a
City-owned computer.” 72
The City Remakes the CRB
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62. Immediately after Plaintiff's termination, the City changed
the locks on the doors of the CRB office, and the CRB ceased
to function (for the time being). 73
63. The City formed an ad hoc committee to propose reforms
to the CRB and, as a result of this committee's work, the
Common Council passed, and Mayor Miner signed into law,
new legislation designed to ensure that the CRB would be
accountable and effective going forward . 74
64. The City started fresh with new citizens Board members
(five new appointments); and the new CRB Board selected a
new Administrator. 75
C. Summary of Parties' Arguments on Defendants'
Motion
1. Defendants' Memorandum of Law
Generally, in their memorandum of law, Defendants assert
seven arguments. (Dkt. No. 63, Attach. 13 [Defs.' Memo. of
Law].)
First, Defendants argue, Plaintiff's pregnancy-discrimination
claims under Title VII and the Executive Law should be
dismissed for two reasons: (a) even assuming Plaintiff can
meet her modest prima facie burden on such a claim, the City
need only articulate a legitimate, non-discriminatory reason
for its action (which it has done, given Plaintiff's negligence
with respect to the Paulk matter as well as her numerous
deficiencies in the operation of the CRB); and (b) the burden
then shifts to Plaintiff to prove by a preponderance of the
evidence that the legitimate reasons offered by the City were
not its true reasons but were a pretext for discrimination,
and that intentional discrimination was the real reason for
the adverse action (which she has not done, and cannot
do, given that her disagreement with the City's assessment
of her performance does establish pretext, her conspiracy
theory is sheer speculation, McGinty is not a “similarly
situated” comparator, her claim of being “scapegoated” for
the Paulk debacle undercuts her pregnancy-discrimination
theory, and no reasonable factfinder could conclude that the
City completely overhauled the CRB merely because Plaintiff
had a baby). (Id.)
Second, Defendants argue, in any event, Plaintiff's retaliation
claims under Title VII and the Executive Law should be
dismissed for three reasons: (a) after a plaintiff has established
a prima facie case of retaliation (showing protected activity,
an adverse employment action, and a causal relationship),
the employer can then meet its burden of articulating a
legitimate, non-retaliatory reason for filing counterclaims by
establishing a reasonable good-faith belief that the claims
were valid, after which any presumption of retaliation drops
out and the plaintiff bears a “substantial burden,” pursuant to
which she must show that, but-for the protected activity, the
employer would not have taken the adverse action; (b) here,
Plaintiff cannot even establish a prima facie case because
a non-frivolous compulsory counterclaim is generally not,
as a matter of law, an adverse employment action, and the
counterclaims asserted by the City in this action are amply
supported by the record; and (c) in any event, Plaintiff cannot
establish pretext because the fact that the City's counterclaims
were filed shortly after Plaintiff's Complaint was filed does
not save Plaintiff's retaliation claims (in that such a proximity
of time is necessary with counterclaims), and the City was
investigating any actionable malfeasance long before Plaintiff
filed her Complaint. (Id.)
*8 Third, Defendants argue, Plaintiff's aider-and-abettor
claims under the Executive Law should be dismissed because
there is no primary violation of the Executive Law to aid or
abet. (Id.)
Fourth, Defendants argue, Plaintiff's “stigma plus” procedural
due process claim under the Fourteenth Amendment should
be dismissed for three reasons: (a) even if she could show
a damage to her reputation (thus satisfying the “stigma”
element), she was, as an at-will government employee,
afforded all the process she was due, given the availability of
an Article 78 proceeding to clear her name (which suffices to
provide the requisite post-deprivation process to a terminated
employee, even if that employee fails to avail herself of
that process); (b) she cannot dispute that she was an at-will
employee, because she was not subjected to any employment
or collective bargaining agreement (and, indeed, her argument
that she served at the pleasure of the CRB supports the
conclusion that she was an at-will employee); and (c) to the
extent Plaintiff argues that Mayor Miner lacked the authority
to terminate her, that argument relates to a due process claim
and thus Plaintiff was able to assert it in an Article 78
proceeding. (Id.)
Fifth, Defendants argue, Plaintiff's equal protection claim
under the Fourteenth Amendment should be dismissed for
the same reasons that her Title VII pregnancy-discrimination
claim should be dismissed. (Id.)
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Sixth, Defendants argue, Plaintiff's FMLA claim should be
dismissed for the same reasons that her Title VII pregnancy-
discrimination claim should be dismissed. (Id.)
Seventh, Defendants argue, Plaintiff's retaliation claim under
the First Amendment should be dismissed for three reasons:
(a) her testimony before Judge Kornmann during the
sanctions hearing of January 24, 2011, was not “protected” (in
that she was not speaking as a citizen but as an employee);
(b) in any event, her termination on February 4, 2011, was
not caused by that testimony but by her conduct in connection
with the Paulk subpoena in November of 2010; and (c) at the
very least, Defendant Miner is protected from liability as a
matter of law by the doctrine of qualified immunity (given
that the issue of whether Plaintiff was speaking as a citizen
rather than as an employee was not “clearly established”
during the time in question). (Id.)
2. Plaintiff's Opposition Memorandum of Law
Generally, in her opposition memorandum of law, Plaintiff
asserts seven arguments. (Dkt. No. 67, Attach. 9 [Plf.'s Opp'n
Memo. of Law].)
First, Plaintiff argues, she has established a sex-
discrimination claim under Title VII (and presumably under
the Executive Law) for two reasons: (a) Defendants do not
dispute that she has established a prima facie case that she
was discriminated against by the City due to her pregnancy;
and (b) as a result, to avoid summary judgment, she need
not show that the City's proffered reasons were false or not a
factor but only that the prohibited factor (i.e., her pregnancy)
was among the motivating factors (which she has done, due
to Defendants' admission that her non-appearance at trial,
which occurred while she was out on maternity leave, was a
motivating reason for her termination). (Id.)
*9 Second, Plaintiff argues, she has established a retaliation
claim under Title VII (and presumably under the Executive
Law) because the City's counterclaims are baseless in that (a)
she was permitted by the CRB to engage in a private legal
practice and (b) Defendant Miner knew, before the events
in question, that Plaintiff was engaging in that private legal
practice. (Id.)
Third, Plaintiff argues, she has established an aiding-and-
abetting claim against Defendant Miner under the Executive
Law because Miner worked to develop what she knew were
baseless reasons for Plaintiff's termination, which reasons
were relied on by the City of Syracuse to engage in sex
discrimination and retaliation under the Executive Law. (Id.)
Fourth, Plaintiff argues, she has established a “stigma
plus” procedural due process claim under the Fourteenth
Amendment for four reasons: (a) she suffered injury
to her reputation in that she was denied a job with
Cornell Cooperative Extension (thus satisfying the “stigma”
element); (b) she experienced defamation plus the loss of
government employment (thus satisfying the “plus” element);
(c) she was not afforded a pre-deprivation hearing although
she had an implied employment contract with the CRB (due to
the fact that CRB Board members had to determine whether to
continue her employment each year) and her termination was
not random and unauthorized (due to the fact that Defendant
Miner was a high-ranking official with final authority over
significant matters); and (d) indeed, even if she was an at-
will employee, she was not afforded even a post-deprivation
hearing (although she requested one). (Id.)
Fifth, Plaintiff argues, she has established an equal protection
claim under the Fourteenth Amendment for four reasons:
(a) she is a member of a protected class (in that she is
female); (b) she was qualified for her position (in that she
served in her capacity as CRB Administrator for 17 years,
held more educational credentials than required, and had
never been disciplined or reprimanded); (c) she suffered an
adverse employment action (in that she was terminated from
her employment); and (d) the circumstances surrounding the
employment action give rise to an inference of discrimination
(in that a similarly-situated male was not disciplined for
conduct that Plaintiff was accused of committing but did not
actually commit). (Id.)
Sixth, Plaintiff argues, she has established an FMLA claim
for five reasons: (a) she was an eligible employee under the
FMLA (in that she had worked the previous 12 months); (b)
the City was a covered employer under the FMLA (in that it
had the requisite number of employees); (c) she was entitled
to the leave of absence (in that her maternity leave had been
approved by the CRB prior to October of 2010); (d) she gave
notice to the City of her intention to take leave (in that the City
had such notice on or before October 6, 2010, and later when
she emailed the City requesting an FMLA form); and (e) she
was denied benefits to which she was otherwise entitled (in
that the termination interrupted her light duty leave, and the
reason for the termination was a pretext for discrimination).
(Id .)
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*10 Seventh, Plaintiff argues, she has established a
retaliation claim under the First Amendment for four reasons:
(a) her testimony at the hearing of January 24, 2011, was
protected speech; (b) the subject about which she was called
to testify was of public concern in that police misconduct
has been recognized as being of public interest; (c) the
proximity of her termination to her testimony (i.e ., 10
days) demonstrates discriminatory animus; and (d) Defendant
Miner is not protected by qualified immunity (in that
Plaintiff's First Amendment rights were clearly established
at the time of her termination due to the fact that Jackler v.
Bryne, 658 F.3d 225 [2d Cir.2011] was decided in February
of 2011). (Id.)
3. Defendants' Reply Memorandum of Law
Generally, in their reply memorandum of law, Defendants
assert seven arguments. (Dkt. No. 72 [Defs.' Reply Memo. of
Law].)
First, Defendants argue, Plaintiff has taken liberties with the
record in two ways: (a) she cites to the record nowhere in her
opposition memorandum of law; and (b) for the most part,
her primary evidence (her own affidavit) is not based on her
personal knowledge, contains inadmissible material such as
hearsay, and/or sets forth legal conclusions. (Id.)
Second, Defendants argue, Plaintiff's denials of Defendants'
statements of material fact are ineffective for four reasons:
(a) she denies many facts about which she could not
possibly have any firsthand knowledge or evidence (e.g.,
conversations or telephone calls to which she was not a
party, decisions made and impressions held by Mayor Miner,
pre-trial events in the Paulk matter), as often is evident by
her reliance on her “information and belief”; (b) she denies
several facts about matters that are independently verifiable
based on court records or documentary evidence, and about
which she has no admissible evidence to dispute (e.g., the
existence and contents of the Paulk subpoena, the date of the
Paulk trial, the Paulk jury verdict, and the date and contents of
the State Comptroller's report); (c) she denies material facts
that she plainly admitted in her own prior sworn testimony
(e.g., the fact that a process server attempted to serve her at
her home, the fact that she did not call McGinty or Doyle after
receiving a voice mail from Brickwedde, and the fact that she
was aware of the Paulk case prior to the trial); and (d) in many
instances, she muddles Defendants' fact statements by going
off in another direction she likes better, which is insufficient
to call Defendants' facts into dispute). (Id.)
Third, Defendants argue, Plaintiff fails to save her pregnancy-
discrimination claim for three reasons: (a) in her attempt to
establish pretext, she relies on the incorrect legal standard
(i.e., one applicable in a mixed-motive case, which this
is not); (b) in any event, her conspiracy theory (i.e., that
the subpoena incident was a strategic effort to adversely
impact and compromise Plaintiff due to her pregnancy) is
supported only by speculation and hearsay, and contradicts
the testimony of McGinty, Perez–Williams and Mayor Miner;
and (c) her excuses for her own ineffectiveness and the
CRB's ineffectiveness do not establish pretext (and fail to
show that the City's belief that she did, in fact, know that a
subpoena existed, was not honestly held at the time it decided
to terminate her employment). (Id.)
*11 Fourth, Defendants argue, Plaintiff fails to save her
retaliation claim under Title VII and the Executive Law
for two reasons: (a) to avoid dismissal of this claim, she
must provide sufficient, competent evidence that Defendants'
counterclaims are the product of retaliatory animus; and
(b) instead, Plaintiff offers only speculation (e.g., regarding
Common Councilors' knowledge of her private legal practice)
and misstatements of record evidence (e.g., regarding
the scope and source of Mayor Miner's knowledge of
Plaintiff's private legal practice, and the nature of the City's
authorization of a CLE course that Plaintiff attended). (Id.)
Fifth, Defendants argue, Plaintiff fails to save her due process
claim under the Fourteenth Amendment for two reasons: (a)
the single case that Plaintiff cites in support of her argument
that she had an implied employment contract (Potts v. City
of Utica, 86 F.2d 616 [2d Cir.1936] ) is, in addition to being
old, factually distinguishable from the current case; and (b)
the sole record evidence that Plaintiff adduces in support of
her argument that she had an implied employment contract
(i.e., the affidavit of former-CRB Board member Homer
Davis) is speculative (in that the Davis ceased serving as
a CRB Board member in 2008) and immaterial (in that it
addresses a purported agreement to allow Plaintiff to practice
law privately on City time), and in any event actually supports
the fact that Plaintiff served at-will (albeit at the will of the
CRB). (Id.)
Sixth, Defendants argue, Plaintiff fails to save her FMLA
claim for two reasons: (a) her argument that Defendants
interfered with her leave by terminating her while on “light
duty leave” implies that any termination while on FMLA
leave is a violation of the FMLA, which is not the law; (b)
as established by Defendants earlier, Plaintiff was terminated
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for legitimate, non-discriminatory reasons, and she has not
presented sufficient evidence to rebut these reasons. (Id.)
Seventh, Defendants argue, Plaintiff fails to save her
retaliation claim under the First Amendment for two reasons:
(a) by focusing on whether her testimony at the Paulk
hearing was protected speech, Plaintiff ignores Mayor Miner's
position that there is no causal connection between that
testimony and Plaintiff's termination; and (b) in any event,
she has not overcome Mayor Miner's entitlement to qualified
immunity because, although the case of Jackler v. Bryne,
658 F.3d 225 (2d Cir.2011), was decided in July of 2011,
the contrary case of Bearss v. Hilton, 445 F. App'x 400 (2d
Cir.2011), was decided in November of 2011, rendering the
state of the law not “clearly established” when Mayor Miner
acted. (Id.)
II. GOVERNING LEGAL STANDARD
Under Fed.R.Civ.P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed.R.Civ.P. 56(a). 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. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In addition, “[the moving party] bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the ... [record] which
it believes demonstrate[s] the absence of any genuine issue
of material fact.” Celotex v. Catrett, 477 U.S. 317, 323–24
(1986). However, when the moving party has met this initial
responsibility, the nonmoving party must come forward with
specific facts showing a genuine issue of material fact for trial.
Fed.R.Civ.P. 56(a),(c),(e).
*12 A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the
novmoving party.” Anderson, 477 U.S. at 248. As a result,
“[c]onclusory allegations, conjecture and speculation ... are
insufficient to create a genuine issue of fact.” Kerzer v.
Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) [citation
omitted]. As the Supreme Court has famously explained,
“[The nonmoving party] must do more than simply show
that there is some metaphysical doubt as to the material
facts” [citations omitted]. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585–86 (1986).
As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
[citation omitted].
Implied in the above-stated burden-shifting standard is
the fact that, where a nonmoving party willfully fails to
adequately respond to a motion for summary judgment, a
district court has no duty to perform an independent review
of the record to find proof of a factual dispute—even if that
nonmoving party is proceeding pro se . 76 (This is because
the Court extends special solicitude to the pro se litigant
largely by ensuring that he or she has received notice of the
consequences of failing to properly respond to the motion
for summary judgment.) 77 As has often been recognized by
both the Supreme Court and Second Circuit, even pro se
litigants must obey a district court's procedural rules. 78 For
this reason, this Court has often enforced Local Rule 7.1(a)
(3) by deeming facts set forth in a moving party's statement to
have been admitted where the nonmoving party has willfully
failed to properly respond to that statement 79 —even where
the nonmoving party was proceeding pro se in a civil rights
case. 80
Finally, generally, special solicitude is not extended to pro
se litigants who are attorneys. See e.g., Harbulak v. Suffolk,
654 F.2d 194, 198 (2d Cir.1981) (“[Plaintiff] is a lawyer and,
therefore, cannot claim the special consideration which the
courts customarily grant to pro se parties.”); Davey v. Dolan,
453 F.Supp.2d 749, 754 (S.D.N.Y.2006) (“[P]laintiff here is
also a member of the New York bar and his papers will be
viewed accordingly .”) 81
III. ANALYSIS
A. Plaintiff's Sex–Discrimination Claims Against the
City Under Title VII and the Executive Law
After carefully considering the matter, the Court dismisses
these claims for the reasons stated in Defendants' memoranda
of law. See, supra, Part I.C. of this Decision and Order.
B. Plaintiff's Retaliation Claims Against the City
Under Title VII and the Executive Law
After carefully considering the matter, the Court dismisses
these claims for the reasons stated in Defendants' memoranda
of law. See, supra, Part I.C. of this Decision and Order.
To those reasons, the Court would only add one point.
Plaintiff's reliance on the motivating-factor standard (in her
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opposition memorandum of law of October 21, 2014) ignores
the Supreme Court's decision (of June 24, 2013) in Univ. of
Tex. SW Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013), in which
the Court held that the level of causation that must be proved
in a Title VII retaliation claim is one of but-for causation.
C. Plaintiff's Aiding–and–Abetting Claims Against
Mayor Miner Under the Executive Law
*13 After carefully considering the matter, the Court
dismisses these claims for the reasons stated in Defendants'
memoranda of law. See, supra, Part I.C. of this Decision and
Order. To those reasons, the Court would only add one point.
In the alternative, the Court would dismiss this claim without
prejudice to refiling in state court pursuant to 28 U.S.C. §
1367 due to the fact that no federal claims survive Defendants'
motion.
D. Plaintiff's Due Process Claim Against Defendants
Under the Fourteenth Amendment
After carefully considering the matter, the Court dismisses
this claim for the reasons stated in Defendants' memoranda of
law. See, supra, Part I.C. of this Decision and Order. To those
reasons, the Court would only add two points.
First, the Second Circuit's decision in Potts v. City of Utica,
86 F.2d 616 (2d Cir.1936), is distinguishable from the current
case in that, in addition to not addressing a due process claim,
it did not address the issue of whether an implied employment
contract had been created by the fact that each year a different
configuration of board members of a city agency exercised its
discretion not to remove a city employee for good cause.
Second, in any event, there is a lack of admissible record
evidence from which a rational fact-finder could conclude that
the CRB Board members in fact exercised their discretion
not to remove Plaintiff for good cause each year (especially
during the years 2009 and 2010). As an initial matter, it
can hardly be said that there was a different configuration
of the Board each year. See, supra, Paragraphs 52(d) and
52(k) of Part I.B.of this Decision and Order. Moreover,
even if there had been a different configuration each year,
Plaintiff points to no record evidence establishing that the
issue of her continued employment was raised annually at
CRB meetings. (See generally Dkt. No. 67, Attach. 9 [Plf.'s
Opp'n Memo. of Law].) Finally, even if the issue had been so
raised, Plaintiff has adduced evidence admitting that the CRB
experienced problems gathering a quorum to take official
action in resolving that issue. (Dkt. No. 67, Attach. 1, at Par.
16 [Homer Davis Affid.].) See also Paragraph 52(d) of Part
I.B.of this Decision and Order.
E. Plaintiff's Equal Protection Claim Against Mayor
Miner Under the Fourteenth Amendment
After carefully considering the matter, the Court dismisses
this claim for the reasons stated in Defendants' memoranda of
law. See, supra, Part I.C. of this Decision and Order.
F. Plaintiff's FMLA Claim Against the City
After carefully considering the matter, the Court dismisses
this claim for the reasons stated in Defendants' memoranda of
law. See, supra, Part I.C. of this Decision and Order.
G. Plaintiff's Retaliation Claim Against Mayor Miner
Under the First Amendment
After carefully considering the matter, the Court dismisses
this claim for the reasons stated in Defendants' memoranda of
law. See, supra, Part I.C. of this Decision and Order. To those
reasons, the Court would only add two points.
*14 First, the fact that Mayor Miner was previously aware
of Plaintiff's representation of her husband in a lawsuit while
she was employed as the Administrator of the CRB does not
mean that Miner knew that Plaintiff was regularly engaged
in a private law practice in City office space, using a City-
paid secretary and City computer during the hours that she
claimed to have worked for the City. The sole admissible
record evidence on this subject is that Miner did not have
such knowledge. (Compare Dkt. No. 63, Attach. 8, at ¶¶
33–34 [Miner Decl., admitting awareness that Plaintiff had
represented husband in case in which he was the plaintiff, but
denying knowledge of scope of Plaintiff's legal practice] and
Dkt. No. 67, Attach. 5, at 3–5, 6–7 [attaching pages “11,”
“12,” “13,” “47,” and “48” of Miner's Dep. Tr., stating that she
worked on case in which Plf.'s husband was a plaintiff, and
had occasion to believe Plaintiff represented him in that case]
with Dkt. No. 67, Attach. 1, at ¶¶ 24–25 [Homer Davis Affid.,
asserting “[u]pon information and belief” that Miner knew
Plaintiff “was a practicing attorney”] and Dkt. No. 67, at ¶¶
40–41 [Plf.'s Decl., asserting Miner's notice of case in which
Plaintiff was the lead attorney “sometime in 2001–2002,” and
fact that “[m]any councilor's [sic] knew I was practicing”].)
Second, in any event, Plaintiff is incorrect when she argues
that her First Amendment rights were clearly established at
the time of her termination because Jackler v. Bryne, 658
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F.3d 225 (2d Cir.2011), was decided in February of 2011.
In fact, Jackle r was not decided until July 22, 2011. It was
merely argued in February of 2011. Moreover, that argument
did not occur until February 24, 2011–20 days after Plaintiff's
termination on February 4, 2011. Simply stated, the state of
the law was not clearly established on February 4, 2011.
ACCORDINGLY, it is
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 63) is GRANTED; and it is further
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 6)
is DISMISSED.
The parties are advised that remaining in this action are
Defendants' four counterclaims against Plaintiff.
All Citations
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Footnotes
1 The Court notes that, under Fed.R.Civ.P. 56 and N.D.N.Y. Local Rule 7.1, there is no procedure by which
a non-movant may assert a “counter statement of [undisputed] material facts” in response to a motion for
summary judgment: the vehicle for such undisputed material facts would be a cross-motion for summary
judgment (i.e., one seeking a judgment due to a lack of a genuine dispute of material fact). See Fed.R.Civ.P.
56(a); N .D.N.Y. L.R. 7.1(a)(3).
2 (Compare Dkt. No. 63, Attach. 1, at ¶ 1 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 1 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
3 (Compare Dkt. No. 63, Attach. 1, at ¶ 2 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 2 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
4 (Dkt. No. 63, Attach. 8, at ¶ 7 [Miner Decl.].) See also City of Syracuse Local Law 11 of 1993 § 6(3)(a),(b).
5 (Dkt. No. 63, Attach. 3, at 7 [attaching page “38” of Davis Dep. Tr.].) See also City of Syracuse Local Law
11 of 1993 §§ 1, 4(2), 5(1).
6 (Compare Dkt. No. 63, Attach. 1, at ¶ 5 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 5 [Plf.'s Rule 7.1 Response, citing record evidence that fails to
controvert fact asserted, and in any event that fails show personal knowledge sufficient to controvert fact
asserted].)
7 (Compare Dkt. No. 63, Attach. 1, at ¶ 6 [Defs.' Rule 7.1 Statement, citing Paragraph 9 of Miner Declaration,
which supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 6 [Plf.'s Rule 7.1 Response, citing record
evidence that fails to controvert fact asserted, and in any event that fails show personal knowledge sufficient
to controvert fact asserted].)
8 (Dkt. No. 63, Attach. 8, at ¶¶ 10–11 [Miner Decl.].)
9 (Dkt. No. 63, Attach. 8, at ¶ 10 [Miner Decl.].)
10 (Compare Dkt. No. 63, Attach. 1, at ¶ 9 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 9 [Plf.'s Rule 7.1 Response, failing to cite record evidence that
controverts fact asserted].)
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11 (Compare Dkt. No. 63, Attach. 1, at ¶ 10 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 10 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
12 (Compare Dkt. No. 63, Attach. 1, at ¶ 11 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 11 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 16–
17, 70 (N.D.N.Y. filed Feb. 9, 2011).
13 (Compare Dkt. No. 63, Attach. 1, at ¶ 12 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 12 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
14 (Compare Dkt. No. 63, Attach. 1, at ¶ 13 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 13 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
15 (Compare Dkt. No. 63, Attach. 1, at ¶ 14 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 14 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 16–
17, 70 (N.D.N.Y. filed Feb. 9, 2011).
16 (Compare Dkt. No. 63, Attach. 1, at ¶ 15 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 15 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
17 (Compare Dkt. No. 63, Attach. 1, at ¶ 16 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 16 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
18 (Compare Dkt. No. 63, Attach. 1, at ¶ 17 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 17 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
19 (Compare Dkt. No. 63, Attach. 1, at ¶ 18 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 18 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
20 (Compare Dkt. No. 63, Attach. 1, at ¶ 19 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 19 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
21 (Compare Dkt. No. 63, Attach. 1, at ¶ 20 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 20 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
22 (Compare Dkt. No. 63, Attach. 1, at ¶ 21 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 21 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 31–
37 (N.D.N.Y. filed Feb. 9, 2011).
23 (Compare Dkt. No. 63, Attach. 1, at ¶ 22 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 22 [Plf.'s Rule 7.1 Response, citing record evidence that does not
regard the awareness of McGinty and Doyle on October 28 but their awareness of October 29 when McGinty
called Plaintiff's office and was told by her secretary that she was out on maternity leave].)
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24 (Compare Dkt. No. 63, Attach. 1, at ¶ 23 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 23 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
25 (Compare Dkt. No. 63, Attach. 1, at ¶ 24 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 24 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
26 (Compare Dkt. No. 63, Attach. 1, at ¶ 25 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 25 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
27 (Compare Dkt. No. 63, Attach. 1, at ¶ 26 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 26 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
28 (Compare Dkt. No. 63, Attach. 1, at ¶ 27 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 27 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
29 (Compare Dkt. No. 63, Attach. 1, at ¶ 28 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 28 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
30 (Dkt. No. 67, at ¶ 15 [Plf.'s Decl.]; Dkt. No. 67, Attach. 4, at 5 [attaching page “33” of transcript of January
2010 hearing in Paulk ]; cf. Dkt. No. 63, Attach. 11, at 9 [Ex. B to Perez–Williams Decl., attaching letter from
Plaintiff to Perez–Williams dated Dec. 3, 2010 stating that Plaintiff had informed Brickwedde that she “had
not seen any subpoena”].)
31 (Compare Dkt. No. 63, Attach. 1, at ¶ 30 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 30 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
32 (Compare Dkt. No. 63, Attach. 1, at ¶ 31 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 26 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
33 (Compare Dkt. No. 63, Attach. 1, at ¶ 32 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 32 [Plf.'s Rule 7.1 Response, citing to record evidence that
fails to controvert fact asserted].)
34 (Compare Dkt. No. 63, Attach. 1, at ¶ 33 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 33 [Plf.'s Rule 7.1 Response, citing to record evidence that
fails to controvert fact asserted].)
35 (Compare Dkt. No. 63, Attach. 1, at ¶ 34 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 34 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact
asserted, and/or impugning judgment of McGinty, neither of which suffices to controvert fact asserted].)
36 (Compare Dkt. No. 63, Attach. 1, at ¶ 35 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 35 [Plf.'s Rule 7.1 Response, merely denying knowledge offact
asserted, which fails to controvert that fact].)
37 (Dkt. No. 63, Attach. 7, at ¶¶ 14, 21 [McGinty Decl.]; cf. Dkt. No. 67 [Plf.'s Decl., merely denying personal
knowledge of the CRB's receipt of such a request in 2008].)
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38 (Compare Dkt. No. 63, Attach. 1, at ¶ 39 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 39 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact
asserted, which fails to controvert that fact].)
39 (Compare Dkt. No. 63, Attach. 1, at ¶ 40 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 40 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact
asserted, which fails to controvert that fact].)
40 (Compare Dkt. No. 63, Attach. 1, at ¶ 42 [Defs.' Rule 7.1 Statement, citing to record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 42 [Plf.'s Rule 7 .1 Response, merely denying knowledge
of fact asserted, which fails to controvert that fact].) See also Paulk v. Lester, 06–CV–1343, Plf.'s Memo. of
Law (N.D.N.Y. filed Nov. 8, 2010).
41 (Compare Dkt. No. 63, Attach. 1, at ¶ 43 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 43 [Plf.'s Rule 7.1 Response, citing to record evidence that fails
to controvert fact asserted].) See also Paulk v. Lester, 06–CV–1343, Plf.'s Supplemental Affirm. (N.D.N.Y.
filed Nov. 16, 2010).
42 (Dkt. No. 63, Attach. 7, at ¶ 18 [McGinty Decl.]; Dkt. No. 63, Attach. 10, at ¶ 8 [Perez–Williams Decl.]; cf. Dkt.
No. 67, Attach. 10 [Plf.'s Rule 7.1 Response, citing record evidence that does not controvert fact asserted].)
43 (Compare Dkt. No. 63, Attach. 1, at ¶ 46 [Defs.' Rule 7.1 Statement, citing to record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 46 [Plf.'s Rule 7 .1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
44 (Compare Dkt. No. 63, Attach. 1, at ¶ 47 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 47 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
45 (Compare Dkt. No. 63, Attach. 1, at ¶ 48 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 48 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
46 (Compare Dkt. No. 63, Attach. 1, at ¶ 49 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 49 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
47 (Compare Dkt. No. 63, Attach. 1, at ¶ 50 [Defs.' Rule 7.1 Statement, citing to record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 50 [Plf.'s Rule 7 .1 Response, citing record evidence that
fails to controvert facts asserted].)
48 (Id.)
49 (Id.)
50 (Id.)
51 (Compare Dkt. No. 63, Attach. 1, at ¶ 51 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
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52 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(a) [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(a) [Plf.'s Rule 7.1 Response, citing record evidence that
fails to controvert facts asserted].)
53 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(b) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(b) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
54 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(c) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(c) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
55 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(d) [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(d) [Plf.'s Rule 7.1 Response, failing to either deny facts
asserted or cite record evidence that controverts facts asserted].)
56 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(e) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(e) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
57 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(f) [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(f) [Plf.'s Rule 7.1 Response, failing to either deny facts
asserted or cite record evidence that controverts facts asserted].)
58 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(g) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(g) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
59 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(h) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(h) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
60 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(i) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(i) [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
61 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(j) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(j) [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
62 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(k) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(k) [Plf.'s Rule 7.1 Response, failing to cite any record
evidence].)
63 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(l) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(l) [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
64 (Compare Dkt. No. 63, Attach. 1, at ¶ 53 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 53 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
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65 (Compare Dkt. No. 63, Attach. 1, at ¶ 54 [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 54 [Plf.'s Rule 7.1 Response, citing record evidence that
fails to controvert facts asserted].)
66 (Compare Dkt. No. 63, Attach. 1, at ¶ 55 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 55 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
67 (Compare Dkt. No. 63, Attach. 1, at ¶ 56 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 56 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
68 (Compare Dkt. No. 63, Attach. 1, at ¶ 57 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 57 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
69 (Compare Dkt. No. 63, Attach. 1, at ¶ 58 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 58 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
70 (Compare Dkt. No. 63, Attach. 1, at ¶ 59 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 59 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
71 (Compare Dkt. No. 63, Attach. 1, at ¶ 60 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 60 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
72 (Compare Dkt. No. 63, Attach. 1, at ¶ 61 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 61 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
73 (Compare Dkt. No. 63, Attach. 1, at ¶ 62 [Defs.' Rule 7.1 Statement, citing record evidence that supports facts
asserted] with Dkt. No. 67, Attach. 10, at ¶ 62[Plf.'s Rule 7.1 Response, failing to cite any record evidence
that controvert facts asserted].)
74 (Compare Dkt. No. 63, Attach. 1, at ¶ 63 [Defs.' Rule 7.1 Statement, citing record evidence that supports facts
asserted] with Dkt. No. 67, Attach. 10, at ¶ 63 [Plf.'s Rule 7.1 Response, failing to cite any record evidence
that controvert facts asserted].)
75 (Compare Dkt. No. 63, Attach. 1, at ¶ 64 [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 64 [Plf.'s Rule 7.1 Response, either admitting or denying
knowledge of facts asserted].)
76 Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n. 2 (N.D.N.Y.209) (Suddaby, J.) (citing cases).
77 Cusamano, 604 F.Supp.2d at 426 & n. 3 (citing cases). The Court notes that Plaintiff was served with such
a notice in this case. (Dkt. No. 63, Attach.14.)
78 Cusamano, 604 F.Supp.2d at 426–27 & n. 4 (citing cases).
79 Among other things, Local Rule 7.1(a)(3) requires that the nonmoving party file a response to the moving
party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in
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matching numbered paragraphs, and supports any denials with a specific citation to the record where the
factual issue arises. N.D.N.Y. L.R. 7.1(a)(3).
80 Cusamano, 604 F.Supp.2d at 427 & n. 6 (citing cases).
81 This is because the rationale for conferring special solicitude to pro se litigants is that, as non-attorneys, they
are inexperienced or unfamiliar with legal procedures or terminology. See John C. Rothermich, “Ethical and
Procedural Implications of ‘Ghostwriting’ for Pro Se Litigants: Toward Increased Access to Civil Justice,” 67
Fordham L.Rev. 2687, 2697 (Apr.1999) (“[T]he special leniency afforded pro se pleadings in the courts ... is
designed to compensate for pro se litigants' lack of legal assistance.”).
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Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Neural Magic, Inc. v. Meta Platforms, Inc., D.Mass.,
March 6, 2023
2004 WL 3691343
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael DEVITO, Plaintiff,
v.
SMITHKLINE BEECHAM CORPORATION
d/b/a Glaxosmithkline, Defendant.
No. Civ.A. 02–CV–0745NPM.
|
Nov. 29, 2004.
Attorneys and Law Firms
De Lorenzo Law Firm, LLP, Schenectady, New York, for
Plaintiff, Scott Lieberman, of counsel.
Phillips Lytle, LLP, Buffalo, New York, for Defendant, Paul
B. Zuydhoek, of counsel.
King & Spalding, LLP, Atlanta, Georgia, for Defendant,
Chilton D. Varner, of counsel.
MEMORANDUM–DECISION AND ORDER
MCCURN, Senior J.
I. Preclusion Motion........................................................................................................ 4
A. Standard for Admissibility of Expert Evidence........................................................... 6
1. Deborah L. Sweeney.................................................................................................. 9
a. Qualified?.................................................................................................................... 9
2. Kevin W. George, M.D............................................................................................... 10
3. James T. O'Donnell.................................................................................................... 13
a. General Causation...................................................................................................... 14
i. Qualified?..................................................................................................................... 14
ii. Reliability of Testimony?............................................................................................. 17
b. Specific Causation...................................................................................................... 19
c. Warnings..................................................................................................................... 19
i. Qualified?..................................................................................................................... 20
ii. Reliability of Testimony?............................................................................................. 22
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II. Summary Judgment Motion........................................................................................ 24
Introduction
*1 “Between 1987 and 1997, the percentage of Americans
being treated for depression more than tripled nationwide[.]”
Shankar Vedantam, Report Shows Big Rise in Treatment
for Depression, WASH. POST, Jan. 9, 2002, at A01. In
December 1996, plaintiff Michael DeVito became one of
those Americans. At that time, his primary care physician
prescribed Paxil, a selective serotonin reuptake inhibitor
(“SSRI”). Mr. DeVito takes Paxil to this day, despite attempts
through the years to discontinue. DeVito claims that he cannot
discontinue taking Paxil because he has become “dependent”
upon it. Affidavit of Robert E. Glanville (Oct. 20, 2003),
exh. A thereto (Complaint) at 2, ¶ 9. More specifically,
plaintiff alleges that he has been unable to stop taking
Paxil due to what he characterizes as “withdrawal reactions”
or “dependency/withdrawal syndrome,” which according to
plaintiff “includ[es], but [is] not limited to, dizziness, nausea,
shaking, electrical-like shocks and horrible dreams.” Id. at 2,
¶¶ 7 and 6.
In this lawsuit plaintiff alleges five causes of action against
the manufacturer of Paxil, defendant Smithkline Beecham
Corporation d/b/a Glaxo Smithkline (“Glaxo”): (1) fraud; (2)
negligence; (3) strict liability; (4) breach of express warranty;
and (5) breach of implied warranty. There is a great deal
of overlap among these five causes of action. The thrust of
plaintiff's complaint is that Glaxo failed to adequately warn
of “Paxil's addictive qualities and dependency/withdrawal
characteristics[.]” Id. at 6, ¶ 19; see also id. at 3, ¶ 11b); at 7,
¶ 25; and at 8, ¶ 33. 1
Discovery is complete and Glaxo is now moving for
summary judgment pursuant to Fed.R.Civ.P. 56. Pursuant to
Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S .Ct. 2786 (1993), Glaxo is also moving to
preclude the testimony of the three witnesses whom plaintiff
is proffering as experts. The court will address Glaxo's
motion to preclude first because if any or all of the proffered
testimony is inadmissible, then that could significantly impact
Glaxo's summary judgment motion in terms of the admissible
proof before the court. See Toole v. Toshin Co. Ltd ., No.
00–CV–821S, 2004 WL 2202580, at *4 (W.D.N.Y. Sept.
29, 2004) (granting defense motion to preclude testimony
of plaintiff's expert and declining to consider his report on
summary judgment motion).
I. Preclusion Motion
Each of the five causes of action which plaintiff alleges
requires him to prove causation. “Under settled New York
law, whether the action is pleaded in strict products liability,
breach of warranty or negligence, the plaintiff in a products
liability case bears the burden of establishing that a defect
in the product as a substantial factor in causing the
injury.” Prohaska v. Sofamor, S.N.C., 138 F.Supp.2d 422,
434 (W.D.N.Y.2001) (internal quotation marks and citation
omitted). Common law fraud likewise “requires a showing of
proximate causation, such that the injury is the natural and
probable consequence of the defrauder's misrepresentation
or ... the defrauder ought reasonably to have foreseen that the
injury was a probable consequence of his fraud.” Cyber Media
Group, Inc. v. Island Mortgage Network, Inc., 183 F.Supp.2d
559, 580 (E.D.N.Y.2002) (internal quotation marks and
citation omitted). To establish causation here, plaintiff DeVito
“must offer admissible testimony regarding both general
causation,” i.e. that Paxil can cause the type of symptoms of
which plaintiff complains when attempting to discontinue that
drug, “and specific causation,” i.e. that Paxil actually caused
DeVito's alleged symptoms upon discontinuation of Paxil.
See Amorgianos v. National Railroad Passenger Corporation,
303 F.3d 256, 268 (2d Cir.2002) (citation omitted) (emphasis
added); see also Blanchard v. Eli Lilly & Co., 207 F.Supp.2d
308, 314 (D . Vt.2002) (citations omitted) (“Plaintiffs ...
must prove both general and specific causation in order to
prevail on their claim, that is, that Prozac is capable of
causing and in fact did cause the deaths in this case.”). In the
context of Paxil litigation, “the general causation question is
limited to whether discontinuation from Paxil is capable of
causing dizziness, agitation, anxiety, nausea, etc.” In re Paxil
Litigation, 218 F.R.D. 242, 249 (C.D.Cal.2003). Specific
causation, on the other hand, focuses on whether a plaintiff
can “prove that [his] symptoms came from Paxil, as opposed
to, for example, the relapse of the underlying illness or the
consumption or discontinuation of other drugs.” Id.
*2 To establish causation, plaintiff DeVito seeks to offer
the testimony of three “expert” witnesses: (1) Mr. John T.
O'Donnell, a pharmacist with a Master's Degree in nutrition;
(2) Dr. Kevin W. George, a former psychiatrist of plaintiff's;
and (3) Ms. Deborah Sweeney, plaintiff's treating nurse
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practitioner. Glaxo is seeking to “preclude ... [these] experts
from offering any opinion that: (I) Paxil causes substance
dependence, or is either addictive or habit-forming; or (ii)
that plaintiff is addicted to Paxil or has developed substance
dependence as a result of taking it.” Memorandum of Law in
Support of Glaxosmithkline's Motion to Preclude Plaintiff's
Experts' Testimony Pursuant to Fed.R.Evid. 702 and Daubert
(“Def. Preclude Memo.”) at 4. In preparation for trial, each
of these witnesses has been deposed and Mr. O'Donnell has
provided an “expert” report on plaintiff's behalf. Apart from
these witnesses, plaintiff proffers no other causation evidence.
To support his theory that Paxil is defective due to an
inadequate warning, plaintiff is relying solely upon the
deposition testimony and “expert” report of Mr. O'Donnell.
Glaxo argues for the preclusion of “[h]is warnings ‘opinions”
’ because O'Donnell is not qualified to testify on that issue
and even if he were, “his opinions are neither reliable nor
scientific.” Def. Preclude Memo. at 24.
A. Standard for Admissibility of Expert Evidence
There is a two-part inquiry in deciding the admissibility
of expert evidence. First, in accordance with Fed.R.Evid.
702, “[t]he court should admit specialized expert testimony
if the witness is ‘qualified as an expert by knowledge,
skill, experience, training or education’ and his testimony
‘will assist the trier of fact to understand the evidence or
to determine a fact in issue.” ’ Nora Beverages, Inc. v.
Perrier Group of America, Inc., 164 F.3d 736, 746 (2d
Cir.1998) (quoting Fed.R.Evid. 702); see also Kass v. West
Bend Company, No. 02–CV–3719, 2004 WL 2475606, at *4
(E.D.N.Y. Nov. 4, 2004) (citation omitted) (“As a threshold
matter, the court must examine [the witness'] qualifications
to testify about alternative ... designs.”) Second, “in the form
of an opinion or otherwise,” the court must insure that “(1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.” Fed.R.Evid. 702. In other
words, whether an expert witness' “opinion is ultimately
admissible depend on the reliability and relevance of the
proffered testimony.” Kass, 2004 WL 2475606, at *5.
In this regard, the Supreme Court has instructed the by now
oft-cited rule that a district court must act as “a gatekeeper to
exclude invalid and unreliable expert testimony.” Bonton v.
City of New York, No. 03 Civ. 2833, 2004 WL 2453603, at *2
(S.D.N.Y. Nov. 3, 2004) (citation omitted). This gatekeeping
obligation applies whether the proposed expert testimony is
based upon scientific knowledge, “technical,” or some other
“specialized” knowledge. See Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141, 119 S.Ct. 1167, 1171 (1999) (citing
Fed.R.Evid. 702). As with other types of evidence, the
court must also bear in mind that under Rule 403, even
relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of issues, or misleading the jury.” Fed.R.Evid.
403. In Daubert the Supreme Court soundly reasoned that
“[e]xpert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it. Because of this risk,
the judge in weighing possible prejudice against probative
force under Rule 403 ... exercises more control over experts
than over lay witnesses.” Daubert, 509 U.S. at 595, 113 S.Ct.
at 2798 (quotation marks and citation omitted) (emphasis
added). Finally, it should be noted that “[t]he proponent
of expert evidence must establish admissibility under Rule
104(a) of the Federal Rules of Evidence by a preponderance
of the proof.” Bonton, 2004 WL 2453603, at *2 (citing
Bourjaily v. United States, 483 U.S. 171, 175–76 (1987)).
This burden is the same regardless of whether the issue is
the “qualification[s] of a person to be a witness, ..., or the
admissibility of the evidence” itself. Fed.R.Evid. 104(a). In
the present case, this requires plaintiff Devito to prove by a
preponderance of the evidence that each of the three witnesses
whom he is proposing to call as an expert qualify as such; and
that the proposed testimony of each is admissible.
*3 “In assessing expert qualifications, ‘[l]iberality and
flexibility in evaluating qualifications should be the rule; the
proposed expert should not be required to satisfy an overly
narrow test of his own qualifications.” ’ Kass, 2004 WL
2475606, at *4 (quoting Lappe v. American Honda Motor
Co., Inc., 857 F.Supp. 222, 227 (N.D.N.Y.1994) aff'd 101 F.3d
682 (2d Cir.1996)). “So long as the expert stays within the
‘reasonable confines of his subject area,’ the expert can fairly
be considered to possess the ‘specialized knowledge’ required
by Rule 702.” Id. (quoting Lappe, 857 F.Supp. at 227) (other
citation omitted).
“In Daubert, the Supreme Court articulated four factors
pertinent to determining the reliability of an expert's
reasoning or methodology: (1) whether the theory or
technique relied on has been tested; (2) whether the theory or
technique has been subjected to peer review and publication;
(3) whether there is a known or potential rate of error and
the existence and maintenance of standards controlling the
technique's operation; and (4) whether the theory or method
has been generally accepted by the scientific community.”
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Id. (citing Daubert, 509 U.S. at 593–94, 113 S.Ct. at 2796–
97). “These factors do not, however, constitute a ‘definitive
checklist or test.” ’ Id. (quoting Daubert, 509 U.S. at 593,
113 S.Ct. at 2796). “Rather, they are intended to be applied
flexibly, depending on the particular circumstances of the
particular case at issue.” Id. (citing Kumho Tire, 526 U.S. at
150, 119 S.Ct. at 1175).
In Kumho, the Supreme Court recognized that “when
evaluating the admissibility of non-scientific expert
testimony, the standard under Rule 702 is a liberal and flexible
one, and the factors outlined in Daubert are merely guidelines
in aiding a court's reliability determination.” Houlihan v.
Marriott International, Inc., No. 00 Civ. 7439, 2003 WL
22271206, at *3 (S.D.N.Y. Sept. 30, 2003) (citing Kuhmo, 526
U.S. at 151, 119 S.Ct. at 1175). “For example, in some cases,
reliability concerns may focus on personal knowledge or
experience rather than strict scientific methods.” Id. (citation
omitted). Regardless of which criteria a court applies to assess
the admissibility of expert testimony, “the Supreme Court has
made clear that the district court has a ‘gatekeeping function’
under Rule 702—is charged with ‘the task of ensuring that
an expert's testimony both rests on a reliable foundation and
is relevant to the task at hand.” ’ Amorgianos, 303 F.3d at
265 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786)
(other citation omitted). Finally, it should be noted that “ ‘the
gatekeeping inquiry must be tied to the facts of a particular
case[.]” ’ Id. at 266 (quoting Kumho Tire, 526 U.S. at 150,
119 S.Ct. at 1175).
1. Deborah L. Sweeney
a. Qualified?
Glaxo's motion to preclude the testimony of Ms. Sweeney 2
requires little if any analysis. Glaxo is moving to preclude
her testimony because it does not believe she is qualified to
testify as an expert. Additionally, Glaxo contends that “her
proposed opinion lacks a reliable scientific foundation.” Def.
Preclude Memo. at 26. Plaintiff did not bother to respond
to this aspect of Glaxo's motion. This lack of response
amounts to a concession by plaintiff that the court should
exclude Ms. Sweeney's testimony. Cf. Green v. Doukas, No.
97 CIV.8288CMGAY, 2001 WL 767069, at *8 (S.D.N.Y.
June 22, 2001) (granting motion to preclude expert testimony
because “plaintiff's failure to oppose the motion suggests ... it
has merit[ ]”). Accordingly, the court grants Glaxo's motion
to the extent it is seeking preclusion of Ms. Sweeney's
testimony. See Amaker v. Coombe, No. 96 Civ. 1622, 2003
WL 21222534, at *6 (S.D .N.Y. May 27, 2003) (granting
motion to preclude where plaintiff defaulted); see also
Martinez v. Sanders, No. 02 Civ.5624, 2004 WL 1234041, at
*3 (S.D.N.Y. June 3, 2004) (because plaintiff did not respond
to motion, court granted same on “default” theory) (and cases
cited therein).
2. Kevin W. George, M.D.
*4 Glaxo also seeks to preclude the testimony of Dr. Kevin
George. Dr. George is a psychiatrist who saw Mr. DeVito in
consultation twice—once on November 2, 2001 and again on
December 13, 2001. Glanville Aff., exh. G thereto at 51 and
76.
Glaxo is not challenging Dr. George's qualifications, but
rather the nature of his testimony. Glaxo is seeking to exclude
Dr. George's testimony because he “has expressly disavowed
all of the opinions that plaintiff ascribed to him in plaintiff's
expert disclosure.” Def. Preclude Memo. at 25. Further, even
if Dr. George had not disavowed those opinions, Glaxo argues
that his “proposed testimony [is] inadmissible because it lacks
any reliable scientific foundation.” Id.
Plaintiff's response focuses almost exclusively on Dr.
George's qualifications, which are not in dispute. As to the
opinions which plaintiff attributes to Dr. George, the sum
total of plaintiff's response is that any alleged “shortcomings”
in that testimony go to weight and credibility, and not
to admissibility. Memorandum of Law in Opposition to
Defendant's Motion to Preclude Plaintiff's Experts (“Pl. Opp'n
Preclude”) at 5. The court disagrees. As will be seen, Dr.
George's purported opinion testimony does not have simply
a few “shortcomings.” It has glaring holes in terms of
reliability, not the least of which is Dr. George's unequivocal
deposition testimony disavowing that he made the opinions
which plaintiff claims he did.
In his expert disclosure plaintiff specifically identifies Dr.
George as an “expert” whom he intends to call at the time
of trial. Glanville Aff., exh. E thereto at 1. According to
plaintiff's expert disclosure, Dr. George will testify as follows:
that in his opinion, within a degree of
reasonable medical certainty, ... [1] the
plaintiff is experiencing withdrawal
reactions from the drug Paxil and
that each time the plaintiff attempts
to ‘wean’ himself off of the drug or
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to lower the dosage of the drug, the
plaintiff experiences said withdrawal;
2) ... the plaintiff's withdrawal signs
and symptoms are a result of the
plaintiff ingesting Paxil; and 3) ... the
plaintiff has sustained injury in that
he has been unable to discontinue the
use of Paxil and has been caused to
suffer the signs and symptoms of the
withdrawal syndrome associated with
the use and attempted discontinuance
of Paxil.
Glanville Aff., exh E thereto. Dr. George is confining his
opinions to how Paxil allegedly effected plaintiff DeVito—not
whether Paxil is capable generally of causing the symptoms
of which DeVito complains. Therefore, although the plaintiff
did not specify the purpose for which he is offering Dr.
George's testimony, presumably it is being offered on the
issue of specific causation.
As noted earlier, ordinarily once a court finds a witness
qualified as an expert, the next issue is the admissibility of
that witness' opinion testimony. Here, however, it appears that
each of the opinions which plaintiff attributes to Dr. George
have been expressly disavowed in his deposition. Dr. George
was asked point blank whether he had formed any of the
three opinions quoted above, and whether he was prepared
to testify to same. Each time he answered no. See Glanville
Aff., exh. G thereto at 88–91. Obviously, if Dr. George has
not formed the opinions which plaintiff is ascribing to him,
necessarily he has no foundation, scientific or otherwise, for
same. Accordingly, the court excludes the opinion testimony
outlined above which plaintiff is attributing to Dr. George.
*5 Even if Dr. George had not expressly disavowed the
opinions set forth above, the court still must exclude his
testimony. The crux of each of these opinions is that plaintiff
DeVito has “withdrawal reactions,” or “withdrawal signs and
symptoms” caused when he attempts to discontinue or taper
below a certain dosage of Paxil. Glanville Aff., exh. E thereto.
Dr. George's deposition testimony did not so state such. To be
sure, Dr. George did testify that he used “Paxil withdrawal”
as a “label to capture what [DeVito] was describing that he
had been experiencing.” Id., exh. G thereto at 59 (emphasis
added). When later in his deposition Dr. George was pressed
as to whether or not he diagnosed plaintiff “as suffering from
Paxil withdrawal [,]” he reiterated that he “applied that label
to describe the symptoms that [DeVito] reported in relation to
tapering Paxil.” Id. at 102 (emphasis added).
There is an obvious difference between labeling a symptom
which a patient describes and actually diagnosing that person.
Significantly, Dr. George did not diagnosis plaintiff with Paxil
withdrawal. Perhaps that is because “Paxil withdrawal is
not a formal diagnosis within DMS–IV[.]” Id. at 94. (“The
DSM–IV is the Diagnostic and Statistical Manual, the fourth
revision of it, that psychiatrists generally base their diagnoses
on.” Id.) And, “[t]here is no criteria for diagnosing somebody
with Paxil withdrawal.” Id. at 60. For example, there are no
“objective tests or assessments,” aside from skin inspection
for signs of sweating, “that could have been done to determine
whether those reports [by DeVito] were genuine[.]” Id. at
62. So, Dr. George simply took plaintiff's description of his
symptoms at “face value,” and made no attempt to determine
whether [DeVito's] report of those symptoms was genuine [.]”
Id. at 62 and 79.
In light of the foregoing, even if Dr. George were inclined
to testify that Paxil specifically caused the symptoms which
plaintiff claims it did, there is no foundation for this testimony.
What is particularly revealing in this regard is Dr. George's
candor when asked: “Have you ever made any determination
as to why Mr. DeVito's tapering off of Paxil may be taking
longer than some of your other patients?” ' Id. at 100. Dr.
George replied, “I had no scientific way, ..., of explaining
why he was having such difficulty tapering off Paxil.” Id.
(emphasis added).
Further, plaintiff DeVito saw Dr. George in the latter's
capacity as a treating psychiatrist. Thus, as is plain from Dr.
George's deposition, he was concerned primarily with the
symptoms of which plaintiff complained, not determining the
underlying cause. See Munafo v. Metropolitan Transportation
Authority, Nos. 98 CV–4572, 00–CV–0134, 2003 WL
21799913, at *19 (E.D.N.Y. Jan. 22, 2003). Had Dr. George
been focusing on the underlying cause, undoubtedly he would
have performed a differential diagnosis, which “typically
includes a physical examination, clinical tests, and a thorough
case history.” Zwillinger v. Garfield Slope Housing Corp .,
No. CV 94–4009, 1998 WL 623589, at *19 (E.D.N.Y.
Aug. 17, 1998) (citations omitted). But, Dr. George did not.
Without a differential diagnosis, specific causation cannot be
established. See id. (“To establish specific causation, other
possible causes for the symptoms experienced by plaintiff
should be excluded by performing a ‘differential diagnosis.”
’)
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3. James T. O'Donnell
*6 Glaxo argues that the court must preclude O'Donnell's
testimony for two reasons. First, he is not qualified as an
expert as to the issues upon which he is being asked to opine—
general and specific causation and the adequacy of the Paxil
warnings. Second, even if he does qualify as an expert, Glaxo
contends that the court should preclude his opinions because
they lack the requisite scientific foundation and are otherwise
unreliable. Plaintiff responds that O'Donnell's “experience
and credentials are impressive [,]” whether the issue is his
qualifications to testify as an expert on causation or as an
expert on warnings. Pl. Preclude Memo. at 4. Plaintiff further
responds that regardless of whether O'Donnell is opining
on causation or warnings, any alleged “shortcomings” in
that testimony go to “weight and credibility, and not [to] ...
admissibility.” Id. at 5 (citation omitted).
Plaintiff DeVito is offering O'Donnell's testimony on three
separate issues, which require different areas of expertise. The
court will examine O'Donnell's qualifications as to each.
a. General Causation
Glaxo offers a host of reasons as to why O'Donnell “is not
an ‘expert’ on scientific issues concerning general or specific
causation” with respect to SSRIs or Paxil. Def. Preclude
Memo. at 7 (emphasis added). All of these reasons have merit.
i. Qualified?
This is not the first court to be confronted with the issue
of whether Mr. O'Donnell is qualified to give an expert
opinion here. In Newton v. Roche Laboratories, Inc., 243
F.Supp.2d 672 (W.D.Tex.2002), the court found that he was
not qualified to render an opinion on general causation. Id.
at 679. There, the parents of a 16 year old girl claimed
that Accutane, a prescription acne medication manufactured
by the defendant, caused or precipitated the onset of their
daughter's schizophrenia. In much the same way plaintiff
DeVito is offering O'Donnell's testimony here, the plaintiffs
in Newton offered O'Donnell as an expert “to testify regarding
general causation, i.e., that Accutane is pharmacologically
capable of causing schizophrenia.” Id. at 677. After outlining
a number of ways in which O'Donnell's qualifications were
lacking, the court expressly found that he was not qualified to
render such an opinion.
To support that conclusion, the Newton court relied upon
O'Donnell's deposition testimony, which is substantially
similar to his deposition testimony in this case. For example,
O'Donnell testified in Newton, as he did here, that “he
has never earned an M.D., a Ph.D., or any degree in
pharmacology.” Id. at 677; see also O'Donnell Dep'n at 24–
25 and 53. Yet, he “still holds himself out as a ‘doctor’
and a pharmacologist[.]” Id. As in Newton, “O'Donnell ...
[continues to] grant[ ] himself the title of ‘doctor’ in reliance
upon his Pharm.D degree, [which] he conceded in his
deposition that in the majority of pharmacy schools, th[at] ...
degree is ‘an entry-level degree’ that pharmacists must have
to ... even practice pharmacy.” Id. at 677 n. 2 (citation
omitted); see also O'Donnell Dep'n at 24–25. In contrast,
to obtain a degree in pharmacology usually three or four
years of graduate school is required. O'Donnell Dep'n at 25–
26. O'Donnell did get a graduate degree, but it was not in
pharmacology. O'Donnell's formal education consists of a
four year degree in pharmacy and a Master's Degree in clinical
nutrition. Id. at 27.
*7 In addition to questioning O'Donnell's background
generally, the Newton court pointed out his “lack [of]
appropriate pharmacological training relevant to the issues”
therein, i.e. “Accutane, Vitamin A, schizophrenia, or
psychosis[.]” Id. at 678. The same may be said here. There is
no factual basis upon which this court can find that O'Donnell
is an expert regarding SSRIs generally, not to mention Paxil or
discontinuation of Paxil. Indeed, as his deposition testimony
shows, O'Donnell's asserted expertise on these subjects is
non-existent. See id. at 21, 24; 38–40; and 45.
Given that SSRIs are a fairly recently developed class
of drugs, understandably they were not the subject of
O'Donnell's course work as an undergraduate, or when getting
his Master's Degree in nutrition. Id. at 21 and 24. Since
that time, O'Donnell has done nothing to advance his own
knowledge as to SSRIs generally or Paxil in particular.
When directly asked if he had “done any clinical research
whatsoever relating to antidepressants,” O'Donnell replied
that he had not. Id. at 38. He responded the same way when
asked if he had “done any scientific research concerning
Paxil or SSRI antidepressants[.]” Id. at 39. Moreover,
O'Donnell conceded that the first time he “review[ed] ...
scientific literature in connection with Paxil discontinuation
symptoms[ ]” was for this case. Id. at 40–41.
This is the sort of “litigation-drive expertise” which courts
have eschewed. To illustrate, the court in Mancuso, 967
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F.Supp. at 1443, reasoned that it could not “help but conclude
that [plaintiff's expert] was not in fact an expert ... when he
was hired by the plaintiffs, but that he subsequently attempted,
with dubious success, to qualify himself as such be selective
review of the relevant literature.” This appears to be an apt
description of what Mr. O'Donnell attempted to do in the
present case.
The court stresses that it is no single factor which is
dispositive of whether O'Donnell qualifies as an expert on the
issue of general causation. Rather, it is the cumulative effect
of the foregoing which convinces the court that O'Donnell
lacks the lack of relevant “knowledge, skill, experience,
training or education” to testify as an expert on the issue of
general causation vis-a-vis the discontinuation of Paxil. As
he admitted, O'Donnell is not a pharmacologist. Therefore,
he cannot, as he does in his “expert report,” opine to
a “reasonable pharmacological certainty,” that plaintiff is
experiencing “withdrawal toxicity reactions from Paxil[.]”
O'Donnell Rep. Clearly, allowing a pharmacist/nutritionist
such as O'Donnell to testify in that way would run afoul of the
rule that an expert must stay “within the reasonable confines
of his subject area[.]” ' Kass, 2004 WL 2475606, at *2475606,
at *4 (internal quotation marks and citations omitted). Simply
put, the court agrees with the court's comment in Newton
that “[p]laintiff's attempts to present O'Donnell as an expert
pharmacologist [is] ... an extremely bold stretch.” Newton,
243 F.Supp.2d at 279. 3
ii. Reliability of Testimony?
*8 O'Donnell's lack of education, training and background
as to Paxil becomes even more apparent when viewed in terms
of the opinions which he has rendered in this case. That is so
because a “court's evaluation of qualifications is not always
entirely distinct from the court's evaluation of reliability.”
Pearson v. Young, No. CIV–99–1559–F, 2002 WL 32026157,
at *3 (W.D.Okla. Jan. 17, 2002).
O'Donnell's opinion as to causation is that “DeVito is
experiencing withdrawal toxicity reactions from Paxil, and
indeed, each time he attempts to wean or lower the dosage,
he again experiences such infinity [sic].” Glanville Aff., exh.
E thereto. O'Donnell states that when plaintiff's dosage of
Paxil is lowered, he suffers from the following “withdrawal
signs and symptoms [:] anxiety, jitery [sic], agitation, nausea,
drowsiness, generalized discomfort and vertigo[.]” O'Donnell
Report at 2. “For this opinion to be admissible, O'Donnell
must have a reliable scientific basis to support not only
(1) a casual relationship between” Paxil and the enumerated
side-effects, “but also (2) his assertion that [Paxil] will
produce these side-effects.” See Newton, 243 F.Supp.2d at
679 (emphasis added). O'Donnell's report and deposition
testimony are void of a scientific basis to support either of
those assertions.
In terms of publications, O'Donnell testified that he was the
editor of a non-peer reviewed book entitled “Drug Injury
Liability, Analysis and Prevention.” Id. at 98–99. That book
contained a mere six sentences on SSRIs, including the two
sentences on Paxil. Id. at 99. Given that minimal reference
to SSRIs, it is not surprising that that book contains nothing
about discontinuation symptoms. See id. It further appears
that he has performed absolutely no research regarding Paxil,
much less its discontinuation. Id. at 38–39. What is more,
O'Donnell has done no scientific or clinical research of any
kind for almost two decades. The last time he did any such
research was in he “early '80s as part of a pharmacology lab
sabbatical,” where he was looking at vitamins and critical care
drugs used in Intensive Care Units. Id. at 36.
In light of the foregoing, to allow plaintiff to rely upon Mr.
O'Donnell's opinions as to general causation clearly would
violate Daubert' s “requirement that the expert testify to
scientific knowledge—conclusions support by good grounds
for each step in the analysis[.]” ' Amorgianos, 303 F.3d at 267
(citations and quotation marks omitted).
b. Specific Causation
It stands to reason that if Mr. O'Donnell lacks (which he
does) the qualifications to testify as to general causation, he
lacks the qualifications to testify as to specific causation.
His opinion as to specific causation suffers from the
same infirmities, detailed above, as to general causation.
Accordingly, the court finds that Mr. O'Donnell does not have
the requisite qualifications to testify as to specific causation;
and even if he did, his opinions in that regard are unreliable.
c. Warnings
*9 Glaxo contends that because O'Donnell “lacks any
pertinent qualifications[,]” Def. Memo. at 14, he should not
be allowed to testify that in his opinion the “lack of ...
a precaution and warning about withdrawal risk and the
need to taper [when discontinuing Paxil] renders the product
defective due to an inadequate warning. See O'Donnell Report
at 3. Plaintiff did not directly respond to this argument.
Included in the list of highlighted credentials in plaintiff's
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memorandum of law is that Mr. O'Donnell “is currently
involved in the teaching of New Drug Development and
Regulations [.]” Pl. Opp'n Memo. at 2. However, plaintiff
does not explain, or cite to any portion of O'Donnell's
deposition explaining, how or why this position qualifies him
to testify as an expert on warnings.
As with the other issues upon which plaintiff intends to offer
O'Donnell's testimony, plaintiff baldly retorts that O'Donnell's
“extensive experience qualifies as specialized knowledge
gained through experience, training, or education[.]” Pl.
Memo. at 4 (internal quotation marks and citations omitted).
And, once again, he relies upon the argument that
Glaxo's reasons to preclude O'Donnell's testimony regarding
warnings should be saved for trial, i.e. they should be used to
attack O'Donnell's credibility and the weight which the jury
might give to his opinions regarding Paxil warnings.
i. Qualified?
O'Donnell “claim[s] to be an expert in drug labeling[.]”
O'Donnell Dep'n at 90. Presumably he is including drug
warnings within the province of this supposed expertise. In
any event, to qualify as an expert it is not enough for a
witness to simply declare that he is one. Federal Rule of
Evidence 702 requires more. As plaintiff acknowledged, a
witness must satisfy the court that he has a certain amount
of “knowledge, skill, experience, training or education [ ]”
in the relevant field before he can be deemed an expert. See
Nora Beverages, 164 F.3d at 746 (internal quotation marks
and citation omitted). Close examination of O'Donnell's
deposition testimony reveals that he is lacking in each of
those areas when it comes to the subject of the adequacy of
prescription drug warnings.
O'Donnell's claimed expertise admittedly is “through
experience,” not through formal education. O'Donnell
Deposition at 90–92. His experience consists primarily of
having attended continuing education (“CE”) programs,
where drug labeling was a topic. Id. Those CE programs
were to satisfy his pharmaceutical and nutritionist CE
requirements, however; and he was unable to elaborate on the
substance of same. See id. Furthermore, O'Donnell has not
consulted with any pharmaceutical company “concerning the
labeling for any antidepressant[.]” Id. at 96. O'Donnell agrees
“that the FDA [Food and Drug Administration] is the highest
authority on how drugs are labeled in this country[,]” but he
has also never consulted with them “concerning the labeling
for any antidepressant. Id. For that matter, O'Donnell has not
worked for or consulted with the FDA in any capacity. See
Glanville Aff. at 9, ¶ 39. Thus, O'Donnell's experience in this
area is extremely limited.
*10 Moreover, O'Donnell made two especially damaging
concessions which seriously undermine the suggestion that he
is an expert as to the adequacy of prescription drug warnings.
O'Donnell readily agreed “that in assessing the adequacy of a
label for a prescription drug, the expert rendering the opinion
generally should be familiar with the clinical trials data on
the drug as it relates to the side effect concerning which he
is opining[.]” Id. at 192. Yet, O'Donnell frankly admitted that
he had not reviewed any of the Paxil clinical trials data. See
id. Similarly, O'Donnell conceded that “generally to reach a
conclusion regarding the adequacy of a label for a prescription
drug, the expert rendering the opinion should be familiar
with at least a majority of the available medical literature
on the drug as it relates to the side effect on which he is
opining[.]” Id. at 193. Despite the foregoing, O'Donnell went
on to testify that he has “not read the specific literature [ ]”
relating to discontinuation symptoms of Paxil. Id. 193 and
45. In fact, he has only read “abstracts” of articles. Id. at
46–47. Finally, Mr. O'Donnell has not lectured on, or written
anything (peer reviewed or not) about, “Paxil discontinuation
symptoms apart from [his] export [sic] report in this case[.]”
Id. at 45. As the foregoing clearly shows, Mr. O'Donnell does
not “employ[ ] in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant
field[,]” which here is the adequacy of prescription drug
warnings and Paxil in particular. See Kumho Tire, 526 U .S.
at 152, 119 S.Ct. at 1176.
Mr. O'Donnell may qualify as an expert in the fields of
pharmacy or nutrition, but that is not the purpose for which
his testimony is being offered here. Instead, his testimony is
being offered on the adequacy of Paxil warnings. O'Donnell
has never been drafter or been asked to draft a warning for any
antidepressant, let alone for Paxil. Likewise, he has not done
any research or written any publications on prescription drug
warnings. Thus, whether judged in terms of his education or
experience, does not rise to the level of “expertise ... that
the jury would expect from a bona fide warnings expert.”
See Robertson v. Norton, 148 F.3d 905, 907 (8 th Cir.1998)
(internal quotation marks omitted).
In sum, O'Donnell is being called upon to testify regarding
the adequacy of the Paxil warning, an issue which clearly
is outside the “reasonable confine [s] of his subject area[s,]”
which are pharmacy and nutrition. See Kass, 2004 WL
2475606, at *4 (internal quotation marks and citations
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omitted). Therefore, because O'Donnell does not “possess
the specialized knowledge required by Rule 702[,]” the court
finds that he is not qualified as an expert on the issue of the
adequacy of the Paxil warning. See id.
ii. Reliability of Testimony?
*11 Given the nature of the claims which plaintiff is
alleging in this case, plainly there is a close relationship
between excluding the causation opinion and excluding the
warning opinions which are being offered by O'Donnell.
Miller v. Pfizer, Inc., 196 F.Supp.2d 1062 (D.Kan.2002),
aff'd on other grounds, 356 F.3d 1326 (10 th Cir.2004),
cert. denied, 125 S.Ct. 40 (Oct. 4, 2004), provides a good
example of how a decision to preclude causation “expert”
testimony impacts upon a decision to also preclude warning
testimony. The plaintiff parents in Miller were suing the
manufacturer of Zoloft, another SSRI, alleging that it caused
their son to commit suicide. Similar to the present case,
the plaintiffs in Miller asserted state law claims for strict
liability for marketing defects and misrepresentations, and
negligence for failure to test and warn. The court held that
an “eminent” psychiatrist and neuropsychopharmocologist's
proposed testimony regarding general causation, i.e. that
Zoloft causes suicide, did not satisfy the Daubert criteria
for admissibility because, in short, “he lack[ed] sufficient
expertise on the issue of suicide.” Id. at 1087 and 1088.
The Miller court, as is this court, was then confronted with
the issue of whether that same doctor could qualify as an
expert who would opine “that Zoloft labels do not adequately
warn against the danger of SSRI-induced suicide.” Id. at
1088. After finding that the doctor was not an expert on
that issue, the court soundly reasoned, “[i]f the jury will
hear no evidence that [Paxil] causes [withdrawal symptoms/
addictive], it cannot possibly conclude that [Paxil] labels
do not adequately warn against the danger that [Paxil]
causes [such condition.]” Id. at 1089. That reasoning applies
with equal force here. Even if O'Donnell qualifies as a
prescription drug warning expert, because neither O'Donnell
nor Dr. George (plaintiff's only proof as to causation) qualify
to testify about causation, the former's warning testimony
“would essentially be irrelevant to any larger issues in the
case.” See id. Accordingly, there is no need to analyze
whether O'Donnell's opinions as to warnings pass muster
under Daubert.
In short, plaintiff DeVito has not sustained his burden
of proving by a preponderance of the evidence that Mr.
O'Donnell is qualified to render an opinion as to general
causation, specific causation, or the adequacy of Paxil
warnings. Even if O'Donnell could somehow be deemed to
have the requisite “specialized knowledge” to testify as to any
or all of those issues, “courts do not have to credit opinion
evidence connected to data ‘only by the ipse dixit of the
expert.” ’ Prohaska, 138 F.Supp.2d at 438 (quoting General
Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. (1997)). That is
all O'Donnell has to rely upon; simply because he offers an
opinion which he claims to be valid, plaintiff assumes it is so.
This court will not, however.
*12 For the reasons set forth above, the court grants in
its entirety Glaxo's motion to preclude the testimony of Mr.
O'Donnell; Dr. George; and Ms. Sweeney.
II. Summary Judgment Motion
The court assumes familiarity with the Supreme Court's
trilogy of cases clarifying the governing legal standards on
summary judgment motions, and sees no need to repeat those
standards herein. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317
(1986); and Matsushita Elec. Industr. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986)
It is an understatement to say that the wholesale exclusion
of the testimony of O'Donnell, George and Sweeney
significantly impacts plaintiff DeVito's case. As discussed
at the outset causation is a necessary element of each
of the five causes of action which plaintiff is alleging
herein. Because plaintiff's only causation evidence has been
excluded, it necessarily follows that Glaxo is entitled to
summary judgment in its favor. See Kass, 2004 WL 2475606
(after granting motion to exclude testimony of plaintiff's
claimed expert regarding the feasibility of alternative designs,
court granted defense summary judgment motion because
plaintiff could not satisfy the critical element of a design
defect cause of action); and Zwillinger, 1998 WL 623589
(where plaintiff claimed that her exposure to defendants'
carpeting causes her to develop immunotoxicity syndrome,
court granted summary judgment in defendants' favor after
excluding the of doctor's testimony, which was plaintiff's only
causation evidence).
To conclude, the court hereby GRANTS the motion by
Smithkline Beecham Corporation d/b/a Glaxo Smithkline,
to preclude the testimony of James O'Donnell; Dr. Kevin
George; and Ms. Deborah Sweeney. The court further
GRANTS the motion by Smithkline Beecham Corporation
d/b/a Glaxo Smithkline for summary judgment pursuant to
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Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 10
Fed.R.Civ.P. 56 dismissing all of plaintiff Michael DeVito's
claims as against it.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2004 WL 3691343
Footnotes
1 The present action, which has been referred to as a “tag-along action,” is one of a number throughout
the country wherein plaintiffs are alleging that Glaxo knew of the hazardous side effects of Paxil and
either concealed, misrepresented or failed to warn of them. See In re Paxil Products Liability Litigation,
296 F.Supp.2d 1374 (Judicial Panel on Multidistrict Litigation 2003). In mid-February 2004, this court was
advised that the Judicial Panel on Multidistrict Litigation (“the Panel) had conditionally transferred this action
to the United States District Court fo the Central District of California for coordinated or consolidated pretrial
proceedings pursuant to 28 U.S.C. § 1407.” Glaxo moved to vacate that conditional transfer as it pertained
to the present case. When plaintiff did not respond, on June 15, 2004, the Panel vacated that conditional
transfer as it relates to Mr. DeVito.
2 During her deposition Ms. Sweeney unequivocally testified, “I'm not a physician. I'm not a nurse practitioner.”
Glanville Aff ., exh H thereto at 123. She holds an associates' degree in nursing, a bachelor of science degree
in health and human services, and a nurse practitioner's degree.” Id. at 12, 17, 35–36. Thus, to refer to Ms.
Sweeney as “Doctor Sweeney, as plaintiff does throughout his expert disclosure, is not only a misstatement
but directly contradicts Sweeney's own testimony. Plaintiff's tendency to exaggerate or overstate certain
things, as will be seen, is not limited to the qualifications of his experts.
3 O'Donnell's insistence on holding himself out as a pharmacologist, see O'Donnell Dep'n at 54, ignores at
least one fundamental distinction between pharmacology and pharmacy—a distinction which is critical here.
“Pharmacology can be fairly described as the study of the effect of drugs on living organisms. Pharmacy,
on the other hand, is the profession of preparing and dispensing drugs.” Newton, 243 F.Supp.2d at 677, n.
1. It is self-evident that there is a vast difference in the education, experience and skill necessary to obtain
degrees in these two different fields.
Apparently O'Donnell recognizes this distinction because in Newton he “admitted ... that from approximately
1982 to 1985, he intentionally and falsely advertised that he possessed a doctorate in pharmacology in an
attempt to attract more interest from lawyers for his consulting expert business.” Id. at 677, n .3 (citation
omitted). He made that same admission in this deposition herein. O'Donnell Dep'n at 28–31. O'Donnell did
change this advertisement because, in his words, it was “incorrect.” Id. at 29. This court cannot overlook what
at best appears to be a serious lapse in judgment, however.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00578-ML Document 165 Filed 03/24/26 Page 146 of 427

Este-Green v. Astrue, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 2473509
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Donna ESTE–GREEN, Plaintiff,
v.
Michael J. ASTRUE, Comm'r
of Social Security, Defendant.
No. 5:09–CV–0722 (GTS/GHL).
|
Aug. 7, 2009.
West KeySummary
1 Social Security Exhaustion of other
remedies
Representative for a social security payee
failed to exhaust her administrative remedies
before filing her claim since there was no
final decision after a hearing. The Social
Security Administration (SSA) garnished the
representative's wages after attempting to work
out a repayment plan since the representative
was overpaid on behalf of the payee. The
representative contacted the SSA to complain
about the garnishment and shortly thereafter, the
representative filed the action with the Small
Claims Court, without having a hearing or final
order from the Commissioner of Social Security.
Social Security Act, § 205(g), 42 U.S.C.A. §
405(g).
29 Cases that cite this headnote
Attorneys and Law Firms
Donna Este–Green, Hempstead, NY, pro se.
Hon. Andrew T. Baxter, United States Attorney for the
Northern District of New York, William H. Pease, Esq.,
Assistant U.S. Attorney, of Counsel, Syracuse, NY.
DECISION and ORDER
Hon. GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this pro se action filed
by Donna Este–Green (“Plaintiff”) to recover funds allegedly
owed to her by the Social Security Administration, is a motion
by Michael J. Astrue, Commissioner of Social Security
(“Defendant”) to dismiss the action pursuant to Fed.R.Civ.P.
12(b)(1) for lack of subject matter jurisdiction due to
Plaintiff's failure to exhaust her administrative remedies
before filing suit. (Dkt. No. 3.) Plaintiff has not opposed the
motion. For the reasons set forth below, Defendant's motion
is granted, and Plaintiff's Complaint is dismissed.
I. BACKGROUND
A. Procedural History
On or around May 27, 2009, Plaintiff brought this
action in Small Claims Court, City of Ithaca, County
of Tompkins (“Small Claims Court”), naming the Social
Security Administration (“SSA”) as Defendant. (Dkt. No. 1,
Part 3.) Liberally construed, Plaintiff's Complaint alleges that
the SSA wrongfully garnished her wages in the amount of
five hundred seventy-one dollars ($571.00). (Id.) On June 24,
2009, the United States Attorney's Office for the Northern
District of New York removed this case from the Small
Claims Court, pursuant to the exclusive original jurisdiction
of the District Court under 42 U.S.C. §§ 405(g)-(h) and
1383(c)(3), “because Plaintiff's claim appeared to relate to the
payment of Social Security benefits to her as representative
payee for the account of Albertina King.” (Dkt. No. 3.)
B. Relevant Facts
In 1999, Plaintiff had been acting as representative payee
for Albertina King, who had been receiving Social Security
benefits under Title II of the Act. (Dkt. No. 3.) In October
1999, the SSA issued an overpayment to Plaintiff on Albertina
King's account. (Id.) In March 2001, the SSA and Plaintiff
arranged a repayment plan pursuant to which Plaintiff agreed
to repay the amount due the SSA in fifty-dollar installments
beginning on April 15, 2001. (Id.) In October 2007, the
SSA sent a letter to Plaintiff, in which the SSA stated the
following: (1) Plaintiff had been overpaid as representative
payee; (2) Plaintiff had the right to question the decision
about her overpayment and to ask that the SSA not recover
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Este-Green v. Astrue, Not Reported in F.Supp.2d (2009)
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the overpayment; (3) the SSA's past attempts to recover this
overpayment had not been successful; (4) there are actions
that the SSA can take to recover the money, including wage
garnishment; (5) Plaintiff could prevent the wage garnishment
by taking certain steps within sixty days of the letter, including
repaying the debt, agreeing to a definite repayment plan and
repaying the debt according to that plan, asking the SSA to
review the finding that she owed the amount stated and that
the SSA had the right to collect it, asking the SSA to waive
collection of the overpayment, or asking the SSA to review
its plan to collect up to fifteen percent of her disposable pay.
(Id.) In addition, the letter informed Plaintiff of how she could
repay the SSA. (Id.)
*2 Plaintiff returned this letter to the SSA, stating that the
overpayment was not her fault. (Id.) Plaintiff indicated that
she could not afford the amount owed, and that the money
that she received was used for the payee's burial. (Id.) In
March, 2008, Plaintiff spoke with a supervisor of the SSA
by telephone and negotiated a repayment plan agreement for
installments of twenty dollars ($20). (Id.) On April 29, 2008,
the SSA sent Plaintiff a billing statement indicating her debt of
five hundred seventy-one dollars ($571), and that a minimum
payment of twenty dollars ($20) must reach the SSA by May
15, 2008. (Id.) On May 6, 2008, documentation issued in
connection with the administrative garnishment of Plaintiff's
wages was returned to the SSA from Plaintiff's employer,
stating that Plaintiff was no longer employed there. (Id.)
On April 17, 2009, the SSA issued an order to Plaintiff's
employer to garnish her wages. (Id.) Plaintiff's employer
completed this order and returned it to the SSA. (Id.) On May
21, 2009, Plaintiff contacted the SSA to complain about the
garnishment. (Id.) Shortly thereafter, Plaintiff filed this action
with the Small Claims Court, and the Complaint was mailed
to the SSA on May 27, 2009.
II. APPLICABLE LEGAL STANDARDS
A. Standard Governing Motions to Dismiss for Lack
of Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)
(citing Fed.R.Civ.P. 12[b][1] ). With regard to a challenge
to a determination by the Social Security Administration,
“[a]ny individual may seek judicial review under 42 U.S.C.
§ 405(g) ‘after any final decision of the Commissioner of
Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy.” Diagnostic
Cardioline Monitoring of New York, Inc. v. Leavitt, 171 F.
App'x. 374, 375 (2d Cir. March 17, 2006) (citing 42 U.S.C.
§ 405[g] ). “This final-decision-after-a-hearing requirement
is critical to the federal court's grant of subject matter
jurisdiction over these claims.” Leavitt, 171 F. App'x. at 375
(citing Weinberger v. Salfi, 422 U.S. 749, 763–64 [1975] ).
“In the absence of a final decision after a hearing, the federal
court lacks subject matter jurisdiction to entertain the claim,
and it must be dismissed.” Id. (citation omitted).
B. Standard Governing Unopposed Motions
“Where a properly filed motion is unopposed and the Court
determines that the moving party has met its burden to
demonstrate entitlement to the relief requested therein, the
non-moving party's failure to file or serve any papers as
required by this Rule shall be deemed as consent to the
granting or denial of the motion, as the case may be, unless
good cause be shown.” N.D.N.Y. L.R. 7.1(b)(3). Defendant's
motion to dismiss was properly filed, and Plaintiff has failed
to oppose them. Therefore, the Court must determine whether
Defendant has met her burden to “demonstrate entitlement to
the relief requested” under Local Rule 7.1(b)(3). 1 An inquiry
into whether a movant has met its “burden to demonstrate
entitlement” to dismissal under Local Rule 7.1(b)(3) is a
more limited endeavor than a review of a contested motion.
Specifically, under such an analysis, the movant's burden
has appropriately been characterized as “modest.” 2 This is
because, as a practical matter, the burden requires only that the
movant present an argument that is “facially meritorious.” 3
III. ANALYSIS
*3 After carefully considering the file in this action,
including Defendant's motion to dismiss and Plaintiff's
Complaint, the Court finds that Defendant has met
his lightened burden on his unopposed motion: he has
demonstrated entitlement to the relief requested by presenting
an argument that is facially meritorious. Even if the Court
were to subject Defendant's motion to the more rigorous
scrutiny appropriate for contested motions, the Court would
find that Defendant has met his burden: Plaintiff failed to
exhaust her administrative remedies prior to commencing
this action. 4 As a result, the Court lacks subject matter
jurisdiction over Plaintiff's claims, and her Complaint is
dismissed.
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Este-Green v. Astrue, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
ACCORDINGLY, it is
ORDERED that Plaintiff's Complaint is DISMISSED. The
clerk is directed to enter judgment and close the case.
All Citations
Not Reported in F.Supp.2d, 2009 WL 2473509
Footnotes
1 See also Fed.R.Civ.P. 7(b)(1) (requiring motions to, inter alia, “state with particularity the grounds therefor”).
2 See, e.g., Ciaprazi v. Goord, 02–CV0915, 2005 WL 3531464, at *8 (N.D.N.Y. Dec.22, 2005) (Sharpe, J.;
Peebles, M.J.) (characterizing defendants' threshold burden on a motion for summary judgment as “modest”)
[citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ]; accord,
Saunders v. Ricks, 03–CV–0598, 2006 WL 3051792, at *9 & n. 60 (N.D.N.Y. Oct.18, 2006) (Hurd, J., adopting
Report–Recommendation of Lowe, M.J.), Smith v. Woods, 03–CV–0480, 2006 WL 1133247, at *17 & n.
109 (N.D.N.Y. Apr.24, 2006) (Hurd, J., adopting Report–Recommendation of Lowe, M.J.); see also Race
Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109–1110 (N.D.N.Y.2003) (Munson, J.) (reviewing
merely whether record contradicted defendant's arguments, and whether record supported plaintiff's claims,
in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] ); Wilmer v. Torian, 96–CV–1269, 1997
U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b][3],
but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons
set forth in defendants' motion papers), adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N .D.N.Y. Oct. 14,
1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95–CV–989, 1996 U.S. Dist. LEXIS 15072, at
*3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.).
3 See, e.g., Hernandez v. Nash, 00–CV–1564, 2003 U.S. Dist. LEXIS 16258, at *7–8, 2003 WL
22143709(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before a motion to dismiss may be granted under Local
Rule 7.1[b] [3], “the court must review the motion to determine whether it is facially meritorious” ) [emphasis
added; citations omitted]; accord, Topliff v. Wal–Mart Stores East LP, 04–CV–0297, 2007 U.S. Dist. LEXIS
20533, at *28 & n. 43, 2007 WL 911891 (N.D.N.Y. March 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 05–
CV–0380, 2007 U.S. Dist. LEXIS 24356, at *5–6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, M.J.); Sledge v.
Kooi, 04–CV–1311, 2007 U.S. Dist. LEXIS 26583, at *28–29 & n. 40, 2007 WL 951447 (N.D.N.Y. Feb. 12,
2007) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. March 28, 2007) (McAvoy, J.); Kele
v. Pelkey, 03–CV–0170, 2006 U.S. Dist. LEXIS 95065, at *5 & n. 2, 2006 WL 3940592 (N.D.N.Y. Dec. 19,
2006) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (N.D.N.Y. Jan. 22, 2007) (Kahn, J.).
4 As noted by Defendant in his motion to dismiss, because Plaintiff failed to follow the required SSA regulations
before bringing this action, there is no final decision for the Court to review under 42 U.S.C. § 405(g).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00578-ML Document 165 Filed 03/24/26 Page 149 of 427

Goldstick v. The Hartford, Inc., Not Reported in Fed. Supp. (2002)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2002 WL 1906029
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Diane F. GOLDSTICK, Plaintiff,
v.
THE HARTFORD, INC., et ano., Defendants.
No. 00 Civ. 8577(LAK)
|
Aug. 19, 2002.
Synopsis
Defendants moved to strike plaintiff's Rule 56.1 Statement,
submitted in opposition to defendants' motion for summary
judgment dismissing the complaint. The District Court,
Kaplan, J., held that statement submitted in opposition to
defendants' motion for summary judgment failed to comply
with local rule by adding argumentative and often lengthy
narrative.
Motion granted in part.
West Headnotes (1)
[1] Summary Judgment Form and requisites
Plaintiff's statement submitted in opposition
to defendants' motion for summary judgment
failed to comply with local rule by adding
argumentative and often lengthy narrative, the
object of which was to “spin” the impact of
the admissions plaintiff had been compelled to
make; additionally, statement was 41 pages long,
a manifest evasion of the page limitation. Local
Civ. R. 56.1.
75 Cases that cite this headnote
ORDER
KAPLAN, J.
*1 Defendants move to strike plaintiff's Rule 56.1
Statement, submitted in opposition to defendants' motion for
summary judgment dismissing the complaint, on the ground
that it fails to comply with Local Civ. R. 56.1 in that it goes
beyond admitting or denying that the propositions of fact set
forth in defendants' Rule 56.1 Statement in fact are undisputed
and contains a great deal of extraneous, argumentative
material, much allegedly based on inadmissible evidence.
“A proper 56.1 statement submitted by a non-movant
should consist of a paragraph-by-paragraph response to
the movant's 56.1 statement, much like an answer to a
complaint. If the non-movant asserts that a fact claimed
by the movant to be undisputed is actually in dispute, the
non-movant must cite evidence on the record to support
its contention. It is permissible for the non-movant to
provide a separate statement, apart from this paragraph-by-
paragraph response, in which it lists other facts it claims
to be in dispute. However, this separate statement is not
a substitute for the paragraph-by-paragraph response. The
non-movant, particularly if represented by counsel, should
not leave it to the Court to cull from this separate statement
the pieces of evidence which would support the contentions
of the non-movant asserted in its paragraph-by-paragraph
response without citation.
“Rule 56.1 statements are not argument. They should
contain factual assertions, with citation to the record.
They should not contain conclusions, and they should be
neither the source nor the result of ‘cut-and-paste’ efforts
with the memorandum of law. A rule 56.1 statement that
contains the same turns of phrase, if not the identical
whole paragraphs, as the memorandum of law is improper.”
Rodriguez v. Schneider, No. 95 Civ. 4083(RPP,) 1999 WL
459813, *1 n. 3 (S.D.N.Y. June 29, 1999).
The plaintiff's Rule 56.1 Statement here does not comply
with the rule. While in most cases it does admit or deny
defendants' descriptions of the allegedly uncontested facts on
a paragraph-by-paragraph basis, it adds argumentative and
often lengthy narrative in almost every case the object of
which is to “spin” the impact of the admissions plaintiff
has been compelled to make. In consequence, the response
to the 84 number assertions set forth in defendants' Rule
56.1 Statement is 41 pages long and, whether so intended or
not, a manifest evasion of the page limitation on plaintiff's
memorandum in opposition to the motion for summary
judgment.
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Goldstick v. The Hartford, Inc., Not Reported in Fed. Supp. (2002)
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Accordingly, defendants' motion is granted to the extent
that so much of plaintiff's responses as consists of anything
more than (a) the admission or denial of the assertions set
forth in defendants' Rule 56.1 Statement and the citations to
the record, and (b) the section headed “additional facts” is
stricken. It is denied in all other respects.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2002 WL 1906029
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00578-ML Document 165 Filed 03/24/26 Page 151 of 427

Green v. Phillips, Not Reported in F.Supp.2d (2006)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Follow by Ransom v. Lee, C.D.Cal., April 20, 2017
2006 WL 846272
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Shawn GREEN Plaintiff,
v.
W.E. PHILLIPS, T.G. Eagen, G. Guiney, W.
Russett, T.H. Kiernan, L. Goidel, F. Sarles, D.
Huttel, J. Tardio, and D. Osselman, Defendants.
No. 04 Civ. 10202(TPG).
|
March 31, 2006.
OPINION
GRIESA, J.
*1 Pro se plaintiff Shawn Green alleges that the defendants
violated his First, Eighth and Fourteenth Amendment rights
when he was a prisoner at the Green Haven Correctional
Facility. Green has submitted an amended complaint that the
court will treat as a motion to amend the complaint. This
motion is granted.
The defendants have moved to dismiss the original complaint.
The court will treat the motion to dismiss as a motion to
dismiss the amended complaint. The motion to dismiss the
amended complaint is granted and the case is dismissed.
THE COMPLAINT
Plaintiff, currently a prisoner at Attica Correctional Facility,
filed this suit against various guards, nurses, and officers
at Green Haven Correctional Facility for violations of his
constitutional rights while he was an inmate there. The
following facts are taken from both the original complaint
and the proposed amended complaint. References to “the
complaint” will be understood to refer to claims in either or
both of these documents.
Retaliation
On March 24, 2004 eleven inmates, including Green,
began a hunger strike in the Green Haven Special Housing
Unit. Green alleges that defendant W.E. Phillips, a Green
Haven employee, retaliated against him for exercising his
constitutional rights. Green claims that Phillips ordered
defendant T.H. Kiernan, a guard, to make a misbehavior
report against plaintiff and that this was in retaliation for
going on the hunger strike and for “submitting grievances,
complaints, etc.” The nature of the grievances and complaints
is not described. Green alleges that after Phillips ordered
Kiernan to do so, Kiernan issued the misbehavior report
charging that plaintiff refused a direct order and created a
“visibility obstruction”. Green also claims that Kiernan had
his own retaliatory motives for issuing the report, since Green
had filed a grievance against him and his coworkers a few
weeks before the hunger strike began. Green does not describe
the grievance that Green allegedly filed against Kiernan.
Green next alleges that defendant W. Russett, a disciplinary
proceeding hearing officer, misconstrued evidence to find
plaintiff guilty of the charges in the aforementioned
misbehavior report:
Defendant W. Russett, disciplinary
proceeding hearing officer, was aware
defendant Phillips gave order for
report and misconstrued testimonial
evidence contradictive to report
allegations the kiernan seen sign, at
least, the previous day and order had
not been directed toward plaintiff.
Subsequently, plaintiff was found
guilty of charges.
Green next alleges that he appealed and that defendant G.
Guiney affirmed Russett. Green does not allege anything
about the findings or decision of either Russett or Guiney.
Green next alleges that defendant L. Goidel refused to file
numerous grievances that plaintiff submitted regarding the
alleged retaliation and conspiracy described above. Green
alleges that as a consequence, he was prevented from suing
because he could not satisfy the administrative exhaustion
requirement in the Prison Litigation Reform Act, 42 U.S.C
§ 1997e(a). Green further claims that defendant T.G. Eagen,
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Green v. Phillips, Not Reported in F.Supp.2d (2006)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
who appears to be a supervisor at Green Haven, was
notified of Goidel's refusal and would not remedy it despite
knowledge of an “unconstitutional custom at Green Haven”.
Of course, despite these alleged hindrances, Green has filed
this action.
*2 Green alleges that the actions of Phillips, Kiernan,
Russett, Guiney, and Goidel were pursuant to a conspiracy to
deprive him of his constitutional rights. He also appears to
allege that the conduct of the hearing officers and supervisors
was related to the conspiracy as well.
Deliberate Indifference to Plaintiff's Medical Problems
Green next alleges that certain defendants were deliberately
indifferent to a serious medical need. Plaintiff was diagnosed
with diabetes at Green Haven in November 2003. Plaintiff
makes allegations against D. Huttel and F. Sarles, whom he
does not identify beyond stating that they were employees at
Green Haven. Specifically, plaintiff alleges that Huttel and
Sarles, “knew plaintiff were a diabetic prior to strike, yet
disregarded an excessive risk to his health and safety once
strike begun.”
Green also alleges that defendants J. Tardio and D. Osselman,
nurses at Green Haven, while giving Green his daily insulin
injection, were informed of his request for medical attention
due to the strike but “disregarded the excessive risk to his
health and safety.”
Discriminatory and Unequal Treatment
Finally, plaintiff alleges a number of acts that he describes
as lacking a rational basis. He argues that these allegations
demonstrate violations of the rights granted to him under the
equal protection clause of the Fourteenth Amendment:
• He alleges that Huttel and Sarles did not contact the
medical department after learning of the hunger strike,
allegedly in violation of prison rules.
• He alleges that he was not given any medical attention
after informing Tardio and Osselman that he had not
eaten in seventy-two hours, in violation of prison rules.
He further alleges that Osselman gave medical attention
to another inmate during the strike. He also alleges that
he suffered from various physical ailments during the
strike.
• He again alleges his claims that Goidel intentionally
withheld his grievances from being processed.
• He alleges that Phillips “selectively ordered disciplinary
rules be imposed against plaintiff (and others similarly
situated participating in hunger strike) with intentions of
punishment for the exercise of constitutional rights and
maliciously to injure” and that Phillips conspired with
Kiernan to do so.
• Finally, he alleges that Phillips would not active a hunger
strike team in violation of prison rules.
Relief
Plaintiff seeks declaratory and injunctive relief as well as
damages against each defendant. Specifically, he seeks a
declaratory judgment that defendants be demoted or removed
from their posts and that Kiernan's misbehavior report
be reversed. Green also seeks an injunction requiring the
installation of grievance boxes in Green Haven and a logging
system for the grievances filed in those boxes.
DISCUSSION
A court must dismiss a case pursuant to Rule 12(b)(6) where
a plaintiff “can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355
U.S. 41, 45-46 (1957). Where a lawsuit alleges violations
of constitutional rights, however, a plaintiff may not rely
on conclusory statements that his rights were violated. Even
under the liberal reading that should be given to a pro
se plaintiff's complaint, that complaint must still “allege
sufficient facts indicating a deprivation of constitutional
rights.” Locicero v. O'Connell, No. 04 Civ. 7708, 2006 U.S.
Dist. LEXIS 8958, at *9 (S.D.N.Y. Mar. 7, 2006).
Retaliation
*3 In order for a prisoner to properly plead a claim of
retaliation, a plaintiff must allege that the conduct that was the
basis for the retaliation was “constitutionally protected” and
that the protected conduct was a “substantial or motivating
factor” in the retaliatory action. Graham v. Henderson, 89
F.3d 75, 79 (2d Cir.1996). Since retaliation claims can be
easily fabricated, a plaintiff asserting such a claim bears a
heightened burden of proof and must plead the claim with
particularity. See Brown v. Middaugh, 41 F.Supp.2d 172,
191 (N.D.N.Y.1999); Harris v. Keane, 962 F.Supp. 397, 405
(S.D.N.Y.1997). When a prisoner files a grievance against
prison officials, he is engaging in constitutionally protected
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conduct. Graham, 89 F.3d at 80. As to the hunger strike,
in the present case there has been no attempt to define the
extent to which a prison hunger strike may be constitutionally
protected. Nonetheless, the court will assume for the sake of
argument that prison personnel do not have a right to retaliate
against a prisoner who has been on a hunger strike, in the
sense that retaliation is used in the cases.
Plaintiff asserts that the misbehavior report against him was
in retaliation for his participation in the hunger strike and
for filing grievances and complaints. The complaint must be
read as claiming that the accusations in the misbehavior report
were fabricated and false.
According to the cases, plaintiff is expected to allege in
his complaint facts which can reasonably be expected to be
within his knowledge and which give substance to the claim
of retaliation by means of a concocted misbehavior report.
Plaintiff asserts that there was retaliation by Phillips in
part because of plaintiff filing grievances and complaints.
But plaintiff does not allege whom these complaints and
grievances were against (except that one was against
Kiernan), what they were about, or why they would motivate
Phillips to direct Kiernan to fabricate a misbehavior charge
against plaintiff.
As to the hunger strike, plaintiff does not provide any details
of the strike, such as what is was about, how long it lasted, or
why Phillips and/or Kiernan would wish to retaliate against
plaintiff because of the strike.
Green claims that the misbehavior report charged him with
refusing a direct order and with a visibility obstruction.
Central to his case is that the charges were not made in
good faith but to retaliate for plaintiff's exercise of his rights.
Thus the requirement of particularity in pleading means
that plaintiff should describe the misbehavior charges in
some reasonable detail and should plead in the complaint a
definite denial of the truth of those charges. Valid charges of
misbehavior are inconsistent, to say the least, with the idea of
allegations motivated by a desire to retaliate against plaintiff
for the exercise of his rights.
Plaintiff has failed to plead anything approaching what is
required. He does not say what the misbehavior report
asserted about the disobeyed order-who gave it or what the
order was. There is no meaningful description of what was
charged by way of “visibility obstruction.” It is true that
plaintiff alleges that there was some evidence in his favor at
the hearing. But this does not constitute a sufficient pleading
of a description of what the misbehavior report charged and a
definite assertion that those charges were false.
*4 Plaintiff claims that the disciplinary hearing officer,
Russett, and the appeal officer, Guiney, were all part of the
conspiracy to retaliate against plaintiff. As to the hearing, as
already noted, plaintiff alleges that there was some evidence
in his favor. Plaintiff does not allege that there was no
evidence against him. So presumably there was. Plaintiff
makes no mention of such evidence. Plaintiff does not allege
anything about Russett's findings other than that he found
plaintiff guilty of the charges in the misbehavior report.
Plaintiff does not allege that he was punished as a result or
what punishment he received.
As to Guiney, plaintiff merely states that Guiney “affirm
plaintiff appeal after reviewing disciplinary proceeding.” This
allegation, of course, does not explain what Guiney found, or
why it was incorrect, if it was incorrect.
The basic theory of the complaint is that Phillips initiated a
conspiracy, which produced a concocted misbehavior charge
against plaintiff, made by Kiernan, followed by a baseless
finding of guilt by the hearing officer, Russett, ending
in another baseless finding by the appeal officer, Guiney.
Presumably, if this occurred, evidence against plaintiff would
have been manufactured along the way. It is on its face highly
unlikely that such things occurred. Plaintiff has not provided
even a modicum of particulars to lend credence to his unusual
theory.
Plaintiff therefore fails to “plead with some particularity
how an action was in retaliation for the plaintiff having
filed grievances.” Brown, 41 F.Supp.2d at 191. Under these
circumstances, the retaliation claim against these defendants
must be dismissed. Harris, 962 F.Supp. at 405 (dismissing a
retaliation claim where plaintiff “failed to allege whether the
particular Defendants even knew about Plaintiff's grievances
and, beyond any conclusory statements, why there would be
any retaliation .”).
Medical Issues 1
Plaintiff alleges that he was not given proper medical attention
during the hunger strike as was necessary given his diabetes,
and asserts a violation of the Eighth Amendment.
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Plaintiff can assert a claim under the Eighth Amendment if
he can plead facts that would demonstrate that the defendants
were deliberately indifferent to his serious medical needs.
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998).
Deliberate indifference has both objective and subjective
components. First, a plaintiff must prove that the alleged
deprivation was, in objective terms, “sufficiently serious”. Id.
The “sufficiently serious” standard contemplates “a condition
of urgency, one that may produce death, degeneration, or
extreme pain.” Hathaway v. Coughlin, 37 F.2d 62, 66
(2d Cir.1994) (quotation omitted). The plaintiff must then
prove that the defendant was had a sufficiently culpable
state of mind. Id. “[A] prison official does not act in a
deliberately indifferent manner unless that official ‘knows of
and disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference.” ’ Id. (quoting Farmer
v. Brennan, 511 U.S. 825, 837 (1994)).
*5 Plaintiff alleges that Huttel and Sarles “knew plaintiff
were a diabetic prior to strike, yet disregarded an excessive
risk to his health and safety” once the strike began. But the
allegation is insufficient since it fails to assert that Huttel and
Sarles actually damaged plaintiff's health.
Plaintiff makes two allegations against Tardio and Osselman,
two nurses at Green Haven. First, plaintiff makes the
conclusory allegation that while giving plaintiff his daily
insulin injection, Tardio and Osselman were told of his
request for medical attention due to the hunger strike but
“disregarded the excessive risk to his health and safety.”
Plaintiff's second allegation against Tardio and Osselman
is that they refused to weigh him after he informed them
that he hadn't eaten in seventy-two hours and asked to
be weighed, and that he was “never given any medical
attention.” Plaintiff alleges that this was in violation of health
policies related to hunger strikes. As a result of this alleged
indifference, plaintiff claims to have suffered “headaches,
sweating, confusion, disorientation, weakness, hypotension
and tremors during strike.”
It should be noted that plaintiff chose to go on the hunger
strike. The symptoms plaintiff allegedly suffered are to be
expected by someone who does not eat for three days. Second,
these symptoms do not rise to the level of a “sufficiently
serious” condition, i.e., “a condition of urgency, one that may
produce death, degeneration, or extreme pain.” Hathaway, 37
F.2d at 66. Moreover, regarding the subjective portion of an
Eighth Amendment claim, plaintiff does not plead any facts
that would demonstrate that Tardio or Osselman subjectively
believed there was a substantial risk of harm to plaintiff. 2
Accordingly, the Eighth Amendment claims against Huttel,
Sarles, Tardio and Osselman are dismissed.
Denial of Access to Courts
A word should be said about the allegations against
Goidel and Eagen. Plaintiff alleges that Goidel refused to
file numerous grievances regarding the alleged retaliation,
conspiracy and discrimination already discussed. Plaintiff
also alleges that Eagen is liable under a theory of “supervisor
liability” because he was notified of the situation and would
not remedy it, despite “learning of [an] unconstitutional
custom” of such refusals at Green Haven. As a result of these
actions, plaintiff alleges, he was denied access to the courts.
To state a claim for denial of access to the courts under § 1983,
an inmate must demonstrate that a defendant's “deliberate
and malicious interference actually impeded his access to the
court or prejudiced an existing action.” Cancel v. Goord, No.
00 Civ.2042, 2001 U.S. Dist. LEXIS at *12 (S.D.N.Y. Mar.
29, 2001). Here, plaintiff has been heard in this court, so the
claim against Goidel and Eagen is dismissed.
Fourteenth Amendment
Finally, Plaintiff has asserted claims against all defendants,
alleging disparate treatment in violation of the Equal
Protection Clause of the Fourteenth Amendment. There is
simply no substance to these claims and they do not require
discussion.
CONCLUSION
*6 Plaintiff's motion to amend the complaint is granted. For
the reasons explained above, the case is dismissed pursuant
to Rule 12(b)(6).
SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2006 WL 846272
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Footnotes
1 There is some question of whether plaintiff has exhausted his administrative remedies for the medical
indifference claims as required by the PLRA. Because these claims ultimately fail as pleaded, the court will
assume for the sake of deciding this motion that the grievances described in the complaint included claims
regarding plaintiff's medical care and that he thus satisfied the exhaustion requirement.
2 The court also notes that plaintiff's claim that he was “never given any medical attention” would appear to
be in conflict with his other allegation that he received a daily insulin injection for his diabetes from Tardio
and Osselman.
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In re Horowitz, Not Reported in B.R. Rptr. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 1039581
Only the Westlaw citation is currently available.
NOT FOR PUBLICATION
United States Bankruptcy Court, S.D. New York.
IN RE: Asher HOROWITZ, Debtor.
Burberry Limited and Burberry USA, Defendant.
v.
Asher Horowitz, Defendant.
Case No. 14–36884 (CGM)
|
Adv. No. 15–09002 (CGM)
|
Signed March 14, 2016
|
Filed March 15, 2016
Attorneys and Law Firms
Reich Reich & Reich, P.C., 235 Main Street, Suite 450, White
Plains, N.Y. 10601, Counsel for Plaintiffs, By: Jeffrey A.
Reich
Eric Streich, P.C., 235 Main Street, Suite 420, White Plains,
N.Y. 10601, Co-counsel for Plaintiffs, By: Eric Streich
Genova & Malin, Attorneys, The Hampton Center, 1136
Route 9, Wappingers Falls, N.Y. 12590–4332, Counsel for
Defendant, By: Andrea B. Malin Thomas Genova
MEMORANDUM DECISION AND
ORDER GRANTING PLAINTIFFS'
MOTION FOR SUMMARY JUDGMENT
CECELIA G. MORRIS, CHIEF UNITED STATES
BANKRUPTCY JUDGE
*1 Before the Court is Burberry Limited and Burberry
USA's (collectively “Burberry” or “Plaintiff”) motion for
summary judgment on Plaintiff's first, fourth and fifth causes
of action, seeking determinations of dischargeability. See
Compl. ¶¶ 54–89, Feb. 6, 2015, ECF No. 1; Pl.'s Mot. Summ.
J. 1, Nov. 23, 2015, ECF No. 15 (“Pl.'s Mot.”). 1 On summary
judgment, Plaintiff asserts it is owed a non-dischargeable debt
by Defendant Asher Horowitz (“Debtor” or “Defendant”),
pursuant to 11 U.S.C. § 523(a)(6). See Pl.'s Mot. 1. In the
alternative, Plaintiff seeks a global denial of discharge under
11 U.S.C. § 727(a)(2)(A) or § 727(a)(4)(A). See id. For the
following reasons, the Court grants Plaintiff's motion for
summary judgment on the grounds that Defendant's debt to
Plaintiff is non-dischargeable under § 523(a)(6).
Jurisdiction
This Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1334(a), 28 U.S.C. § 157(a) and the Standing Order
of Reference signed by Chief Judge Loretta A. Preska dated
January 31, 2012. This is a “core proceeding” under 28 U.S.C.
§ 157(b)(2)(I), “determinations as to the dischargeability of
particular debts” and (J), “objections to discharges[.]”
Background
On September 15, 2014, Debtor filed a voluntary petition for
relief under chapter 7 of the Bankruptcy Code. See Petition,
In re Horowitz, No. 14–36884 (Bankr.S.D.N.Y. Sept. 15,
2014), ECF No. 1. The last day to file any objections to
discharge was July 9, 2015. See Stip., In re Horowitz, No.
14–36884, ECF No. 39. On February 6, 2015, Plaintiff filed
a complaint against the Defendant, seeking a determination
of the dischargeability of particular debt and Defendant's
eligibility for discharge. Compl. ¶¶ 54–89.
Plaintiff “is an international luxury brand involved in the
design, manufacture, advertising, distribution and sale of
high quality apparel and accessories under its principal
trademarks....” Pl.'s Statement of Facts ¶ 1, Nov. 23, 2015,
ECF No. 15–28 (“Pl.'s SMF”). 2 Before filing for bankruptcy,
Defendant operated an unincorporated, online retail business
under the name Designers Imports. See Pl.'s SMF ¶¶ 2, 4
(citing Pl.'s Mot. Ex. B, at 2, Ex. C, Ex. D, at ¶¶ 18–21). While
operating Designers Imports, Defendant “violated Burberry's
intellectual property rights by selling counterfeit Burberry
merchandise on his website,” www.designersimports.com.
Id. at ¶¶ 2–3 (citing Pl.'s Mot. Ex. B, at 5). On March
29, 2005, Defendant, on behalf of himself and Designers,
entered into a settlement agreement with Burberry. Id. at ¶
5 (citation omitted); see also Pl.'s Mot. Ex. C, at ¶ 6.2, 10–
11. In the settlement, Defendant promised that he had ceased
purchasing merchandise from verified counterfeit sources
and further agreed not to knowingly infringe on Burberry's
trademarks in the future. See Pl.'s Mot. Ex. C, at ¶¶ 2.1–
2.6. After Defendant executed the settlement agreement with
Burberry, Defendant incorporated his retail company under
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the name Designers Imports, Inc. (“Designers”). Pl.'s SMF at
¶ 7 (citing Pl.'s Mot. Ex. F, at ¶¶ 19–21). Defendant was the
sole shareholder of Designers. Id. at ¶ 8 (citing Pl.'s Mot. Ex.
F, at ¶ 18).
*2 Despite entering into the settlement agreement,
Defendant continued to purchase and sell counterfeit
Burberry goods through his website. Pl.'s SMF ¶ 6 (citing
Pl.'s Mot. Ex. E, at 12); see also Pl.'s Mot. Ex. G, at 2, 5, 7,
9. On May 7, 2007, more than two years after entering into
the settlement agreement, Burberry notified Defendant that
Designers was the subject of an ongoing investigation by the
United States Customs and Border Protection. Pl.'s Mot. Ex.
G, at 2, 5, 7, 9. On May 22, 2007, Burberry filed a complaint
in the United States District Court for the Southern District of
New York against Designers (the “First Federal Action”). Pl.'s
SMF ¶ 10 (citing Pl.'s Mot. Ex. H). Burberry made claims for
trademark counterfeiting and infringement, false designation
of origin and dilution, breach of the settlement agreement,
trademark infringement and unfair competition under New
York common law, and asserted a likelihood of injury to
business reputation as well as deceptive acts and practices
under the New York General Business Law. Id. at ¶ 11 (citing
Pl.'s Mot. Ex. H).
After a trial in the First Federal Action, the court
issued a decision finding Designers committed willful
trademark infringement “based on its conduct spanning
several years during which Defendant repeatedly sold a
variety of counterfeit Burberry merchandise.” Burberry Ltd.
v. Designers Imps., Inc., 2010 U.S. Dist. LEXIS 3605,
at *13 (S.D.N.Y. Jan. 19, 2010). The federal court found
Designers liable for $1,500,000.00 in statutory damages,
plus reasonable attorneys' fees and costs. Id. at *32. In
a nunc pro tunc Amended Final Judgment and Permanent
Injunction (“Amended Final Judgment”), filed on July 29,
2010, the federal court set the final amount of damages
at $2,592,070.89 and permanently enjoined Designers from
infringing on Burberry trademarks. Pl.'s Mot. Ex. I.
On February 3, 2010, prior to the entry of the Amended
Final Judgment, Defendant incorporated a new company,
RTC Fashion Inc. (“RTC”), and created a new website. Pl.'s
SMF ¶¶ 22–23 (citing Pl.'s Mot. Ex. B, at 2, Ex. J). Designers
itself ceased to do business on February 26, 2010, before the
federal court issued the Amended Final Judgment. Id. at ¶ 27
(citing Pl.'s Mot. Ex. L, at 66:2–5). Instead, on May 4, 2010,
Defendant leased the old Designers' website to RTC for $500
a year. Id. at ¶ 29 (citing Pl.'s Mot. Ex. M). RTC continued to
sell designer clothes and accessories through the new website.
Id. at ¶ 24; Burberry Ltd. v. RTC Fashion Inc., No. 110615/11,
2014 N.Y. Slip Op. 31232(U), at 2 (N.Y.Sup.Ct. May 9, 2014)
(“RTC ”).
On September 16, 2011, Burberry filed a state court action
(the “State Action”) against RTC and Defendant personally,
with its first cause of action seeking to pierce Designers'
corporate veil to impose personal liability on Defendant “for
the unsatisfied amount of the judgment entered in the Federal
Action against Designers in the sum of $2,591,778.49.” Pl.'s
SMF ¶¶ 30–31 (citing Pl.'s Mot. Ex. N); see also RTC, 2014
N.Y. Slip Op. at 2. On May 9, 2014, the state court awarded
summary judgment to Burberry on its first cause of action.
RTC, 2014 N.Y. Slip Op. at 3. The state court saw fit to
pierce the corporate veil, determining that “as a matter of
law, equity will intervene to pierce the corporate veil and
permit the imposition of personal liability in order to avoid
fraud or injustice....” Id. (internal citation and quotation marks
omitted).
Prior to the state court's final determination, Plaintiff filed a
second federal action (the “Second Federal Action”) against
Defendant in his personal capacity. See Def.'s Mem. Law
in Opp'n 7, Jan. 19, 2016, ECF No. 25; Pl.'s Reply 5, Feb.
16, 2016, ECF No. 33; Def.'s Opp'n SMF Ex. B, at 1.
In the Second Federal Action, Burberry sought a judgment
that Defendant had personally committed willful trademark
infringement by selling the same counterfeit products from
the First Federal Action. Burberry Ltd. v. Horowitz, 534
Fed.Appx. 41, 43 (2d Cir. 2013). On appeal, the Second
Circuit held that the Second Federal Action was barred on res
judicata grounds. Id. at 46–47.
*3 Before this Court, Plaintiff alleges that Defendant's
personal liability on Designers' debt to Burberry for willful
trademark infringement is non-dischargeable under 11 U.S.C.
§ 523(a)(6), as a debt “for willful and malicious injury by
the debtor to another entity or to the property of another
entity.” Pl.'s Mot. 8–11; 11 U.S.C. § 523(a)(6). Plaintiff claims
summary judgment is appropriate under 11 U.S.C. § 523(a)
(6) based on collateral estoppel grounds. Pl.'s Mot. 5–10.
Plaintiff asserts that the First Federal Action found Designers
willfully violated the Lanham Act and further found the
elements necessary to establish maliciousness in the § 523(a)
(6) context. Id. at 8–11. Defendant contends the State Court
Action holds Defendant personally liable for the debts of
Designers so as to satisfy 11 U.S.C. § 523(a)(6)'s requirement
that the injury be caused by the Debtor. Pl.'s Reply 7–8.
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In the alternative, Plaintiff seeks to deny the Debtor's
discharge pursuant to § 727(a)(2)(A) for transferring,
destroying, and/or concealing property within one year of
filing the bankruptcy petition, and § 727(a)(4)(A) for making
a false oath in connection with the case. Pl.'s Mot. 11–19.
Under § 727(a)(2)(A) a discharge may be denied if
the debtor, with intent to hinder, delay,
or defraud a creditor or an officer of
the estate ..., has transferred, removed,
destroyed, mutilated, or concealed ...
(A) property of the debtor, within one
year before the date of the filing of the
petition;....
11 U.S.C. § 727(a)(2). Plaintiff argues that Defendant should
be denied a discharge under § 727(a)(2)(A) for initially
omitting the Designers website and licensing agreement from
his assets listed in his bankruptcy schedules, for concealing
his interests in certain real property, and for intentionally
misrepresenting the nature of a $3,000 transaction. Pl.'s Mot.
11–15.
Plaintiff argues that a global denial of discharge is also
warranted under § 727(a)(4)(A), pursuant to which a
discharge may be denied where “the debtor knowingly and
fraudulently, in or in connection with the case—(A) made a
false oath or account....” 11 U.S.C. § 727(a)(4)(A). Plaintiff
argues Defendant failed to accurately disclose information to
the estate, including failing to name certain creditors, and for
misrepresenting his income and expenses, all with the intent
to defraud his creditors. Pl.'s Mot. 15–19.
In opposition, Defendant states that neither the First Federal
Action nor the State Action considered whether Defendant
engaged in willful and malicious trademark infringement.
Def.'s Mem. Law in Opp'n 2. Defendant contends the First
Federal Action only considered whether Designers was liable
to Burberry for Designers' willful trademark infringement.
Id. at 9. Defendant argues the First Federal Action was only
brought against Designers and, as such, is not applicable to
Defendant on the issues litigated and decided therein. Id.
at 9–10. Defendant asserts that the only action entitled to
collateral estoppel is the Second Federal Action, and that it
estops Plaintiff from litigating whether Defendant engaged
in willful and malicious trademark infringement. Id. at 8–
9. Defendant further argues that the standard for willful
trademark infringement is not the same as the standard for
willful and malicious injury under § 523(a)(6). Id. at 17–18.
Defendant asserts the State Action only held Defendant
personally liable for Designers' damages to the extent they
arose out of Defendant's transfer of assets from Designers to
RTC. Id. at 13–14. According to Defendant, the State Action's
determination to pierce the corporate veil is not enough for
collateral estoppel here. Id.
Defendant further opposes the entry of an order denying
Defendant a global discharge on the grounds that Plaintiff has
not met its burden to show by a preponderance of the evidence
that Defendant intended to defraud his creditors by concealing
assets, or that Defendant knowingly and fraudulently made a
false oath in the Defendant's bankruptcy case. Id. at 19, 25.
Discussion
*4 Federal Rule of Civil Procedure 56(a), made applicable
in this adversary proceeding by Federal Rule of Bankruptcy
Procedure 7056, provides that summary judgment shall be
granted “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. Bankr.P. 7056.
Summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (internal citation and quotation marks
omitted).
The moving party has the initial burden to establish the
absence of any genuine issue of material fact. Celotex
Corp., 477 U.S. at 322–23 (citations omitted). In determining
whether the moving party has met this burden, “all
ambiguities must be resolved and all inferences drawn in
favor of the party against whom summary judgment is
sought.” Gallo v. Prudential Residential Servs., Ltd. Pshp.,
22 F.3d 1219, 1223 (2d Cir. 1994) (citations omitted). To
establish the absence of a genuine issue of material fact, the
moving party need not support its motion with affidavits.
Celotex, 477 U.S. at 323. This is due to the fact that Rule 56
“does not require the moving party to negate the elements of
the nonmoving party's case....” Lujan v. Nat'l Wildlife Fed'n,
497 U.S. 871, 885 (1990) (quoting Celotex, 477 U.S. at 323).
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Once the moving party has shown there are no genuinely
disputed material facts, the nonmoving party must go beyond
the pleadings to demonstrate the existence of a genuine issue
of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586–87 (1986) (citations omitted). On a
motion for summary judgment, “the mere existence of some
alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). A court must grant a motion for summary judgment
“against a party who fails 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, 477 U.S. at 322.
Collateral estoppel and the related doctrine of res judicata
“relieve parties of the cost and vexation of multiple lawsuits,
conserve judicial resources, and, by preventing inconsistent
decisions, encourage reliance on adjudication.” Allen v.
McCurry, 449 U.S. 90, 94 (1980) (citations omitted). Where
there is a final judgment on the merits, res judicata prevents
the parties from asserting claims based on the same cause
of action. See Montana v. United States, 440 U.S. 147, 153
(1979) (citations omitted). “Under collateral estoppel, once
a court has decided an issue of fact or law necessary to its
judgment, that decision may preclude relitigation of the issue
in a suit on a different cause of action involving a party to
the first case.” Allen, 449 U.S. at 94 (citation omitted). The
doctrine of offensive collateral estoppel permits “a plaintiff
[to] foreclose a defendant from relitigating an issue the
defendant has previously litigated but lost against another
plaintiff.” S.E.C. v. Monarch Funding Corp., 192 F.3d 295,
303 (2d Cir. 1999) (citing Parklane Hosiery Co. v. Shore, 439
U.S. 322, 329 (1979)).
Where the standard of proof on the issue in question
requires proof by at least a preponderance of the evidence,
“a bankruptcy court could properly give collateral estoppel
effect to those elements of the claim that are identical to
the elements required for discharge and that were actually
litigated and determined in the prior action.” Grogan v.
Garner, 498 U.S. 279, 284 (1991). In bankruptcy, the
party objecting to discharge must prove its claim by a
preponderance of the evidence. See, e.g., Grogan, 498 U.S.
at 286; In re Renshaw, 222 F.3d 82, 86 (2d Cir. 2000).
Although the standard of proof to prevail on a claim for
non-dischargeabilty is a preponderance of the evidence,
“exceptions to discharge are to be narrowly construed and
genuine doubts should be resolved in favor of the debtor.”
In re Hyman, 502 F.3d 61, 66 (2d Cir. 2007) (citing In re
Renshaw, 222 F.3d at 86; In re Hayes, 183 F.3d 162, 167 (2d
Cir. 1999)).
*5 Under 11 U.S.C. § 523(a)(6), a discharge will not
be effective against any debt “for willful and malicious
injury by the debtor to another entity or to the property
of another entity....” To successfully plead a claim for non-
dischargeability pursuant to § 523(a)(6), a plaintiff must
establish that the debtor “acted willfully in committing the
injury,” and that the debtor “acted maliciously in committing
the injury.” Yash Raj Films (USA), Inc. v. Akhtar (In re
Akhtar), 368 B.R. 120, 127 (Bankr. E.D.N.Y. 2007) (citations
omitted). The Supreme Court has held that “[t]he word
‘willful’ in (a)(6) modifies the word ‘injury,’ indicating that
nondischargeability takes a deliberate or intentional injury,
not merely a deliberate or intentional act that leads to
injury.” Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). The
requirement that the injury be willful “may be satisfied if the
debtor had actual knowledge that he or she was violating the
law and the intent to bring about injury.” In re Akhtar, 368
B.R. at 127–28.
The Second Circuit has interpreted malicious to mean
“wrongful and without just cause or excuse, even in the
absence of personal hatred, spite, or ill-will.” Navistar Fin.
Corp. v. Stelluti (In re Stelluti), 94 F.3d 84, 87 (2d Cir.
1996) (citations omitted). Malice may be implied based on the
surrounding circumstances, or found constructively. Ball, 451
F.3d at 69 (citations omitted); Navistar, 94 F.3d at 88 (citing
Hope v. Walker (In re Walker), 48 F.3d 1161, 1164 (11th Cir.
1995); First Nat'l Bank v. Stanley (In re Stanley), 66 F.3d 664,
668 (4th Cir. 1995)).
“Malice may be found where the debtor breached a legal
duty ‘wilfully in the sense of acting with deliberate intent,
in circumstances where it is evident that the conduct will
cause injury to the plaintiff and under some aggravating
circumstance to warrant the denial of a discharge.’ ” Yash
Raj Films (USA) v. Ahmed (In re Ahmed), 359 B.R. 34,
42 (Bankr. E.D.N.Y. 2005) (citations omitted). Courts have
found malicious conduct where the Defendant was on notice
and yet “continued to infringe the plaintiffs' copyrights in
spite of, and indeed in defiance of numerous warnings.” In
re Ahmed, 359 B.R. at 42. Additionally, malice may also be
implied where “anyone of reasonable intelligence knows that
the act in question is contrary to commonly accepted duties
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in the ordinary relationships among people, and injurious to
another.” Voyatzoglou v. Hambley (In re Hambley), 329 B.R.
382, 402 (Bankr. E.D.N.Y. 2005) (internal quotations and
citations omitted).
Plaintiff alleges that the willful and malicious elements of
§ 523(a)(6) were decided in the First Federal Action, and
that Defendant is now collaterally estopped from relitigating
those issues here. “[T]he application of the collateral estoppel
doctrine differs based on the forum in which first judgment
was entered.” Guggenheim Capital, LLC v. Birnbaum (In re
Birnbaum), 513 B.R. 788, 800 (Bankr. E.D.N.Y. 2014). The
federal standard for collateral estoppel governs the preclusive
effect of a federal decision resolving issues of federal law.
See Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.
2006). Collateral estoppel under federal law requires that “(1)
the identical issue was raised in a previous proceeding; (2)
the issue was actually litigated and decided in the previous
proceeding; (3) the party had a full and fair opportunity to
litigate the issue; and (4) the resolution of the issue was
necessary to support a valid and final judgment on the merits.”
Purdy v. Zeldes, 337 F.3d 253, 258 (2d Cir. 2003). The
party arguing for the application of collateral estoppel has the
burden to establish all four elements. See Cent. Hudson Gas
& Elec. Corp. v. Empresa Naviera Santa S.A., 56 F.3d 359,
368 (2d Cir. 1995) (citing Gelb v. Royal Globe Ins. Co., 798
F.2d 38, 44 (2d Cir. 1986)); Pike v. Freeman, 266 F.3d 78, 91
(2d Cir. 2001) (citations omitted).
*6 Plaintiff has shown the identity of the issues for willful
and malicious injury. To show the identity of the issues, the
Court must analyze “whether the issues presented by this
litigation are in substance the same as those resolved against
the” Defendant previously. Montana v. United States, 440
U.S. 147, 155 (1979). The first element is willfulness. Under
the Lanham Act, a person is liable for trademark infringement
when, without the consent of the trademark holder, that person
use[s] in commerce any reproduction,
counterfeit, copy, or colorable
imitation of a registered mark in
connection with the sale, offering for
sale, distribution, or advertising of any
goods or services on or in connection
with which such use is likely to cause
confusion, or to cause mistake, or to
deceive....
15 U.S.C. § 1114(1)(a). Although liability for trademark
infringement does not require a finding of willfulness,
the statutory damages for willful trademark infringement
increase to $2,000,000 per infringement. See 15 U.S.C. §
1117(b), (c); Hermes Int'l v. Kiernan, 2008 U.S. Dist. LEXIS
70506, at *10 (E.D.N.Y. Aug. 28, 2008). Willfulness requires
a finding that “the defendant had knowledge that [his] conduct
represented infringement or perhaps recklessly disregarded
the possibility.” Kepner–Tregoe, Inc. v. Vroom, 186 F.3d
283, 288 (2d Cir. 1999) (quoting Twin Peaks Prods., Inc. v.
Publications Int'l, Ltd., 996 F.2d 1366, 1382 (2d Cir. 1993))
(internal quotation marks omitted).
Here, the First Federal Action found Designers acted willfully
based on Designers' continuing sales of counterfeit Burberry
merchandise, despite the fact Burberry “repeatedly placed
Defendant on notice that Defendant was violating the
trademark law by selling counterfeit Burberry merchandise.”
Burberry Ltd., 2010 U.S. Dist. LEXIS 3605, at *13. In
making a finding of willfulness, the court further found
that Designers had repeatedly and knowingly violated the
settlement agreement with Burberry. Id. at 25. Additionally,
the court determined Designers “willfully failed to investigate
the bona fides of Burberry-branded goods it purchased for
sale,” and failed to implement procedures to prevent the
sale of counterfeit merchandise. Id. The court also found
that Designers was aware Burberry had placed a test order,
and instead of filling the order from its own stock, sent
Defendant's wife, Mrs. Horowitz, “to an authorized Burberry
store to purchase items to fill the order.” Id. at 26.
The findings in the First Federal Action satisfy the
legal definition for willfulness in bankruptcy. Pursuant to
the federal standard for willfulness, Designers knew it
was violating the law and intended to cause injury to
Burberry. Kawaauhau, 523 U.S. at 61; Yash Raj Films
(USA), Inc. v. Akhtar (In re Akhtar), 368 B.R. 120,
127–28 (Bankr.E.D.N.Y.2007). Burberry had repeatedly put
Designers on notice of its illegal conduct, and Designers
signed a settlement agreement promising to stop further
violations. The federal court found Designers violated this
settlement agreement knowingly, and continued to violate
the law by selling counterfeit merchandise. Burberry Ltd.,
2010 U.S. Dist. LEXIS 3605, at *25. Designers failed to
implement any security measures to prevent future violations
and failed to investigate its purchases of Burberry-branded
goods. Id. The injury caused by trademark infringement is
the act of infringement. Star's Edge, Inc. v. Braun (In re
Braun), 327 B.R. 447, 451 (Bankr.N.D.Cal.2005). The Ninth
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Circuit has held that in an action for trademark infringement,
“intentional infringement is tantamount to intentional injury
under bankruptcy law.” Smith v. Entrepreneur Media, Inc.
(In re Smith), 2009 Bankr.LEXIS 4582, at *26 (B.A.P. 9th
Cir. Dec. 17, 2009). Designers intentionally infringed on
Burberry's trademark. This is sufficient to constitute a willful
injury.
*7 Here, malice may be inferred from the First Federal
Action's determination that Designers willfully, continually
and deliberately infringed on Burberry's trademarks.
Designers had repeated notice of its infringement. Burberry
Ltd., 2010 U.S. Dist. LEXIS 3605, at *13. Designers
knew that the infringement was “contrary to commonly
accepted duties in the ordinary relationships among people,”
as it had signed a settlement agreement acknowledging
its infringement and promising to take steps to refrain
from future infringements. Voyatzoglou v. Hambley (In re
Hambley), 329 B.R. 382, 402 (Bankr.E.D.N.Y.2005). Even
going beyond intentional infringement, Designers actively
tried to deceive and mislead Burberry by falsely filling
Burberry's test order with inventory purchased from a
legitimate Burberry retailer. Burberry Ltd., 2010 U.S. Dist.
LEXIS 3605, at *26. The federal court also found that
“[s]ince there was willful infringement and no ‘extenuating
circumstances,’ ” Burberry was entitled to attorneys' fees and
costs. Id. at *30–31. In other words, Designers' conduct was
“wrongful and without just cause or excuse....” Navistar Fin.
Corp. v. Stelluti (In re Stelluti), 94 F.3d 84, 87 (2d Cir. 1996).
The elements of willful trademark infringement present the
same issues required to show willful and malicious injury
under § 523(a)(6). Plaintiff has satisfied its burden to show
the identity of the issues for willful and malicious injury under
§ 523(a)(6).
The Court also finds that Plaintiff has met its burden on
the second element required for collateral estoppel under
federal law. The issues of willful and malicious injury
were actually litigated in the First Federal Action. The
Defendant participated in the litigation, and the federal court's
determination was the result of a full-fledged trial. See, e.g.,
Guggenheim Capital, LLC v. Birnbaum (In re Birnbaum),
513 B.R. 788, 801 (Bankr. E.D.N.Y. 2014) (internal citations
omitted).
The Court finds that Defendant had a full and fair opportunity
to litigate the issues of willful and malicious injury in
the First Federal Action. In the Second Federal Action,
the Second Circuit dismissed the case on res judicata
grounds, holding that Defendant and Designers were in
privity. Burberry Ltd. v. Horowitz, 534 Fed.Appx. 41, 43–
45 (2d Cir. 2013). The Second Circuit relied on several
undisputed facts, including that Defendant was “the sole
shareholder of, officer of and decision maker for[ ] the
Designers Imports corporation,” that Defendant “controlled
and directed Designers[ ] Imports['] participation” in the First
Federal Action, that Defendant “instructed the corporation's
lawyers, made all client decisions for Designer Imports as a
litigant in the case, and otherwise controlled the participation
of Designers Imports in the lawsuit.” Id. at 44 (internal
citations and quotation marks omitted). It cannot be disputed
that Defendant had a full and fair opportunity to litigate the
issues underpinning willful and malicious injury in the First
Federal Action.
The final element required for collateral estoppel on the
issues of willful and malicious injury is that the federal
court's findings were necessary to support the Amended
Final Judgment. A finding of willful trademark infringement
results in increased statutory penalties. See 15 U.S.C. §
1117(b), (c). The Amended Final Judgment in the First
Federal Action determined the amount of liability based on a
finding of willful trademark infringement. See Pl.'s Mot. Ex. I.
Additionally, the Amended Final Judgment awarded Plaintiff
reasonable attorneys' fees and costs based on the finding
that there were no extenuating circumstances for Designers'
conduct. See id.; see also Burberry, 2010 U.S. Dist. LEXIS
3605, at *30–31. Defendant does not dispute this element.
Accordingly, Plaintiff has met its burden to preclude the
relitigation of willful and malicious injury.
Although Defendant had a full and fair opportunity to litigate
whether Designers' caused willful and malicious injury in
the First Federal Action, the injury must be attributable to
Defendant's conduct for the debt to be non-dischargeable
under 11 U.S.C. § 523(a)(6). Although Defendant's conduct
prior to the settlement agreement with Burberry is not part
of the debt at issue here, the First Federal Action found
that Defendant, in his individual capacity, sold counterfeit
Burberry merchandise through the Designers website, entered
into the settlement agreement with Burberry, agreed to cease
all counterfeit sales, and paid damages to Burberry. Pl.'s SMF
¶¶ 2–7; see also Debtor's Aff. in Opp'n to Summ. J. ¶¶ 3–7,
Jan. 21 2016, ECF No. 27–5. The First Federal Action found
Designers sold additional counterfeit Burberry merchandise
after entering into the settlement agreement, committing
willful trademark infringement. Burberry, 2010 U.S. Dist.
LEXIS 3605, at *10, 13–15, 25–26. To find the damages
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ordered by the First Federal Action to be non-dischargeable,
Plaintiff must show that the Defendant is collaterally estopped
from relitigating the issue of his personal liability based on
the State Action.
*8 Where the issues to be precluded were determined by
a state court, the law of the state where the underlying
proceedings took place controls the standard for collateral
estoppel. See 28 U.S.C. § 1736; Marrese v. Am. Acad. of
Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). In New
York, “collateral estoppel bars relitigation of an issue when
(1) the identical issue necessarily was decided in the prior
action and is decisive of the present action, and (2) the party
to be precluded from relitigating the issue had a full and
fair opportunity to litigate the issue in the prior action.”
Evans v. Ottimo, 469 F.3d 278, 281 (2d Cir. 2006) (citing
Kaufman v. Eli Lilly & Co., 482 N.E.2d 63, 67 (N.Y. 1985);
Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir. 1991)).
To establish the identity of the issues, the matter must have
been “ ‘actually litigated and determined’ in a prior action.”
Kaufman, 482 N.E.2d at 67 (citations omitted). Further, “the
issue that was raised previously must be decisive of the
present action.” LaFleur v. Whitman, 300 F.3d 256, 271 (2d
Cir. 2002) (internal citations and quotation marks omitted).
In New York, the proponent of collateral estoppel has the
burden to establish the identity of the issues, that the issues
were actually litigated and determined, and that they are
decisive of the present action. In re Dunn, 27 N.E.3d 465,
468 (N.Y.2015) (citations omitted); Sullivan v. Gagnier, 225
F.3d 161, 166 (2d Cir. 2000). The party opposing collateral
estoppel has the burden “to establish the absence of a full and
fair opportunity to litigate.” D'Arata v. N.Y. Cent. Mut. Fire
Ins. Co., 564 N.E.2d 634, 636 (N.Y.1990) (citing Kaufman,
482 N.E.2d at 67); see also Evans, 469 F.3d at 281–82
(citations omitted).
The Court finds that the Plaintiff has met its burden to
show Defendant's personal liability for willful and malicious
injury was actually litigated and decided in the State Action,
and that the issue is decisive of this non-dischargeability
action under § 523(a)(6). Defendant's main argument in
opposition is that Defendant's responsibility for Designers'
willful and malicious conduct is an issue that has not been
previously litigated. Defendant's argument is misplaced. The
State Action determined that Defendant controlled Designers
to such an extent that Defendant may be held liable for the
acts of Designers. Burberry Ltd. v. RTC Fashion Inc., No.
110615/11, 2014 N.Y. Slip Op. 31232(U), at 5 (N.Y.Sup.Ct.
May 9, 2014).
The issue of Defendant's culpability for willful and malicious
injury was previously litigated and decided by the state court's
determination to pierce the corporate veil. As federal courts
have recognized, “New York courts have made clear that the
veil-piercing standard is demanding. The Court of Appeals
has repeatedly emphasized that ‘[t]hose seeking to pierce a
corporate veil ... bear a heavy burden.’ ” Am. Federated Title
Corp. v. GFI Mgmt. Servs., 2015 U.S. Dist. LEXIS 114787, at
*29 (S.D.N.Y. Aug. 28, 2015) (internal citations and quotation
marks omitted). New York law will permit disregard of the
corporate form where there is either “a showing of fraud or
upon complete control by the dominating corporation that
leads to a wrong against third parties.” Wm. Passalacqua
Builders v. Resnick Developers S., 933 F.2d 131, 138 (2d Cir.
1991) (citing Itel Containers Int'l Corp. v. Atlanttrafik Exp.
Serv. Ltd., 909 F.2d 698, 703 (2d Cir. 1990)). In other words,
the corporate veil may “be pierced either when there is fraud
or when the corporation has been used as an alter ego....” ITEL
Containers, 909 F.2d at 703; see also Gartner v. Snyder, 607
F.2d 582, 586 (2d Cir. 1979).
To pierce the corporate veil in New York based on the alter ego
theory of liability, the individual to be held liable must “(1)
have exercised such control that the subsidiary ‘has become a
mere instrumentality’ of the parent, which is the real actor; (2)
such control has been used to commit fraud or other wrong;
and (3) the fraud or wrong results in an unjust loss or injury to
plaintiff.” Wm. Passalacqua Builders, 933 F.2d at 138 (citing
Lowendahl v. Baltimore & Ohio R.R. Co., 287 N.Y.S. 62
(N.Y.App.Div.1936), aff'd, 6 N.E.2d 56 (1936). Per the very
language of the standard, a determination of liability based
on the alter ego theory is a determination that the party in
control is the “real actor.” See id. “By definition, an alter ego
corporation possesses no independent volition.” Lisa Ng v.
Adler (In re Adler), 494 B.R. 43, 53 (Bankr.E.D.N.Y.2013).
*9 Here, the state court based its determination to pierce the
corporate veil on the alter ego theory of liability. According to
the state court, “piercing the corporate veil generally ‘requires
a showing that the individual defendants 1) exercised
complete dominion and control over the corporation, and 2)
used such dominion and control to commit a fraud or wrong
against the plaintiff which resulted in injury.’ ” RTC, 2014
N.Y. Slip Op. at 3 (quoting Damianos Reality Group, LLC
v. Fracchia, 825 N.Y.S.2d 274, 276 (N.Y.App.Div.2006)).
The state court held that “[Defendant] completely dominated
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and controlled [Designers], and abused the corporate form
to advance his own personal interests.” RTC, 2014 N.Y. Slip
Op. at 5. The state court further held that “Plaintiffs have
shown that [Defendant] exercised his control to commit a
wrong against the plaintiffs by dissolving Designers assets
and transferring its domain name to his new company RTC,
thereby rendering Designers incapable to satisfy the Federal
Action judgment.” Id. The state court granted summary
judgment on Plaintiff's first cause of action, which it
summarized as “piercing the corporate veil, in order to hold
[Defendant] liable for the Federal Action judgment.” Id. at 3.
The state court's determination to pierce the corporate
veil was a finding that Defendant was responsible for the
prepetition actions of Designers. The State Action found
Designers to be an alter ego of Defendant on May 9, 2014,
prior to Defendant's bankruptcy filing. See RTC, 2014 N.Y.
Slip Op. at 6. As a result, and for purposes of conduct
attributable to the Debtor under § 523(a)(6), “the Debtor
always remained inseparable from th[e] corporate fiction[ ].
The actions and property of [Designers] were thus the actions
and property of the Debtor....” Lisa Ng, 494 B.R. at 53.
The state court's determination to pierce the corporate veil is
sufficient for a finding under § 523(a)(6) that Defendant was
responsible for willful and malicious injury to Burberry.
Further, the Second Circuit's decision in the Second Federal
Action weighs in favor of collateral estoppel on Defendant's
personal liability. The Second Circuit found that the veil-
piercing claim in the State Action was the appropriate
means to impose liability on Defendant. Burberry Ltd. v.
Horowitz, 534 Fed.Appx. at 46. The Second Circuit dismissed
Burberry's Second Federal Case against Defendant, holding
that Defendant and Designers had been in privity during the
First Federal Action. Id. at 43–45. As previously noted, the
Second Circuit relied on Defendant's extensive relationship
with Designers in the First Federal Action, including the fact
that Defendant directed Designers' lawyers how to proceed.
Id. at 44. The Second Circuit reasoned that “Burberry has
already filed a veil-piercing action in New York state court,
through which it seeks to hold Horowitz personally liable for
the outstanding federal judgment against Designers Imports.
That litigation provides the appropriate vehicle for resolution
of Burberry's claims against Horowitz individually.” Id.
According to the Second Circuit, the State Action would
determine Defendant's personal responsibility for the injuries
inflicted on Burberry. This Court finds that Plaintiff has met
its burden to show the issue of Defendant's liability for the
conduct at issue was previously litigated, decided, and is
decisive of the current dispute under § 523(a)(6).
In the alternative to the non-dischargeability claim under
§ 523(a)(6), Plaintiff seeks to deny Defendant a global
discharge pursuant to § 727(a)(2)(A) or § 727(a)(4)(A). Pl.'s
Mot. 1. As the Court has found Defendant's debt to Plaintiff
to be non-dischargeable under § 523(a)(6), the Court will not
address Plaintiff's alternate arguments at this time.
Conclusion
For the foregoing reasons, the Plaintiff's motion for summary
judgment on its first cause of action is granted. The parties are
to submit an order in conformity herewith.
All Citations
Not Reported in B.R. Rptr., 2016 WL 1039581
Footnotes
1 Unless otherwise indicated, references to documents filed in this case can be found on the docket of adversary
proceeding 15–09002.
2 In response to Plaintiff's Statement of Facts, numbering 76 paragraphs, Defendant's Response to Plaintiff's
Undisputed Material Facts (“Defendant's Response Statement”), made only four general types of denials.
Defendant “denies knowledge or information sufficient to form a belief as to the truth of the allegations
contained in” certain paragraphs of the Plaintiff's Statement of Facts, “denies the allegations contained in,”
several other paragraphs, “neither denies or admits” paragraphs 11 and 12 of Plaintiff's Statement of Facts,
and “neither denies or admits the allegations contained in” the remaining paragraphs of Plaintiff's Statement
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of Facts, “as the documents speak for themselves.” Def.'s Resp. to Pl.'s Statement of Facts ¶¶ 1–4, Jan. 19,
2016, ECF No. 23 (“Def.'s Resp. SMF”).
Local Bankruptcy Rule for the Southern District of New York (“Local Bankruptcy Rule”) 7056–1(b) requires
a party moving for summary judgment to submit a statement of material facts. Local Bankruptcy Rule 7056–
1 also requires that
(c) Papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph
responding to each numbered paragraph in the statement of the moving party, and if necessary, additional
paragraphs containing a separate, short, and concise statement of additional material facts as to which it
is contended that there is a genuine issue to be tried.
(d) Each numbered paragraph in the statement of material facts required to be served by the moving party
shall be deemed admitted for purposes of the motion unless specifically controverted by a correspondingly
numbered paragraph in the statement required to be served by the opposing party.
(e) Each statement by the movant or opponent pursuant to subdivisions (b) or (c) of this rule, including
each statement controverting any statement of material fact by a movant or opponent, shall be followed
by citation to evidence which would be admissible.
S.D.N.Y. LBR 7056–1(c)–(e). On a motion for summary judgment, denials based on a lack of knowledge or
information sufficient to form a belief are insufficient to contest a disputed fact. See, e.g., Cooper v. New
Rochelle, 925 F.Supp.2d 588, 605 (S.D.N.Y. 2013); Aztar Corp. v. N.Y. Entm't, LLC, 15 F.Supp.2d 252,
254 n.1 (E.D.N.Y. 1998) (citing Toyomenka Pac. Petroleum, Inc. v. Hess Oil V.I. Corp., 771 F.Supp. 63, 67
(S.D.N.Y.1991)). Similarly, a response contending to neither admit or deny an allegation does not create a
genuine issue of fact. See, e.g., Universal Calvary Church v. New York, 2000 U.S. Dist. LEXIS 15153, at
*7 n.6 (S.D.N.Y. Oct. 13, 2000) (citations omitted). Statements denying allegations without a citation to any
supporting evidence are also insufficient to contest a disputed fact. See Guglielmo v. Marchon Eyewear, Inc.,
2006 U.S. Dist. LEXIS 9146, at *1 n.1 (E.D.N.Y. Feb. 15, 2006). Here, Defendant's Response Statement
contains denials without citing the record, attempts to deny based on lack of knowledge or information and
neither admits nor denies a variety of factual statements. As such, these purported “denials” do not suffice
to create a genuine dispute of material fact.
In addition to Defendant's Response Statement, Defendant also submitted a Statement of Undisputed
Material Facts in Opposition to the Plaintiff's Request for the Entry of an Order for Summary Judgment
(“Defendant's Opposition Statement”). Def.'s Statement of Facts in Opp'n, Jan. 21, 2016, ECF No. 27
(“Def.'s Opp'n SMF”). To the extend Defendant does not allege a significantly different version of facts in
its Opposition Statement, supported by discernable evidence, the Court must treat Plaintiff's Statement of
Facts as undisputed.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00578-ML Document 165 Filed 03/24/26 Page 165 of 427

I.S. by and through Disla v. Binghamton City School District, Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 3804110
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
I.S., a minor BY AND THROUGH her mother and next
friend Anais DISLA; J.B., a minor by and through her
parents and next friends Ibelyh Disla and Jose Bristol;
I.M., a minor by and through her mother and next friend
Zulayka McKinstry; and A.S., a minor by and through
her mother and next friend Chanderlia Silva, Plaintiffs,
v.
BINGHAMTON CITY SCHOOL DISTRICT;
Binghamton Board of Education; Tim
Simonds, in his individual and official capacity;
Michelle Raleigh, in her individual and official
capacity; and Mary Ellen Eggleston, in her
individual and official capacity, Defendants.
3:19-CV-0513 (GTS/MJK)
|
Signed February 1, 2024
Attorneys and Law Firms
MICHAEL J. DeSTEFANO, ESQ., HAIMAVATHI V.
MARLIER, ESQ., JAMIE A. LEVITT, ESQ., MORRISON
& FOERSTER LLP, Counsel for Plaintiffs, 250 West 55th
Street, New York, NY 10019.
RACHEL KLEINMAN, ESQ., ANNE OREDEKO, ESQ.,
KATRINA FELDKAMP, ESQ., NAACP LEGAL DEFENSE
& EDU. FUND, INC., Co-counsel for Plaintiff, 40 Rector
Street, 5th Floor, New York, NY 10006, ANUJA DIWAKAR
THATTE, ESQ., JENNIFER A. HOLMES, ESQ., 700 14th
Street NW, Suite 6000, Washington DC 20005.
CARA McCLELLAN, ESQ., GRITTIS LEGAL CLINC, Co-
counsel for Plaintiff, 3501 Sansom Street, Philadelphia, PA
19104.
SHANNON T. O'CONNOR, ESQ., WEAVER MANCUSO
BRIGHTMAN PLLC, Counsel for Defendants, 16 Oswego
Street, Suite 2, Baldwinsville, NY 13207, ANNA M.
PATTON, ESQ., ERIN ELIZABETH ELMOUJI, ESQ.,
JOHN A. MANCUSO, ESQ., 150 Allens Creek Road, Suite
240, Rochester, NY 14618.
ASHLEY K. BOISVERT, ESQ., GOLDBERG SEGALLA
LAW FIRM, Co-counsel for Defendants, 5786 Widewaters
Parkway, Syracuse, NY 13214.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in this civil rights action
pursuant to the Fourth and Fourteenth Amendments of the
United States Constitution, 42 U.S.C. § 1983, and Title
VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d
et seq., filed by the above-listed minor Plaintiffs and their
parents (collectively “Plaintiffs”) against the Binghamton
City School District, Binghamton Board of Education, (the
“School Defendants”), Principal Tim Simonds, Assistant
Principal Michelle Raleigh, and school nurse Mary Ellen
Eggleston (collectively the “Defendants”), are the following
four motions: (1) Defendants’ motion for summary judgment
pursuant to Fed. R. Civ. P. 56; (2) Plaintiffs’ cross-motion
for partial summary judgment pursuant to Fed. R. Civ. P.
56; (3) Plaintiffs’ motion to preclude or limit the testimony
of Defendants’ expert witness Dr. Robert Demerath; and (4)
Defendants’ motion to preclude or limit the expert testimony
of Plaintiffs’ expert witnesses Dr. Jamilia Blake and Dr. Sarah
Vinson. (Dkt. Nos. 270, 272, 273, 295.) For the reasons set
forth below, Defendants’ motion for summary judgment is
granted in part and denied in part, Plaintiffs’ cross-motion
for partial summary judgment is denied, Plaintiffs’ motion to
preclude Defendants’ expert is granted in part and denied in
part, and Defendants’ motion to preclude Plaintiffs’ expert
testimony is granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Procedural History
Plaintiffs opened this action by filing a Complaint on April
29, 2019. (Dkt. No. 1.) On October 1, 2019, Defendants
filed a combined motion to dismiss for lack of subject-matter
jurisdiction and for judgment on the pleadings. (Dkt. No.
44.) This Court granted that motion in part and denied it in
part on September 14, 2020. (Dkt. No. 117.) Specifically,
the Court found that, although it did have subject-matter
jurisdiction over the claims asserted by Plaintiffs pursuant to
the Individuals with Disabilities Education Act (“IDEA”) and
Section 504 of the Rehabilitation Act, those claims should
nonetheless be dismissed with prejudice because Plaintiffs
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had failed to state a claim upon which relief could be
granted. (Id. at 12-21.) As to Plaintiffs’ claims that they
were subjected to unconstitutional searches by Defendants,
the Court dismissed those claims to the extent that they allege
that A.S. and J.B. were subjected to a strip search, 1 but
did not dismiss the claims of those Plaintiffs to the extent
they allege a less-intrusive search was performed. (Id. at
21-36.) As a part of the analysis of that claim, the Court
concluded that Plaintiffs had plausibly alleged involvement
by the individual Defendants as well as a basis for the
assertion of Monell liability against the School Defendants.
(Id.) The Court also dismissed without prejudice to renewal
Plaintiffs’ claims of intentional discrimination pursuant to
the Equal Protection Clause and Title VI on the basis that
the statistics and data relied on by Plaintiffs to show an
inference of discrimination predated the relevant events by
three or four years and did not specifically address disparate
treatment in the decision to conduct searches of students,
and because the other allegations regarding the individual
Defendants (i.e., that Defendant Simonds noted the minor
Plaintiffs were “hyper and giddy,” that Defendant Eggleston
made comments about some of their bodies and attitudes,
and that Defendant Raleigh expressed fear of being left alone
with them) were insufficient to plausibly suggest that the
decision to search Plaintiffs was racially motivated. (Id. at
36-45.) The Court lastly dismissed with prejudice the claims
against the individual Defendants in their official capacities,
finding those to be duplicative of the claims against the
School Defendants. (Id. at 45-47.)
*2 Plaintiffs filed a motion for reconsideration of that
decision on September 28, 2020, focusing primarily on the
Court's finding that Plaintiffs had not plausibly alleged that
A.S. had been subjected to a strip search. (Dkt. No. 121.) The
Court denied that motion on November 13, 2020, finding that
the Complaint did not explicitly state any facts that A.S.’s
action of unzipping her sweater to the middle of her chest
before zipping it back up revealed her bra and the skin of
her torso to Defendant Eggleston's view despite Defendant
Eggleston's alleged later comments about A.S. wearing only a
bra, particularly in light of the fact that Defendant Eggleston
would have plausibly known that A.S. was wearing only
a bra underneath her sweater from previously, as Plaintiffs
alleged, placing a stethoscope underneath A.S.’s sweatshirt
when checking her vitals. (Dkt. No. 138.) The Court further
clarified that the relevant consideration is whether the actions
alleged could constitute a strip search under the standards of
the Fourth Amendment, not the School District's own policy.
(Id.)
B. Plaintiffs’ Amended Complaint
On December 14, 2020, Plaintiffs filed a motion to amend
the Complaint, which was granted on January 20, 2021. (Dkt.
Nos. 156, 163.)
Generally, in their Amended Complaint, Plaintiffs assert
three claims. (Dkt. No. 163.) First, Plaintiffs claim that all
Defendants violated their Fourth Amendment right to be free
from unlawful searches by subjecting the minor Plaintiffs to
searches of their persons and belongings, variously including
vital sign checks and sobriety tests, removal of clothing,
shaking or pat-searching of their bodies and belongings, and,
as to I.M. specifically, searching the inside of her bra and
touching the sides of her breasts (“First Claim”). (Id. at ¶¶
121-50.) As part of this claim, Plaintiffs argue that the actions
of the individual Defendants constituted the official policy
of the School Defendants, that the alleged violation of the
minor Plaintiffs’ Fourth Amendment rights was the result of
a failure to train or supervise school staff, and that the School
Defendants acted with deliberate indifference to the rights of
the minor Plaintiffs. (Id.)
Second, Plaintiffs claim that all Defendants violated their
Fourteenth Amendment right to equal protection under the
law by subjecting them to searches based on prejudices and
stereotypes related to the minor Plaintiffs’ races and gender,
which they allege is shown by (1) disparate rates of searches
and out-of-school suspensions between White students and
students who are Black, Latina, or multiracial, (2) Defendant
Simonds’ perception that the minor Plaintiffs’ “giddy” and
“hyper” behavior suggested drug use, (3) Defendant Raleigh's
alleged statement that she was afraid to be alone with the
minor Plaintiffs, and (4) Defendant Eggleston's description
of the minor Plaintiffs as loud, disrespectful, and having
attitudes along with her alleged statements to A.S. and I.M.
about their breasts (“Second Claim”). (Id. at ¶¶ 151-80.) As
part of this claim, Plaintiffs again assert that the actions of
the individual Defendants constituted the official policy of the
School Defendants, that the alleged violation was a result of
a failure to train or supervise, and that the School Defendants
acted with deliberate indifference to the rights of the minor
Plaintiffs. (Id.)
Third, Plaintiffs claim that the School Defendants violated
Title VI by intentionally discriminating against them on the
basis of race, color, or national origin, in combination with
their gender (“Third Claim”). (Id. at ¶¶ 181-95.)
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C. Undisputed Material Facts on Defendant's Motion
for Summary Judgment
Under N.D.N.Y. Local Rule 56.1, a party opposing summary
judgment must file a response to the moving party's Statement
of Material Facts that “shall mirror the movant's Statement
of Material Facts by admitting and/or denying each of the
movant's assertions in a short and concise statement, in
matching numbered paragraphs,” supported by “a specific
citation to the record where the factual issue arises.” N.D.N.Y.
L.R. 56.1(b). This requirement is not a mere formality; rather
“this and other local rules governing summary judgment are
essential tools intended to relieve the district court of the
onerous task of hunting through voluminous records without
guidance from the parties.” LaFever v. Clarke, 17-CV-1206,
2021 WL 921688, at *6 (N.D.N.Y. Mar. 11, 2021) (Hurd,
J.) (quoting Frantti v. New York, 414 F. Supp. 3d 257, 284
[N.D.N.Y. 2019] [Hurd, J.]). Indeed, “[a] proper response to a
movant's statement of material facts streamlines the summary
judgment analysis ‘by allocating responsibility for flagging
genuine factual disputes on the participants ostensibly in the
best position to do so: the litigants themselves.’ ” LaFever,
2021 WL 921688, at *7 (quoting Alke v. Adams, 16-CV-0845,
2018 WL 5297809, at *2 [N.D.N.Y. Oct. 25, 2018] [Hurd,
J.]). “The Court may deem admitted any properly supported
facts set forth in the Statement of Material Facts that the
opposing party does not specifically controvert.” N.D.N.Y.
L.R. 56.1(b).
*3 Given the unusual complexity and volume of the
evidence and factual issues in this case, the Court will not
set forth the undisputed material facts at the beginning of
this Decision and Order (as it would ordinarily do), but
will discuss the relevant undisputed material facts when
analyzing each of Plaintiffs’ claims in the context of the
parties’ arguments.
D. Parties’ Arguments on Defendants’ Motion for
Summary Judgment
1. Defendants’ Memorandum of Law
Generally, in their motion for summary judgment, Defendants
assert seven arguments. (Dkt. No. 273, Attach. 14.) First, as
to Plaintiffs’ First Claim, Defendants argue that they did not
conduct a search as contemplated by the Fourth Amendment
(and certainly not a strip search), but rather that Defendant
Eggleston's actions in taking the minor Plaintiffs’ vital signs
and conducting neurological function testing was a health
assessment for the purposes of determining the health and
well-being of the minor Plaintiffs. (Id. at 15-23.)
Second, Defendants argue that, if a search was conducted
by any of the individual Defendants, their conduct complied
with the Fourth Amendment because the search was both
justified at the inception and reasonably related in scope to
the circumstances that provided justification. (Id. at 24-52.)
Specifically, Defendants argue that the search was justified
at the inception based on the following facts known to
Defendants Simonds and Raleigh in particular at the relevant
time: (1) [Redacted]; (2) the minor Plaintiffs were walking
towards the gymnasium when they left the lunchroom, which
was where a [Redacted]; (3) there was a known problem
of students in the District, including at East Middle School,
making and using a drink containing cough syrup and/or
codeine on school grounds during the 2018-2019 school year;
(4) administrators were unaware of where the minor Plaintiffs
had been or what they had been doing for a period of time
after they left the lunchroom; (5) the minor Plaintiffs were
acting abnormally when Defendants Simonds and Raleigh
found them, including being off-balance, stumbling, falling,
propping themselves on walls, laughing or being “giddy”
in a manner inappropriate to the situation, acting in ways
that were atypical for their normal demeanors, and, as to
A.S. in particular, [Redacted]; and (6) the minor Plaintiffs
were of an age when drug use can be a valid concern. (Id.
at 24-44.) Defendants further argue that the scope of the
search conducted was reasonably related to the purpose of
the search and not excessively intrusive because assessment
of vital signs, urinalysis, blood tests, and searches of shoes,
bags, pockets and outer clothing have all been found to be
reasonable where there is a sufficient suspicion that a student
is engaging in drug use, and that even more invasive searches
can be warranted if the suspicion is strong enough. (Id. at
44-52.)
Third, Defendants argue that the minor Plaintiffs were not
intentionally treated differently based on any impermissible
consideration of their race and/or gender. (Id. at 52.) More
specifically, Defendants argue that, although the minor
Plaintiffs were investigated for possible misconduct, they
have stipulated that they were not subject to any discipline
or disciplinary referral related to that investigation (and,
as a result, any attempt to compare themselves with other
students in the School District at large who were disciplined
is inapposite and insufficient), and that, nonetheless, the data
relied upon by Plaintiffs’ expert does not contain sufficient
information to show that the relevant students who were
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searched were similarly situated to the minor Plaintiffs other
than as to their race and/or gender. (Id. at 52-59.) Defendants
further argue that, as to the individual Defendants, Plaintiffs
have not provided an example of a similarly situated student
that those Defendants treated in a different manner. (Id. at
56-57.) Defendants similarly argue that Plaintiffs cannot show
that discriminatory purpose was a motivating factor behind
Defendants’ choice to search the minor Plaintiffs because
they have offered nothing but their own belief that certain
alleged actions or comments by the individual Defendants
are evidence of discriminatory intent. (Id. at 59-64.) More
specifically, Defendants argue that (1) the minor Plaintiffs
themselves have presented inconsistent testimony regarding
whether either Defendant Raleigh or Defendant Eggleston
made a comment that she was afraid to be left alone with
the minor Plaintiffs; (2) there is no evidence to support the
assertions that Defendants’ analysis of the impropriety of the
minor Plaintiffs’ conduct in the hallway and in the health
office was based on racial or gender stereotypes, particularly
because the video evidence corroborates the minor Plaintiffs’
behavior in the hallway; (3) a comment allegedly made by
Defendant Eggleston about I.M.’s breasts is not only disputed,
but is insufficient to constitute evidence of discriminatory
intent; and (4) Defendant Eggleston's alleged comments
that the minor Plaintiffs were loud, disrespectful, and had
attitudes in response to their conduct in the health office
are not indicative of discrimination based on race or gender
stereotypes because her assessment is corroborated by the
testimony of other individuals present in the health office,
including the minor Plaintiffs themselves. (Id.) Further, as
to the School District and the data and conclusions provided
by Plaintiffs’ expert, the sample size of the expert's statistics
is not sufficiently expansive to permit the Court to draw an
inference of discrimination. (Id. at 64-66.) Lastly as to this
claim, Defendants argue that Plaintiffs cannot assert an equal
protection claim under an alternative class-of-one theory
because such a claim has been found to be improper in cases
where the relevant decision is subjective and individualized,
as it was here. (Id. at 67-70.)
*4 Fourth, Defendants argue that Plaintiffs’ Third Claim
for intentional discrimination by the School Defendants fails
as a matter of law because, as already argued, Plaintiffs
have not shown a similarly situated comparator and have
not even alleged facts plausibly suggesting actual knowledge
by the School Defendants of any discrimination, and Title
VI nonetheless does not create a private cause of action for
disparate impact claims. (Id. at 70-74.)
Fifth, Defendants argue that Defendants Simonds, Raleigh,
and Eggleston are all entitled to qualified immunity on the
First and Second Claims because their actions did not violate
any clearly established law, and it was objectively reasonable
for them to believe that their conduct complied with the
reasonableness standard. (Id. at 74-80.)
Sixth, Defendants argue that, in the alternative, the Court
should apply the standard in Jeffreys v. City of New York, 426
F.3d 549 (2d Cir. 2005), and Scott v. Harris, 550 U.S. 372
(2007), to find the minor Plaintiffs’ testimony insufficient to
create any genuine dispute of material fact to the extent it is
inconsistent with the video evidence in this case because their
testimony is contradictory and incomplete. (Id. at 80-87.)
Seventh, Defendants argue that Plaintiffs’ Monell and Section
1983 claims regarding failure to train should be dismissed.
(Id. at 87-93.) More specifically, Defendants argue that
the School Defendants cannot be held legally responsible
merely for being the supervisors of individuals engaged in
unconstitutional actions, that decisions made by a school
principal do not give rise to Monell liability unless they also
represent the final policy of the municipality (which they
do not here), and that Plaintiffs have not shown that the
relevant Defendants acted with deliberate indifference given
the undisputed evidence that the School Defendants provided
training to staff on search policy and procedure. (Id.)
2. Plaintiffs’ Opposition Memorandum of Law
and Cross-Motion for Summary Judgment
Generally, in opposition to Defendants’ motion for summary
judgment, Plaintiffs assert seven arguments. (Dkt. No. 295,
Attach. 1.) First, Plaintiffs argue that the undisputed facts
establish that the minor Plaintiffs were subjected to a search
by the individual Defendants because, even to the extent
that actions of Defendant Eggleston and Defendant Raleigh
were health-related, they were still motivated by an intent to
determine if the minor Plaintiffs were engaged in activity that
violated the Code of Conduct (i.e., drug use), not purely out
of concern for the minor Plaintiffs’ health. (Id. at 9-14.)
Second, Plaintiffs argue that, as to the First Claim, the
record demonstrates that the searches of each of the minor
Plaintiffs were unreasonable in particular because they were
not justified at the inception. (Id. at 14-59.) More specifically,
Plaintiffs argue that the minor Plaintiffs were missing for
only approximately seven minutes between when Defendant
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Raleigh last saw them near the lunchroom and when
Defendant Simonds found them in the hall, and that they were
behaving in a manner not unusual for twelve-year-old girls
with their friends in a school hallway and also not in a manner
that was consistent with the symptoms of consumption of
“purple drink” that were put forward in the evidence. (Id.)
Plaintiffs assert that not only should Defendants’ motion for
summary judgment be denied as to this issue, but also that
summary judgment should be granted to Plaintiffs given that
no reasonable factfinder could conclude that the search was
justified at the inception.
*5 Third, Plaintiffs argue that, also as to the First Claim,
even if the searches were justified at the inception, the scope
of such searches was not justified. (Id. at 20-21, 30-34, 37-38,
42-44, 46, 50-51, 53-54, 58-59.) Plaintiffs characterize the
searches of the minor Plaintiffs as follows: (1) A.S. was
subjected to a vitals check, a field sobriety test, a search of her
shoes and pockets and their contents, instructions to remove
her clothing, and a pat down, and she also unzipped her
sweater halfway down before zipping it back again when she
felt uncomfortable; (2) I.M. was subjected to a vitals check,
a field sobriety test, a search of her shoes and pockets, a pat
down of her body, and instructions to remove her clothing,
as well as a physical search of the band of her bra under
her armpits and contact with the sides of her breasts, and
removal of both her outer pants and her leggings; (3) I.S. was
subjected to a vitals check, a field sobriety test, a search of
her pockets, shoes and items, a pat down, and instructions
to remove her sweater; and (4) J.B. was subjected to a vitals
check, a field sobriety test, and a search of her shoes. (Id.)
Plaintiffs argue that the searches were not reasonable in scope
because, if the Defendants were concerned that the minor
Plaintiffs had ingested or were carrying “purple drink,” it was
not reasonable for them to search anywhere other than where
something the size of a bottle or ingredients of that substance
could be located, and they did not have sufficient belief to
justify a strip search of any of the minor Plaintiffs. (Id. at 32,
43-44.)
Fourth, Plaintiffs argue that, as to the Second Claim, there
is at least a genuine dispute of material fact as to whether
Plaintiffs were discriminated against based on their race or
ethnicity. (Id. at 59-66.) More specifically, Plaintiffs argue
that they have provided statistical evidence, expert reports,
and testimonial evidence that raises a genuine dispute as to
whether Defendants were motivated at least in part by the
minor Plaintiffs’ race or ethnicity, because such evidence
shows that the School District had a pattern of searching
or disciplining Black and Latino students at higher rates
than White students, that Defendants acted in ways that
implicate typical forms of racial bias and stereotypes of
Black and Latina women and girls, and that the individual
Defendants made statements that accord with such racial
biases and stereotypes. (Id.) Plaintiffs argue that this evidence
is sufficiently reliable, and constitutes evidence of similarly
situated individuals given that all of the relevant students in
the expert's data set were searched on suspicion of drug use
or possession. (Id.)
Fifth, Plaintiffs argue that there are genuine disputes of
material fact remaining regarding the liability of the School
Defendants under Monell and Section 1983. (Id. at 67-70.)
More specifically, Plaintiffs argue that Defendants Simonds
and Raleigh are final policymakers regarding searches at East
Middle School because they had the ultimate authority to
determine whether a student should be searched, and that
liability should be imputed to the School Defendants on the
basis of such policy. (Id. at 67-70.)
Sixth, Plaintiffs argue that the individual Defendants are not
entitled to qualified immunity, because they violated clearly
established law indicating not only that a search of a school
student must be reasonable, but also that it must be based on
more than just “suspicious” behavior without further specific
evidence, such as a credible tip or accusation or identifiable
signs and symptoms of the use of “purple drink.” (Id. at
70-73.) Plaintiffs also argue that, as to Defendant Eggleston,
only administrators were authorized to conduct searches
under the School District's rules, and that, because Defendant
Eggleston was not an administrator, she acted outside the
scope of her authority when searching the minor Plaintiffs.
(Id.)
Seventh, Plaintiffs argue that the evidentiary standards
applied in Jeffreys and Scott do not apply because not only are
many of the facts that Defendants seek to repress irrelevant
given that they address circumstances of which Defendants
had no knowledge at the time they decided to conduct the
search (i.e., what the minor Plaintiffs were doing between the
time they left the lunchroom and when Defendant Simonds
found them), but the ones that are relevant are not clearly or
blatantly contradicted by the video. (Id. at 73-75.)
3. Defendants’ Reply Memorandum of Law
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*6 Generally, in their reply to Plaintiffs’ opposition,
Defendants assert eight arguments. (Dkt. No. 309, Attach. 3.)
First, as to the First Claim, Defendants argue that Defendant
Eggleston's performance of a health assessment did not
trigger the protections of the Fourth Amendment because
such actions did not constitute a search. (Id. 8-12.)
Second, also as to the First Claim, Defendants argue that
the searches conducted by Defendant Raleigh were justified
at the inception, because they were based on reasonable
suspicion that the minor Plaintiffs might be under the
influence of a prohibited substance when the totality of the
circumstances are considered given the fact their whereabouts
were unknown for a period of nearly ten minutes, there
was a documented concern regarding the use of “purple
drink” by students in the School District and East Middle
School, and Defendants witnessed various unusual and
concerning behaviors including a [Redacted], personality
changes, laughter that was inappropriate to the situation,
falling, and fidgeting-type behaviors. (Id. at 12-25.)
Third, also as to the First Claim, Defendants argue that the
search was reasonable in scope. (Id. at 25-35.) Defendants
highlight that any strip search allegations as to A.S. and
J.B. have already been dismissed by the Court, and the only
search allegations remaining related to those two Plaintiffs
are for a less invasive investigatory search. (Id. at 25.) As
to I.M., Defendants argue that, although she has asserted
facts that conflict with the testimony of Defendants Eggleston
and Raleigh regarding the search, it is undisputed that she
was wearing a tank top even after she removed her sweater,
her report that she was patted down is contradicted by her
sworn interrogatory response, she has provided inconsistent
testimony regarding the removal of her pants and leggings,
and she has not asserted that Defendant Raleigh did anything
more than direct I.M. to empty her pockets, remove her shoes,
retrieve her bag and empty the contents of that bag, and
then inspect the items produced. (Id. at 25-28.) As to A.S.,
Defendants argue that the search was limited to a check of
her vital signs, a neurological assessment, and emptying her
pockets and shoes, and that the alleged pat down and requests
to unzip her sweatshirt are not substantiated. (Id. at 28-32.)
As to I.S., Defendants argue that the search was limited to a
check of her vital signs, a neurological assessment, and search
of her pockets and shoes, and that any other allegations, such
as that Defendant Eggleston told her to remove her sweater
or patted her down, are not substantiated or credible. (Id. at
32-33.) Lastly, as to J.B., Defendants argue that the search
was limited to a check of her vital signs and a check of her
eyes; she admits she was not asked to remove any clothing
and was made to briefly remove her shoes and shake them.
(Id. at 33-35.)
Fourth, as to the Second Claim, Defendants argue that
Plaintiffs have failed to raise a genuine dispute of material
fact regarding whether Defendants engaged in intentional
discrimination because they have failed to establish a prima
facie case for their equal protection claim. 2 (Id. at 35-43.)
More specifically, Defendants argue that Plaintiffs have not
shown any similarly situated comparator because the statistics
presented by Plaintiffs’ expert are flawed and insufficient,
and newly asserted comparator White students that were
allegedly treated less harshly by Defendant Simonds upon
being suspected of substance use were not students at East
Middle School, were actually searched more thoroughly by
Defendant Simonds in those instances given that he did not
directly search, or order searches of, the minor Plaintiffs,
and the relevant instances related to those students occurred
anywhere between 2006 and 2012, well before the events in
this case. (Id. at 37-38, 41-43.) On the issue of evidence of
bias, Defendants argue that, contrary to Plaintiffs’ arguments,
Defendant Raleigh's concern that all of the minor Plaintiffs
[Redacted] was not based on racial stereotypes of Black and
Latina girls as violent, but on her awareness that [Redacted]
(Id. at 38-39.) They further argue that the Defendants’ various
descriptions of Plaintiffs’ behavior are not evidence of bias,
but an accurate depiction that is corroborated by the minor
Plaintiffs’ own testimony. (Id. at 39-40.)
*7 Fifth, Defendants argue that Plaintiffs’ Monell claim
fails as a matter of law because Plaintiffs cannot show that
Defendant Simonds was a final policymaker pursuant to the
Second Circuit's decision in Agosto v. New York City Dept.
of Edu., 982 F.3d 86 (2d Cir. 2020), and the New York State
Education Law, which places policymaking authority with
the chancellor (or superintendent) rather than a principal or
assistant principal. (Id. at 43-47.) Defendants also argue that,
given their failure to argue it on this motion, Plaintiffs have
waived their failure-to-train theory related to this claim. (Id.
at 43-44.)
Sixth, Defendants argue that Plaintiffs have not adequately
challenged their assertion that qualified immunity applies for
the individual Defendants, because they have failed to adduce
any clearly established law that would preclude that defense in
this case. (Id. at 47-52.) More specifically, Defendants argue
as follows: (1) Defendant Eggleston is entitled to qualified
immunity because she did not act outside the scope of her
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authority but merely performed a health assessment, and
in any event the law related to searches by school nurses
is so unsettled that there is no clearly established law on
this point; (2) Plaintiffs’ framing of the right as “the right
to be free from unreasonable searches” is impermissibly
broad; (3) Defendant Simonds did not directly participate
in the searches and did not order Defendant Eggleston to
conduct an investigatory search, and there was no clearly
established law that stopping students in the hallway to
inquire about their whereabouts, escorting them to the health
office to be examined, and conferring with the assistant
principal regarding a limited search for substances based
on observations of abnormal behavior violates the Fourth
Amendment; and (4) Defendant Raleigh's conducting a search
of the minor Plaintiffs’ shoes and belongings was objectively
reasonable based on the circumstances and there was no
clearly established law to indicate that such actions violate the
Fourth Amendment. (Id.)
Seventh, Defendants argue that the Court may properly apply
the principles of Jeffreys and Scott in this case because
Plaintiffs have admitted that any facts shown by the video
evidence are undisputed, and they are therefore not entitled to
any inference in their favor as to what the video shows, and
their accounts of certain events, including their own behavior
in the hallway, are contradicted by the video. (Id. at 52.)
Eighth, Defendants argue that Plaintiffs’ cross-motion for
summary judgment is both untimely because it was filed
well after the November 30, 2022, deadline for dispositive
motions, and nonetheless fails to meet their burden on the
one element of Plaintiffs’ First Claim for which they seek
judgment. (Id. at 53-56.)
E. Parties’ Arguments on Plaintiffs’ Motion to
Exclude Expert Testimony
1. Plaintiffs’ Memorandum of Law
Generally, in their motion to exclude (from consideration both
of the parties’ cross-motions for summary judgment and at
trial) the testimony of Dr. Robert Demerath, Plaintiffs make
three arguments. (Dkt. No. 270, Attach. 1.) First, Plaintiffs
argue that his opinions regarding the minor Plaintiffs’
credibility are inadmissible because they are irrelevant, not
helpful to the factfinder, and unfairly prejudicial. (Id. at
23-27.) They further argue that all opinions contained in Dr.
Demerath's report that flow from his credibility assessment of
the minor Plaintiffs also must be excluded. (Id.)
Second, Plaintiffs argue that Dr. Demerath's conclusions are
unreliable because they are not based on any articulable
methodology and rest on a speculation. (Id. at 27-32.)
Specifically, Plaintiffs argue that the testing Dr. Demerath
conducted provides only a snapshot of the minor Plaintiffs’
functioning years removed from the January 15, 2019,
incident and, even combined with his review of records, does
not provide any support for his conclusion that the minor
Plaintiffs’ mental health concerns were caused by factors
other than Defendants’ conduct. (Id. at 28-31.) They further
argue that he does not include the scaled scores related to
those tests and in fact does not base his conclusions on the
scaled scores, but on an inappropriate assessment of the raw
data. (Id.) Moreover, they argue that many of his conclusions
are entirely speculative and lack any discernable foundation
or valid explanation. (Id. at 31-32.)
*8 Third, Plaintiffs argue that Dr. Demerath is
unqualified to render opinions on matters related to racial
discrimination, because (a) he has admitted that he has no
specialized knowledge, training, or expertise related to racial
discrimination and has not been produced as an expert in such
topic, and (b) he also lacks any expertise related to statistical
analysis to rebut Dr. Blake's report and has not conducted
any statistical analyses of his own to support his opinions
regarding Dr. Blake's conclusions. (Id. at 32-36.)
2. Defendants’ Opposition Memorandum of Law
In opposition to Plaintiffs’ motion, Defendants make six
arguments. (Dkt. No. 290, Attach. 22.) First, Defendants
argue that Dr. Demerath is qualified by his education and
experience to provide the relevant testimony regarding the
Plaintiffs’ claims of psychological harm and mental anguish
and to rebut Dr. Blake's opinion. (Id. at 19-24.)
Second, Defendants argue that Plaintiffs’ challenges to Dr.
Demerath's testimony and opinions go to the weight rather
than the admissibility of his expert testimony and therefore
are improper, because they take issue with his conclusions
rather than his methodology for arriving at those conclusions,
and because they are incorrect that Dr. Demerath did not
interpret scaled scores when writing his expert report. (Id. at
25-27.)
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Third, Defendants argue that Dr. Demerath should be
permitted to opine on whether the minor Plaintiffs are reliable,
because such opinions are the product of his evaluations of
the minor Plaintiffs and not, as Plaintiffs argue, opinions as to
credibility. (Id. at 27-31.)
Fourth, Defendants argue that Plaintiffs’ argument that Dr.
Demerath is not qualified to testify regarding issues of racial
bias is without merit, because Dr. Demerath has not been
offered as an expert on that topic and, to the extent that he has
made some comments in his report related to such issues, he
has research and other professional experience that make him
qualified to opine on racial bias to the limited extent necessary
to contextualize the data and his opinions. (Id. at 31-32.)
Fifth, Defendants argue that Dr. Demerath's testimony
and reports are reliable because they rest on an accepted
methodology that involved reviewing relevant records,
analyzing generally accepted test questionnaires completed
by the minor Plaintiffs and their guardians, and conducting
examinations of the minor Plaintiffs and their guardians via
videoconferencing software, all of which is standard practice
used by psychologists. (Id. at 34-43.)
Sixth, Defendants argue that Dr. Demerath's testimony will
assist the trier of fact in determining whether the minor
Plaintiffs suffered mental anguish as a result of the events
that occurred on January 15, 2019, and the presentation of his
testimony will not be unduly prejudicial to Plaintiffs (Id. at
44-45.)
3. Plaintiffs’ Reply Memorandum of Law
Generally, in reply to Defendants’ opposition, Plaintiffs make
four arguments. (Dkt. No. 306.) First, Plaintiffs argue that
Dr. Demerath's opinions and testimony related to the minor
Plaintiffs’ credibility must be excluded as an improper use of
expert testimony. (Id. at 5-9.)
Second, Plaintiffs argue that their challenges to Dr.
Demerath's methodology and conclusions go to the
admissibility of his testimony because, although he may have
used generally accepted evaluations and tests, there is no
explanation as to how such evaluations and tests or his review
of records informed or support his conclusions. (Id. at 10.)
*9 Third, Plaintiffs argue that Dr. Demerath is unqualified to
testify regarding racial bias and discrimination or to rebut Dr.
Blake's testimony, noting that Defendants have conceded that
Dr. Demerath was not offered as an expert on such matters
and that his general experience in the areas of either racial
bias or the use of statistics to analyze racial discrimination
is insufficient to qualify him to render any opinions on those
matters. (Id. at 11-13.)
Fourth, Plaintiffs argue that Dr. Demerath's failure to consider
the impact of the events on January 15, 2019, on the minor
Plaintiffs’ mental states renders his testimony unreliable,
because a differential diagnosis evaluation such as he applied
requires that the expert must not only rule out some causes
of the relevant alleged symptoms, but must also rule out the
specific possibility that is asserted to be the cause, and Dr.
Demerath does not rule out the events of January 15, 2019,
as a potential cause of the minor Plaintiffs’ mental health
symptoms. (Id. at 13-14.)
F. Parties’ Arguments on Defendants’ Motion to
Exclude Expert Testimony
1. Defendants’ Memorandum of Law
Generally, in their motion to exclude (from consideration
both of the parties’ cross-motions for summary judgment and
at trial) the expert testimony of Dr. Jamilia Blake and Dr.
Sarah Vinson, Defendants make two arguments. (Dkt. No.
272.) First, Defendants argue that Dr. Blake fails to satisfy
any of the four elements required of expert testimony under
Fed. R. Evid. 702. (Id. at 14-31.) They specifically argue that
her experience and proposed testimony are deficient in the
following four respects: (a) she lacks scientific, technical or
other specialized knowledge that will assist a trier or fact;
(b) her testimony is not based on sufficient facts or data
because the information she relied upon is both incomplete
and misrepresentative; (c) her testimony is not the product of
reliable principles and methods; and (d) she failed to apply
the principles and methods to the facts of the case in a reliable
manner. (Id.)
Second, Defendants argue that Dr. Vinson's proposed
testimony should be excluded because it is not the product
of reliable principles and methods, given that she failed to
review any of the minor Plaintiffs’ medical records before
conducting her evaluations and did not perform any further
evaluations after reviewing those records. (Id. at 32-33.)
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2. Plaintiffs’ Opposition Memorandum of Law
Generally, in opposition to Defendants’ motion, Plaintiffs
make two arguments. (Dkt. No. 292.) First, Plaintiffs argue
that Dr. Vinson is a qualified expert who used and applied
recognized methods when rendering her opinions, and her
testimony will be helpful to a trier of fact. (Id. at 9-16.)
Specifically, Plaintiffs argue that her opinions were based
on a review of medical literature, a review of Plaintiffs’
medical and school records, and a thorough mental status
examination, and that she applied reliable principles because
she (a) conducted in-person psychiatric evaluations of the
minor Plaintiffs, (b) considered alternative sources of their
trauma, and (c) extensively reviewed Plaintiffs’ records and
peer-reviewed literature in a manner that is consistent with
well-recognized, accepted, and reliable methodologies. (Id.)
Second, Plaintiffs argue that Dr. Blake's opinion meets all the
requirements for admissibility under Fed. R. Evid. 702. (Id.
at 16-34.) Specifically, Plaintiffs argue that (a) Dr. Blake has
relevant experience, education, and expertise in evaluating
disparate educational experiences and outcomes for Black
and Latina girls in primary schools that will be helpful to
the trier of fact related to Plaintiffs’ equal protection and
Title VI claims, (b) her opinions as to both her review of
the literature and her statistics are based on sufficient facts
and data, and (c) her use of empirical literature and statistical
disproportionality assessments are reliable methodologies
and she properly applied those to the facts of this case. (Id.)
3. Defendants’ Reply Memorandum of Law
*10 Generally, in reply, Defendants argue that Dr. Blake's
conclusions are the product of unreliable methodologies that
were improperly applied to the facts of the case for the
following reasons: (a) the fact that her statistical analysis has
been peer-reviewed is only one factor in the analysis and
other courts have found use of a similar “risk-ratio” method
to be deficient; (b) her conclusions are not supported by her
analysis and are based on a selective review of the relevant
data; (c) her application of the methodology does not consider
any of the objective factors for discipline used by New York
state public schools; and (d) her analysis does not account
for alternative explanations, and the numbers she reported for
both school enrollment and searches are not consistent with
the numbers actually contained within the relevant data on
which she purported to rely. (Dkt. No. 307.)
II. GOVERNING LEGAL STANDARDS
Under Fed. R. Civ. P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 3 As for
the materiality requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the governing
law .... Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248. In determining
whether a genuine issue of material fact exists, the Court must
resolve all ambiguities and draw all reasonable inferences
against the movant. Anderson, 477 U.S. at 255. In addition,
“[the movant] bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those
portions of the ... [record] which it believes demonstrate[s]
the absence of any genuine issue of material fact.” Celotex
v. Catrett, 477 U.S. 317, 323-24 (1986). However, when
the movant has met its initial burden, the non-movant must
come forward with specific facts showing a genuine issue of
material fact for trial. Fed. R. Civ. P. 56(a), (c), (e). 4
Implied in the above-stated burden-shifting standard is the
fact that, where a non-movant willfully fails to respond to a
motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of
a factual dispute.
Of course, when a non-movant willfully fails to respond to a
motion for summary judgment, “[t]he fact that there has been
no [such] response ... does not ... [by itself] mean that the
motion is to be granted automatically.” Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above,
the Court must assure itself that, based on the undisputed
material facts, the law indeed warrants judgment for the
movant. Champion, 76 F.3d at 486; Allen v. Comprehensive
Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y.
2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-
movant's failure to respond to the motion does is lighten the
movant's burden.
*11 For these reasons, this Court has often enforced Local
Rule 56.1 by deeming facts set forth in a movant's statement
of material facts to be admitted, where (1) those facts are
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supported by evidence in the record, and (2) the non-movant
has willfully failed to properly respond to that statement. 5
Similarly, in this District, where a non-movant has willfully
failed to respond to a movant's properly filed and facially
meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that
memorandum of law under Local Rule 7.1(a)(3). 6 Stated
another way, when a non-movant fails to oppose a legal
argument asserted by a movant, the movant may succeed
on the argument by showing that the argument possess
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a
properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein ....”); Rusyniak
v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases);
Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at
*2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting
cases).
III. ANALYSIS
A. Whether Summary Judgment Is Appropriate on
Plaintiff's First Claim
After careful consideration, the Court answers this question in
the affirmative as to the Fourth Amendment claims asserted
by I.S., J.B., and A.S. (such that summary judgment should be
granted to Defendants on those Plaintiffs’ claims), but in the
negative as to the Fourth Amendment claim asserted by I.M.
The “[Fourth] Amendment's prohibition against unreasonable
searches and seizures applies to searches conducted by public
school officials.” New Jersey v. T.L.O., 469 U.S. 325, 333
(1985). However, it is well settled that, “ ‘while children
assuredly do not shed their constitutional rights ... at the
schoolhouse gate, ... the nature of those rights is what is
appropriate for children in school.’ ” Morse v. Frederick, 127
S.Ct. 2618, 2627 (2007) (quoting Veronica Sch. Dist. 47J
v. Acton, 515 U.S. 646, 655-56 [1995] [internal quotations
omitted]) (omissions in original). Thus, “the school setting
requires some easing of the restrictions to which searches by
public authorities are ordinarily subject.” T.L.O., 469 U.S. at
340. Specifically, “school officials need not obtain a warrant
before searching a student who is under their authority.” Id.
*12 A Fourth Amendment search or seizure is reasonable if
it was (1) justified at its inception, and (2) reasonably related
in scope to the circumstances with justified the seizure in
the first place. T.L.O., 469 U.S. at 341-42. “Under ordinary
circumstances, a search of a student by a teacher or other
school official will be “justified at its inception” when there
are reasonable grounds for suspecting that the search will turn
up evidence that the student has violated or is violating either
the law or the rules of the school,” while “[s]uch a search
will be permissible in its scope when the measures adopted
are reasonably related to the objectives of the search and not
excessively intrusive in light of the age and sex of the student
and the nature of the infraction.” Id.
This standard of reasonableness “stops short of probable
cause,” and is instead a “reasonable suspicion” standard.
Safford Unified School Dist. No. 1 v. Redding, 557 U.S.
364, 370 (2009). The knowledge requirement can therefore
be described as “a moderate chance of finding evidence
of wrongdoing,” as opposed to the “fair probability”
or “substantial chance” standard applicable in other law
enforcement contexts. Redding, 557 U.S. at 371. In
determining whether a search is justified in both the inception
and the extent, a court can look to the degree to which
known facts imply prohibited conduct, the specificity of
the information received, and the reliability of the source,
but such factors do not “rigidly control” and “the relevant
standards are ‘fluid concepts that take their substantive
content from the particular contexts’ in which they are being
assessed.”
The Second Circuit has explicitly extended the standard
outlined in T.L.O. to strip searches, but has found that a high
level of suspicion is required before such an intrusive search
can be conducted. Phaneuf v. Fraikin, 448 F.3d 591, 596 (2d
Cir. 2006).
1. Whether a Search Was Conducted
The Fourth Amendment is not triggered unless a search
or seizure has occurred. Some courts within the Second
Circuit have held that assessments conducted for medical
purposes are not searches under the Fourth Amendment;
however, those cases also recognize that medical assessments
conducted for investigative purposes are considered searches.
See, e.g., Masciotta v. Clarkstown Cent. Sch. Dist., 136 F.
Supp. 3d 527, 538-39 (S.D.N.Y. 2015) (collecting cases).
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Defendants argue, as an initial matter, that no search
occurred because the examination by Defendant Eggleston
was a health assessment of the safety and wellbeing of
the minor Plaintiffs, not an investigative search. (Dkt. No.
273, Attach. 14, at 15-23.) It is true that at least a portion
of the actions performed by Defendant Eggleston, such as
checking the minor Plaintiffs’ eyes and pulse and performing
a neurological examination, appear directed toward the
permissible purpose of conducting a medical evaluation to
determine whether the minor Plaintiffs may have ingested
a substance and whether any medical intervention might
be necessary and appropriate. It is undisputed, however,
that, in addition to the examination performed by Defendant
Eggleston, Defendant Raleigh had every minor Plaintiff (with
the exception of J.B.) take off their shoes and empty their
pockets or bags, actions that do not reasonably have a health-
related purpose. Defendants have not presented any argument
as to why a search for items in the minor Plaintiffs’ shoes
or pockets was necessary for assessing their health and well-
being, and the cases they cite, which address the performance
of medical procedures such as urine or blood tests, x-rays,
removal of clothes to address a flea infestation, or a visual
examination of a student's genitals to address complaints
of symptoms in that area, do not contemplate such actions.
(Dkt. No. 273, Attach. 14, at 16-18.) Further, beyond the
undisputed actions of requiring the minor Plaintiffs to take
off their shoes and empty their pockets (with the exception of
J.B.), there are also a number of relevant disputed facts that
even more strongly suggest a search occurred in conjunction
with any permissible health assessment Defendant Eggleston
conducted: J.B. testified that she was directed to take off
her shoes and shake them (although this is not corroborated
by either Defendant Eggleston or Defendant Raleigh); I.M.
testified that Defendant Eggleston directed her to pull the
bottom of her tank top away from her body and shake it, that
she was patted down along her arms, legs, and torso, that she
was directed to take off her sweatshirt and pull down both her
outer sweatpants and then her leggings (requests with which
she complied), and that Defendant Eggleston touched under
her bra band by her armpits and along the side of her breasts;
I.S. testified that Defendant Eggleston patted her body down
during the exam; and A.S. testified that Defendant Eggleston
asked her to unzip her sweater, which she did briefly before
closing it again, and that she was patted down along her whole
body. (Exh. EE, at 243-50; Exh. GG, at 183, 213-42; Exh. II,
at 128-39; Exh. KK, at 273-79, 292, 207-98, 342-43.) Thus, in
addition to the fact that the undisputed actions of Defendant
Raleigh in requiring the minor Plaintiffs (with the exception
of J.B.) to take off their shoes and empty their pockets or
purses appear sufficient to constitute a search beyond what
was required for any permissible health-assessment purposes,
there are other actions that are sufficient to create a genuine
dispute of material fact as to whether the actions of both
Defendant Eggleston and Defendant Raleigh with all of the
minor Plaintiffs constituted searches that are subject to the
Fourth Amendment.
2. Whether the Searches Were Justified at the Inception
*13 Because the Court has found that the minor Plaintiffs
were searched, or that at the very least there is a genuine
dispute of material fact regarding whether such searches
occurred, the next inquiry is whether those searches were
justified at the inception. As was discussed above, this is
subject to a reasonable suspicion standard that is lower than
probable cause. Redding, 557 U.S. at 370. In determining
whether a search was justified at its inception, such
assessment “necessarily requires us to base our determination
on only those facts known to the school officials prior to the
search.” Phaneuf, 448 F.3d at 597.
In this case there is testimony regarding what Defendants
Simonds, Raleigh, and Eggleston observed, as well as video
evidence from the school's hallway security cameras that
shows the minor Plaintiffs at relevant times during which
those sources observed them before they were sent into
the nurse's office. In instances where a video indisputably
establishes certain facts, contrary evidence is insufficient
to create a genuine dispute of material fact and may be
disregarded. See Scott v. Harris, 550 U.S. 372, 380 (2007)
(“When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.”); see also Jeffreys v. City of New York,
426 F.3d 549, 554-55 (2d Cir. 2005) (noting that, while it is
not the duty of a district court to weigh the credibility of the
parties on a summary judgment motion, a court may disregard
a version of events that is based solely on the party's own
contradictory and incomplete testimony so long as there is
no evidence in the record upon which a reasonable factfinder
could find in the party's favor). The Court's analysis will
therefore start with what the video evidence shows.
Footage from Camera 31 shows Defendant Simonds arriving
at the corner by that camera and first seeing the minor
Plaintiffs at approximately 12:58:52. At that moment, one of
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the minor Plaintiffs (I.S.) is laying on her back approximately
in the middle of the hallway with her legs up in the air. He
stands in place, appearing to use his radio while observing I.S.
roll over to stand up; another of the minor Plaintiffs (A.S.)
moves in front of I.S. and begins to walk towards Defendant
Simonds. Once I.S. is standing, all four of the minor Plaintiffs
begin to walk in the direction of Defendant Simonds. As they
approach, Defendant Simonds beckons them with his hand
and then begins to walk down the other hall, still watching
the minor Plaintiffs. Defendant Simonds steps out of the
frame of the camera, and although A.S. is still in his line of
sight as she walks in the opposite direction towards the D
stairwell, the other three minor Plaintiffs are further down the
other hallway and would not have been visible to him at this
time. Those three minor Plaintiffs appear to be talking and
laughing, with an instance of I.M. appearing to lean slightly
against the wall while J.B. comes up behind her. I.M. walks
into an alcove while J.B. and I.S. watch her, appearing to be
laughing. J.B. follows I.M. into the alcove and neither are
visible for a moment until I.M. emerges back into the hallway,
again appearing to be laughing. While that is occurring, A.S.
is walking in the direction Defendant Simonds had gone, and
I.S. is walking off to the side of J.B. and I.M., looking in the
direction where Defendant Simonds had gone. J.B. emerges
from the alcove, smiling or laughing while looking in the
direction of I.S., before following A.S. and I.M. out of view
of the camera in the direction Defendant Simonds had gone.
While J.B. is exiting from view of the camera, I.S. leans over,
placing her left hand on her left knee; I.S. stands bent over for
multiple seconds before the camera footage ends.
*14 Footage from Camera 30 begins at 12:59:18,
approximately the time when A.S. had turned around to
walk towards Defendant Simonds after walking into the D
stairwell; none of the other minor Plaintiffs would be visible
to Defendant Simonds from his vantage point at that time.
This is also approximately the time that Defendant Raleigh
appears to have seen the minor Plaintiffs (starting with only
A.S. at this point), as she can be seen walking towards
Defendant Simonds from the other side of the hallway.
Defendant Simonds watches as A.S. walks toward him; A.S.
is looking over towards the other minor Plaintiffs who are
still down the other hallway. He watches A.S. walk forward
past the hallway she had come from, but then take a few steps
backward to again watch I.M. and J.B. (who are not yet visible
on the camera). She turns back toward Defendant Simonds
and begins walking in his direction, but again looks back at
I.M. and J.B. while walking. Defendant Simons watches I.M.,
I.S., and J.B. emerge into view. Defendant Raleigh reaches
Defendant Simonds at approximately the same time as I.M.
and A.S., while J.B. is slightly farther behind them and over
towards the right wall and I.S. is leaning forward holding her
left leg. As Defendant Raleigh appears to speak with A.S.
and I.M., J.B. continues to walk along the right wall, looking
away from Defendants Simonds and Raleigh and touching
a poster before stopping and turning around to face them.
I.S. stands up and begins to walk towards the group while
J.B. is observed to be speaking with Defendants Simonds and
Raleigh. While Defendant Raleigh speaks to J.B., J.B. leans
her back against the wall behind her, and I.S. joins the group,
between I.M. and J.B., once again leaning down to hold her
left leg with her left arm. J.B. appears to adjust something
around her waist while I.S. leans down further to touch her
left foot with her left arm. J.B. adjusts her jacket and then
her headscarf, while I.S. stands up and adjusts her hair before
turning to drink at the water fountain a few steps behind her.
J.B. continues to adjust her scarf while A.S. moves her hands
first to her waist and then to adjust the hood of her sweatshirt;
simultaneous with A.S.’s movements, I.M. swings her arms
back and forth along the side of her body multiple times.
I.S. walks back to the group and again leans over, this time
appearing to put her hands on both knees. I.M. takes a step
to the side and turns to A.S., gesticulating in A.S.’s direction
and appearing to speak with A.S., to which A.S. appears to
respond with speech and some gestures. I.M., swinging her
arms again and then making more gestures, appears to be
speaking, at which point J.B. appears to throw her head back
and laugh; I.M. also appears to laugh, covering her face with
one hand and moving around in place. I.M. continues to talk
and gesture, and it appears that J.B. and I.S. are smiling or
laughing in response; A.S. appears to be standing with her
arms crossed. J.B. continues fixing her scarf, I.M. swings her
arms by her side, and I.S., who has since stood up straight,
appears to adjust the back of her sweatshirt. I.M. swings her
arms more while A.S. and I.S. look around the hallway.
After a period where the four minor Plaintiffs stand in place
and appear to be listening to either Defendant Simonds or
Defendant Raleigh speaking, J.B. leans her back against the
wall, followed a few seconds later by I.S. I.M. swings one
of her arms and appears to speak, continuing to swing her
arm as Defendant Raleigh speaks. I.M. speaks with Defendant
Raleigh, moving around a few steps, scratching her head
and gesturing with her arms. J.B. and I.S. look over towards
something happening at the other end of the hallway. J.B.
leans back against the wall, comes forward slightly, then back
again, and appears to roll her back once or twice slightly
against the corner of the shallow alcove while laughing. J.B.
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appears to gesture in the direction of the D Stairwell, at which
point everyone looks in that direction before I.M. continues to
speak with Defendant Raleigh. All four minor plaintiffs look
in the direction of the D stairwell, after which an unrelated
person walks into the frame and past the group. I.M. begins
pulling on the back and sides of her pants while J.B. and I.S.
are still leaned slightly against the wall. A.S. appears to speak
and J.B. throws her head back laughing. I.M. and I.S. speak as
I.M. takes a few small steps around and begins pulling on the
sides of her pants again. J.B. rolls her back on the corner of
the wall once and I.M. gestures to A.S. as Defendant Simonds
turns to speak closely with Defendant Raleigh. I.M. bends
forward and she and J.B. appear to be laughing. They continue
laughing as I.M. stands up with her hands on her face and J.B.
turns to put her face into the shallow alcove behind her. A.S.
points a hand at I.M. and appears to talk to Defendant Raleigh
as I.M. continues to hold her hand to her face before beginning
to speak and gesture again. J.B. has returned to leaning her
back against the corner of the alcove looking in the direction
of Defendant Simonds and Defendant Raleigh. As Defendant
Raleigh walks toward the health office, A.S. appears to be
speaking, J.B. appears to be laughing and moving a few
steps down the hallway, and I.M. is moving, gesturing, and
appearing to speak to A.S. J.B. and I.M. appear to laugh again.
J.B. jumps slightly with her arms in the air, still laughing, and
A.S. turns around and appears to also be laughing. J.B. makes
more gestures and they begin to follow Defendant Simonds
into the health office, J.B., I.M. and I.S. all laughing while
A.S. walks behind Defendant Simonds with her arms crossed
over her chest. They continue to laugh as they walk, and I.S.
squats for a moment, holding her left leg before continuing
to walk appearing to mime something as a joke to A.S. J.B.
leans forward slightly to touch I.M.’s back before standing
and laughing with I.S., after which they follow the others into
the health office.
This video evidence, while certainly showing some behavior
by the minor Plaintiffs that is open to interpretation, presents
an objective account of what the minor Plaintiffs were
doing throughout the encounter with Defendant Simonds
and Defendant Raleigh. To the extent that both parties have
offered their own interpretations of the minor Plaintiffs’
behavior, this video evidence provides an objective view
of that behavior, and any such interpretations or contrary
accounts must be rejected where they are clearly inconsistent
with what the video shows. Scott, 550 U.S. at 380.
*15 Further, regarding what was known to Defendants
at the time the search was conducted, there is undisputed
evidence that (1) Defendant Raleigh saw the minor Plaintiffs
exit from the lunchroom using a door that was other
than the one they would be expected to be use for the
lunchtime activity in which they were all enrolled, and that
was closest to the gymnasium; (2) Defendant Raleigh was
aware at that time that [Redacted]; (3) Defendant Raleigh
was aware that [Redacted]; (4) Defendant Raleigh was
concerned that [Redacted]; (5) Defendant Raleigh lost sight
of the minor Plaintiffs and did not know where they went
at that time, such that she used her radio to call other
administrators to attempt to locate them; (6) through their
search, Defendant Raleigh and Defendant Simonds were
aware that the minor Plaintiffs had not checked in at the
classroom where their lunchtime activity was being held; and
(7) when Defendant Simonds finally saw Plaintiffs in the
hallway at approximately 12:58:52 according to the video
from Camera 31, approximately seven minutes had elapsed
since when Camera 16 showed the minor Plaintiffs leaving
the cafeteria at approximately 12:52.
In addition to the video evidence, the depositions and/
or declarations of Defendant Simonds, Defendant Raleigh,
Defendant Eggleston, the four minor Plaintiffs, and non-
parties Resource Officer Arthur Williams and teacher
Glenmarie Green-Gonzales all provide accounts of the
minor Plaintiffs’ behavior at the relevant time. 7 Defendant
Simonds, Defendant Raleigh, Defendant Eggleston, Resource
Officer Williams and Ms. Green-Gonzales all testified that, at
various points throughout the encounter on January 15, 2019,
the minor Plaintiffs were acting in a manner that was at odds
with their normal presentations, were laughing excessively,
and, particularly while they were in the health office, were
acting in a disruptive manner. (Exh. MM., at 248-78, 319-22;
Exh. NN, at 167-82, 207-08; Exh. OO, at 186-87, 193-94,
207-08, 227-33, 316-18; Exh. RR, at 48-51; Exh. VV, at
75-79, 82, 88-91.) The minor Plaintiffs admit they had been
in the hallway when they were not supposed to be and were
laughing and joking during the encounter with Defendant
Simonds and Defendant Raleigh in the hallway and also in
the health office. (Exh. EE, at 172, 197-98, 209-10, 223-24;
Exh. GG, at 162-63, 189-90, 204-06; Exh. II, at 80, 82, 86,
206; Exh. KK, at 240-41, 255-56, 258-59, 262-63, 265, 267,
272, 306, 313, 319.)
Considering all of this evidence, the undisputed facts
regarding the minor Plaintiffs’ behavior at the relevant
time as clearly substantiated by the video evidence are as
follows: (1) Defendant Simonds observed I.S. lying in the
hallway with her legs in the air; (2) Defendant Simonds
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observed A.S. attempt to go into the D stairwell instead
of following him down the hallway in the other direction;
(3) Defendants Simonds and Raleigh observed the minor
Plaintiffs laughing at various times throughout the encounter
while those Defendants were attempting to speak with them,
including an instance in which J.B. threw her head back in
laughter, I.M. leaned down or “doubled over” with laughter,
and J.B. turned and leaned her face into a corner while
laughing; (4) Defendants Simonds and Raleigh observed I.S.
bending down while standing; (5) Defendants Simonds and
Raleigh observed that I.M. was, at various times, swinging
her arms back and forth repeatedly and pulling at her pantlegs;
(6) Defendant Simonds and Defendant Raleigh observed both
J.B. and I.S. leaning their backs against the wall for a portion
of the encounter; (7) Defendant Simonds and Defendant
Raleigh observed that J.B., while leaning against the corner
of a wall, “rolled” and bounced against the corner at times; (8)
Defendant Simonds observed that, in response to something
said near the end of the hallway encounter, J.B. laughed
and spun around as she moved down the wall before again
throwing her head back and moving in a seemingly unsteady
manner; and (9) as Defendant Simonds was walking with the
minor Plaintiffs to the health office, I.S., I.M., and J.B. are
clearly seen to be laughing on the video.
*16 Also relevant to the analysis is the evidence regarding
Defendants’ knowledge of substance use activity within both
the District broadly and specifically within East Middle
School. It is undisputed that a bulletin had been sent to
parents, administrators, and faculty in December 2018 around
the time of the holiday break regarding an incident in which a
student displayed serious symptoms related to use of “purple
drink” at Binghamton High School. (Dkt. No. 273, Attach.
8; Exh. MM, at 279-80; Exh. NN, at 173-75.) Defendant
Simonds and Defendant Raleigh corroborate that, during
November 2018, administrators at East Middle School had
found students in possession of the ingredients to make
“purple drink,” empty bottles of cough syrup had been found
in the building and stairwells (specifically, four or five bottles
for cough syrup with codeine), Defendant Raleigh had been
informed by an asset protection worker at a store near to
East Middle School that cough syrup was being stolen from
that store, East Middle School students were prohibited from
bringing outside drinks starting in January 2019 as a result
of concerns over “purple drink” in the school, and Resource
Officer Williams had overheard students talking about “laced
Gatorade” and he had personally found several unopened
bottles of Gatorade hidden in the ceilings of the East Middle
School bathrooms. (Dkt. No. 273, Attach. 6, at ¶¶ 5-7; Dkt.
No. 273, Attach. 8; Exh. MM, at 280; Exh. NN, at 173;
Exh. VV, at 164-65.) This context weighs in favor of the
reasonableness of Defendants’ suspicion regarding the minor
Plaintiffs’ behavior, because the evidence unequivocally
shows that there was a known concern regarding student use
of “purple drink” at East Middle School during the relevant
time.
By contrast, Defendants’ attempt to rely on the minor
Plaintiffs’ [Redacted] Although a student's disciplinary
history is one of the factors that might be relevant to the
assessment of justification, it is not clear to the Court that
those facts are relevant in the circumstances presented here. In
particular, there has been no argument or evidence presented
by Defendants that they had any suspicions that [Redacted]
Instead, their proffered justification for conducting the search
was that they suspected the minor Plaintiffs may have
ingested a substance based on what Defendants Simonds and
Raleigh perceived to be abnormalities in the minor Plaintiffs’
behavior. [Redacted] does not, without more, lead to any
reasonable inference that a student might be engaging in the
use of prohibited substances and thus does not constitute a
basis to justify conducting a search for such substances. 8 See
Phaneuf, 448 F.3d at 599 (concluding that the plaintiff's past
disciplinary issues, none of which related to drug use, were of
little significance when determining the reasonableness of a
search conducted for the sole purpose of determining whether
she possessed drugs).
As to evidence that it is not apparent Defendants were aware
of at the time of the search, Defendant Simonds testified
that his staff had viewed the camera feeds during that time,
but had not seen the minor Plaintiffs on the camera. (Exh.
MM, at 254-61.) There is therefore no clear evidence that the
individual Defendants were aware at the time of ordering and
conducting the search that the minor Plaintiffs had gone into
the bathroom or had stopped outside the gymnasium, beyond
what the minor Plaintiffs may have told them before they were
brought into the health office. As a result, the video evidence
regarding the minor Plaintiffs’ activities or behavior during
the period between when they left the lunchroom and when
Defendant Simonds found them is not material to the analysis
here, because there is no evidence to show that the relevant
Defendants were aware of any of those activities or behavior
at the relevant time.
Having said that, given the video evidence of the minor
Plaintiffs’ behavior, the undisputed fact that administrators
did not know their location for a period of time, and the known
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problem of “purple drink” usage at East Middle School, no
reasonable factfinder could conclude that Defendants lacked
reasonable suspicion to initiate a search to assess whether the
minor Plaintiffs might be under the influence of, or possess,
a substance that violated the Code of Conduct. Again, this
requires only that there be “reasonable grounds for suspecting
that the search will turn up evidence that the student has
violated or is violating either the law or the rules of the
school.” Phaneuf, 448 F.3d at 596. Here, I.S.’s fall, the
minor Plaintiffs’ ongoing and at times seemingly uproarious
laughter despite the situation, A.S.’s act of attempting to go
into the stairwell rather than following Defendant Simonds,
J.B. and I.S.’s leaning against the wall, and I.M.’s fidgety
arm movements, even in the absence of context related
to what the minor Plaintiffs were saying or how they
were speaking, can all together be reasonably construed as
indicating possible drug use or other violation of school rules.
This is especially highlighted by the testimony from both
the individual Defendants and third parties that the conduct
observed was different from how those sources usually saw
the minor Plaintiffs behave in school or in conversation with
those sources.
*17 Plaintiffs’ arguments to the contrary center on their
assertion that laughter and horseplay behavior is age-
appropriate for twelve-year old girls in the hallway with their
friends. This may be entirely true; but the fact that children
might generally act in ways that reasonable adults would
not in the same situation does not inherently mean that their
behavior cannot constitute reasonable suspicion of violating
school rules under any circumstance. Plaintiffs’ unsupported
assertion that their behavior was typical and age-appropriate,
even in conjunction with evidence that all of the minor
Plaintiffs, talked, laughed, or even acted “giddy” at school
on occasion, is simply insufficient to dispute Defendants’
testimony that the behaviors they witnessed (which are
documented on the video) were abnormal compared to
how they were used to seeing the minor Plaintiffs behave.
Further, Plaintiffs’ arguments regarding why they believe
individual components or behaviors are insufficient to raise
reasonable suspicion ignore the fact that the analysis is meant
to encompass the totality of the circumstances known to
Defendants, not whether any potential reason for suspicion
can suffice in isolation. The confluence of all of the above
evidence shows that Defendants had reasonable suspicion to
justify a search of all four minor Plaintiffs (based on their
individual conduct and because they had all been missing for
a period of time while together) related to possible drug use.
3. Whether the Search Was Reasonably
Related in Scope and Not Excessively Intrusive
Having concluded that the search was justified at its inception,
the next inquiry is whether the search that was conducted of
each minor Plaintiff was reasonably related in scope to the
circumstances that justified the search. As an initial matter,
the Court observes that genuine disputes of material fact exist
regarding this claim as to all four of the minor Plaintiffs, given
that the deposition testimony as to the details or extent of
the search of all of the minor Plaintiffs differs in material
respects to the evidence presented particularly by Defendant
Eggleston (who is the person who the minor Plaintiffs testified
conducted most of the alleged examinations and searches). 9
Further, there are two levels of searches that are implicated by
Plaintiffs’ allegations in this case: a more typical investigatory
search involving taking the minor Plaintiffs’ vital signs,
searching their shoes and the contents of their pockets and
bags, and alleged pat-downs over their clothes, and a more
invasive search involving the removal of clothing and/or
searching inside one minor Plaintiff's bra that Plaintiffs have
characterized as a strip search. As was discussed above in
Part I.A. of this Decision and Order, the Court previously
found related to Defendants’ motion to dismiss that the
Fourth Amendment claims asserted by A.S. and J.B. 10 were
dismissed to the extent they asserted that a strip search had
occurred. To the extent that there is some lack of clarity
in that previous Decision and Order as to whether that
dismissal was with or without prejudice to renewal (and as
such whether such claims remain viable at this stage of the
action), Plaintiffs’ Amended Complaint has nonetheless not
cured the defects identified related to the strip-search portion
of the Fourth Amendment claims asserted by A.S. and J.B.
There is no allegation in the Amended Complaint that J.B.
removed any article of clothing other than her shoes; 11 she
instead alleged that she had taken her sweatshirt off before
going into the examination room with Defendant Eggleston,
as evidenced by her allegation that she had to retrieve her
sweatshirt from the lobby of the health office. 12 (Dkt. No.
163, at ¶¶ 40-47.) Further, contrary to her allegation that
Defendant Eggleston asked her to take off her t-shirt, J.B.
testified at her deposition that Defendant Eggleston did not
in fact ask her to take off her shirt. (Exh. EE, at 245-49.) It
is therefore clear that neither the allegations in the Amended
Complaint nor the evidence, including J.B.’s own testimony,
are sufficient to plausibly suggest, much less establish, that
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J.B. was subjected to any type of strip search. As to A.S.,
the Court discussed in its Decision and Order on Plaintiffs’
motion for reconsideration of the Decision and Order of
September 14, 2020, its finding that the allegations in the
original Complaint that A.S. unzipped her sweatshirt to the
middle of her chest and then zipped it back up again, even in
combination with alleged statements by Defendant Eggleston
regarding the fact Plaintiff was wearing only a bra under
her sweatshirt, were insufficient to plausibly allege that A.S.
revealed her bra and the skin of her torso in a manner that
would constitute a strip search. 13 (Dkt. No. 138, at 6-7.)
The Amended Complaint does not appear to add any further
allegations regarding this point. Therefore, even if the strip-
search claim brought by A.S. had not been dismissed with
prejudice by the previous Decision and Order, the allegations
in the Amended Complaint related to that claim remain
insufficient for all of the same reasons already elaborated in
the prior Decision and Orders related to the motion to dismiss
and the motion to reconsider and must again be dismissed
as a matter of law. As to A.S. and J.B., there is therefore no
need to assess on this motion whether there was sufficient
justification to conduct a strip search, but rather only whether
there was the requisite justification to conduct a more typical
investigative search.
i. J.B.
*18 At her deposition, J.B. testified that she removed one
arm from her sweatshirt to allow Defendant Eggleston to
measure her blood pressure, and that Defendant Eggleston
had her look from left to right, put her hand on her eyes,
asked her to count fingers, and asked her to take off her shoes,
which Defendant Eggleston shook. (Exh. EE, at 243.) She was
wearing a t-shirt underneath her sweatshirt, and Defendant
Eggleston never asked her to take off either her shirt or
leggings; she did not remove either her t-shirt or leggings.
(Id. at 244, 249-50.) Defendant Eggleston's testimony differs
slightly from J.B.’s, in that Defendant Eggleston stated that
J.B. refused to submit to a neurological examination (which
J.B. does not mention), and that she was not sure if Defendant
Raleigh had been in the room, but she herself did not ask J.B.
to remove her shoes or turn out her pockets. (Exh. OO, at
295-96.) Defendant Raleigh confirmed that she had not been
in the room for any part of J.B.’s examination because she had
needed to help with an injured student. (Exh. NN, at 229.)
Based on the above analysis, it is undisputed that the search of
J.B. consisted of checking her vital signs, with some degree of
neurological testing. Even drawing all reasonable inferences
in J.B.’s favor and accepting the full extent of her testimony
that she removed her shoes and those were searched, the
extent of this search was reasonably related in scope to the
circumstances that justified the search. As was discussed
above in Part III.A.2. of this Decision and Order, Defendants
had reasonable suspicion that the minor Plaintiffs might be
under the influence of a prohibited substance. Checking J.B.’s
vital signs 14 and searching her shoes is reasonably related
to determining whether she might be under the influence of
such substance and to assessing whether she possessed any
such substance on her person. See Mac Ineirghe, 2007 WL
2445152, at *9-10 (finding that taking of vital signs such
as blood pressure and observations of eyes, search of bag
and shoes, pat down of pockets, and administration of saliva-
based drug test were both justified at their inception and not
excessive or intrusive in context of student having left school
to the parking lot in violation of rules and being observed
wiping his nose and rubbing his eyes). Further, a search of a
student's outer clothes and bag has been found to generally
be proportional with a reasonable suspicion that the student
might possess drugs. See Safford Unified Sch. Dist. No. 1
v. Redding, 557 U.S. 364, 373-74 (2009) (“If a student is
reasonably suspected of giving out contraband pills, she is
reasonably suspected of carrying them on her person and
in the carryall that has become an item of student uniform
in most places today. If Wilson's reasonable suspicion of
pill distribution were not understood to support searches
of outer clothes and backpack, it would not justify any
search worth making.”). As a result, no reasonable factfinder
could conclude that the search of J.B. violated her Fourth
Amendment rights under the circumstances.
ii. A.S.
At her deposition, A.S. testified that, upon entering the
examination room, Defendant Eggleston checked her blood
pressure, pulse, and eyes and had her hop on one foot and
touch her nose; when Defendant Eggleston took her blood
pressure, she rolled up her sleeve and did not remove her
sweatshirt. (Exh. GG, at 213.) Defendant Eggleston told her
to unzip her sweatshirt and remove her pants; she unzipped
her sweatshirt to below her chest and then zipped it back up
again, and Defendant Eggleston did not force her to either
take off her sweatshirt or her pants when she did not comply.
(Id. at 224-28.) A.S. first stated that Defendant Eggleston
did not touch her other than to take her pulse, but later
testified that Defendant Eggleston had in fact patted down her
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whole body over her clothes. (Id. at 237, 241-43.) Defendant
Raleigh came into the room and told A.S. to take off her shoes
and empty her pockets, after which Defendant Raleigh took
the contents of those and inspected them. (Id. at 229, 231.)
A.S. also testified that Defendant Eggleston never made any
comments about her breasts. (Id. at 241.) The testimony of
Defendants Eggleston and Raleigh do not differ materially
from A.S.’s testimony, other than in that Defendant Eggleston
does not mention A.S. unzipping her sweatshirt and does not
state that she asked A.S. to remove either her sweatshirt or
pants. (Exhs. NN, at 204-06; OO, at 250-51.)
*19 As was already discussed above related to J.B., the
portion of the search related to the vitals check, neurological
exam, and search of A.S.’s pockets and shoes (and even the
alleged pat down) was reasonably related to the circumstances
justifying the search. See Stanford v. Northmont City Sch.
Dist., 19-CV-0399, 2023 WL 1819117, at *5-6 (S.D. Ohio
Feb. 8, 2023) (finding that a pat down would be reasonably
related to the school district's interest in removing narcotics
from school grounds in a case where the plaintiff alleged he
was patted down in his pants and pockets based on the odor
of marijuana); Mac Ineirghe, 2007 WL 2445152, at *9-10;
Gallimore v. Henrico Cnty. Sch. Bd., 38 F. Supp. 3d 721, 725
(E.D. Va. 2014) (finding pat down of student and search of
his backpack, shoes, and pockets was reasonable in scope
because drugs could be hidden in those places, in the context
of a tip that a student with long hair was smoking marijuana on
a bus). To the extent that A.S. asserts she briefly unzipped her
sweatshirt part way, revealing a portion of her bra, the Court
has already found that this does not constitute a strip search.
There is no evidence, even in A.S.’s testimony, to support a
finding that Defendant Eggleston or anyone else searched for
contraband in that area in the brief time her sweatshirt was
partially open, or even to establish that Defendant Eggleston
saw A.S.’s bra or breasts. Further, even if accepting, for the
sake of argument, A.S.’s disputed assertion that Defendant
Eggleston asked A.S. to remove her sweatshirt and pants, it is
undisputed that A.S. did not remove either of those items, and
that Defendant Eggleston did not continue to demand she do
so or otherwise attempt to force her to do so. As a result, even
accepting A.S.’s version of events, no reasonable factfinder
could conclude that the search of A.S. violated her Fourth
Amendment rights.
iii. I.S.
At her deposition, I.S. testified that Defendant Eggleston
asked her to remove her arm from her sweatshirt but that
she eventually took off her whole sweatshirt because it was
easier; she was wearing a t-shirt underneath. (Exh. II, at
130-31.) Defendant Eggleston told her to empty her pockets
while she was taking off her sweatshirt and patted her down.
(Id. at 137-39.) After I.S. removed her sweatshirt, Defendant
Eggleston took her vital signs and she put her sweatshirt
back on when those were done. (Id. at 132.) Defendant
Eggleston also asked her to stand on one leg and touch her
nose. (Id. at 128-29.) Defendant Raleigh came into the room
while Defendant Eggleston was taking her vital signs and
afterwards asked I.S. to take off her shoes and hand them
to Defendant Raleigh, who shook them. (Id. at 135-36.) The
testimony of Defendant Eggleston and Defendant Raleigh
differ from I.S.’s account in that Defendant Eggleston testified
that I.S. was not patted down, and it was Defendant Raleigh
who had I.S. empty her pockets, not Defendant Eggleston.
(Exhs. NN, at 222-23; OO, at 291-93.)
As was already discussed above related to J.B. and A.S., the
portion of the search related to the vitals check, neurological
exam, and search of A.S.’s pockets and shoes (and even the
alleged pat down) was reasonably related to the circumstances
justifying the search. See Stanford, 2023 WL 1819117, at
*5-6; Mac Ineirghe, 2007 WL 2445152, at *9-10; Gallimore,
38 F. Supp. 3d at 725. I.S. does not provide any admissible
evidence that can support a finding that there was a more
invasive search, let alone a strip search. It is undisputed from
her own testimony that she voluntarily took her sweatshirt off
when asked to remove her arm related to checking her blood
pressure, and that she did not remove any other clothing but
her shoes. As a result, even accepting I.S.’s version of events,
no reasonable factfinder could conclude that the search of
A.S. violated her Fourth Amendment rights.
iv. I.M.
The search of I.M. presents greater difficulties than those
of the three other minor Plaintiffs. At her deposition, I.M.
testified that she complied with a request by Defendant
Eggleston to take her sweatshirt off, and that she was wearing
a thin-strap tank top underneath. (Exh. KK, at 273, 278.)
Defendant Eggleston checked her vital signs, told her to
extend her limbs and jump, and had her follow a finger
with her eyes. (Id. at 273-77.) When I.M. was standing,
Defendant Eggleston told her to put her arms out to the side,
at which point Defendant Eggleston swiped underneath her
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bra below her armpits and touched the sides of her breasts.
(Id. at 278-79.) Defendant Eggleston also had her pull out
the bottom of her tank top and shake it. (Id. at 342-43.) At
some point, Defendant Eggleston made a comment about
how her breasts were large for her age and that they would
get flabby when she was Defendant Eggleston's age. (Id. at
273.) Defendant Eggleston patted her down before telling her
to pull down her sweatpants, and attempted to pat her legs
down again before asking her to also pull down her leggings;
I.M. complied with these requests and pulled down both her
sweatpants and her leggings to her ankles. (Id. at 274, 290,
292.) Defendant Raleigh came into the room when she was
dressed again and had I.M. take her shoes off and bang them
together; both Defendant Eggleston and Defendant Raleigh
inspected the items from her pockets and bag. (Id. at 297-98.)
Defendant Eggleston denies making a statement about I.M.’s
breasts, asking her to pull out her shirt and shake it, touching
underneath I.M.’s bra, patting down I.M.’s legs, or asking I.M.
to pull down her pants. (Exh. OO, at 279-80.)
*20 The search conducted, as described by I.M., greatly
exceeds the scope of those that were conducted on the other
three minor Plaintiffs. Although the checking of her vital
signs, search of her shoes, and a pat down of her legs over
her clothes would have been within the scope of the original
justification of the search, the alleged touch underneath her
bra and removal of her pants down to her underwear is far
more intrusive, and more in line with a strip search, and
thus would require a heightened level of suspicion to be
justified. Phaneuf, 448 F.3d at 596. Because it is unlikely
that the circumstances of this case would justify such an
intrusive search, and because there is conflicting evidence
regarding the specific details of what occurred during I.M.’s
examination by Defendant Eggleston, there exists a genuine
dispute of material fact, and summary judgment is not
appropriate, as to the Fourth Amendment claim asserted by
I.M.
However, the existence of a material fact does not mean
that the evidence suggests potential liability for all three of
the individual Defendants on this claim. Of note, even if a
factfinder were to accept I.M.’s version of events, it was only
Defendant Eggleston who conducted the portion of the search
that raises questions of a constitutional violation. Even under
I.M.’s version of events, Defendant Raleigh was not in the
room while Defendant Eggleston performed those portions
of the search; when she entered the room, I.M. was fully
clothed again, and the only search she personally performed
was of I.M.’s shoes and bag. As was already discussed, the
search of the shoes and bag were reasonable in scope to the
circumstances that justified the search and do not themselves
constitute a constitutional violation. Further, it is undisputed
that Defendant Simonds was not in the exam room at any time
and did not personally conduct the search of any of the minor
Plaintiffs. (See e.g., Exh. EE, at 251; Exh. II, at 111, 160;
Exh. KK, at 266-67, 304, 313; Exh. MM, at 306-10; Exh. XX,
at Nos. 119-20; Exh. YY, at Nos. 117-18; Exh. ZZ, at Nos.
140-41; Exh. AAA, at Nos. 140-41.) Nor is there any evidence
to show, or even raise a genuine dispute of material fact, that
either Defendant Simonds or Defendant Raleigh instructed or
directed Defendant Eggleston to conduct the search of I.M.
in the manner that I.M. asserts she did. (Exh. MM, at 287-89,
294-95, 298-300; Exh. NN, at 194-200, 207-08; Exh. OO,
at 192-96, 214-15, 218, 234-35.) Notably, the only basis on
which Plaintiffs allege liability against Defendant Simonds is
that he directed Defendant Eggleston, and, as to Defendant
Raleigh, that she directed Defendant Eggleston and “touched
and searched the students’ bodies,” allegations that are not
borne out in the record. (Dkt. No. 163, at ¶¶ 126, 138-39.)
Both the Second Circuit and the Supreme Court have made
clear that there is no “special test for supervisory liability”;
instead, “ ‘a plaintiff must plead that each Government-
official defendant, through the official's own individual
actions, has violated the constitution.’ ” Tangreti v. Bachman,
983 F.3d 609, 616, 618 (2d Cir. 2020) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 676 [2009]). Because there is no
evidence to show that either Defendant Simonds or Defendant
Raleigh directly conducted the relevant parts of the search
of I.M., or to even create a genuine dispute of material fact
regarding whether Defendants Simonds and Raleigh directed
Defendant Eggleston to perform such actions as part of a
search, Plaintiffs cannot show that either Defendant Simonds
or Defendant Raleigh are liable for the relevant portion of this
search.
For all of the above reasons, the Court grants summary
judgment to Defendants on Plaintiffs’ First Claim as to J.B.,
A.S., and I.S., and as to I.M. against Defendants Simonds and
Raleigh specifically, but denies summary judgment to either
party on this claim as to I.M against Defendant Eggleston.
B. Whether Summary Judgement Is Appropriate on
Plaintiff's Second Claim
*21 After careful consideration, the Court answers the
above question in the affirmative for the reasons stated in
Defendants’ memoranda of law. See Parts I.D.1 and 3 of this
Decision and Order. To those reasons, the Court adds the
following analysis.
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“The Equal Protection Clause of the Fourteenth Amendment
requires the government to treat similarly situated persons
alike.” O'Shea v. City of Kingston, 22-CV-0666, 2023 WL
4105492, at *7 (N.D.N.Y. June 21, 2023) (D'Agostino,
J.) (citing City of Cleburne v. Cleburne Living Cntr.,
473 U.S. 432, 439 [1985]). “The Equal Protection Clause
‘bars the government from selective adverse treatment
of individuals compared with other similarly situated
individuals if such selective treatment was based on
impermissible considerations such as race, religion, intent
to inhibit or punish the exercise of constitutional rights, or
malicious or bad faith intent to injure a person.” Salaam v.
Stock, 19-CV-0689, 2023 WL 3853811, at *3 (N.D.N.Y. Feb.
27, 2023) (Dancks, M.J.) (quoting Bizzarro v. Miranda, 394
F.3d 82, 86 [2d Cir. 2005]).
“To establish a denial of equal protection based on selective
treatment, Plaintiffs must allege that: ‘(1) ... compared with
others similarly situated, [they were] selectively treated, and
(2) the selective treatment was motivated by an intention to
discriminate on the basis of impermissible considerations,
such as race or religion, to punish or inhibit the exercise of
constitutional rights, or by a malicious or bad faith intent to
injure the person.’ ” Mosdos Chofetz Chaim, Inc. v. Village
of Wesley Hills, 815 F. Supp. 2d 679, 692 (S.D.N.Y. 2011)
(quoting Zahra v. Town of Southold, 48 F.3d 674, 683 [2d
Cir. 1995]). “A showing that the plaintiff was treated different
compared to others similarly situated” is a “prerequisite” and
a “threshold matter” to a selective treatment claim. Church
of the Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d
197, 210 (2d. Cir. 2004). In order to be considered “similarly
situated” for such a claim, “the plaintiff's and comparator's
circumstances must bear a reasonably close resemblance,”
though they need not be identical. Hu v. City of New York, 927
F.3d 81, 96 (2d Cir. 2019) (quoting Brown v. Daikin Am. Inc.,
756 F.3d 219, 230 [2d Cir. 2014]). “A plaintiff can prevail
by showing that ‘she was similarly situated in all material
respects to the individuals with whom she seeks to compare
herself.’ ” Hu, 927 F.3d at 96 (quoting Graham v. Long
Island R. R., 230 F.3d 34, 39 [2d Cir. 2000]). “The question
of ‘whether parties are similarly situated is [generally] a
fact-intensive inquiry’ that depends heavily on the particular
context of the case at hand,” and “there is no precise formula
to determine whether an individual is similarly situated to
comparators.’ ” Hu, 927 F.3d at 96 (quoting Clubside, Inc. v.
Valentin, 468 F.3d 144, 159 [2d Cir. 2006]; McDonald v. Vill.
Of Winnetka, 371 F.3d 992, 1002 [7th Cir. 2004]). Because
of the fact-intensive nature of this inquiry, the question of
whether individuals are similarly situated is generally one that
should be submitted to a jury for resolution. Graham, 230 F.
3d at 39. “This rule is not absolute, however, and a court can
properly grant summary judgment where it is clear that no
reasonable jury could find the similarly situated prong met.”
Harlen Assocs. v. Incorp. Vill. of Mineola, 273 F.3d 494, 499
n.2 (2d Cir. 2001) (citing Cruz v. Coach Stores, 202 F.3d 560,
568 [2d Cir. 2000]).
*22 As can be seen from the standards outlined above, the
existence of a similarly situated comparator is an essential
element that must be proven to succeed on an equal protection
claim. In this case, such a comparator, in order to be similarly
situated in all material respects, would be a student at East
Middle School who displayed similar conduct as that which
purportedly raised Defendants’ suspicion that the minor
Plaintiffs might be intoxicated. After all, one of Plaintiffs’
arguments in support of this claim is that the conduct that
Defendants relied on to justify a search was conduct that
would not have been found to be suspicious in the absence
of racial and/or gender bias. Plaintiffs, through their motion
papers and evidence, have asserted two apparent sources
for finding such comparators: (1) the expert report of Dr.
Jamilia Blake, which includes an assessment of data regarding
students in the Binghamton City School District who have
been searched on suspicion of substance use or possession,
and (2) examples of three White students that Defendant
Simonds previously searched at schools earlier in his career
as an administrator.
As an initial matter, the Court finds that the only relevant data
from Dr. Blake's expert reports as to this specific issue is that
which is related to students who were searched in response to
suspected substance use or possession; her other data, which
relates to students who received out-of-school suspensions, is
not applicable because it is undisputed that none of the minor
Plaintiffs in this case received out-of-school suspensions for
the relevant incident. However, there are two issues with
even that relevant data from Dr. Blake's report. First, her data
includes students from both East and West Middle School,
despite the fact that the relevant incident happened at East
Middle School and there is no evidence to suggest that
the three individual Defendants who Plaintiffs allege acted
against them in a discriminatory manner had any involvement
in affairs at West Middle School. Dr. Blake admits that she
did not have any data regarding which of the students in the
data sample attended East Middle School and which attended
West Middle School. There is therefore a question as to how
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many of the students who were documented as having been
searched actually attended East Middle School.
Second, and perhaps most relevant to the analysis of whether
any such students were similarly situated to the minor
Plaintiffs, Dr. Blake's report contains only sparse information
regarding the circumstances that led to any of these students
being searched. Indeed, she admits that “there were a number
of incidents in which school officials reported that the student
was in possession or intoxication by a substance but did
not express in the discipline incident description how school
officials came to learn or knew the student was in possession
of alcohol, drugs, or inhalants or was intoxicated by a
substance.” (Blake 2d Exp. Rep., at 6-7.) She went on to
state, however, that the evidence did reveal that 37.5% of the
searches were done due to the smell of a substance by a school
official or a report of such smell to a school official, 25%
were due to a student report that another student possessed
substances or was intoxicated, and 12.5% were due to routine
bag checks; she admitted that 25% of the incidents did not
have a documented reason attached to the disciplinary reports.
(Blake 2d Exp. Rep., at 7.) In this case, the minor Plaintiffs
were searched, according to Defendants, based on a host of
factors, including (1) the fact that their whereabouts had been
unknown to officials for a period of at least seven minutes
after they did not go to their scheduled lunchtime activity,
(2) the known issue in the School District generally, but also
specifically in East Middle School, regarding student use of
“purple drink” at the relevant time, and (3) the fact that,
when they were found by Defendants Simonds and Raleigh,
they were observed to be laughing and acting in a manner
that Defendants thought inappropriate to the situation and
indicative of possible substance use. Thus, the students from
Dr. Blake's data set who were searched based on the smell of
a substance, a tip by another student, or a routine bag check
all were searched for reasons other than “suspicious” conduct
and thus under materially different circumstances than the
minor Plaintiffs. Of the remaining 25% of the students in Dr.
Blake's data set who were searched, not only is it unclear
from Dr. Blake's reports which specific students those were,
but there is simply no information from which a reasonable
factfinder can determine that the circumstance under which
they were searched are materially similar to the circumstances
under which the minor Plaintiffs were searched. Without
this missing information, Plaintiffs cannot show that any of
these students are similarly situated to them in a legally
sufficient manner to support their equal protection claim.
Finally, Dr. Blake's data and report do not show any instances
in which, for example, a White male or a White female student
displayed similar behaviors as those observed of the minor
Plaintiffs but was not searched.
*23 Plaintiffs’ argument that the Court has already found
that their statistics are sufficient to establish the existence
of similarly situated comparators is unavailing. (Dkt. No.
295, Attach. 1, at 61-62 [stating, “[a]s this Court held in
its Decision and Order from September 14, 2020, ‘statistics
highlighting the disparate treatment of search rates, or
searches themselves, among students of different races
throughout the District,’ would be sufficient to satisfy the
similarly situated prong in the plaintiffs’ case.”].) Although
the Court did highlight the fact that Plaintiffs had, in
their original Complaint, failed to present relevant statistics
regarding searches from the applicable school years and
found that such statistics would be necessary to support an
equal protection claims if they intended to rely primarily on
statistics as their proof, it did not conclude that the provision
of those statistics would automatically meet Plaintiffs’ burden
to show the existence of similarly situated comparators. (Dkt.
No. 117, at 38-39.) The statistics, or other evidence, must
still show that the students included in the dataset were
searched to a lesser degree under circumstances that were
materially similar to those under which the minor Plaintiffs
were searched, or that they engaged in similar conduct but
were not searched. However, as was discussed, Dr. Blake's
report indicates that 75% of the students were searched for
reasons that are not at all similar to those presented here, and
that there was no information regarding the circumstances
of the other 25%, and no specification as to what the races
or genders were of the students in that 25% group. To
say that statistics showing a potential racial disparity are
sufficient in and of themselves, without evidence of the
circumstances involved, to meet the similarly situated prong
in effect subsumes that requirement into the requirement to
show evidence of discriminatory intent.
Apart from Dr. Blake's report, Plaintiffs also raise, for the
first time in their reply memorandum of law, instances
of Defendant Simonds’ treatment of three White students
resulting from suspicion of either substance use/possession
or weapons possession, as evidence of Defendants’ disparate
treatment of similarly situated comparators. (Dkt. No. 295,
Attach. 1, at 63-64.) These three instances are documented
in Defendant Simonds’ deposition testimony. (Exh. MM,
at 50-59, 99-104.) One of these instances occurred while
Defendant Simonds worked at [Redacted], and involved his
conducting a bag search of a White male after one of the
school counselors had received a tip from other students that
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the student might have a firearm. (Id. at 50-51.) A second
instance occurred also while Defendant Simonds worked at
[Redacted], and involved his conducting periodic searches
of the bag of a White female student with a known heroin
addiction based on the faculty's observations of her condition,
chiefly observations that she was groggy, unkempt, and
disheveled. (Id. at 51-55.) He testified that he did not conduct
or order vitals checks of these students or ask them to remove
their clothes, although he did note that the school nurse
sometimes conducted a health check of the female student.
(Id. at 54-58.) A third instance occurred while Defendant
Simonds worked as the administrator at [Redacted], and
involved his searching the bag of a White male student
who smelled of alcohol, was stumbling, and had difficulty
speaking coherently; Defendant Simonds testified that they
did not search that student's pockets because he did not
believe the student would be able to hide a bottle in his
clothes. (Id. at 99-102.) Defendant Simonds did not ask that
student to remove any clothes, but a nurse was called to
perform a health check because they were concerned the
student might have alcohol poisoning. (Id. at 102-03.)
As with Dr. Blake's data, there are a number of problems
with these three students as potential comparators. As an
initial matter, all of these White students were searched when
Defendant Simonds was given reason to believe they might
possess contraband. Because they were also searched, these
students clearly do not serve as similarly situated comparators
to the extent Plaintiffs allege that their race was a motivating
factor in the decision to conduct any type of search.
In an effort to overcome that fact, Plaintiffs argue that the
disparity in treatment is the fact that the searches Defendant
Simonds did conduct of those students were less invasive or
less intrusive than those conducted of the minor Plaintiffs
in that he searched only the bags of those students and did
not order any search of their pockets or shoes or for the
removal of clothing. However, the circumstances in which
those students were searched are not materially similar to
those in which the minor Plaintiffs were searched: one student
was searched based on a tip, one was searched based not
only on observations but also due to a concern of ongoing
heroin addiction/use, and one was searched based not only on
behavioral observations of stumbling and difficulty speaking
but also the presence of the smell of alcohol. Although it
may be a reasonable conclusion that the searches of these
three students were more justified by the known facts than
the searches of the minor Plaintiffs were in this case, that fact
alone does not make these three students similarly situated
comparators who received more favorable treatment. As far as
the evidence establishes, none of these students exhibited the
types of behaviors the minor Plaintiffs display in the hallway
camera video that were the asserted basis for conducting
the search of the minor Plaintiffs. Further, in each of the
three identified instances, the students were searched for
a known item or substance: the first student was searched
specifically for a firearm based on a tip; the second student
was searched specifically for heroin and/or paraphernalia
based on a known history of use of that substance; and the
third student was searched for alcohol based on the scent
of that being present around him. In the case of the third
student, Defendant Simonds testified that he specifically did
not search that student's pockets because he did not believe a
container of alcohol would have fit in that student's clothing.
(Exh. MM, at 99-102.)
*24 By contrast, in this case, although Defendants have
stated they suspected the minor Plaintiffs might have
consumed “purple drink” given the recent instances of that
substance within the School District and the school itself, they
did not actually know for certain whether the effects they
observed were related to “purple drink,” a different substance,
or something else. Uncertainty regarding the substance the
administrators are looking for is certainly a variable in
determining what type or extent of search might be warranted.
Nor does Plaintiffs’ argument that a bottle of “purple drink”
would be too large to be found in most of the places
searched carry much weight. As Defendants argue, the liquid
ingredients could have been in a more compact container like
a flask, and smaller ingredients of “purple drink” such as
candy or codeine pills 15 could reasonably fit within pockets
or small bags.
Finally, none of these three incidents occurred at East Middle
School 16 and, according to Defendant Simonds’ deposition
testimony, they would have occurred in 2006 or 2007 as
to the first two students and 2011 or 2012 as to the third
student based on the years Defendant Simonds worked at the
respective schools where those happened. Moreover, none
of those instances involved Defendant Raleigh or Defendant
Eggleston, the two individual defendants who allegedly
conducted the searches in this case, and, as was discussed
previously, there is no evidence showing that Defendant
Simonds directed or ordered either of those Defendants to
perform the more troubling aspects of the alleged searches.
All of these differences suffice to render the three alleged
White students insufficiently similar in all material respects
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to the minor Plaintiffs to be considered proper comparators,
regardless of the existence of questions of fact as to the
extent of the search that was conducted on each of the
minor Plaintiffs. See Patterson v. City Univ. of New York,
12-CV-6300, 2014 WL 3511048, at *5 (E.D.N.Y. July
14, 2014) (finding student to be insufficiently similar to
plaintiff because that student took the relevant course in a
different year than did the plaintiff, and she took a different
reassessment test than did plaintiff).
For all of the above reasons, Plaintiffs have not provided
admissible evidence of the existence of any similarly situated
comparators and therefore cannot establish a prima facie
violation of their rights under the Equal Protection Clause. 17
Because no reasonable factfinder could conclude that the
evidence presented shows similarly situated comparators, the
Court need not, and does not, consider whether Plaintiffs
have raised a genuine dispute of material fact regarding
discriminatory intent. The Court grants summary judgment to
the Defendants on their Second Claim.
C. Whether Summary Judgment Is Appropriate on
Plaintiff's Third Claim
*25 After careful consideration, the Court answers this
question in the affirmative for the reasons stated in
Defendants’ memoranda. See supra Parts I.D.1 and 3 of this
Decision and Order. To those reasons, the Court adds the
following analysis.
Title VI provides that “[n]o person in the United States
shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any program or
activity receiving Federal financial assistance.” 42 U.S.C.
§ 2000d. To state a claim for discrimination under Title
VI, a plaintiff must allege as follows: (1) the defendant
discriminated against him or her on the basis of race, color,
or national origin; (2) the discrimination was intentional; and
(3) the discrimination was a substantial and motivating factor
for the defendant's actions. Smith v. Davis, 22-CV-1202, 2023
WL 5019432, at *6 (N.D.N.Y. Mar. 28, 2023) (Lovric, M.J.)
(citing Tolbert v. Queens Coll., 242 F.3d 58, 69 [2d Cir.
2001]), report-recommendation adopted, 2023 WL 4346961
(D'Agostino, J.). Importantly, “Title VI itself directly reaches
only instances of intentional discrimination.” Alexander v.
Sandoval, 532 U.S. 275, 281 (2001). “Under Title VI, ‘an
actionable discriminatory purpose ... implies more than intent
as volition or intent as awareness of consequences ... it implies
that the decisionmaker ... selected or reaffirmed a particular
course of action at least in part because of, not merely in spite
of, its adverse effects upon an identifiable group.’ ” Noakes
v. Syracuse Univ., 369 F. Supp. 3d 397, 416 (N.D.N.Y. 2019)
(McAvoy, J.) (quoting Clyburn v. Shields, 33 F. App'x 552,
555 [2d Cir. 2002]).
In some cases, the actions of a third party can be considered
to be an intentional violation by the recipient of federal
funds where the recipient is deliberately indifferent to the
actions of the third party that causes the violation. Zeno
v. Pine Plains Cent. Sch. Dist., 702 F.3d 655, 664-65 (2d
Cir. 2012) (collecting cases). The deliberate indifference
standard is a “narrow one,” imposing liability only if “a
plaintiff establishes: (1) substantial control, (2) severe and
discriminatory harassment, (3) actual knowledge, and (4)
deliberate indifference.” Zeno, 702 F.3d at 665 (citing Davis
ex rel. LaShonda D. v. Monroe Cnty. Bd. Of Educ., 526
U.S. 629, 643-50 [1999]). As most relevant to the case at
hand, “[c]onstructive knowledge is not enough; only actual
knowledge is a predicate to liability.” Zeno, 702 F.3d at 666.
Further, a recipient's actions are deliberately indifferent only
if “they were clearly unreasonable in light of the known
circumstances.” Id.
A plaintiff can establish a prima facie case of discrimination
either through direct evidence of discrimination or, where
direct evidence is unavailable, through indirect evidence by
demonstrating the following: “(1) she is a member of a
protected class; (2) she suffered an adverse action in pursuit
of her education by defendant; (3) she was treated differently
from similarly situated students who were not members of
the protected class; and (4) she was qualified to continue
in her educational pursuit.” J.E. ex rel. Edwards v. Ctr.
Moriches Union Free Sch. Dist., 898 F. Supp. 2d 516, 557
(E.D.N.Y. 2012); accord Fizulich v. Killings, 22-CV-1190,
2023 WL 4643011, at *3 n.3 (N.D.N.Y. July 20, 2023) (Hurd.
J.); Melgarejo v. New York Coll. of Podiatric Medicine, 12-
CV-6669, 2014 WL 1683809, at *5 (S.D.N.Y. Apr. 28, 2014)
aff'd 601 F. App'x 61, 62 (2d Cir. 2015).
*26 If a plaintiff shows a prima facie case of discrimination
as stated above, the burden shifts to the defendant to
show a legitimate, non-discriminatory reason for its conduct.
Williams v. Pace Univ., 192 F. Supp. 3d 415, 421 (S.D.N.Y.
2016) (citing Back v. Hastings on Hudson Union Free Sch.
Dist., 365 F.3d 107, 123 [2d Cir. 2004]). “In order to prevent
summary judgment in favor of plaintiff at this stage, that
explanation must, if taken as true, permit the conclusion that
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there was a nondiscriminatory reason for the adverse action.”
Williams, 192 F. Supp. 3d at 421 (citing Back, 365 F.3d at
123). If the defendant can proffer such a reason, the burden
then shifts back to the plaintiff “to prove ‘by a preponderance
of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for
discrimination.’ ” Id. “To defeat summary judgment, ‘the
plaintiff is not required to show that the employer's proffered
reasons were false or played no role in the ... decision, but only
that they were not the only reasons and that the prohibited
factor was at least one of the motivating factors.’ ” Id.
The Second Circuit has suggested, admittedly in a non-
precedential decision, that, “[t]o the extent that [a plaintiff]
seeks to assert a traditional equal-protection claim, ‘the
substantive elements of [Title VI] claims are nearly identical
to ... parallel claims under the Equal Protection Clause.’ ”
Rodrigues v. City of New York, 835 F. App'x 615, 618 (2d
Cir. 2020). This appears to be the view of the Supreme
Court as well. See Students for Fair Admissions, Inc. v.
President and Fellows of Harvard Coll., 600 U.S. 181, 198
n.2 (2023) (stating that “discrimination that violates the Equal
Protection Clause of the Fourteenth Amendment committed
by an institution that accepts federal funds also constitutes a
violation of Title VI”) (quoting Gratz v. Bollinger, 539 U.S.
244, 276 n.23 [2003]).
Based on the above standards, Plaintiffs are unable to show
a prima facie case of race discrimination under Title VI
for the same reasons that their equal protection claim fails.
Specifically, although there is no dispute that the minor
Plaintiffs are all part of a protected class (i.e., Black and
Latina persons), they cannot show, based on the evidence
presented, that they were treated differently from similarly
situated students who were not members of the protected
class.
The Court also notes that Plaintiffs do not appear to
meet the second element of a prima facie case, which is
that they suffered an adverse action in pursuit of their
education. Although the case law in this Circuit regarding
what constitutes an adverse action in the context of a Title
VI discrimination claim (as opposed to a retaliation claim)
appears sparse, the standard itself indicates that the adverse
action must be “in pursuit of [their] education.” See Peters
v. Molloy Coll. of Rockville Ctr., 07-CV-2553, 2013 WL
5652503, at *10 (E.D.N.Y. Oct. 16, 2013) (finding the
plaintiff had shown an adverse action where she received a
failing grade as a consequence of the alleged discrimination
and was being denied the ability to graduate and receive
her degree); Jacques v. Adelphi Univ., 10-CV-3076, 2011
WL 6709443, at *5 (E.D.N.Y. Dec. 19, 2011) (finding
that student's termination from her program was an adverse
action); Patterson, 2014 WL 3511048, at *4 (finding that
receiving a failing grade was an adverse action). In this case,
it is undisputed that none of the minor Plaintiffs were given a
disciplinary referral related to the events of January 15, 2019.
None of them were given an out-of-school suspension; and
I.M., A.S., and I.S. all corroborate Defendants’ assertions that
none of them were sent to either in-school suspension or any
type of detention. (Exh. GG, at 291-92; Exh. II, at 173; Exh.
XX, at Nos. 80-83; Exh. YY, at Nos. 80-83; Exh. ZZ, at Nos.
79-82; Exh. AAA, at Nos. 80-83.)
Granted, there is evidence, even from Defendant Simonds
and Defendant Raleigh, that J.B. was sent to the Intensive
Study Center (“I.S.C.”) (which is not clearly established as
being equivalent to disciplinary in-school suspension) for
the remainder of the day on January 15, 2019; however,
there is no evidence presented (even from J.B.) to dispute
the testimony of Defendant Simonds and others that J.B.
requested to be sent there rather than going back to class.
(Exh. EE, at 261-64; Exh. GG, at 292; Exh. II, at 169; Exh.
NN, at 239-40.) Evidence also reveals that I.S.C. was a room
where students could be placed where they could continue to
do their schoolwork during times when, for whatever reason,
they were not able to function in their regular classroom.
(Exh. NN, at 241.) Given this evidence, there is nothing to
indicate that J.B.’s placement in I.S.C. for at most one-and-a-
half periods at the end of the day would constitute an adverse
action in her pursuit of education. Further, to the extent there
may be a question of fact regarding whether J.B. was given
lunch detention, putting aside the undisputed fact that she
never attended any such detention in the following days, there
is also no evidence to suggest that detention solely during the
lunch period would have had an adverse impact on her pursuit
of her education. (Exh. EE, at 277-78.)
*27 Lastly, to the extent that Plaintiffs have attempted to
argue that they received discipline for this incident in the
form of being constructively suspended, such argument is
not supported by the admissible record evidence. Rather, it
is undisputed that it was the choice of the minor Plaintiffs
and their parents to cease attending East Middle School and
eventually transfer to West Middle School, and there is no
evidence to suggest that the minor Plaintiffs were harassed or
otherwise made to feel unwelcome by Defendants following
the incident. What is also acutely important is that there does
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not appear to be any evidence that the School Defendants
had any involvement in the minor Plaintiffs’ decision to leave
East Middle School, despite the fact that it is against those
Defendants that this claim is asserted.
In that vein, Plaintiffs have not shown that they can meet the
threshold burden of showing that the School Defendants, as
the relevant defendants against whom this claim is asserted,
should be held liable for the actions of its employees.
Plaintiffs’ claim is based on the actions of Defendants
Simonds, Raleigh, and Eggleston in conducting a search
of the minor Plaintiffs, not on any direct actions taken
by the School Defendants. As was discussed above, in
order to be held liable for the conduct of third parties, a
plaintiff must make multiple showings, including both that
the relevant defendant had actual knowledge of the third
party's conduct and that the relevant defendant acted with
deliberate indifference in the face of that knowledge. Zeno,
702 F.3d at 665. Here, granted, evidence appears to establish
that the School Defendants did possess actual knowledge of
the alleged violations after the fact, given that it does not
appear to be disputed that one of the minor Plaintiffs’ mothers
raised a formal complaint and there is evidence that Defendant
Simonds contacted district offices related to the incident
the following day, at which point Assistant Superintendent
Mike Holly and Director of Personnel David Thon became
involved. (Exh. SS, at 115-16, 123.)
However, it is also undisputed that Defendant Binghamton
Board of Education conducted an investigation into that
complaint, pursuant to the direction of Dr. Thompson
on January 16, 2019, which included a meeting with
Plaintiff Zulayka McKinstry and others on January 16, 2019,
interviews between January 16 and 22, 2019, with the
minor Plaintiffs, Defendant Eggleston, Defendant Raleigh,
Defendant Simonds, Resource Officer Williams, Ms. Green-
Gonzalez, a teacher's aide, and a youth development worker
who was in the health office for part of the time the
minor Plaintiffs were there, and follow-up conversations with
the minor Plaintiffs’ parents or guardians. (Kleinman Decl.
Exh. A.) Mr. Thon completed a written summary of this
investigation. (Kleinman Decl. Exh. A.) It is undisputed
that Defendant Eggleston was placed on administrative leave
during the investigation. (Exh. OO, at 156-57.) It is also
undisputed that the District coordinated to have a “restorative
practice coordinator” come to meet with the minor Plaintiffs,
their parents, and the school administration, but the District
was eventually notified by the Plaintiffs’ legal counsel that
Plaintiffs were no longer interested in participating and that
did not take place. (Exh. SS, at 162, 169.) Further, there
is undisputed evidence that the School Defendants began to
work to facilitate a transfer of the minor Plaintiffs to West
Middle School the day after Plaintiffs’ counsel informed them
that they desired such transfers, although Plaintiffs admittedly
spent a short period of time in the alternative school while the
transfers were being facilitated. (Dkt. No. 273, Attach. 9, at
¶¶ 3-8.)
The undisputed evidence therefore shows that the School
Defendants began an investigation into the incident the day
after it occurred, that they removed Defendant Eggleston from
her position while the investigation was being conducted, that
they attempted to engage in restorative practices with the
Plaintiffs (an effort which the Plaintiffs ultimately declined),
and that they then quickly implemented a plan to allow
the minor Plaintiffs to transfer to West Middle School after
Plaintiffs informed Defendants that they wanted to transfer.
No reasonable factfinder could conclude that this level of
response, implemented in short order after the concerns
became known to them, constituted deliberate indifference
to the alleged constitutional violations based on the actions
of Defendants Simonds, Raleigh, and Eggleston. As a result,
Plaintiffs have not shown that the School Defendants should
be held liable under Title VI for any actions taken by the
individual Defendants.
*28 For the above reasons, the Court grants summary
judgment to Defendants on Plaintiffs’ Third Claim.
D. Whether Summary Judgment Is Appropriate on
Plaintiffs’ Monell Claims
After careful consideration, the Court answers this question
in the affirmative for the reasons stated in Defendants’
memoranda of law. See supra Parts I.D.1 and 3 of this
Decision and Order. To those reasons the Court adds the
following analysis.
“The elements of a Monell claim are (1) a municipal policy
or custom that (2) causes the plaintiff to be subjected to
(3) a deprivation of a constitutional right.” Agosto v. New
York City Dept. of Edu., 982 F.3d 86, 97-98 (2d Cir. 2020)
(citing Batista v. Rodriguez, 702 F.2d 393, 397 [2d Cir.
1983]). A municipality cannot be held liable under a theory of
respondeat superior, but rather a plaintiff must demonstrate
that “ ‘through its deliberate conduct, the municipality was
the moving force behind the injury.’ ” Agosto, 982 F.3d at 98
(quoting Bd. Of Cty. Comm'rs of Bryan Cty., Okla. v. Brown,
520 U.S. 397, 404 [1997]; Roe v. City of Waterbury, 542 F.3d
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31, 40 [2d Cir. 2008]) (emphasis in original). A municipality
may be held liable for the actions of a single official, “but only
if that official is someone ‘whose edicts or acts may fairly be
said to represent official policy’ for the entire municipality.”
Agosto, 982 F.3d at 98 (quoting Monell, 436 U.S. at 694). The
fact that an official had discretion to make a decision that is
unreviewable is insufficient; the official must be sufficiently
high in municipal hierarchy that he is responsible for making
final policies in that area of the municipality's business under
state law. Agosto, 982 F.3d at 98.
As was discussed above, Plaintiffs have asserted, as part of
their First and Second Claims, that the School Defendants
should be held liable for the actions of the individual
Defendants. (Dkt. No. 163, at ¶¶ 140-48, 163-78.) They allege
two apparent bases for the imposition of Monell liability:
(1) the purported status of Defendant Simonds as a final
policymaker based on his position as principal; and (2) the
School Defendants’ failure to properly train or supervise the
individual Defendants based on deliberate indifference to
students’ constitutional rights. (Id.)
Defendants correctly point out that, although Defendants have
clearly sought summary judgment as to both of these bases,
Plaintiffs do not appear to mount any challenge regarding
their failure-to-train theory. (Dkt. No. 295, Attach. 1, at
67-70.) Because Plaintiffs have not opposed Defendants’
motion as to that theory, Defendants’ burden is lightened
such that they need only show that their argument possesses
facial merit, which has appropriately been characterized as a
“modest” burden. See Benson v. West Coast Servicing, Inc.,
22-CV-0904, 2023 WL 5836212, at *5 (N.D.N.Y. Sept. 8,
2023) (Suddaby, J.) (citing N.D.N.Y. L.R. 7.1[a][3]; Rusyniak
v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1 n.1
[N.D.N.Y. Oct. 30, 2009] [Suddaby, J.]; Este-Green v. Astrue,
09-CV-0722, 2009 WL 2473509, at *2 & nn.2, 3 [N.D.N.Y.
Aug. 7, 2009] [Suddaby, J.]).
*29 They have met that burden here. It is undisputed that
the School Defendants maintained written policies related
to searches and interrogations of students, and that they
provided various trainings to both administrators and teachers
at various points during the relevant 2018-2019 school year.
(Dkt. No. 273, Attach. 10, at ¶ 94; Exh. MM, at 329-330; Exh.
NN, at 64-65.) Further, Plaintiffs have not made apparent any
evidence that would suggest, let alone show, that the School
Defendants were otherwise deliberately indifferent a risk of
constitutional violations based on searches of students.
As to Plaintiffs’ other theory, the Court does not agree, as
an initial matter, that it has already found that Defendant
Simonds in a final policy maker as a matter of law. (Dkt.
No. 295, Attach. 1, at 70.) Rather, the Court's finding in its
prior Decision and Order on Defendants’ motion to dismiss
was explicitly limited to a finding that Plaintiffs had plausibly
alleged that Defendant Simonds was a final policymaker.
(Dkt. No. 117, at 31-32.) As a result, the legal question of
whether that plausible allegation is supported by admissible
record evidence is still open and is a proper consideration
on Defendants’ motion for summary judgment. Further, as
Defendants argue, those findings were rendered before the
Second Circuit issued its decision in Agosto, and therefore
the Court must nonetheless consider whether that newer
precedent impacts the relevant law regarding this issue. 18
As to the merit of Plaintiffs’ theory, Plaintiffs’ main argument
is based on an erroneous premise. Plaintiffs somewhat
bafflingly cite N.Y. Educ. L. § 2590-i as the basis in New York
law that provides Defendant Simonds and Defendant Raleigh
with final policymaking authority regarding student searches.
Yet that provision is part of a set of laws under Article 52-
a, which, according to N.Y. Educ. L. § 2590, applies to “the
city school district of the city of New York.” N.Y. Educ.
L. § 2590. Because Defendants Simonds and Raleigh are
administrators at a school in Binghamton, and therefore not
a school within the city school district of the city of New
York, this statute does not apply to this case. Article 51 of
the New York Education Law applies to “the school district
of each city which according to the latest federal census
has less than one hundred twenty-five thousand inhabitants.”
N.Y. Educ. L. § 2501. The Court takes judicial notice of the
information on the official government website of the U.S.
Census Bureau that indicates the City of Binghamton had an
estimated population of 47,376 as of April 1, 2020, and 47,115
as of July 1, 2022. 19 Such information indicates that Article
51 applies to the Binghamton City School District. Notable
relevant provisions within this article include the following:
(1) Section 2503, which indicates that a board of education
“shall perform any duty imposed upon or exercise any power
granted to boards of education of city school districts ... under
this chapter or other subchapter, or the rules of the regents and
regulations of the commissioner of education so far as they
may be applicable,” and “shall prescribe such regulations and
by-laws as may be necessary to make effectual the provisions
of this chapter and for the conduct of the proceeding of said
board and transaction of its business affairs, for the general
management, operation, control, maintenance and discipline
of the schools, and all other educational, social or recreational
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activities and other interest under its charge or direction”;
and (2) Section 2508, which indicates that superintendent
of a city school district shall have the powers to, subject
to the bylaws of the board of education, (i) enforce all
provisions of law and all rules and regulations relating to
the management of the schools and other educational, social
and recreational activities, (ii) supervise and direct a host
of employees, including principals and teachers, and (iii)
supervise and direct over the enforcement and observance of
a number of activities, including medical inspection.
*30 Further, Article 55, which broadly applies to the
regulation by boards of education on school district property,
vests within the board of education or the trustees, the duty
to adopt and amend “a code of conduct for the maintenance
of order on school property, including a social function,
which shall govern the conduct of students, teachers and other
school personnel as well as visitors and shall provide for
the enforcement thereof.” N.Y. Educ. L. § 2801. Minimum
requirements for the code of conduct include, as relevant,
provisions regarding conduct, dress, and language deemed
appropriate and acceptable on school property, standards and
procedures to assure security and safety of students and
school personnel, and disciplinary measures to be taken in
incidents involving the possession or use of illegal substances.
Id.
Taken together, these relevant provisions place ultimate
policymaking authority for a large swath of concerns on a
city school district's board of education. In the case currently
at issue, there is a written policy that is implicated by
Plaintiffs’ claims: Policy 7330, which addresses searches
and interrogations of students. There seems to be no
genuine dispute that it was Defendant Binghamton Board
of Education, and not Defendant Simonds or Defendant
Raleigh, that instituted this written policy. That policy states,
in relevant part, the following:
Students are protected by the Constitution from
unreasonable searches and seizures. A student may be
searched and contraband/prohibited items seized on school
grounds or in a school building by an authorized School
District official only when the School Official has
reasonable suspicion to believe the student has engaged
in or is engaging in proscribed activity which is in
violation of the law and/or the rules of the school (i.e.,
the District Code of Conduct). The reasonableness of any
search involves a twofold inquiry. School officials must
first determine whether the action was justified at its
inception, and second, determine whether the search, as
actually conducted, was reasonably related in scope to the
circumstances with justified the interference in the first
place.
Factors to be considered in determining whether reasonable
suspicion exists to search a student include:
(a) The age of the student;
(b) The student's school record and past history;
(c) The predominance and seriousness of the problem in
the school where the search is directed;
(d) The probative value and reliability of the information
used as a justification for the search;
(e) The school official's prior knowledge of and experience
with the student; and
(f) The urgency to conduct the search without delay.
If reasonable suspicion exists to believe that a student
has violated or is violating the law and/or school rules, it
is permissible to an authorized school administrator(s) to
search that student's outer clothing, pockets, or property.
The search may include, but is not limited to, the
student's outer clothing such as a jacket or coat, pockets,
backpack, and/or purse. Whenever possible, searches will
be conducted by a staff member of the same sex as the
student and, whenever possible, another staff member will
be present as a witness.
Policy 7330. The Policy further discusses matters such as the
definition of a strip search and when such a search is justified,
the process for conducting searches of school property, the
process of questioning students, and when school resource
officers or law enforcement should be made involved. Id.
As a whole, this Policy provides fairly detailed,
comprehensive guidance as to what procedures school
officials are required to follow when conducting a search
or interrogation of a student. As principal and assistant
principal, Defendants Simonds and Raleigh were subject to
this policy; there is no evidence to suggest that they could
unilaterally institute different policies for East Middle School.
Importantly, Plaintiffs do not assert that Policy 7330 itself
constitutes a policy that violated of their Fourth Amendment
rights. Instead, they assert that the actions the individual
Defendants took, which they specifically argue deviated from
Policy 7330 in some respects (particularly regarding strip
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searches and/or searching the minor Plaintiffs’ shoes), were
the basis for the constitutional violations.
*31 Plaintiffs’ arguments erroneously conflate a final
decisionmaker with a final policymaker. That Defendant
Simonds and Defendant Raleigh might possess some amount
of discretion under the Policy 7330 when applying the
relevant provided standards, or that they might fail to
follow the policy to the letter, does not transform their
actions into official municipal policies. See Agosto, 982 F.3d
at 99-100 (noting that “the Supreme Court has held that
‘when an official's discretionary decisions are constrained
by policies not of that official's making, those policies,
rather than the subordinate's [alleged] departures from them,
are the act of the municipality’ that must be challenged”)
(quoting City of St. Louis v. Praprotnik, 485 U.S. 112,
127 [1988]). In other words, as recognized in Agosto, the
fact that an official might be a final decisionmaker as to
how an enacted policy is implemented in a given situation
does not make them also a final policymaker. See Agosto,
982 F.3d at 100 (recognizing that there must be some
deliberate conduct by the municipality related to the injury
alleged, and that equating a final decisionmaker with a final
policymaker “would effectively impose respondeat superior
liability” on a municipality in violation of Monell). 20 Here,
although Defendant Simonds and Defendant Raleigh, as
administrators, might be considered final decisionmakers on
the question of whether a search of student will be conducted
at East Middle School, it is clear that neither of them had final
policymaking authority over the rules that were to guide such
decisions or searches.
In sum, applicable New York state law and the evidence
presented in this case demonstrate that it was Defendant
Binghamton Board of Education who had final policymaking
authority as to procedures applicable to searches of students
within the District (and at East Middle School specifically),
not Defendant Simonds or Defendant Raleigh. Because
it is the actions of Defendant Simonds and Defendant
Raleigh (along with Defendant Eggleston) in carrying out
the Board of Education's written policy that is the basis of
Plaintiffs’ constitutional claims, rather than the written policy
itself, Plaintiffs have not shown, and cannot show, that the
School Defendants can be held liable for those individuals’
actions under their chosen theory. The Court therefore
grants summary judgment to Defendants on the Monell
claims asserted against Defendant Binghamton City School
District and Defendant Binghamton Board of Education, and
dismisses Plaintiffs’ First and Second Claims as to those two
defendants.
E. Whether Defendant Eggleston is Entitled to
Qualified Immunity
After careful consideration, the Court answers this question
in the negative for the following reasons.
“The doctrine of qualified immunity shields officials from
civil liability so long as their conduct ‘does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.’ ” Mullenix v. Luna,
577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555
U.S. 223, 231 [2009]). “A clearly established right is one
that is ‘sufficiently clear that every reasonable official would
have understood that what he is doing violates that right.’ ”
Mullenix, 577 U.S. at 11 (quoting Reichle v. Howards, 566
U.S. 658 [2012]). “ ‘We do not require a case directly on
point, but existing precedent must have placed the statutory or
constitutional question beyond debate.’ ” Mullenix, 577 U.S.
at 12 (quoting Ashcroft v. al-Kidd, 563 U.S. 731 [2011]).
Courts within the Second Circuit find a right to be clearly
established “if (1) the law is defined with reasonable
clarity, (2) the Supreme Court or the Second Circuit has
recognized the right, and (3) a reasonable defendant would
have understood from the existing law that his conduct was
unlawful.” Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004).
The right in question should not be defined at a “high
level of generality,” but rather “[t]he dispositive question
is ‘whether the violative nature of the particular conduct
is clearly established.’ ” Mullenix, 577 U.S. at 12 (quoting
al-Kidd, 563 U.S. 742). In the specific context of school
searches, “[a] school official searching a student is ‘entitled
to qualified immunity where clearly established law does
not show that the search violated the Fourth Amendment.’ ”
Safford, 557 U.S. at 377 (quoting Pearson, 555 U.S. at 243).
“To be established clearly, however, there is no need that ‘the
very action in question [have] previously been held unlawful.’
” Safford, 557 U.S. at 377 (quoting Wilson v. Layne, 526 U.S.
603, 615 [1999]).
*32 Putting aside the issue of whether the specific right in
this case was clearly established by the law as of January 15,
2019, Plaintiffs have argued that Defendant Eggleston is not
entitled to the protection of qualified immunity because she
was acting outside the scope of her authority by conducting
an investigatory search. (Dkt. No. 295, Attach. 1, at 71-72.)
Specifically, Plaintiffs argue that Policy 7330, discussed
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above, permits only “an authorized school administrator”
to perform searches of students. (Id.) It is undisputed that
Defendant Eggleston, as the school nurse, was not an
authorized administrator. (Exh. MM, at 216, 330-31; Exh.
NN, at 56-57, 64-65; Exh. OO, at 50, 114-17, 125, 313.)
Defendants’ only argument in opposition to this assertion
is that Defendant Eggleston did not perform a search, but
rather only a health assessment, an argument that has already
been rejected. See, supra Part III.A.1 of this Decision and
Order. Further, there is a genuine dispute of material fact
regarding the details of the search Defendant Eggleston
performed on I.M., and I.M.’s version goes far beyond the
mere checking of vital signs and performing neurological
testing that could be even plausibly considered to be a
health assessment. There also does not appear to be any
evidence indicating that Defendant Eggleston was directed or
given permission by someone with authority (i.e., Defendant
Simonds or Defendant Raleigh) to conduct a search involving
a patdown, the emptying of pockets or shoes, or removal of
clothing. (Exh. MM, at 287-89, 294-95, 298-300; Exh. NN, at
194-200, 207-08; Exh. NN, at 192-96, 214-15, 218, 234-35.)
To the extent that Defendant Eggleston may have performed
an investigatory search of I.M., such actions would be outside
the scope of her authority under Policy 7330.
“It is not enough that defendants-appellants were
‘government officials’ to establish qualified immunity. They
must further demonstrate that the specific acts at issue were
performed within the scope of their official duties.” Shechter
v. Comptroller of City of New York, 79 F.3d 265, 270 (2d Cir.
1996). An employee performing an action that violates the
employer's rules and regulations can be taken as a suggestion
that the employee exceeded the scope of their authority. See
Carnelli v. Karani, 731 F. App'x 73, 75 (2d Cir. 2018) (finding
that defendant's preparing of a memorandum on a form used
for internal department communication and sending it to an
external source plausibly suggested he exceeded the scope of
his authority where such actions violated departmental rules
and regulations).
Having considered the parties’ memoranda, there appears
to be no genuine dispute that Defendant Eggleston was not
authorized to perform searches of students. Therefore, to the
extent that she did so in this case, she exceeded the scope
of her authority. Further, it would not have been reasonable
for Defendant Eggleston to believe that she was acting within
the scope of her authority to the extent a factfinder could
credit I.M.’s version of the search. As discussed above,
Defendant Eggleston admitted at her deposition that she was
not authorized to perform searches under the relevant policy.
(Exh. MM, at 216, 330-31; Exh. NN, at 56-57, 64-65; Exh.
OO, at 50, 114-17, 125, 313.) The conduct described by I.M.
could not reasonably be considered anything other than a
search. While acting without authority would be insufficient
to automatically render her actions unconstitutional, it is
sufficient to preclude her from seeking the protection of
qualified immunity for any actions that constitute a search
under Policy 7330.
For all of the above reasons, the Court finds that Defendant
Eggleston's affirmative defense of qualified immunity does
not provide a basis for a grant of summary judgment on the
remaining claim against her.
F. Whether Any Portions of the Expert Reports
Should Be Excluded
Federal Rule of Evidence 702 permits an expert to testify
as to opinions if the proponent of that testimony can show
that (1) the expert “is qualified as an expert by knowledge,
skill, experience, training, or education,” (2) “the expert's
scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a
fact in issue,” (3) “the testimony is based on sufficient facts or
data,” (4) “the testimony is the product of reliable principles
and methods,” and (5) “the expert's opinion reflects a reliable
application of the principles and methods to the facts of the
case.” Fed. R. Evid. 702. “Under Rule 702, an expert with
‘specialized knowledge [that] will help the trier of fact’ may
testify so long as that testimony is ‘based on sufficient facts or
data’ and ‘is the product of reliable principles and methods’
that witness has ‘reliably applied ... to the facts of the case.’ ”
In re Pfizer Inc. Sec. Litig., 819 F.3d 642, 658 (2d Cir. 2016)
(quoting Fed. R. Evid. 702).
*33 “Expert testimony should be excluded where it is
‘speculative or conjectural,’ but arguments that the expert's
assumptions ‘are unfounded go to the weight, not the
admissibility, of expert testimony.’ ” Car Freshner Corp. v.
Am. Covers, LLC, 17-CV-0171, 2021 WL 4502281, at *8
(N.D.N.Y. Sept. 30, 2021) (McAvoy, J.) (quoting Robinson v.
Suffolk Cnty. Police Dep't, 544 F. App'x 29, 32 [2d Cir. 2013]).
Notwithstanding this fact, testimony may nonetheless be
excluded if it is “based on assumptions that are so unrealistic
and contradictory as to suggest bad faith or to be in essence
an apples and oranges comparison.” Zerega Ave. Realty Corp.
v. Hornbeck Offshore Transp., LLC, 571 F.3d 206, 214 (2d
Cir. 2009) (internal quotation marks and citations omitted).
“Additionally, the district court may consider the gap between
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the data and the conclusion drawn by the expert from that data,
and exclude opinion evidence where the court conclude[s]
that there is simply too great an analytical gap between the
data and the opinion proffered.” Restivo v. Hessemann, 846
F.3d 547, 577 (2d Cir. 2017).
1. Dr. Jamilia Blake
Defendants have moved to preclude testimony from Dr.
Blake related to racial disparities in the discipline of students
within the middle schools of the Binghamton City School
District. As was discussed above in Part III.B of this Decision
and Order, even considering the information in Dr. Blake's
expert reports for purposes of the parties’ cross-motions for
summary judgment, Plaintiffs have not shown any that any
proffered comparators are sufficiently similar to sustain their
Second or Third Claims stemming from allegations of racial
bias. Furthermore, because the claims to which Dr. Blake's
testimony would apply are being dismissed, the Court need
not consider whether her testimony should be excluded at
trial.
2. Dr. Sarah Vinson
Defendants have argued that the testimony of Dr. Vinson
should be excluded specifically on the basis that her opinions
are not the product of reliable principles and methods; they
do not appear to assert that Dr. Vinson is unqualified or that
her testimony would not assist a trier of fact. (Dkt. No. 272, at
32-33.) Specifically, they argue that her testimony is not the
product of reliable principles or methods because she failed
to review any of the minor Plaintiffs’ medical records before
she conducted her evaluations. (Id.) This argument is without
merit.
Although it appears to be correct that Dr. Vinson did not
review medical records specifically before evaluating the
minor Plaintiffs, it is undisputed that (a) she did conduct
an evaluation of the minor Plaintiffs that included an in-
person assessment, which is evidenced by her mental status
examination findings, and (b) she did review medical records
at some time after the examinations before she wrote her
expert reports. (DeStefano Decl., Exhs. 8, 10.) Defendants
offer no legal authority for the point of law that reviewing
medical records after conducting a physical assessment, as
opposed to before, renders an expert opinion the product
of unreliable principles or methods. As Plaintiffs highlight,
the case on which Defendants primarily rely explicitly states
that “a physician who evaluates a patient in preparation for
litigation should ... either examine the patient or review
the patient's medical records.” In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 762 (3d Cir. 1994). Indeed, that court
further clarified that “we think that generally a doctor only
needs one reliable source of information showing that the
plaintiff is ill and either a physical examination or medical
records will suffice.” In re Paoli R.R. Yard PCB Litig., 35
F.3d at 762. Because there is no dispute that Dr. Vinson's
testimony and opinions are based on both an examination of
the minor Plaintiffs and a review of at least some medical
records and other information, Defendants have not shown
that her testimony is based on insufficient data or unreliable
principles or methodology. Defendants’ motion to preclude
Dr. Vinson's testimony and opinions is therefore denied. This
ruling, however, is only as to the general admissibility of Dr.
Vinson's testimony on the Daubert grounds asserted in the
current motion; it does not preclude Defendants from raising
further objections to Dr. Vinson's testimony during trial. The
Court will not speculate at this point whether her eventual
testimony is appropriate and admissible beyond the narrow
finding here.
3. Dr. Robert Demerath
*34 Because the only claim remaining relates to I.M., the
Court will confine its analysis of Dr. Demerath's various
opinions to the report of his assessment of I.M.
As an initial matter, to the extent the parties disagree regarding
whether Dr. Demerath is qualified to testify as to whether the
events on January 15, 2019, constitute racial discrimination
or to rebut the opinions of Dr. Blake, the Court finds that such
issues are moot based on the above dismissal of Plaintiffs’
race-based discrimination and equal protection claims. There
will therefore be no need for Dr. Demerath to offer any
testimony at trial on those issues. He should confine his
testimony to his opinion regarding the cause of the mental
or psychological harm suffered by I.M. rather than any
assessment of whether the events of January 15, 2019, were
racially motivated; in particular, because his expert report
makes clear that it is his opinion that factors other than those
events caused I.M.’s mental health symptoms, whether or
not such events were racially motivated has no reasonable
or logical bearing on his opinion. Further, to the extent he
offers any opinions regarding whether I.M. was unreasonable
or dishonest in perceiving the events of January 15, 2019,
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to be racially motivated, such opinions are either beyond the
scope of his disclosed role as an expert regarding mental harm
or, as will be discussed further below, constitute assessments
of her credibility that are not within the scope of permissible
expert witness testimony. See Belvin v. Electchester Mgmt.,
LLC, 635 F. Supp. 3d 190, 199 (E.D.N.Y. 2022) (excluding
testimony of expert psychologist questioning “the accuracy”
of plaintiff's racial discrimination and emotional distress
claims, because “it is the jury's province to determine whether
[plaintiff's] version of events is credible, not that of an expert
witness.”).
Next, the Court agrees with Plaintiffs that any portions of
Dr. Demerath's testimony that constitute an assessment of
I.M.’s credibility must be excluded. “Even expert witnesses
possessed of medical knowledge and skills that relate directly
to credibility may not state an opinion as to whether another
witness is credible, although such witnesses may be permitted
to testify to relevant physical or mental conditions.” U.S. v.
Scop, 846 F.2d 132, 142 (2d Cir. 1988); accord Nimely v. City
of New York, 414 F.3d 381, 398 (2d Cir. 2005) (“[T]his court,
echoed by our sister circuits, has consistently held that expert
opinions that constitute evaluations of witness credibility,
even when such evaluations are rooted in scientific or
technical expertise, are inadmissible.”). Specifically, although
it is within the purview of Dr. Demerath's assessments and
experience to render opinions regarding whether [Redacted],
it is not proper for him to opine that [Redacted] mean
her account should not be believed by the factfinder; such
conclusions are for the factfinder to reach if the factfinder
finds those conclusions to be appropriate and supported by the
evidence. Further, Dr. Demerath's statement that [Redacted] is
not only an inappropriate credibility assessment, it is a generic
conditional statement that has no apparent basis in any of the
evidence or data presented by Dr. Demerath in the rest of
his report; he does not appear to present any studies or data
to support his assertion that [Redacted], nor does he attempt
to explain how his experience alone might substantiate that
claim. His opinion that I.M. may have been motivated to
[Redacted] further represents a credibility assessment that
is more properly reserved for the factfinder; he may testify
regarding those facts as gleaned from his assessments, but
he may not draw such conclusions for the jury. Moreover,
his opinion that [Redacted] is purely speculative. A jury
is capable of considering the evidence that various social
advocacy groups or individuals expressed interest in the
minor Plaintiffs following the events of January 15, 2019,
and determine for itself whether such evidence impacts
the credibility of I.M.’s version of events; Dr. Demerath's
testimony on the matter does not involve any issues beyond
the ordinary knowledge of a lay juror and does not assist the
factfinder in any material way.
*35 A related statement that I.M.’s description of Defendant
Eggleston's behaviors [Redacted] presents a somewhat
different question, because it has a greater connection to Dr.
Demerath's expertise and the evidence and data he considered
and implicates expert knowledge regarding mental health that
is perhaps not within the ordinary knowledge of a juror.
However, such testimony should be narrowly tailored to avoid
straying into the area of making a credibility assessment or
conclusion regarding I.M.’s truthfulness, i.e., he may testify
that [Redacted] but he may not testify that I.M.’s version of
events is unreliable or that she misrepresented the facts of
what occurred. See Belvin, 635 F. Supp. 3d at 199; Doe v.
Hartford Sch. Dist., 16-CV-0206, 2018 WL 1064572, at *5
(D. Vt. Feb. 26, 2018) (“Although an expert may testify to
relevant physical or mental conditions that affect credibility
and to proper or improper interviewing tactics, an expert
witness is not permitted to opine on a witness's credibility
based on his or her assessment of inconsistencies.”); see also
Washington v. Schriver, 255 F.3d 45, 59 (2d Cir. 2001) (noting
that, under New York law, “a witness can testify about factors
affecting the reliability of another witness, as long as he or she
avoids commenting directly on the credibility of a witness”)
(emphasis added). The Court will permit Dr. Demerath to
provide narrow testimony regarding this issue and the basis
for his testimony regarding it, subject to Plaintiffs’ ability to
raise renewed specific objections in a motion in limine or at
trial should they believe his actual testimony strays beyond
the bounds of this order.
As to Dr. Demerath's other main conclusion [Redacted], the
Court finds that there is no basis to exclude such opinions
because his expert report discloses the purported basis for that
conclusion. Notably, Dr. Demerath includes in his report a
lengthy discussion of [Redacted] Whether Plaintiffs may be
able to convince a factfinder that Dr. Demerath's conclusions
are unfounded does not merit their exclusion; such concerns
go to the weight of his testimony, rather than its admissibility.
His conclusions are not without some apparent basis in the
methodology he applied, and therefore he should be permitted
to present them to a jury.
This is also true to the extent that Plaintiffs argue that Dr.
Demerath's differential diagnosis is invalid because he did
not properly examine or consider the events of January 15,
2019, when rendering his opinion. “A differential diagnosis
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is a patient-specific process of elimination that medical
practitioners use to identify the most likely cause of a set
of signs and symptoms from a list of possible causes.”
Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 254 (2d Cir.
2005) (internal quotation marks omitted). In his report, Dr.
Demerath discussed his review of the evidence from various
sources regarding those events and noted [Redacted] This
is materially distinguishable from the situation in Ruggiero,
where the Second Circuit found the differential diagnosis
testimony to be insufficient due to the expert's failure to
establish that the asserted mechanism of harm (a specific
pharmaceutical) had been ruled out as a cause. Because
Dr. Demerath does indeed appear to rule out Defendants’
actions on January 15, 2019, as a cause of I.M.’s relevant
mental health symptoms, the same difficulties do not exist
in this case. Further, as was already discussed above, the
evidence explicitly considered by Dr. Demerath in his report
provides sufficient indication of the data and evidence he
relied upon when coming to this conclusion; and this is not a
situation where the analytical gap between that evidence and
his opinion is so great as to be clearly inappropriate. In light of
his report, the proper method of testing the extent to which Dr.
Demerath considered and ruled out the events of January 15,
2019, as a contributing factor in I.M.’s mental health concerns
is through cross-examination, not exclusion.
For all of the above reasons, the Court grants Plaintiffs’
motion to exclude Dr. Demerath's testimony as to his opinions
that improperly implicate I.M.’s credibility, his opinions
regarding whether the events of January 15, 2019, were based
in racial bias, and his rebuttal of Dr. Blake's testimony. The
Court however denies that motion as to the other portions of
Dr. Demerath's opinion as discussed above.
*36 ACCORDINGLY, it is
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 273) is GRANTED in part and DENIED in part;
and it is further
ORDERED that Plaintiffs’ First Claim against Defendants
Simonds and Raleigh pursuant to the Fourth Amendment as
to J.B., A.S., I.S., and I.M is DISMISSED; and it is further
ORDERED that Plaintiffs’ First Claim against Defendant
Eggleston pursuant to the Fourth Amendment as to J.B.,
A.S., and I.S. is DISMISSED, but that claim as to I.M.
SURVIVES; and it is further
ORDERED that Plaintiffs’ Second Claim against Defendants
Simonds, Raleigh, and Eggleston pursuant to the Equal
Protection Clause and 42 U.S.C. § 1983 is DISMISSED; and
it is further
ORDERED that Plaintiffs’ First and Second Claims against
Defendant City of Binghamton School District and Defendant
Binghamton Board of Education pursuant to Monell are
DISMISSED; and it is further
ORDERED that Plaintiffs’ Third Claim against Defendant
City of Binghamton School District and Defendant
Binghamton Board of Education pursuant to Title VI is
DISMISSED; and it is further
ORDERED that Defendants’ motion to exclude the
testimony of Plaintiff's expert witnesses (Dkt. No. 272) is
DENIED as to Dr. Vinson, and DENIED as moot as to Dr.
Blake; and it is further
ORDERED that Plaintiffs’ motion to exclude the testimony
of Defendants’ expert witness Dr. Demerath (Dkt. No. 270) is
GRANTED in part and DENIED in part; and it is further
ORDERED that a pretrial conference shall be scheduled in
this action, at which counsel shall appear with settlement
authority.
All Citations
Not Reported in Fed. Supp., 2024 WL 3804110
Footnotes
1 Granted, the “So Ordered” paragraph of the Decision and Order does not expressly state that the dismissal
of the strip-search claims of A.S. and J.B. was with prejudice. (Dkt. No. 117, at 47.) However, the Court's
analysis of this claim included the assessment that “given the breadth and detail of Plaintiffs’ Complaint (which
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was crafted with the assistance of counsel, is forty-one pages in length and has fifty pages of attachments),
the Court finds that the above-described defects in Plaintiffs’ Complaint are substantive in nature, such that
better pleading would not cure them” (indicating that no amendment would be allowed). (Id. at 26.) In any
event, because of the unequivocal language of Fed. R. Civ. P. 41(b), a dismissal that is silent was to whether
it is with or without prejudice is on the merits and thus with prejudice. See Fed. R. Civ. P. 41(b) (“Unless the
dismissal order states otherwise, ... any dismissal not under this [Rule 41]--except one for lack of jurisdiction,
improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.”); cf.
Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962) (“[I]n the view of the unequivocal language of Rule 41(b), and
the absence of the words ‘without prejudice’ [in the order of dismissal on defendants’ motion for summary
judgment], we must and do decide that [a] dismissal [that is silent as to whether it is with or without prejudice
is] on the merits and that it [is] intended to be on the merits.”); see, e.g., See Shockley v. Vermont State
Colleges, 793 F.2d 478, 488-81 (2d Cir. 1986) (relying on a Sixth Circuit case for the point of law that a “court
may presume an adjudication on the merits where district court fails to specify otherwise [even where the
plaintiff is pro se]”); Stern v. Gen. Elec. Co., 942 F.2d 472, 477, n.7 (2d Cir. 1991) (relying on a Fourth Circuit
case for the point of law that “A district court's dismissal under rule 12(b)(6) is, of course, with prejudice unless
it specifically orders dismissal without prejudice”).
2 As part of this argument, Defendants argue that Plaintiffs failed to oppose their argument regarding the
invalidity of a class-of-one theory as to an equal protection claim, and their argument regarding the Third
Claim against the School Defendants. Defendants rightly point out that Plaintiffs do not directly address either
of these arguments in their opposition memorandum of law.
3 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]. As the Supreme Court has
explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
4 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to the movant's
Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching
number paragraphs, and supports any denials with a specific citation to the record where the factual issue
arises. N.D.N.Y. L. R. 7.1(a)(3).
5 Among other things, Local Rule 56.1(b) requires that the non-movant file a response to the movant's
Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching
numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue
arises. N.D.N.Y. L. R. 56.1(b).
6 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999)
(McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants
in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for
defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3]; Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.)
(deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
7 The Court notes that Resource Officer Williams and Ms. Green-Gonzales did not, by their own admissions,
observe the minor Plaintiffs’ behavior during the time period between when the minor Plaintiffs left the
cafeteria and when they were brought into the health office by Defendant Simonds and Defendant Raleigh at
approximately 1:03 p.m. (See Camera 30 Video [showing Defendants Simonds and Raleigh and the minor
Plaintiffs entering the health office].) Rather, neither of them observed the minor Plaintiffs’ behavior until after
they were already in the health office and at least one of the minor Plaintiffs had already been examined
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and searched by Defendant Eggleston and/or Defendant Raleigh. (Camera 30 Video [showing that Resource
Officer Williams arrived at the health office at approximately 1:15:15; Exh. RR, at 45 [stating that Ms. Green-
Gonzales was called to the health office to translate for an injured student at approximately 1:25 p.m.].) As a
result, their testimony is of somewhat lesser probative value regarding the question of what was known before
the search was initiated, other than to the extent it corroborates behaviors or information already known to
Defendant Simonds, Defendant Raleigh, and Defendant Eggleston.
8 [Redacted] (Exh. MM, at 239, 270-71.)
9 To the extent that Defendants have asserted that the Court should apply the principle of Scott and Jeffreys
to disregard the minor Plaintiffs’ testimony, the Court notes that such argument was made in the context of
testimony regarding the minor Plaintiffs’ actions or conduct that contradicts the hallway video footage. (Dkt.
No. 273, Attach. 14, at 80-87.) Because there is no video evidence of what occurred in the health office, or in
the specific room where Defendant Eggleston and Defendant Raleigh conducted the health assessment and
search, such argument has not been made in relation to the conflicting evidence regarding what occurred in
that office, and the Court sees no independent grounds for applying those principles to such evidence.
10 Although the So Ordered paragraph of that Decision and Order listed the two relevant Plaintiffs as A.S. and
I.S., that was a typographical error. The Court's analysis made clear that it was J.B., not I.S., who was the
relevant Plaintiff. Further, Defendants’ motion to dismiss itself asserted that judgment on the pleadings was
sought for the strip search claims as to A.S. and J.B. specifically, not I.S. (Dkt. No. 44, Attach. 1, at 23.)
11 As discussed in the Decision and Order of September 14, 2020, removal of shoes has generally not been
adjudged to constitute a strip search. (Dkt. No. 117, at 25.) See Bibicheff v. Holder, 55 F. Supp. 3d 254,
(E.D.N.Y. 2014) (concluding that “searches of ‘outer clothing, luggage, a purse, wallet, pockets or shoes ...
do not substantially infringe on a traveler's privacy rights’ ” and specifically contrasting those actions with
a more invasive strip search); see also Mac Ineirghe v. Bd. Of Educ. Of East Islip Union Free Sch. Dist.,
05-CV-4324, 2007 WL 2445152, at *9-10 (E.D.N.Y. Aug. 22, 2007) (assessing a search involving taking of
vital signs, search of a bag and shoes, a pat down of pockets, and administration of an initial saliva test,
specifically finding that such search did not require the high level of suspicion that would be applicable if the
case involved a strip search).
12 This conflicts with the deposition testimony of both J.B. and Defendant Eggleston that J.B. did not take her
sweater off at all, but merely removed one arm from it when Defendant Eggleston needed to check her blood
pressure. (Exh. EE, at 243; Exh. OO, at 295.) However, this discrepancy is immaterial, as it is undisputed in
either case that J.B. was not made to remove her sweatshirt by the Defendants as part of the search.
13 A.S. testified at her deposition that she zipped her sweater “halfway” down below her chest, but not as far
as her belly button, before she zipped it back up again; she was not forced to remove either her sweatshirt
or her pants. (Exh. GG, at 225.)
14 As was already discussed, the medical portion of the examination had, according to the evidence, a dual
purpose: not only to determine whether the minor Plaintiffs had violated a school rule or law, but also to
assess whether there was any possible medical concern that might require treatment.
15 Resource Officer Williams testified that, in addition to using cough syrup, codeine pills could be crushed and
dissolved into a drink for the same effect. (Exh. VV, at 192-93.)
16 Indeed, none of these incidents occurred within the Binghamton City School District; [Redacted] is located in
Yorktown Heights, New York, and [Redacted] is located in Round Rock, Texas. (Exh. MM, 19-20.)
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17 To the extent that Plaintiffs have asserted an equal protection claim pursuant to a class-of-one theory and
such claim has not been waived by their failure to oppose the various arguments related to that theory
asserted in Defendants’ memoranda, such claim must also fail on the basis of failure to show similarly situated
individuals. Notably, in class-of-one claims, there must be “an extremely high degree of similarity” between
the plaintiff and the comparators. Victory v. Pataki, 632 F. App'x 41, 43 (2d Cir. 2016) (quoting Ruston
v. Town Bd. For Town of Skaneateles, 610 F.3d 55, 59 [2d Cir. 2010]). Because this is a more stringent
requirement of similarity than that which applies to a selective enforcement claim, Plaintiffs’ inability to meet
the lower standard of similarity also necessarily means they cannot meet this higher requirement. Further,
as Defendants have argued, decisions such as whether to search a student are highly discretionary, and the
Supreme Court has indicated that, in situations involving actions “which by their nature involve discretionary
decisionmaking based on a vast array of subjective, individualized assessments,” the Equal Protection Clause
is not violated pursuant to a class-of-one claim “because treating like individuals differently is an accepted
consequence of the discretion granted.” Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 603-04 (2008).
18 Indeed, Agosto explicitly finds to be erroneous the line of cases standing for the proposition that “a public
school principal acts as a final policy maker to the extent that the ultimate harm that befell the plaintiff was
under the principal's control” that this Court previously cited as part of its finding on the motion to dismiss.
Agosto, 982 F.3d at 100-01.
19 https://www.census.gov/quickfacts/fact/table/binghamtoncitynewyork/PST045222 [last visited Jan. 12, 2024]
20 Further, the Court stated that, “Agosto's claim boils down to the theory that Ureña was a final policymaker
because his decisions with respect to Agosto were essentially unreviewable. But the Supreme Court has
rejected the concept of de facto policymaking authority, which erroneously conflates a final decisionmaker
(which Ureña may have been) with a final policymaker (which Ureña was not).” Agosto, 982 F.3d at 91-92.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Lewis v. Hanson, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Gunn v. Milani, S.D.N.Y., September 9, 2024
2022 WL 991729
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Raymond LEWIS, Plaintiff,
v.
Jason HANSON, et al., Defendants.
9:18-CV-0012 (LEK/DJS)
|
Signed 03/31/2022
Attorneys and Law Firms
Theresa M. Trzaskoma, Allegra Noonan, Sher Tremonte LLP,
Yu Han, Morrison & Foerster LLP, New York, NY, for
Plaintiff.
Ryan T. Donovan, Ryan E. Manley, Harris, Conway &
Donovan, PLLC, Albany, NY, for Defendant Jason Hanson.
Andrew R. Safranko, Lamarche Safranko Law PLLC,
Albany, NY, for Defendant Joseph Sharpe.
Cynthia E. Neidl, Katie Louise Birchenough, Greenberg
Traurig, LLP, Albany, NY, for Defendant Scott Mere.
Eric Michael Soehnlein, Sean O'Brien, Lippes Mathias
Wexler Friedman LLP, Buffalo, NY, Lawrence H. Schaefer,
Lippes Mathias Wexler Friedman LLP, Albany, NY, for
Defendant Zachary Peck.
Barry Nelson Covert, Diane M. Perri Roberts, Maxwell C.
Radley, Patrick Mackey, Lipsitz Green Scime Cambria LLP,
Buffalo, NY, for Defendant Craig Robideau.
Mark G. Mitchell, New York State Attorney General, Albany,
NY, for Defendants Jason Kearney, John Kingston.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 On April 11, 2019, Raymond Lewis filed his
amended complaint against several corrections officers
employed by the New York State Department of Corrections
and Community Supervision (“DOCCS”) at Bare Hill
Correctional Facility in Malone, New York (“Bare Hill”),
at all times relevant to this matter: Jason Hanson, Joseph
Sharpe, Craig Robideau, Zachary Peck, Scott Mere, Jason
Kearney and John Kingston. 1 Dkt. No. 61 (“Amended
Complaint”). Plaintiff's claims arise from circumstances
surrounding a use of force incident that occurred at
Bare Hill on April 23, 2016, and Plaintiff's subsequent
requests for medical aid on April 24, 2016. See Am.
Compl. at 4. Now before the Court are motions for
summary judgment filed by Robideau, Peck, Mere, Kearney,
and Kingston (collectively, “Defendants”). Dkt. Nos. 136
(“Robideau Motion”), 136-5 (“Robideau Memorandum”),
136-4 (“Robideau Statement of Material Facts” or “Robideau
SMF”), 136-1 (“Roberts Declaration”), 136-2 (“Exhibits A-
L”), 136-3 (“Robideau Declaration”); 137 (“Peck Motion”),
137-1 (“Peck Memorandum”), 137-2 (“Peck Statement
of Material Facts” or “Peck SMF”), 137-3 (“Soehnlein
Declaration”); 138 (“Mere Motion”), 138-2 (“Mere
Memorandum”), 138-1 (“Mere SMF”), 138-3 (“Birchenough
Declaration”), 138-4 (“Mere Declaration”), Dkt. Nos 139;
(“Kearney & Kingston Motion”), 139-16 (“Kearney &
Kingston Memorandum”), 139-17 (“Kearney & Kingston
Statement of Material Facts” or “Kearney & Kingston
SMF”), 139-1 (“Kearney Declaration”), 139-2 (“Kingston
Declaration”), 139-3 (“Mitchell Declaration”), 139-4
(“Plaintiff's Deposition”), 139-5 (“Kearney Deposition”),
139-6 (“Kingston Deposition”).
Plaintiff has responded. Dkt. Nos. 149 (“Plaintiff's Response
Memorandum”), 149-3 (“Plaintiff's Response to Defendants’
Statements of Material Facts and Statement of Material Facts”
or “Plaintiff's SMF”) 2 , 149-1 (“Plaintiff's Declaration”),
149-2 (“Noonan Declaration”). And all five defendants have
replied. Dkt. Nos. 154-3 (“Robideau Reply Memorandum”),
154-2 (“Robideau Reply SMF”), 154 (“Roberts Reply
Declaration”); 152 (“Peck Reply Memorandum”), 152-1
(“Peck Reply SMF”); 155 (“Mere Reply Memorandum”),
155-1 (“Mere Reply SMF”); 151 (“Kearney & Kingston
Reply Memorandum”).
For the reasons set forth below, each of Defendants’ motions
for summary judgment is granted in part and denied in part.
II. BACKGROUND
A. Factual Background
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1. Plaintiff's Alleged Phone
Violation and Transfer to the SHU
*2 The following facts are not in dispute except where noted.
In April of 2016, all Defendants were employed as corrections
officers at Bare Hill where Plaintiff was incarcerated.
Robideau SMF ¶ 2; Mere SMF ¶ 2; Peck SMF ¶ 10;
Kearney & Kingston SMF ¶¶ 12, 20; Pl.’s SMF ¶ 1. At this
time, Plaintiff had a lawsuit pending against Officer Brian
Cowan, who Plaintiff alleged had assaulted him while he was
incarcerated at the nearby Franklin Correctional Facility. Pl.’s
SMF ¶ 3.
On April 22, 2016, Plaintiff was on “cube confinement”
and was restricted from using the telephones. Pl.’s SMF ¶
8; Kearney & Kingston SMF ¶ 2. That day, Kearney was
assigned to the E-1 dorm where Plaintiff resided. Kearney &
Kingston SMF ¶ 14. An inmate approached Kearney, asked
to use the phone, and provided Plaintiff's ID number. Id.
¶ 15–16. When Kearney saw the ID number belonged to
an inmate with restricted phone privileges, he refused the
inmate's request and instructed him to return to his cube. Id. ¶
18. Kearney and Kingston assert that Plaintiff was the inmate
who requested to use the phone, id., while Plaintiff insists he
never approached Kearney or asked to make a phone call that
day, Pl.’s SMF at 4.
The next day, April 23, 2016, Defendant Kingston was on
duty as a Watch Commander. Id. ¶¶ 20, 24. Part of his
responsibilities as Watch Commander were to check phone
logs to see if inmates who had phone restrictions had been
using them improperly. Id. at 21. That day, Kingston claims he
reviewed the phone logs and found that Plaintiff's log showed
significant usage in violation of his phone restriction. Id. at
24. Plaintiff questions the veracity of Kingston's claim that he
did not notice the phone usage until that day, asserting that,
since Kingston admitted to reviewing phone logs three out
of every five days he worked, he would have noticed before
April 23 if Plaintiff's log had indeed shown such significant,
long-term usage over an 8-day period. Pl.’s SMF at 6.
When Defendant Hanson came on duty the day of April 23,
2016, Kingston claims he asked Hanson to take Plaintiff to the
special housing unit (“SHU”) for a phone violation. Kearney
& Kingston SMF ¶ 25. Kearney claims that Hanson then
approached him, showed him a picture of Plaintiff, and asked
if he knew who Plaintiff was. Id. ¶ 26. Apparently recognizing
Plaintiff as the inmate who had asked to use the phone the day
prior, Kearney described the incident to Hanson and wrote
a memorandum describing the alleged interaction. Id. ¶¶27–
29. Plaintiff claims that Kearney could not have recognized
him from the picture, because Plaintiff did not interact with
Kearney on April 22, 2016, and was not the inmate who
requested to use the phone that day. Pl.’s SMF at 6.
At some point later on April 23, 2016, Defendants Hanson
and Robideau came to Plaintiff's dorm and instructed him to
come with them. Pl.’s SMF ¶ 9. The two officers did not tell
him why he was being transferred or where he was going, but
handcuffed Plaintiff and placed him in a van. Id. ¶ 10. The
ride in the van took between 5 and 7 minutes. Robideau SMF
¶ 6; Pl.’s SMF at 41.
*3 Plaintiff contends that during the ride in the van,
Robideau began punching and kicking him while he was
still handcuffed, saying “our buddy told us to give you the
special treatment.” Id. ¶ 11. Plaintiff further contends that
upon arriving at the SHU, he was so severely injured that he
could not walk on his own and had to be dragged out of the
van and assisted into the building. Pl.’s SMF ¶ 12. Robideau
denies that he assaulted Plaintiff in the van or that Plaintiff
had to be helped into the SHU building. Robideau Reply SMF
at 8–9.
2. The Alleged Assault in the Special Housing Unit
The parties’ accounts vary dramatically regarding what
happened once Plaintiff entered the SHU.
Plaintiff claims he was placed in the SHU strip-frisk room
together with Defendants Hanson, Robideau, Sharpe, Mere,
and another unidentified officer. Pl.’s SMF ¶¶ 13–14. Plaintiff
claims Hanson said “this nigger gets special treatment
because he filed a lawsuit against one of our brothers” before
punching him in the head and taking him to the ground. Pl.’s
SMF ¶¶ 15–16. Plaintiff then claims the other officers in the
room joined in kicking and punching him. Id. ¶ 17. Plaintiff
claims he heard one officer state “lets [sic] say he had a
weapon” and another state “lets [sic] say he assaulted one of
us.” Id. ¶ 18. According to Plaintiff's account, Plaintiff was so
severely injured he could not stand, and officers had to help
him lean against a wall. Id. ¶ 20. Nurse Harmon then came
to examine Plaintiff; Plaintiff asked for pain medication, but
she told him to sign up for sick call. Id. ¶ 21; Mere SMF ¶
17. Plaintiff alleges that Hanson then said Plaintiff looked like
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he wanted to hurt himself and needed to be placed on suicide
watch. Pl.’s SMF ¶ 22. Once Plaintiff was escorted and placed
in the suicide watch cell, Plaintiff alleges Hanson grabbed him
by the neck and told him “if I hear anything about this, it can
all happen again.” Id. ¶ 23.
However, Robideau claims he did not enter the SHU with
Plaintiff at all, but instead left once Plaintiff entered the SHU
building. Robideau Reply SMF ¶ 13–14. Defendant Mere
likewise claims that he was never in the SHU strip-frisk room
with Plaintiff, but rather was on duty in the gym. Mere Reply
SMF ¶ 14, Mere SMF ¶¶ 6, 13. Mere further claims he did not
enter the SHU until after Plaintiff was already in the suicide
watch cell, because Mere had been assigned to cover the 1:1
suicide watch over Plaintiff, Mere Reply SMF ¶¶ 21–22, and
that he was never informed or aware of the use of force in the
SHU strip-frisk room, Mere SMF ¶ 24.
Plaintiff claims the Defendants each know Brian Cowan,
the officer at Franklin Correctional Facility against whom
Plaintiff had a lawsuit pending (the “Cowan Suit”), and
assaulted him in retaliation for filing the lawsuit. Pl.’s SMF
at 14, 31, 35. Defendants each deny any association with or
knowledge of Cowan or the lawsuit. Robideau Mem. at 17;
Peck SMF ¶ 15; Mere SMF ¶ 55; Kearney & Kingston SMF
¶¶ 66, 67.
3. Plaintiff's Requests for Medical Aid
Plaintiff asserts that while in the 1:1 cell, he was in severe
pain and was having difficulty breathing. Pl.’s SMF ¶ 24.
He further claims that, although Mere was supposed to be
watching him, he was not at his post. Id. ¶ 25. Plaintiff began
kicking the door to get Mere's attention and request his asthma
inhaler. Id. ¶ 26. Mere allegedly appeared after ten minutes
and said he would “look into” it. Id. at 27. After over an
hour with no word about his inhaler, Plaintiff again began
kicking the door to get Mere's attention. Id. ¶¶ 27, 28. A
different officer arrived, but refused to help. Id. ¶ 28. Plaintiff
asserts he began kicking the door again. Id. ¶29. A third
officer responded, and shortly after, returned with a nurse and
Plaintiff's asthma medication. Id.
*4 Mere contends that he began his 1:1 watch over Plaintiff
on April 23, at 4:05 PM, did not leave his post until 10:20 PM,
logged activity every 15 minutes, and that Plaintiff could see
and communicate with him that entire time. Mere Reply SMF
¶¶ 25–26. Mere claims that Plaintiff was not only kicking
the door, but yelling and slamming his body against it. Id. ¶
26; Mere SMF ¶ 27. Mere claims Plaintiff engaged in this
loud and disruptive behavior on at least 4 occasions, and
disregarded his orders to stop. Mere SMF ¶¶ 39–44. Further,
Mere asserts Plaintiff only asked for his inhaler one time,
after which Mere responded he would “look into” getting it,
and that a nurse arrived shortly after with the medication.
Mere Reply SMF ¶ 30, Mere SMF ¶¶ 31–32. Mere claims that
Plaintiff never complained of pain or requested medical aid.
Mere SMF ¶ 37.
The next day, on April 24, 2016, Plaintiff contends he was still
in severe pain, but was not given pain medication or breakfast.
Pl.’s SMF ¶ 31–34. At 6:30 PM, Plaintiff asserts that he still
felt unwell and kicked the cell door again when he could not
see an officer outside his cell. Id. ¶ 35–36. When Defendant
Peck arrived to start his duty on the 1:1 watch over Plaintiff,
Plaintiff claims he told Peck he was having a hard time
breathing and was having an asthma attack. Id. at 37. Peck
allegedly stated he would call the medical department, but
after an hour with no help, Plaintiff again asked Peck for the
asthma spray. Id. at 38. Plaintiff claims that Peck responded
that he would have to wait, at which time Plaintiff began
kicking the door again to get the attention of a sergeant. Id.
at 39. Non-party Sergeant Tamer arrived, whereupon Plaintiff
explained he was having trouble breathing and Tamer said he
would get the spray. Id. 40–41. After an additional one and
a half hours with no response, Plaintiff went to his cell door
again, but Peck was not there. Id. ¶ 42–43. Plaintiff began
kicking his cell door again. Id. ¶ 46. Another officer arrived
and provided the inhaler 15 minutes later. Id. ¶ 46.
Peck claims that he did not know of the use of force incident
that occurred the prior day. Peck SMF ¶ 13. Peck asserts that
he visibly assessed Plaintiff, that everything seemed normal,
and that Plaintiff did not ask for medical aid, but merely
asked once when nurses would be making rounds. Peck SMF
¶ 16; Peck Dep. at 37. Afterward, Plaintiff began yelling,
kicking, and hitting his body against the door. Id. at 38–39.
Peck ordered Plaintiff to stop and requested that a roundsman
inform a sergeant of the situation. Peck SMF ¶ 20–21. Peck
claims that, at that point, Sergeant Tamer arrived and spoke
with Plaintiff, after which Plaintiff calmed down. Id. ¶ 22–23.
Around two hours later, Plaintiff resumed the same behavior.
Id. ¶ 24. When Plaintiff did not comply with a direct order to
stop, Peck issued a misbehavior ticket and Plaintiff stopped.
Id. ¶ 25. Peck denies that Plaintiff ever said he was having
chest pain or trouble breathing. Id. ¶¶ 27–28.
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4. Plaintiff's Hospital Treatment
On April 25, two days after the alleged assault, Plaintiff
claims he woke up with severe chest pain and trouble
breathing. Pl.’s SMF ¶ 47. He informed officers he needed
medical attention and was transferred to Alice Hyde Medical
Center by ambulance. Id. ¶¶ 47–50. Plaintiff informed the
medical staff he had been assaulted by corrections officers.
Id. ¶ 54. Plaintiff was diagnosed with two fractured ribs and a
collapsed lung caused by trauma which doctors stated “could
have been fatal.” Id. ¶¶ 53–56.
Plaintiff remained hospitalized until April 27, 2016, when he
was released to the Upstate Correctional Facility (“Upstate”)
where he remained in the infirmary for another week. Id. ¶ 57.
5. Misbehavior Tickets and Investigations
After arriving at Upstate, Plaintiff was issued five
misbehavior tickets. Pl.’s SMF ¶ 59. One ticket, issued by
Hanson and co-signed by Kearney, alleged Plaintiff had made
18 phone calls from April 15, 2016 to April 22, 2016 in
violation of his cube confinement status, and used the phones
in violation of a direct order from Kearney. Id. ¶ 60. This
ticket purported to justify Plaintiff's April 23, 2016, transfer
to the SHU. Id. ¶ 59. Plaintiff denies making any phone calls
or being ordered by Kearney not to use the phones, and was
found not guilty at a hearing regarding this ticket. Id. ¶ 62.
*5 Another ticket was issued by Defendant Sharpe, alleging
that during the strip frisk at the SHU, Plaintiff resisted and
violently struggled. Id. ¶ 63. Plaintiff was found guilty of this
conduct. Id. ¶ 65.
Plaintiff received two tickets written by Mere alleging he
created a disturbance while in the SHU on suicide watch. Id. ¶
66; Mere Reply SMF ¶ 68. Plaintiff was initially found guilty
of creating a disturbance, but this finding was reversed on
appeal. Pl.’s SMF ¶ 69; Mere Reply SMF ¶ 69.
The final ticket was written by Peck, alleging Plaintiff created
a disturbance while in the SHU on suicide watch. Pl.’s SMF
¶ 70, Peck Reply SMF ¶ 70. Plaintiff was found guilty of this
conduct. Pl.’s SMF ¶ 71.
6. Plaintiff's Grievance
On May 13, 2016, Plaintiff submitted a grievance regarding
the alleged assaults, his struggle to obtain medical care, and
the allegedly false tickets filed against him. Pl.’s SMF ¶ 72.
Kingston was tasked with investigating the grievance. Id. ¶
76. Kingston dismissed Plaintiff's allegations, and found the
grievance was baseless and filed only to cause harm to the
officers involved. Id. ¶ 77–80. On August 8, 2016, Plaintiff's
grievance was denied by Superintendent Uhler. Kearney &
Kingston SMF ¶ 41.
However, the DOCCS Office of Special Investigations
(“OSI”) opened an investigation into the use of force event
and Plaintiff's subsequent stay in the SHU. Mere SMF ¶ 58;
Pl.’s SMF ¶ 81. The OSI investigator, Michael Germano,
issued his report on January 3, 2017. See Birchenough
Decl. Exhibit T (“Germano Report”). The Germano Report
questioned the narrative told by staff regarding the assault
and denial of medical care, finding various inconsistencies in
their accounts regarding the nature of Plaintiff's resistance, the
Nurse's evaluation of Plaintiff, their responses to his request
for medical attention, and Plaintiff's physical state after being
put on the 1:1 watch. Pl.’s SMF ¶¶ 82–87. The Germano
Report did not reach a conclusion regarding Plaintiff's assault
allegations, but found that the involved staff failed to give
Plaintiff proper medical care after the use of force incident in
the SHU. Id. ¶ 81.
Defendant Mere asserts that any findings in the Germano
Report are irrelevant as to him because the report did not
identify him as “involved staff,” he was not interviewed or
questioned, and was not named in the final report. Mere
SMF ¶¶ 58–61. Similarly, Robideau argues that the Germano
Report supports his innocence because it found that he had
“no valuable information to clarify the events documented in
the use of force.” Robideau Reply SMF ¶ 82.
B. Procedural History
Following Plaintiff's filing of his Amended Complaint, and
the Court's partial grant of Defendant Kearney and Kingston's
motions to dismiss, Dkt. No. 100, Plaintiff has the following
claims remaining: excessive force claims against Hanson,
Sharpe, Robideau, Mere, Peck, Kearney, and Kingston under
the Eighth Amendment, Fourth Amendment, and Fourteenth
Amendment; claims for deliberate indifference to a serious
medical need against Hanson, Sharpe, Robideau, Mere, and
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Peck under the Eighth Amendment; and retaliation claims
against Hanson, Sharpe, Robideau, Mere, Peck, Kearney,
and Kingston in violation of the First and Fourteenth
Amendments.
*6 Robideau, Mere, Peck, Kearney, and Kingston now
move, respectively, for summary judgment arguing they are
entitled to judgment as a matter of law on all claims against
them. See Robideau Motion, Mere Motion, Peck Motion,
Kearney Motion.
III. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure instructs
courts to grant summary judgment 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). A fact is
“material” if it “might affect the outcome of the suit under
the governing law,” and a dispute is “ ‘genuine’ ... if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes
that are irrelevant or unnecessary” will not preclude summary
judgment, “summary judgment will not lie if ... the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id.; see also Taggart v. Time, Inc., 924
F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier
of fact could find in favor of the nonmoving party should
summary judgment be granted.”). The party seeking summary
judgment bears the burden of informing the court of the basis
for the motion and identifying those portions of the record
that the moving party claims will demonstrate the absence of
a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Similarly, a party is entitled to summary
judgment when the nonmoving party carries the ultimate
burden of proof and has failed “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.” Id. at 322.
In attempting to defeat a motion for summary judgment after
the moving party has met its initial burden, the nonmoving
party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986),
may not rely on mere conclusory allegations, speculation,
or conjecture, Fischer v. Forrest, 968 F.3d 216, 221 (2d
Cir. 2020), and must present more than a mere “scintilla of
evidence” supporting its claims, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). At the same time, a court must
resolve all ambiguities and draw all reasonable inferences in
favor of the nonmoving party. Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). Thus, a court's duty
in reviewing a motion for summary judgment is “carefully
limited” to finding genuine disputes of fact, “not to deciding
them.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22
F.3d 1219, 1224 (2d Cir. 1994).
IV. DISCUSSION
A. Robideau Motion for Summary Judgment
Robideau argues there is no material issue of fact regarding
Plaintiff's (1) Eighth Amendment claim for use of excessive
force, (2) Fourth and Fourteenth Amendment claims for use
of excessive force, and (3) claim for retaliation, and asserts
that all claims must be dismissed. See Robideau Mem.
1. Eighth Amendment Excessive Force
The Eighth Amendment protects prisoners from cruel and
unusual punishment by prison officials. Wilson v. Seiter, 501
U.S. 294, 296–97 (1991). To establish an Eighth Amendment
claim, a plaintiff must show both an objective component, “a
deprivation that is objectively, sufficiently serious ... [,]” and
a subjective component requiring the defendant official have
“a sufficiently culpable state of mind.” Hayes v. Dahlke, 976
F.3d 259, 274 (2d Cir. 2020); see also Hudson v. McMillian,
503 U.S. 1, 7 (1992).
*7 Plaintiff alleges that Robideau used excessive force
against him by assaulting him in the back of the van while
he was being transferred to the SHU and then by assaulting
him again while in the SHU strip-frisk room. Pl.’s SMF ¶¶ 11,
14. Robideau argues there is significant evidence supporting
his claim that he was the driver of the van and that he
did not enter the SHU, and thus could not have assaulted
Plaintiff. Robideau Mem. at 9–12. Robideau argues further
that Plaintiff's self-serving testimony set forth on the record,
absent other direct or circumstantial evidence, is insufficient
to defeat summary judgment. Id.
a. Evidence Supporting Robideau's Version of Events
Robideau argues there is no dispute of material fact that,
rather than being in the back of the van as Plaintiff claims,
he was the driver of the van. He points to the DOCCS Escort
Memorandum forms filled out by Robideau and Hanson that
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lists only two officers as having been involved in Plaintiff's
transfer, Robideau SMF ¶ 10; Roberts Decl. Ex. H (“DOCCS
Escort Memorandum”), and the deposition testimony of
fellow defendant Sergeant Hanson, in which he stated that
he (Hanson) was not driving the van, Robideau Reply at
7; Roberts Decl. Exhibit G (“Hanson Deposition”) at 261.
Further, Plaintiff has admitted that the driver of the van did
not assault or speak to him. Pl.’s SMF at 41.
Robideau contends there is likewise significant evidence
supporting his claim that he did not enter the SHU after
dropping Plaintiff off. Robideau Mem. at 10. Robideau points
to the SHU logbook which shows Robideau did not sign into
the SHU building, but that Sergeant Hanson did upon arrival
with Plaintiff, Roberts Decl. Exhibit I (“SHU Log Book”); the
testimonies of Defendants Hanson and Sharpe that they were
the only two officers in the strip-frisk room with Plaintiff that
day, Hanson Dep. at 257, Roberts Decl. Exhibit J (“Sharpe
Deposition”) at 202; and the Germano Report, which found
Robideau did not have any “valuable information to clarify
the events” surrounding the use of force, Germano Report at
3.
Robideau argues that the only pieces of evidence on the
record contradicting his account are Plaintiff's own self-
serving statements made in his grievance, his deposition, and
his declaration in opposition to summary judgment. Robideau
Mem. at 7. Robideau argues his motion for summary
judgment should be granted in spite of this contradictory
evidence because “[i]t is clear in this Circuit that a nonmoving
party's proffer of solely self-serving statements, ‘without
direct or circumstantial evidence to support the charge, is
insufficient to defeat a motion for summary judgment.’ ”
Robideau Reply at 7 (quoting J.F. v. Carmel Cent. Sch. Dist.,
168 F.Supp.3d 609, 616 (S.D.N.Y. 2016)).
b. Sufficiency of Self-Serving
Statements to Defeat Summary Judgment
The Court cannot agree that such clarity exists, and declines
to adopt a blanket rule that a self-serving declarations or
deposition testimony are per-se insufficient to defeat a motion
for summary judgment, even without other evidence to
support them.
Robideau is correct that there is a line of decisions from
courts in the Southern District of New York that appears to
adopt such a rule. See, e.g., Sec. & Exch. Comm'n v. Aly,
2018 WL 1581986, *9 (S.D.N.Y. 2018); J.F., 168 F.Supp.3d
at 616; Fincher v. Depository Trust & Clearing Corp., No.
06-CV-9959, 2008 WL 4308126, at *3 (S.D.N.Y. Sept. 17,
2008). The provenance of the rule issued in these decisions
can be traced back to the Second Circuit's opinion in Argus,
Inc. v. Eastman Kodak Co., where the court held that, in
the context of establishing a causal link between a breach of
antitrust law and harm to a plaintiff-competitor, “when the
fact of injury is in issue, the ‘isolated self-serving statements’
of a plaintiff's corporate officers may not provide substantial
evidence upon which a jury can rely.” 801 F.2d 38, 42 (2d Cir.
1986). However, in applying this standard to find no genuine
issue of material fact regarding causation of injury, the Argus
court refused to allow such statements to defeat summary
judgment, not because of their nature as self-serving, but
because the testimony was inherently “conclusory” and thus
“[fell] woefully short of that necessary to outweigh the
volume of contrary facts in the record.” Id. at 45.
*8 Robideau makes much of the Second Circuit's
affirmation of one of the Southern District cases utilizing
this rule: Fincher v. Depository Trust. However, even
though the Second Circuit eventually affirmed the district
court's ruling in Fincher, it disagreed with the district
court's decision to use the above-described rule to discredit
the plaintiff's testimony at the summary judgment stage
because the plaintiff's statements were not conclusory or
speculative. See Fincher v. Depository Tr. & Clearing Corp.,
604 F.3d 712, 726 (2d Cir. 2010) (“Fincher's testimony ...
is not conclusory or speculative, as was the plaintiff's
testimony in the case relied upon by the district court
in disregarding the remarks, ... we decline to conclude
at this stage of the proceedings that Fincher's testimony
may be deemed discredited.”). The Fincher court eventually
affirmed the grant of summary judgment, not because the
plaintiff's testimony at issue was self-serving, but because it
concerned statements made by a third-party who concluded
the plaintiff had been discriminated against, and the alleged
statements represented a mere “scintilla” of evidence “in
light of their offhand, conclusory nature and the lack
of further support in the record for Fincher's claim [of
discrimination].” Id. at 727. However, the court stated that,
if the plaintiff had testified that the third-party had made
remarks that themselves were discriminatory, rather than
merely conceding in conclusory fashion that plaintiff had
been discriminated against, “[s]ummary judgment might not
have been justified.” Id. Heavily implying the Second Circuit
would consider such self-serving testimony to be sufficient to
defeat summary judgment.
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In short, the Second Circuit—rather than holding that a self-
serving statement is per se insufficient absent other supporting
evidence—has reiterated the traditional standard that when
ruling on summary judgment “[the] preliminary question for
the judge [is] not whether there is literally no evidence,
but whether there is any upon which a jury could properly
proceed to find a verdict for the party producing it,” id.
at 726 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251 (1986)), and that “[m]ere conclusory allegations,
speculation or conjecture” are insufficient to resist summary
judgment, Cifarelli v. Vill. of Babylon, 93 F.3d 47, 51 (2d Cir.
1996). While it may be true that in some cases a party's self-
serving affidavit or testimony, unsupported by other evidence
on the record, will be insufficient to allow a reasonable jury
to properly find a verdict in that party's favor, there are other
circumstances where it may very well be sufficient.
c. Plaintiff's Record Testimony and Statements
are Sufficient to Defeat Summary Judgment
Plaintiff's allegations regarding the alleged assaults by
Robideau are not conclusory or speculative, rather, they
testify to events that allegedly happened in Plaintiff's
presence that he observed directly. See Fincher, 604 F.3d
at 726 (“Fincher's testimony ... is not conclusory or
speculative ... because Fincher was testifying to the content
of a conversation at which she was allegedly present.”). Thus,
the Court must determine if Plaintiff's repeated testimonial
statements that Robideau assaulted him in the back of the
van on the way to the SHU and assaulted him again in the
SHU strip-frisk room represent a mere “scintilla” of evidence,
insufficient to create an issue of material fact.
The Court finds the weight of evidence is not so great
that no rational jury could credit Plaintiff's testimony and
find in his favor. Robideau contends that there is “extensive
documentary and testimonial discovery establishing that
Robideau was the driver of the van.” Robideau Mem. at 10.
The only documentary evidence Robideau points to is the
Escort Memorandum listing Robideau and Hanson as having
been in the van during the transport. Escort Memorandum
at 1. However, this memorandum is not purely objective
evidence, but rather was created and signed by Robideau and
Hanson themselves. Hanson Dep. at 258. Robideau further
relies on Hanson's testimony that Hanson was not the one
driving the van, thus implying that since there were only two
officers in the van according to the Escort Memorandum, the
driver must have been Robideau. Robideau Mem. at 10. While
Hanson did testify that he does not generally drive the vans,
Hanson Dep. at 261, he explicitly stated that he did “not have
an independent recollection” of transferring Plaintiff to the
SHU, and when asked if he drove the van on that specific day,
Hanson responded “not that I recall,” id. at 259. Given the
nature of this evidence, a reasonable jury could still choose
to credit Plaintiff's account that Robideau was not the driver
of the van, but was present in back of the van and assaulted
him during the trip. 3
*9 Regarding the alleged assault in the SHU, Robideau
asserts he did not enter the SHU at all and points to (1) the
fact that he did not sign the SHU Logbook “when Sergeant
Hanson did so upon arrival with Plaintiff,” Robideau Mem.
at 11 (citing SHU Logbook at 1), (2) Hanson and Sharpe's
testimony that no other officers were present in the SHU strip-
frisk room during the use of force event with Plaintiffs, id.;
Hanson Dep. at 257; Sharpe Dep. at 201–02, and (3) the
Germano Report's indication that “Robideau did not have any
‘valuable information to clarify the events’ documented in the
use of force,” id. (citing Germano Report at 3). 4
This evidence is similarly not as conclusive as Robideau
argues. The SHU Logbook entry for Plaintiff's admission
has a designated place for the “escorting supervisor” to sign,
but no obvious place where Robideau, who was indicated
to be the “escorting officer” would have signed. See SHU
Logbook at 1; Escort Memorandum. Robideau has not
argued or established that it would have been improbable,
or even difficult, for him to enter the SHU without having
signed. Indeed, the record indicates other individuals were
able to enter and leave the SHU multiple times without
signing the logbook. Germano Report at 3. In short, a
reasonable jury could find other explanations for Robideau's
lack of signature. Further, the conclusion in the Germano
report that Robideau did not have relevant information was
based on Robideau's own testimony. Germano Report at 3.
Given the repeated consistent statements Plaintiff has made
regarding the assault in the SHU, Birchenough Decl. Ex. N
(“Plaintiff's Grievance”) at 3; Plaintiff's Dep. at 122:6–11, a
reasonable jury could choose to credit Plaintiff's testimony
over Robideau's, Sharpe's, and Hanson's.
Robideau argues that Plaintiff's testimony should be
discredited because he claimed to see Robideau behind him
in the strip-frisk room with his “peripheral visions” and one
cannot see behind themself with peripheral vision. Robideau
Mem. at 11. Robideau further argues that Sharpe and Hanson's
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statements “should be given significant weight” because
they admit they were the only ones in the strip-frisk room
during the use of force, “and there is no reason for them to
be untruthful about who else was in the SHU frisk area.”
Id. Robideau's arguments may hold merit, however such
weighing of testimony and determination of credibility is not
within in the purview of a court on a motion for summary
judgment. See Redd v. N.Y. State Div. of Parole, 678 F.3d 166,
174 (2d Cir. 2012) (“Credibility determinations, the weighing
of the evidence, and the drawing of legitimate inferences from
the facts are jury functions, not those of a judge.”),
While the weight of evidence may favor Robideau, the
evidence is not so conclusive that a reasonable jury could
not believe Plaintiff's assertions that Robideau was in the
back of the transfer van and in the SHU strip-frisk room
and participated in the assaults. See Franklin v. Oneida
Corr. Facility, No. 03-CV-1452, 2008 WL 2690243, at *9
(N.D.N.Y. July 1, 2008) (Kahn, J) (“As tempting as it may
be to conclude that defendants will ultimately prevail at trial,
defendants’ invitation to make a credibility determination and
reject plaintiff's version of the events on motion for summary
judgment is plainly unwarranted”); Cicio v. Lamora, No. 08-
CV-431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010),
report and recommendation adopted, No. 08-CV-431, 2010
WL 1063864 (N.D.N.Y. Mar. 22, 2010) (“Plaintiff's testimony
that he was beaten by MacWilliams stands in contrast to
the seemingly overwhelming evidence that it did not occur
as he alleges. Nonetheless, the weighing of such competing
evidence, no matter how weak plaintiff's claim may appear,
presents a question of credibility that must be left to the
trier of fact”); see also Harris v. Miller, 818 F.3d 49, 65
(2d Cir. 2016) (holding summary judgment is inappropriate
where “a prisoner's allegations and evidentiary proffers could
reasonably, if credited, allow a rational factfinder to find that
corrections officers used force maliciously and sadistically ...
[even where] the proof of excessive force [is] weak.”).
*10 The Court thus declines to grant Robideau's motion for
summary judgment regarding Plaintiff's Eighth Amendment
claim of excessive force.
2. Fourth and Fourteenth Amendment
Excessive Force Claims Against Robideau
Plaintiff does not oppose Robideau's motion regarding his
claims for excessive force under the Fourth and Fourteenth
Amendments. See Pl.’s Resp. Mem. at 14. Thus, the Court
grants Robideau's motion regarding these claims.
3. Eighth Amendment Deliberate Indifference to
Serious Medical need Claim against Robideau
Plaintiff likewise does not oppose Robideau's motion
regarding his claim for deliberate indifference to a serious
medical need under the Eighth Amendment. Id. Thus, the
Court grants Robideau's motion regarding this claim.
4. First Amendment Retaliation Claim Against Robideau
Robideau argues that Plaintiff's claims against him alleging
retaliation should be dismissed, first, because Plaintiff did
not appropriately exhaust his administrative remedies, and
second, because there is no dispute as to material fact
regarding whether Robideau engaged in retaliatory activities.
a. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act of 1995 (“PLRA”) states
that “[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as
are available are exhausted.” 42 U.S.C. § 1997e(a). This
exhaustion requirement “applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force
or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). “ ‘Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules’ as a
precondition to filing a federal lawsuit.” Espinal v. Goord,
558 F.3d 119, 124 (2d Cir. 2009) (quoting Woodford v. Ngo,
548 U.S. 81, 90 (2006)). Likewise, “compliance with state
procedural rules is necessary to achieve ‘[t]he benefits of
exhaustion [that] can be realized only if the prison grievance
system is given a fair opportunity to consider the grievance.’
” Id. “The level of detail necessary in a grievance to comply
with the grievance procedures will vary from system to
system and claim to claim,’ because ‘it is the prison's
requirements, and not the PLRA, that define the boundaries
of proper exhaustion.’ ” Id. (quoting Jones v. Bock, 549 U.S.
199, 218 (2007)).
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Robideau asserts that New York State grievance procedures
require an inmate to “allege facts sufficient to put corrections
officials on notice as ‘to the nature of the claim,’ and ‘provide
enough information about the conduct’ at issue.” Robideau
Mem. at 14. Robideau argues that because “[Plaintiff] failed
to file a grievance with particularity that implicated Robideau
in any retaliatory acts towards Lewis” he has not sufficiently
exhausted his administrative remedies as to the retaliation
claim against Robideau. See id. at 15.
However, Plaintiff's Grievance alleges involvement of
specific officers, including Robideau, Pl.’s Grievance at 2–
3, and that he was beaten for retaliatory reasons, id. at 18
(“This is a case where I was severely beaten ... in retaliation
for filing a lawsuit against correction officer B. Cowan.”).
Plaintiff's Grievance also provides a detailed account of the
events, including a specific date, time, and location. Plaintiff's
Grievance at 13–15.
*11 Thus, Plaintiff's Grievance provided prison officials
with the “the necessary information to investigate the
complaints and the opportunity to learn which officers were
involved in the alleged incident” sufficient to advance the
benefits of exhaustion, and the Court finds Plaintiff has
exhausted his administrative remedies regarding the claim of
retaliation against Robideau. See Espinal, 558 F.3d at 127
(finding administrative remedies properly exhausted where
grievance alleged involvement of certain security officers
and “included the specific date, time, and location of the
incident about which he complained, and that he was beaten
for retaliatory reasons.”).
b. Robideau's Alleged Retaliatory Acts
In order to succeed on a claim of retaliation in violation of the
First Amendment, a plaintiff must show “(1) the conduct cited
as the cause for retaliation is protected; (2) the defendant took
adverse action against the plaintiff; and (3) there was a causal
connection between the protected conduct and the adverse
action.” Davis v. Goord, 320 F.3d 346, 325 (2d Cir. 2003); see
also Gill v. Pidlypchak, 389 F.3d 379 (2d Cir. 2004).
It is undisputed that filing a civil lawsuit is activity protected
by the First Amendment. Beechwood Restorative Care Ctr.
v. Leeds, 436 F.3d 147, 152 (2d Cir. 2006) (“[L]awsuits
are protected speech.”); see also Houston v. Zen Zen, 388
F.Supp.2d 172, 174 (W.D.N.Y. 2005).
An action is considered to be adverse if it “would deter
a similarly situated individual of ordinary firmness from
exercising ... constitutional rights.” Tafari v. McCarthy, 714
F.Supp.2d 317, 348 (N.D.N.Y. 2010). Robideau argues that
there is no material dispute of fact that he did not take
any adverse action against Plaintiff because he was driving
the van and did not enter the SHU. Robideau Mem. at 18.
Robideau essentially reiterates his argument above, stating
that documentary and testimonial evidence establishes his
non-involvement, and the Court should disregard evidence
to the contrary because it consists of “unsupported, self-
serving statements that have not been corroborated.” Id.
However, as above, the Court finds that a reasonable jury
could choose to credit Plaintiff's statements that Robideau
assaulted him in the back of the transfer van and in the
SHU. See supra Section IV(A)(1). It cannot be disputed that a
physical assault on a handcuffed prisoner of the type alleged
by Plaintiff would deter an individual of ordinary firmness
from exercising constitutional rights. See Baskerville v. Blot,
224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (“[Plaintiff's]
claim regarding the retaliatory assault sufficiently describes
adverse conduct that would deter a reasonable inmate from
exercising his constitutional rights.”); Flemming v. King, No.
14-CV-316, 2016 WL 5219995, at *5 (N.D.N.Y. June 20,
2016) (“[A] physical assault constitutes adverse action.”),
report and recommendation adopted, No. 14-CV-0316, 2016
WL 5173282 (N.D.N.Y. Sept. 21, 2016).
Thus, there is a material dispute of fact as to whether
Robideau undertook an adverse action.
Robideau further argues that, even if it is accepted that he
participated in the assaults, there is insufficient evidence on
the record to establish a causal connection between Plaintiff's
filing of the Cowan Suit and the assaults. Robideau Mem. at
16.
In determining whether a causal connection exists between a
plaintiff's protected activity and a prison official's actions, a
court may consider several 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.” 5 Baskerville v.
Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon
v. Coughlin, 58 F.3d 865, 872–73 (2d Cir. 1995)).
*12 Notwithstanding the first three factors, the Court finds
that alleged statements made by Robideau are sufficient for
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a reasonable jury to conclude the assaults were connected to
the Cowan suit.
Plaintiff claims that while assaulting him in the back of the
van, Robideau stated “our buddy wants us to give you the
special treatment,” Pl.’s Grievance at 13, and that during the
alleged attack in the SHU, one officer stated “our buddy wants
us to give a nigger like you the special treatment” and “this
nigger gets the special treatment because he filed a lawsuit
against one of our brothers,” id. at 14. Robideau claims
he does not know Officer Cowan and did not make these
statements, and a jury could choose to disbelieve Plaintiff's
claims, but they are sufficient to create a material issue of fact
regarding Robideau's retaliatory motive. See Colon, 58 F.3d
at 873 (reversing grant of summary judgment where prisoner
presented direct evidence of causal connection in the form
of an alleged admission of retaliatory motive by defendant
prison official, despite defendant's denial on the record of ever
making the statement.)
Therefore, the Court finds there are issues of material fact
regarding whether Robideau retaliated against Plaintiff for
exercising his First Amendment rights and denies Robideau's
motion for summary judgment on this claim.
B. Mere Motion for Summary Judgment
Mere argues he is entitled to summary judgment on (1)
Plaintiff's claim for use of excessive force, (2) Plaintiff's
claim for deliberate indifference to a serious medical need in
violation of the Eighth Amendment, and (3) Plaintiff's claim
of retaliation in violation of the First Amendment. See Mere
Mem. at 1. Mere also argues that he is entitled to qualified
immunity. Id.
1. Eighth Amendment Excessive Force
Under 42 U.S.C. § 1983 as to Mere
“It is well settled in this Circuit that ‘personal involvement
of defendants in alleged constitutional deprivations is a
prerequisite to an award of damages under § 1983.’ ” Brandon
v. Kinter, 938 F.3d 21, 36 (2d Cir. 2019) (quoting Wright v.
Smith, 21 F.3d 496, 501 (2d Cir. 1994)).
Mere alleges it is “undisputed” that he was not personally
involved in the assaults on Plaintiff, because the record
establishes that he was in the gym when Plaintiff was
allegedly assaulted in the SHU. 6 Mere Mem. at 7–9. To
support this claim, Mere points to (1) his own deposition
testimony as well as that of Defendants Hanson and Sharpe
which each claim that only Hanson and Sharpe were in
the SHU room when the use-of-force event occurred, id.
at 8; Mere Dep. at 55; Hanson Dep. at 91–92; Sharpe
Dep. at 122–123; (2) Birchenough Decl. Ex. I (“Use of
Force Report”), Birchenough Decl. Ex. H (“Unusual Incident
Memorandum”), Birchenough Decl. Ex. K (“Sharpe Inmate
Misbehavior Report”), and the Germano Report, which
each show that the use-of-force event occurred around 3:10
P.M. on April 23, 2016; (3) Mere's deposition testimony,
declaration, and the DOCCS Staff Planning Grid from April
23, 2016 purportedly establishing that Mere was in the gym
at 3:10 P.M. that day, Mere Dep. at 51, Mere Decl. Ex. A
(“DOCCS Staff Planning Grid”); and (4) the fact that the
Germano Report created after the OSI investigation did not
identify Mere as “involved staff” or present during the use-
of-force event. See Germano Report. Mere also contends
that Plaintiff's Amended Complaint does not allege he was
involved in the use-of-force event in the SHU, and that
Plaintiff's Grievance likewise does not state Mere was in the
SHU room during the assault and only mentions him for the
first time after Plaintiff was placed in his SHU cell. Mere
Mem. at 7–8.
*13 However, contrary to Mere's assertions, Mere's non-
presence in the SHU during the assault is explicitly disputed
on the record. Plaintiff testified several times during his
deposition that Mere was present in the SHU strip-frisk room
during the assault, along with Robideau, Sharpe, Hanson and
another unidentified officer, and that all the officers present
assaulted him:
Q. Okay. Was Officer Mere one of the individuals who
assaulted you once you got to the SHU to the strip frisk
room?
A. I believe he was.
Q. I'm sorry?
A. I believe he was because he was in the room with them.
Q. He was in the strip frisk room?
A. Yes.
...
Q. Okay. Was he one of the ones that assaulted you?
A. All of them assaulted me.
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Pl. Dep. at 199–200; see also id. at 204, 223, 224. Likewise,
in Plaintiff's Declaration, Plaintiff alleges that Mere assaulted
him in the SHU. Pl.’s Decl. at 13–19.
The question then is whether this testimony is sufficient to
create an issue of material fact, or whether it is nothing
more than a mere scintilla of evidence. The Court find
that Plaintiff's testimony is sufficient to withstand summary
judgment.
Mere appears to argue that Plaintiff's Grievance contradicts
his later statements that Mere participated in the SHU assault
because the grievance does not name Mere specifically until
Plaintiff describes events that occurred while he was in the
SHU cell. Mere Mem. at 8.
Where a plaintiff “relies almost exclusively on his own
testimony, much of which is contradictory and incomplete[,]”
and the account is so contradictory that “no reasonable person
could believe [it],” summary judgment may be appropriate.
Jeffreys v. City of N.Y., 426 F.3d 549, 554–55 (2d Cir. 2005).
It is true that Plaintiff's Grievance does not name Mere as
one of the officers present in the SHU strip-frisk room and
that Plaintiff relies almost exclusively on his own testimony
to establish Mere's presence there. However, the Court does
not find that the grievance inherently contradicts Plaintiff's
later statements regarding Mere's participation. The grievance
states there were several officers in the strip-frisk room during
the assault and that “all the officers in the room started kicking
and punching.” Pl.’s Grievance at 3. The Court does not
find this statement, or the allegations in Plaintiff's Complaint,
so contradictory that no reasonable person could believe
Plaintiff's account.
Further, much of Mere's argument relies on the Staff Planning
Grid to establish that it was “physically impossible” for him
to be in the SHU at the time of the use-of-force event, as
well as on the testimony of other officers and the Germano
Report. Mere Mem. at 8. However, an assignment to a specific
area does not conclusively establish that Mere was physically
present in that area at the specified time. And a reasonable
jury could choose to believe Plaintiff's account over the
Staff Planning Grid, the defendant officers’ testimonies, and
the Germano Report, which was itself largely based on the
parties’ statements. Germano Report at 1–4.
While the weight of the evidence may favor Mere, a
reasonable juror could credit Plaintiff's account, and the
weighing of conflicting evidence is more properly left to
the jury. Telesford v. Tamer, No. 14-CV-1209, 2016 WL
11480163, at *4 (N.D.N.Y. Aug. 31, 2016) (“Resolving the
discrepancy between the parties’ competing evidence would
require the court to undertake a credibility determination that
is not appropriate on summary judgment.”). Thus, the Court
denies Mere's request for summary judgment as to Plaintiff's
Eighth Amendment excessive force claim.
2. Eighth Amendment Medical Indifference as to Mere
*14 To establish an Eighth Amendment violation due
to medical indifference, an inmate must prove “deliberate
indifference to [his] serious medical needs.” Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citing Estelle
v. Gamble, 429 U.S. 97, 104 (1976)). The deliberate
indifference requirement has both an objective and subjective
prong. St. Clair Jones v. Lamont, 379 Fed. Appx. 58, 59 (2d
Cir. 2010). Mere only argues that Plaintiff has not satisfied
the subjective prong. See Mere Mem. at 9–12.
The subjective prong requires that a defendant prison official
act with a sufficiently culpable state of mind. They must
“know[ ] of and disregard[ ] an excessive risk to inmate
health or safety.” Hill v. Curcione, 657 F.3d 116, 122 (2d
Cir. 2011) (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). In other words, they must “act[ ] or fail[ ] to act ‘while
actually aware of a substantial risk that serious inmate harm
will result.’ ” Acosta v. Thomas, 837 Fed. Appx. 32 (2d Cir.
2020) (quoting Salahuddin v. Goord, 467 F.3d 263, 280 (2d
Cir. 2006)).
Mere argues that the record establishes he was not aware
of the use-of-force event in the SHU, and thus had no
knowledge of any excessive risk of injury, and that Plaintiff
only requested his inhaler once, after which it was promptly
provided to him—therefore, Mere did not act indifferently.
Mere Mem. at 11–12.
However, as noted above, a reasonable jury could choose to
credit Plaintiff's account of events, and that account relates
a considerably different story. Plaintiff alleged on the record
that Mere was not only aware of the use of force in the
SHU, wherein five officer allegedly “beat[ ] up and kick[ed]”
Plaintiff while on the ground, but participated as well. Pl.’s
Dep. at 199:25–201:5. Shortly after the alleged attack, when
Plaintiff had been placed in his SHU cell, Plaintiff claims
he informed Mere that he could not breathe and feared
he was having an asthma attack. Id. at 209:3–209:8; Pl.’s
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Decl. ¶ 28. A reasonable jury could conclude that knowledge
of a brutal assault on Plaintiff combined with Plaintiff's
statements shortly afterward that he couldn't breathe put Mere
on notice of an excessive risk to Plaintiff's health. Baumann
v. Walsh, 36 F. Supp. 2d 508, 513 (N.D.N.Y. 1999) (“[I]f [the
defendants] were aware of [p]laintiff's injuries and subsequent
pain at the time those injuries occurred, yet failed to provide
access to necessary medical care or treatment, then an Eighth
Amendment violation would be established despite the fact
that medical treatment was later received.”).
Likewise, a dispute as to material fact exists regarding
whether Mere reacted with indifference to this excessive risk.
While Mere claims Plaintiff was given his inhaler “within a
reasonable time” after allegedly saying he couldn't breathe,
Mere Mem. at 11–12, the record evidence Mere references to
support his argument that this fact is undisputed instead shows
the opposite. Mere cites to Plaintiff's deposition testimony,
yet in that testimony, Plaintiff states that when he informed
Mere he needed his inhaler, Mere said he would “look into
it” but never provided assistance, and Plaintiff did not get his
inhaler until hours after asking Mere (and then only when a
different officer arrived). Pl.’s Dep. at 209:3–209:8, 215:9–
215:16. Mere also cites the Germano Report, which states
that Plaintiff attempted to gain the attention of “the officer
assigned to the watch” but he was met with “negative results”
and did not get his inhaler until “approximately one hour
later.” Germano Report at 1. The Germano Report also found
that “[Plaintiff] made several complaints of rib pain and
difficulty breathing immediately following the incident” and
“involved staff failed to give [Plaintiff] proper medical care
immediately after the Use of Force occurred and the following
day.” Id. at 1, 4.
*15 Indeed, Mere's alleged failure to provide assistance to
an inmate struggling to breathe, shortly after participating
in a violent assault on that inmate, could reasonably be
inferred to be, not only indifference to a serious medical
need, but an intentional delay in access to medical care.
See Estelle v. Gamble, 429 U.S. 97, 104–05 (1976) (finding
deliberate indifference to serious medical need standard met
where “prison guards ... intentionally deny[ ] or delay[ ]
access to medical care.”); Archer v. Dutcher, 733 F.2d 14,
16 (2d Cir. 1984) (denying summary judgment on claim
for medical indifference where some evidence suggested
defendants delayed emergency medical aid).
Because there are disputes as to material facts regarding
whether Mere was aware of an excessive risk to Plaintiff's
health, and whether Mere acted with deliberate indifference
to that risk, the Court denies Mere's motion for summary
judgment as to Plaintiff's claim for deliberate indifference to
a severe medical need.
3. Retaliation as to Mere
As stated above, to succeed on a claim of retaliation in
violation of the First Amendment, a plaintiff must show “(1)
the conduct cited as the cause for retaliation is protected; (2)
the defendant took adverse action against the plaintiff; and (3)
there was a causal connection between the protected conduct
and the adverse action.” Davis v. Goord, 320 F.3d 346, 325
(2d Cir. 2003); see also Gill v. Pidlypchak, 389 F.3d 379 (2d
Cir. 2004).
It is undisputed that the filing of a lawsuit constitutes
protected conduct. See Mere Mem. at 16. Mere instead argues
that his conduct does not constitute an adverse action and
there was no causal connection between the alleged conduct
and the protected activity. See id. at 16–18.
Plaintiff alleges three actions that could constitute retaliation
by Mere: Mere's alleged participation in the assault in the
SHU strip-frisk room, Mere's denial of adequate medical care,
and Mere's issuance of misbehavior reports.
a. SHU Strip-Frisk Assault
The Court has already determined that issues of material
fact exist regarding whether Mere participated in the alleged
assault in the SHU strip-frisk room. See supra Section IV(B)
(1). Similar to the assault allegedly perpetrated by Robideau,
the physical assault allegedly perpetrated by Mere is sufficient
to constitute an adverse action that would deter a similarly
situated individual of ordinary firmness from exercising
constitutional rights. See Baskerville v, 224 F. Supp. 2d at
732.
Mere argues that Plaintiff “offers only conclusory evidence”
to support his claim of a causal connection between Mere's
alleged actions and the Cowan Suit. See Mere Mem. at
14. While much of the evidence presented by Plaintiff
regarding Defendants’ knowledge of the Cowan suit is indeed
conclusory or speculative, Plaintiff has also provided direct
evidence of a causal link. A reasonable factfinder could
credit Plaintiff's account that an officer stated during the
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assault in the strip-frisk room that they wanted Plaintiff
to receive “special treatment because he filed a lawsuit
against one of our brothers,” Pl.’s Dep at 187:24–188:5;
200:8–200:17, and that Mere participated in that assault.
If believed, this is sufficient to create an inference of
causation between the protected activity and the alleged
assault, even if it is not conclusively established that Mere
himself is the one who made the statement. See Roland v.
McMonagle, No. 12-CV-6331, 2015 WL 5918179, at *5–
6 (S.D.N.Y. Oct. 9, 2015) (finding summary judgment on
retaliation claim unwarranted where evidence supported an
“inference of causation” between filing of grievances and
assault by multiple corrections officers because one had
“mocked [plaintiff] for filing a grievance during the alleged
attack”).
b. Denial of Adequate Medical Care
*16 A denial of medical care in the face of great pain or
need, as is alleged by Plaintiff and supported on the record,
constitutes an adverse action sufficient to establish a claim
for retaliation. See Abreu v. Lipka, 778 F. App'x 28, 33 (2d
Cir. 2019) (“[W]ithholding of medication could constitute
sufficiently adverse actions that would deter a prisoner of
‘ordinary firmness’ from exercising his rights.”).
As stated above, a reasonable factfinder could find that
Mere's alleged assault was motivated by Plaintiff's filing
of a suit against Cowan. Given that Plaintiff’ Grievance
states the denial of medical care initially occurred only thirty
minutes to an hour after Mere supposedly took part in an
assault on Plaintiff, Pl.’s Grievance at 6, which itself was
allegedly explicitly undertaken in retaliation for the filing of
the Cowan suit, see Pl.’s Dep at 187:24–188:5; 200:8–200:17,
a factfinder could reasonably infer that this adverse-action
was similarly motivated. Roland, 2015 WL 5918179, at *5–
6 (“[S]ummary judgment is unwarranted if the evidence can
support an inference of causation.”).
c. Issuance of Misbehavior Tickets
However, the Court finds that Mere's issuance of misbehavior
tickets does not constitute an adverse action sufficient to
deter a person of ordinary firmness from exercising his rights
because the tickets were eventually dismissed and Plaintiff
never suffered adverse consequences or repercussions. See
Birchenough Decl. Ex. O–Q; compare Berry v. Tremblay,
No. 20-CV-177, 2021 WL 1575951, at *4 (N.D.N.Y. Apr.
22, 2021) (“Courts in this district have routinely found the
mere filing of a misbehavior report alone, without evidence of
other repercussions, does not constitute an adverse action.”)
(collecting cases), with Hayes v. Dahlke, 976 F.3d 259, 272–
74 (2d Cir. 2020) (finding filing of false misbehavior report
constituted adverse action where inmate-plaintiff spent time
in keeplock as a result), and Gill v. Pidlypchak, 389 F.3d
379, 384 (2d Cir. 2004) (finding adverse action where inmate-
plaintiff spent three weeks in keeplock as a result of false
misbehavior report.).
Plaintiff argues that he did suffer consequences because,
while the misbehavior reports were eventually dismissed, he
was initially found guilty and had to appeal the charges. See
Pl.’s Resp. Mem. at 35. However, Plaintiff does not present
any specific consequences or repercussions he faced as a
result of the initial guilty finding or as a result of engaging in
the appeals process. See id.
Therefore, the Court denies Mere's motion for summary
judgment as to retaliation arising from Mere's alleged use of
force in the SHU strip-search room and Mere's alleged denial
of adequate medical care, but grants summary judgment as
to retaliation arising from Mere's issuance of misbehavior
reports.
4. Qualified Immunity as to Mere
In order to establish a defense of qualified immunity, a
defendant public official must show that one of two conditions
is satisfied, either “(a) the defendant's action did not violate
clearly established law, or (b) it was objectively reasonable
for the defendant to believe that his action did not violate such
law.” Gorman v. Rensselaer Cty., 910 F.3d 40, 45 (2d Cir.
2018); see also Green v. Montgomery, 219 F.3d 52, 59 (2d Cir.
2000). “The objective reasonableness test is met if ‘officers
of reasonable competence could disagree’ on the legality of
the defendant's actions.” Green, 219 F.3d at 59 (quoting Salim
v. Proulx, 93 F.3d 86, 91 (2d Cir. 1996)). Summary judgment
should not be granted on the basis of qualified immunity due
to objective reasonableness “unless the defendant shows that
no reasonable jury, viewing the evidence in the light most
favorable to the Plaintiff, could conclude that the defendant's
actions were objectively unreasonable in light of clearly
established law.” Husain v. Springer, 494 F.3d 108, 131 (2d
Cir. 2007).
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*17 Mere does not argue that his actions did not violate
clearly established law. See Mere Mem. at 18–20. He instead
claims that his actions were objectively reasonable and he is
thus entitled to qualified immunity as to the claims against
him derived from his alleged use of excessive force and denial
of adequate medical care. Id. 7
Regarding the claims of excessive force and retaliation
stemming from the alleged assault in the SHU strip-frisk
room, Mere argues he is entitled to qualified immunity
because he “was not present during the Use of Force Event ...
and therefore it was objectively reasonable that Officer Mere
did not intervene in a Use of Force Event of which he had
no knowledge.” Id. at 18. However, Mere's presence and
participation in the strip-frisk room assault is a contested
and material issue of fact. Construing the record in the light
most favorable to Plaintiff, a jury could reasonably credit
Plaintiff's testimony that Mere participated in the assault and
thus reasonably find that it was not objectively reasonable
for Mere to believe his actions did not violate Plaintiff's
Eighth Amendment rights. See Jeanty v. Cty. of Orange, 379
F. Supp. 2d 533, 542 (S.D.N.Y. 2005) (denying summary
judgment where plaintiff's testimony created factual dispute
regarding defendants’ use of excessive force, thus “jury could
reasonably conclude that it was not objectively reasonable
for the individual defendants to believe that their actions did
not violate plaintiff's Eighth Amendment rights.”); Brewer v.
Kamas, 533 F. Supp. 2d 318, 331 (W.D.N.Y. 2008) (finding,
where plaintiff alleged corrections officer used excessive
force, that “if the facts as alleged by Plaintiff are established
at trial, no reasonable corrections officer could reasonably
believe he was not violating Plaintiff's constitutional rights.”).
Mere also argues he is entitled to qualified immunity
regarding claims of deliberate indifference to a serious
medical need and retaliation stemming from his alleged
failure to provide Plaintiff with his inhaler while on the
1:1 suicide watch. See Mere Mem. at 19. Mere asserts it
was objectively reasonable for him to not leave his post to
personally retrieve the inhaler and that “any reasonable officer
similarly assigned to a one-on-one watch would engage the
use of other DOCCS officers such as the SHU Roundsmen ...
and would rely upon their assistance to alert medical staff.” Id.
However, construing the evidence in the light most favorable
to Plaintiff, Mere's assertions are heavily disputed. Plaintiff
asserts that Mere participated in a vicious assault upon him in
the SHU and thus knew he had been severely beaten. Pl.’s Dep
at 200:8–200:17. Shortly after, Plaintiff claims he informed
Mere he could not breathe, thought he was having an asthma
attack, and needed his inhaler. Pl.’s Grievance at 6. Rather
than contacting other officers to get medical aid, as Mere
claims he did, Plaintiff asserts that Mere simply said he would
“look into” it, walked away, and never provided any sort of
assistance. Id. at 6–7; Germano Report at 1; Pl.’s Dep. at
209:3–209:8. Plaintiff claims he did not receive his inhaler
until hours later, when he was able to contact another officer.
Pl.’s Dep. at 215:11–215:16.
*18 Again, the test for objective reasonableness is met
“if officers of reasonable competence could disagree on the
legality of the defendant's actions.” Green, 219 F.3d at 59
(quotation marks omitted). Tellingly, Mere states that “any
reasonable officer” in his position would have engaged the
use of other officers to alert medical staff. Mere Mem. at 19
(emphasis added). Thus, Mere implies that if an officer acted
as Plaintiff asserts, and never alerted medical staff or sought
assistance, no officer of reasonable competence would agree
that it was legal or proper.
A reasonable jury could credit Plaintiff's account and find it
was not objectively reasonable for Mere to believe denying
an inhaler to an inmate who had stated he couldn't breathe,
especially after participating in an assault on that inmate,
did not violate Plaintiff's right to medical care. Thus, the
objective reasonableness of Mere's actions depends on a
determination of factual questions that cannot be answered
at the summary judgment stage of litigation. See Ellington
v. Whiting, 807 F. App'x 67, 69–70 (2d Cir. 2020) (denying
summary judgment on qualified immunity grounds where
material issues of fact existed regarding whether defendants
were aware of plaintiff's condition); Robinson v. Taylor, No.
16-CV-0285, 2017 U.S. Dist. LEXIS 137233 (N.D.N.Y. Aug.
24, 2017) (denying summary judgment on qualified immunity
grounds where “resolution of the objective reasonableness of
Defendants’ actions ‘depends on the determination of certain
factual questions that cannot be answered at this stage of the
litigation.’ ”) (quoting Denton v. McKee, 332 F. Supp. 2d 659,
666 (S.D.N.Y. 2004)).
C. Peck Motion for Summary Judgment
Peck moves for summary judgment on all claims against
him, which include a claim of excessive force in violation of
the Eighth Amendment, deliberate indifference to a serious
medical need in violation of the Eight Amendment, and
retaliation in violation of the First Amendment.
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1. Excessive Force as to Peck
Plaintiff does not oppose Peck's motion regarding his claims
for excessive force. See Pl.’s Resp. Mem. at 14. Thus, the
Court grants Peck's motion for summary judgment regarding
any claims of excessive force.
2. Deliberate Indifference to a
Serious Medical Need as to Peck
To establish an Eighth Amendment violation due to deliberate
indifference to a serious medical need, an inmate must
establish both an objective and subjective prong. St. Clair
Jones v. Lamont, 379 Fed. Appx. 58, 59 (2d Cir. 2010).
Peck argues that he is entitled to judgment as a matter of law
under both the objective and subjective prongs.
a. Objective Prong
The objective prong of the deliberate indifference standard
requires that “the alleged deprivation ... be sufficiently
serious.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir.
2011) (quoting Hathaway v. Coughlin, 99 F.3d 550, 553
(2d Cir. 1996)). This determination in turn requires two
further inquiries. Salahuddin v. Goord, 467 F.3d 263, 280,
279 (2d Cir. 2006). The first inquiry is “whether the prisoner
was actually deprived of adequate medical care.” Id. This
inquiry turns on whether the defendant acted “reasonably”
in response to an inmate's health risk or whether he failed
“to take reasonable measure in response to a medical
condition.” Id. at 279–80. The second inquiry is whether
the inadequacy in medical care is sufficiently serious. Id.
at 280. “[I]f the unreasonable medical care is a failure to
provide any treatment for an inmate's medical condition,
courts examine whether the inmate's medical condition is
sufficiently serious.” Id.
*19 Peck does not dispute that Plaintiff's injuries were
sufficiently serious as required by the second inquiry of the
objective prong. See Peck Reply. Mem. at 4. Peck instead
argues that the record evidence is insufficient to meet the first
inquiry of the objective prong because he reacted reasonably.
Peck Mem. at 14. Instead, Peck argues he was not aware of the
use of force against Plaintiff or Plaintiff's physical condition,
or that Plaintiff was having trouble breathing. Peck Mem. at
14. Peck further argues that, on the one occasion Plaintiff
asked if he could have his inhaler, Peck acted reasonably by
informing medical staff and contacting a supervisor. Id. at 14–
15.
Plaintiff contends Peck must have known of the use of force
against him, and thus knew of his injuries, because that
morning “another officer in the SHU told Lewis he would
not receive breakfast because he assaulted another officer.”
Pl.’s Resp. Mem. at 31. The Court finds that the mere fact
that a different officer in the SHU, on duty at a different time
of day, knew of the use-of-force incident involving Plaintiff,
is entirely too speculative and conclusory to create a triable
issue of fact as to whether Peck himself knew of the incident.
See Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020)
(“[M]ere conclusory allegations, speculation or conjecture
will not avail a party resisting summary judgment.”). Even
if the other officer's knowledge were imputed to Peck, the
other officer seemed to believe Plaintiff was the assailant, and
would not necessarily have known of any injuries Plaintiff
had received. Plaintiff's Grievance at 7A (stating the officer
said “no food for you because you assaulted a [sic] officer”).
However, Plaintiff offers more than the speculative assertion
above to support his claim that Peck knew of a serious risk
to his health. Plaintiff testified that he informed Peck he was
having a hard time breathing and was having an asthma attack,
but Peck did not do anything to help. Pl.’s Dep. at 263:16–
24; Pl.’s Grievance at 7B; Germano Report at 1–2. Plaintiff
further alleged that he requested his inhaler from Peck again,
after an hour with no assistance, and Peck told him he would
“just have to wait.” Pl.’s Grievance at 7B; Pl.’s Decl. ¶¶43–
44 8 . According to Plaintiff, he did not receive medical aid
until an additional hour and a half had passed. Pl.’s Grievance
at 7C. Additionally, a reasonable jury could take into account
the Germano Report, which found Peck exhibited “a lack of
care custody and control by departmental standards,” to find
Peck did not act reasonably.
*20 Further, the record belies Peck's assertion that he acted
reasonably because he contacted a supervisor in response to
Plaintiff's request. Notably, Peck does not cite to any record
material to support this factual assertion. See Peck Mem. at
14. Indeed, Peck denied during his deposition that he ever
requested medical attention for Plaintiff, Peck Dep. at 43:2–
43:8, Peck testified that when he contacted a roundsmen about
getting a supervisor, he did not recall mentioning any need for
medical attention and “[t]he only thing [he] wanted to have
the roundsman do was to have a sergeant come down,” id. at
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46:14–47:2, Peck also testified he did not recall ever telling
Sergeant Tamer that Plaintiff had requested medical attention
and did not contact medical directly at any point, id. at 57:5–
57:23.
Construing the evidence in the light most favorable to
Plaintiff, the Court concludes that a reasonable jury could
find Peck knew Plaintiff was in severe medical need due to
his inability to breathe, but did not act to obtain aid, and
thus did not act reasonably in response to Plaintiff's requests.
Therefore, Peck is not entitled to summary judgment under
the objective prong of the deliberate indifference standard.
b. Subjective Prong
The subjective prong of the deliberate indifference standard
requires that a defendant prison official act with a sufficiently
culpable state of mind. They must “know[ ] of and disregard[ ]
an excessive risk to inmate health or safety.” Hill, 657 F.3d at
122 (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
In other words, they must “act[ ] or fail[ ] to act ‘while
actually aware of a substantial risk that serious inmate harm
will result.’ ” Acosta v. Thomas, 837 Fed. Appx. 32 (2d Cir.
2020) (quoting Salahuddin, 467 F.3d at 280).
Peck argues he did not know of and disregard an excessive
risk to inmate health or safety because he was not informed
of Plaintiff's physical condition, he did not notice any injuries
upon beginning his assignment, and that Plaintiff testified that
the extent of his medical request was for an inhaler because
he was having an asthma attack. See Peck Mem. at 15–16.
However, as stated above, a reasonable jury could credit
Plaintiff's account and find that he informed Peck he was
having an asthma attack and was unable to breathe. Pl.’s Dep.
at 263:16–24; Pl.’s Grievance at 7B; Germano Report at 1–
2. Given Peck's deposition testimony, a reasonable factfinder
could likewise find that Peck did not undertake any action to
provide medical aid in response to Plaintiff's reports that he
could not breathe. Peck Dep. at 43:2–8; 46:14–47:2; 57:5–23.
Thus, a factfinder could find Peck was aware of an excessive
risk to Plaintiff's health, and that Peck disregarded it by failing
to take any action to provide aid. 9 See Warren v. City of New
York Dep't of Corr. Med. Staff, No. 17-CV-1125, 2021 WL
1163105, at *11 (E.D.N.Y. Mar. 26, 2021) (denying summary
judgment where material dispute of fact existed regarding
whether defendant provided plaintiff medical attention in
response to asthma attack); Ennis v. Davies, No. 87-CV-1465,
1990 WL 121527, at *3 (S.D.N.Y. Aug. 14, 1990) (holding
that a jury could reasonably find that inmate's request for
his asthma medication was sufficient to make the defendants
aware of a serious medical need and failure to provide
medication constituted deliberate indifference).
*21 Thus, because there are disputes as to material facts
regarding whether Peck acted reasonably and whether he
knew of and acted with reckless disregard regarding an
excessive risk to Plaintiff's health, the Court denies Peck's
motion for summary judgment as to Plaintiff's claim for
deliberate indifference to a serious medical need.
3. Retaliation as to Peck
Plaintiff alleges Peck withheld proper medical treatment and
filed a false misbehavior report against him as retaliation for
his filing of the lawsuit against Cowan. Pl.’s Resp. Mem. at
36.
To succeed on a claim of retaliation in violation of the First
Amendment, a plaintiff must show “(1) the conduct cited as
the cause for retaliation is protected; (2) the defendant took
adverse action against the plaintiff; and (3) there was a causal
connection between the protected conduct and the adverse
action.” Davis, 320 F.3d at 325; see also Pidlypchak, 389
F.3d at 380. In determining whether a causal connection exists
between a protected activity and a prison official's actions, a
court may consider several 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, 224
F. Supp. 2d at 732 (citing Colon, 58 F.3d at 872–73 (2d Cir.
1995)).
Peck argues there is insufficient evidence on the record to
establish a causal connection between his alleged actions and
any retaliatory animus. See Peck Mem. at 22. In response,
Plaintiff asserts that there is sufficient circumstantial evidence
to infer a causal connection due to the temporal proximity
between the protected conduct and Peck's alleged retaliatory
conduct and the due to fact that Bare Hill is close
geographically to Franklin, the facility where Cowan worked.
See Pl.’s Resp. Mem. at 38–39.
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Regarding temporal proximity, the Court cannot agree that
this factor meaningfully supports a causal connection in this
case. Peck's alleged actions took place around ten months
after Plaintiff filed the Cowan Suit. Noonan Decl. Ex. 13.
While the Second Circuit “has not drawn a bright line to
define the outer limits” of temporal proximity in retaliation
cases, Gorman–Bakos v. Cornell Co-op Ext. of Schenectady
Cty., 252 F.3d 545, 554 (2d Cir. 2001), a gap of ten months
is somewhat longer than most that are found to support a
causal connection. See, e.g., Gorman-Bakos, 252 F.3d at
554 (finding five-month gap sufficiently short to support
inference of causal connection); Espinal, 558 F.3d at 129
(finding six-month gap sufficiently short). However, it is
relevant that the Cowan Suit was ongoing at the time of Peck's
alleged retaliatory actions. See Cruz v. Lee, No. 14-CV-4870,
2016 WL 1060330, at *7 (S.D.N.Y. Mar. 15, 2016) (finding
temporal proximity sufficient to support retaliation for filing
lawsuit where lawsuit was ongoing). Given that the Cowan
Suit was ongoing, but nothing occurred in the lawsuit near
in time to the alleged retaliatory acts, 10 and the suit was
filed ten months prior to the alleged acts, the Court finds this
factor does not strongly favor, nor disfavor, an inference of
causation.
*22 Militating against a finding of causal connection,
Plaintiff's prior disciplinary record could not be categorized
as “good.” It contains multiple infractions for violating direct
orders and harassment, amongst others. See Mitchell Decl.
Ex. D. Also, Plaintiff was eventually found guilty of the
misbehavior ticket issued by Peck. Pl.’s SMF at 71.
However, most significantly, Plaintiff's grounds for alleging
a causal connection are too conclusory and speculative
to create a triable issue of fact regarding Peck's alleged
retaliatory motive. Plaintiff's main argument is that “there is
ample evidence to conclude that Moving Defendants knew
other officers at Franklin – a facility located in the same
small town.” Pl.’s Resp. Mem. at 39. Namely, Plaintiff
references Peck's deposition testimony that when he goes to
trainings, there would be officers from Franklin and Upstate
Correctional there as well, Peck Dep. at 115:12–115:22, and
that Defendants Kingston and Mere stated they would run
into officers from Franklin at times, Kingston Dep. at 92:10–
92:21, Mere Dep. 18:16–19:2.
Courts must be “careful to require non-conclusory
allegations” when dealing with prisoner retaliation claims
because they are “ ‘easily fabricated,’ and accordingly ‘pose a
substantial risk of unwarranted judicial intrusion into matters
of general prison administration.’ ” Bennett v. Goord, 343
F.3d 133, 137 (2d Cir. 2003). Plaintiff did not file a suit
or complaint against Peck himself. The mere fact that Peck
works in the same general area as an officer against whom
Plaintiff filed a lawsuit, and thus conceivably could have
met that officer or others who know him, and in turn could
have potentially acted in retaliation for a suit against that
officer, is entirely too speculative and conclusory to create
an issue of material fact. Even where officers have worked
together in the same facility, allegations that one retaliated
on behalf of another have generally been found conclusory
and insufficient to withstand summary judgment absent other
evidence of retaliatory motive. See Faulk, 545 F. App'x at
59 (finding allegations too conclusory to withstand summary
judgment because “no evidence suggest[ed] that they were
motivated by, or even aware of, [the] grievance,” because
defendants were not themselves named in the grievance
and allegations they had retaliated on behalf of another
officer in the same facility were merely “conclusory”); Wright
v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (upholding
summary judgment where plaintiff alleged retaliation for
filing complaint regarding acts of other inmates and officials
at same facility, but did not name defendant). This contrasts
with cases where courts have found disputes of material fact
to exist, even though a defendant was not directly named in a
grievance or suit, because a direct connection was established
between the defendant and the officer who was the target of
the suit, or the defendant was alleged to have made statements
referencing the grievance or suit. See Colon v. Coughlin,
58 F.3d 865 (2d Cir. 1995) (“If this circumstantial evidence
represented the sum total of Colon's proof, we might be
inclined to affirm the grant of summary judgment ... [but
Colon] also presents direct evidence of retaliation, namely,
defendant Bezio's alleged admission of the existence of
a retaliatory scheme.”); Roland v. McMonagle, No. 12-
CV-6331, 2015 WL 5918179, at *5 (S.D.N.Y. Oct. 9, 2015)
(finding evidence sufficient to support inference of retaliatory
motive where one defendant lived with the two officers who
were the subject of the past grievance and “most significantly,
[plaintiff] testified that a Defendant mocked him for filing
grievances during the alleged attack”); Farid v. Goord, 200
F. Supp. 2d 220, 237 (W.D.N.Y. 2002) (finding issue of
triable fact existed as to whether false misbehavior report
was motivated by complaint against other officer where
defendant knew of the complaint “well before the filing of the
Misbehavior Report”).
*23 Because Plaintiff's allegations that Peck knew of and
was motivated by the Cowan Suit are entirely conclusory
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and speculative, the Court grant's Peck motion for summary
judgment as to Plaintiff's claims of retaliation.
D. Kearney and Kingston Motion for Summary
Judgment
Defendants Kearney and Kingston argue they are entitled
to summary judgment as to Plaintiff's claims for excessive
force in violation of the Eighth Amendment, Retaliation in
violation of the First Amendment, and are entitled to qualified
immunity. See Kearney & Kingston Mem. at 7.
1. Excessive Force and Personal
Involvement as to Kearney and Kingston
Defendants Kearney and Kingston argue that they are entitled
to summary judgment as to Plaintiff's claim of excessive
force because the record fails to establish that they were
personally involved in the constitutional violation. Id. at 8–13.
Plaintiff responds by arguing that personal involvement may
be established by showing a defendant facilitated or attempted
to cover up a constitutional violation. Pl.’s Resp. Mem. at 21–
22.
“Because vicarious liability is inapplicable to ...§ 1983 suits, a
plaintiff must plead that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) “To
hold a state official liable under § 1983, a plaintiff must
plead and prove the elements of the underlying constitutional
violation directly against the official without relying on a
special test for supervisory liability.” Tangreti v. Bachmann,
983 F.3d 609, 620 (2d Cir. 2020).
Plaintiff cites several cases holding that if a defendant
attempts to facilitate or cover up a constitutional violation,
that is sufficient to find that defendant personally participated
in the violation. See, e.g., Edwards v. Annucci, No. 17-
CV-5018, 2019 WL 1284295, at *7 (S.D.N.Y. Mar. 20,
2019) (“A prisoner's well-pleaded allegation that a defendant
‘fil[ed] a false report to his supervisors in order to cover
up’ constitutional violations will ‘give rise to a plausible
inference’ that the defendant ‘was personally involved in
the purported constitutional violations.’ ”) (quoting Randle
v. Alexander, 960 F. Supp. 2d 457, 478 (S.D.N.Y. 2013)).
Additionally, this Court held in response to Kearney and
Kingston's Motion to Dismiss, Dkt. No 79, that these
allegations of facilitation and cover-up were sufficient to
establish personal involvement, See Dkt. No. 100 (“Order
on Motion to Dismiss”) at 8–9. This would imply that if
the record now presented sufficient evidence that Defendants
facilitated or attempted to cover up the use of excessive force,
a reasonable jury could find they personally participated in
the Eighth Amendment violation.
However, subsequent to the decisions Plaintiff cites and
this Court's Order on Motion to Dismiss, the Second
Circuit clarified the requirements for personal involvement in
Tangreti.
In Tangreti, an inmate filed suit under 42 U.S.C. § 1983
alleging a prison supervisor displayed deliberate indifference
to a risk of sexual abuse because the supervisor was
grossly negligent in supervising the abusing officers. Id.
at 616. The Second Circuit found that supervisory liability
of this type violated the standard set forth in Iqbal, and
that “a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has
violated the Constitution.” Id. at 616. Further, “ ‘[t]he factors
necessary to establish a [§ 1983] violation will vary with
the constitutional provision at issue’ because the elements of
different constitutional violations vary.” Id. at 618 (quoting
Iqbal, 556 U.S. at 676).
*24 Thus, while previously many court's only required a §
1983 Plaintiff to establish a “tangible connection” between a
defendant's acts and injuries suffered, see Miller v. Annucci,
No. 919-CV-0030, 2019 WL 2370295 (N.D.N.Y. June 5,
2019) (Kahn, J.); Austin v. Pappas, No. 04-CV-7263, 2008
WL 857528, at *2 (S.D.N.Y. Mar. 31, 2008); in Tangreti, the
court required the plaintiff to show “that [defendant] violated
the Eighth Amendment by [defendant's] own conduct” and
establish the elements of her Eighth Amendment claim
directly against the defendant. Tangreti, 983 F.3d at 619.
While Plaintiff's allegations regarding excessive force against
Kearney and Kingston do not allege supervisory liability, the
reasoning in Tangreti applies with equal force here: Plaintiff
must show that Defendants violated the Eighth Amendment
by their own conduct, and establish the elements of his Eighth
Amendment claim for excessive force 11 directly against
Kearney and Kingston rather than relying on the conduct
of other officers. See Quintin v. Cty. of Nassau, No. 18-
CV-5852, 2022 WL 888950, at *3 (E.D.N.Y. Mar. 25, 2022)
(applying Tangreti outside of the supervisory context and
stating that “it is well-settled that to establish liability under
Section 1983, a plaintiff must ‘plead and prove that each
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Government-official defendant, through the official's own
individual actions, has violated the Constitution’ ” (quoting
Tangreti, 983 F.3d at 618)); Karelefsky v. Brann, No. 20-
cv-9485, 2022 WL 624424, at *2 (S.D.N.Y. Mar. 1, 2022)
(observing that to find personal involvement and “hold a
state official liable under § 1983, a plaintiff must plead and
prove the elements of the underlying constitutional violation
directly against the official.” (citing Tangreti, 983 F.3d at
620)).
As stated above, to establish an Eighth Amendment claim of
excessive force, a plaintiff must show both an objective and
subjective component. “The objective component of a claim
of cruel and unusual punishment focuses on the harm done, in
light of ‘contemporary standards of decency ... when prison
officials use force to cause harm maliciously and sadistically,
‘contemporary standards of decency always are violated.’ ”
Wright v. Goord, 554 F.3d 255, 268–69 (2d Cir. 2009). The
subjective component requires a plaintiff to show a defendant
official had “a sufficiently culpable state of mind.” Hayes v.
Dahlke, 976 F.3d 259, 274 (2d Cir. 2020); see also Hudson v.
McMillian, 503 U.S. 1, 7 (1992).
*25 A corrections officer who knowingly facilitates an
assault on an inmate could be found to have directly,
through their own actions, deprived an inmate of his right
to be free from cruel and unusual punishment by causing
physical bodily harm in the same way an officer who directly
participates in the assault deprives an inmate of such rights,
and thus the facilitating officer has “used force” to cause
harm maliciously. C.f. Smith v. Levine, 510 F. App'x 17,
20 (2d Cir. 2013) (finding complaint to have sufficiently
alleged defendant's personal participation in constitutional
violation where allegations created “obvious inference” that
defendant's action was a “precursor” to the violative act).
However, an officer who attempts to cover up an assault
after the fact, while potentially committing other violations,
may not have personally participated in cruel and unusual
punishment in the same way such that a plaintiff could
establish the elements of an excessive force claim against
them directly.
Thus, because it is admitted neither Kearney nor Kingston
participated directly in the alleged assaults on Plaintiff, the
question before the Court is whether there is sufficient
evidence on the record for a reasonable jury to conclude that
Defendants knowingly facilitated the assault.
Plaintiff argues there is evidence showing Kearney made up
the phone infraction and Plaintiff's request to use the phones
out of whole cloth, thus facilitating the assault by establishing
a pretext to transfer Plaintiff to the SHU. Pl.’s Resp. Mem.
at 23. After being shown a picture of Plaintiff, Kearney
informed Hanson that Plaintiff had asked to use the phone the
day before in violation of his cube confinement restrictions.
Pl.’s Resp. Mem. at 23; Kearney & Kingston SMF ¶ 15–
16. Plaintiff disputes that he was the inmate who approached
Kearney to make the call, Pl.’s SMF at 4; Pl.’s Resp. Mem.
at 22, and there is evidence on the record that could allow a
reasonable factfinder to credit Plaintiff's account. Hanson did
not remember ever showing Kearney a picture of Plaintiff.
Pl.’s Resp. Mem. at 22. Additionally, evidence on the record
indicates that another inmate was using Plaintiff's ID to make
phone calls during the relevant time, Mitchell Decl. Ex. O
(“Germano Deposition”) at 76, and Plaintiff was found not
guilty of the misbehavior ticket accusing him of making
phone calls in violation of cube restrictions, Mitchell Decl.
Ex. K at 59.
Making all reasonable inferences in Plaintiff's favor, a
factfinder could reasonably credit his account and conclude
that he did not ask Kearney for permission to use the phone on
April 22, 2016. A reasonable factfinder could thus conclude
Kearney was lying when, after seeing a picture of Plaintiff, he
told Hanson Plaintiff was the one who asked to use the phone,
and could infer from this dishonesty that Kearney did so to
facilitate, or aid in the facilitation of, Plaintiff's transfer to the
SHU.
Plaintiff alleges Kingston facilitated the excessive use of
force by initiating Plaintiff's transfer knowing and intending
that Plaintiff be assaulted. See Pl.’s Resp. Mem. at 24. The
alleged basis for the initial transfer of Plaintiff to the SHU
was Kingston's review of Plaintiff's phone log that showed
significant usage while Plaintiff was on cube confinement.
Kingston SMF ¶ 24. It is undisputed that Plaintiff's phone
log did indeed show significant usage while Plaintiff was
restricted from using the phone. See Mitchell Decl. Ex
M (“Phone Log”). However, the record establishes that
Kingston reviewed the phone logs 3 out of 5 days every
week he worked, Kingston Dep. at 38:9–16, would write a
misbehavior report “as soon as he knew” of multiple improper
calls made over more than one day, id., at 49:16–50:12, and
would typically find out about such a violation within a day
or two of it occurring, 50:13–50:18. However, despite this
regular review and usual habit of writing misbehavior reports
immediately, Kingston did not write a misbehavior report for
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Plaintiff until after 18 calls had accrued over the course of 8
days. Pl.’s SMF ¶ 60.
*26 A reasonable jury could conclude that Kingston did
indeed notice the phone infraction prior to April 23, 2016,
as he testified he generally would have, but did not write a
misbehavior ticket immediately as was his usual practice. A
reasonable jury could further infer the reason for delay was
to facilitate Plaintiff's transfer to the SHU as a specific time
on a specific day. Further, if a jury were to believe Plaintiff's
account that he was assaulted on April 26 during and
immediately after his transfer, it would not be unreasonable to
infer that Kingston initiated the transfer on that day in order
to facilitate the assault.
2. Retaliation as to Kearney and Kingston
Defendants argue that there is insufficient evidence on the
record to establish that their actions were sufficiently adverse
or that they were motivated by retaliation for Plaintiff's
filing of the Cowan Suit. Kearney & Kingston Mem. at 13.
Defendants also argue they would have undertaken the actions
even in the absence of the protected conduct. Id.
a. Adverse Action
Plaintiff alleges that Kearney retaliated against him by
supplying false allegations that supported a false misbehavior
ticket and co-signing that ticket, and that both Kearney
and Kingston retaliated by facilitating a retaliatory transfer
knowing and intending that Plaintiff be assaulted. Pl.’s Resp.
Mem. at 35.
The Court holds that, because Plaintiff was found innocent of
the allegations in Kearney's allegedly false ticket, Pl.’s SMF
¶ 62, and thus suffered no adverse effects due to its issuance,
this does not constitute an adverse action. See Tremblay, 2021
WL 1575951, at *4.
However, a retaliatory transfer to a facility with more
restrictions constitutes an adverse action sufficient to
discourage other inmates form exercising their rights, see
Miller, 2019 WL 2370295, at *10, especially if that transfer
is undertaken with the purpose of facilitating an assault upon
an inmate, Abreu, 778 F. App'x at 33 (“[A] severe beating,
false misbehavior reports, or the withholding of medication
could constitute sufficiently adverse actions that would deter
a prisoner of ‘ordinary firmness’ from exercising his rights.”).
Thus, if a factfinder finds Defendant's facilitated Plaintiff's
transfer to the SHU, intending that he be assaulted during
said transfer, a reasonable jury could conclude they had
undertaken adverse actions sufficient to support a claim of
retaliation.
b. Causal Connection
Courts must be “careful to require non-conclusory
allegations” when dealing with prisoner retaliation claims
because they are “ ‘easily fabricated,’ and accordingly ‘pose a
substantial risk of unwarranted judicial intrusion into matters
of general prison administration.’ ” Bennett, 343 F.3d at 137.
Plaintiff's main basis for asserting a retaliatory motive is that
Defendants work in the same general area as an officer against
whom Plaintiff filed a lawsuit, Cowan, and thus conceivably
could have met him or others who know him. See Pl.’s Resp.
Mem. at 39.
While the Court found this was insufficient to create an issue
of material fact regarding retaliatory motive as to Defendant
Peck, the Court finds differently with regard to Defendants
Kearney and Kingston. This is so because, on summary
judgment, the Court must review the record as a whole and
make all favorable inferences in favor of the nonmoving party.
See Jasco Tools, Inc. v. Dana Corp., 574 F.3d 129, 152 (2d Cir.
2009) (stating that a court considering a summary judgment
motion must view the record as a whole and “disregard all
evidence favorable to the moving party that the jury is not
required to believe” (quoting Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 135 (2000))); Howley v. Town of
Stratford, 217 F.3d 141, 151 (2d Cir. 2000) (“In determining
the appropriateness of summary judgment, the court should
not consider the record solely in piecemeal fashion ... for a
jury ... would be entitled to view the evidence as a whole.”).
*27 On the record before the Court, it has already been
determined that a reasonable factfinder could conclude that
Kearney and Kingston acted to facilitate Plaintiff's transfer to
the SHU for the purpose of his assault and that during and
immediately after that transfer Plaintiff was indeed assaulted
by other Corrections Officers who specifically stated they
were doing so in retaliation for his filing of the Cowan Suit.
Thus, a reasonable jury could infer that Defendants acted with
a similar retaliatory motive.
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c. Action Undertaken in Absence of Protected Conduct
Even if a Plaintiff establishes that he engaged in protected
activity, the defendant undertook an adverse action, and that
there is a causal relationship, a defendant may still defeat
liability if they can show by preponderance of the evidence
that they would have taken the adverse action against the
plaintiff “even in the absence of the protected conduct.”
McRae v. Fischer, No. 9:17-CV-00146, 2017 WL 3535298,
at *7 (N.D.N.Y. July 14, 2017) (quoting Mount Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
“[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.” Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996).
Defendants argue that, because it is undisputed the phone
log for Plaintiff's PIN showed numerous calls were made
in violation of his cube restriction, there was an undisputed
legitimate basis for their transfer of Plaintiff to the SHU,
and thus there is no dispute as to any material fact
regarding whether they would have undertaken the same
action regardless of Plaintiff filing the Cowan Suit. Kearney
& Kingston Mem. at 18. However, Plaintiff's claim is not
merely that Defendants transferred him, but that they did so
at a specific time and date in order to facilitate his assault
at the hands of other officers. See Pl.’s Resp. Mem. at 35,
40. Despite the phone logs, a reasonable jury could find
that Defendants undertook their retaliatory actions on April
23, 2016 to facilitate an assault, and would not have done
so absent a retaliatory motive. Indeed, Kingston's testimony
indicates that, under most circumstances, an inmate who had
made calls like Plaintiff was accused of doing would have
been transferred much sooner. See Kingston Dep. 49:16–
50:12.
3. Supervisory Liability Claims as to Kearney and Kingston
Kearney and Kingston argue that Plaintiff's claims for
supervisory liability should be dismissed because they are
no longer viable following the Second Circuit's decision in
Tangreti. Kearney & Kingston Mem. at 20. Plaintiff does not
contest this assertion, see Pl.’s Mem, and the Court agrees.
Therefore, Kearney and Kingston 12 are granted summary
judgment on any claims pressed against them based on
supervisory liability.
4. Qualified Immunity as to Kearney and Kingston
In order to establish a defense of qualified immunity, a
defendant public official must show that one of two conditions
is satisfied, “(a) the defendant's action did not violate clearly
established law, or (b) it was objectively reasonable for
the defendant to believe that his action did not violate
such law.” Gorman v. Rensselaer Cty., 910 F.3d 40, 45
(2d Cir. 2018); see also Green, 219 F.3d at 59. A public
official's actions are objectively reasonable if “ ‘officers of
reasonable competence could disagree’ on the legality of the
defendant's actions.” Green, 219 F.3d at 59 (quoting Salim,
93 F.3d at 91). Summary judgment should not be granted on
basis of qualified immunity due to objective reasonableness
“unless the defendant shows that no reasonable jury, viewing
the evidence in the light most favorable to the Plaintiff,
could conclude that the defendant's actions were objectively
unreasonable in light of clearly established law.” Husain, 494
F.3d at 131.
*28 To establish qualified immunity, Kearney and Kingston
rely on their previous arguments that their conduct did
not, as a matter of law, violate Plaintiff's rights, asserting
that therefore their actions were objectively reasonable and
they are entitled to qualified immunity. See Kearney &
Kingston Mem. at 22. However, the Court has found that a
reasonable jury could conclude that both or either Defendant
facilitated Plaintiff's transfer for the purposes of Plaintiff
being assaulted, in violation of his Eighth Amendment right
to be free of cruel and unusual punishment and in retaliation
for his filing of the Cowan suit. See supra Sections IV(D)(1)–
(2). Because inmates have a clearly established right not to
be retaliated against for exercise of First Amendment rights,
Burton v. Lynch, 664 F. Supp. 2d 349, 368-69 (S.D.N.Y.
2009) (“[A] claim of government retaliation for the exercise
of First Amendment rights ... alleges the violation of a
clearly established right.”), and have a clearly established
right to be free from cruel and unusual punishment, and
excessive, malicious use of force, Green, 219 F.3d at 59 (“It
is beyond dispute that the right to be free from excessive
force has long been clearly established.”), a reasonable be jury
could likewise conclude that Defendants’ actions, allegedly
facilitating these violations, were objectively unreasonable in
light of clearly established law.
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Thus, the Court finds Defendants Kearney and Kingston are
not entitled to qualified immunity regarding Plaintiff's claims
of excessive force and retaliation against them.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that Defendant Robideau's Motion for Summary
Judgment, Dkt. No. 136, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Robideau
for excessive force under the Fourth and Fourteenth
Amendments, deliberate indifference to serious medical need
under the Eighth Amendment, and any claims alleging
supervisory liability are hereby DISMISSED from this
action; Plaintiff's claims against Robideau for excessive
force under the Eighth Amendment and retaliation survive
Defendant Robideau's Motion; and it is further
ORDERED, that Defendant Mere's Motion for Summary
Judgment, Dkt. No. 138, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Mere
for excessive force under the Fourth and Fourteenth
Amendments, retaliation in so far as it relates to issuance
of misbehavior tickets, and supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against Mere
for excessive force under the Eighth Amendment, medical
indifference under the Eighth Amendment, and retaliation
related to use of force in the strip-frisk room and denial of
adequate medical care survive Defendant Mere's Motion; and
it is further
ORDERED, that Defendant Peck's Motion for Summary
Judgment, Dkt. No. 137, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Peck for
excessive force under the Fourth, Fourteenth, and Eighth
Amendments, retaliation, and supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Peck for medical indifference under the Eighth Amendment
survive Defendant Peck's Motion; and it is further
ORDERED, that Defendant Kearney's Motion for Summary
Judgment, Dkt. No. 139, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Kearney
for excessive force under the Fourth and Fourteenth
Amendments and for supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Kearney for excessive force under the Eighth Amendment
and for retaliation survive Defendant Kearney's Motion; and
it is further
ORDERED, that Defendant Kingston's Motion for Summary
Judgment, Dkt. No. 139, is hereby GRANTED in part
and DENIED in part; Plaintiff's claims against Kingston
for excessive force under the Fourth and Fourteenth
Amendments and for supervisory liability are hereby
DISMISSED from this action; Plaintiff's claims against
Kingston for excessive force under the Eighth Amendment
and for retaliation survive Defendant Kingston's Motion; and
it is further
ORDERED, that the Clerk serve a copy of this
Memorandum-Decision and Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 991729
Footnotes
1 The Amended Complaint also contained claims against Bruce Yelich, but all such claims were dismissed
pursuant to the Court's order on the Motion to Dismiss filed by Kearney, Kingston, and Yelich. See Dkt. Nos.
79, 100.
2 Because Plaintiff has set forth his response to Defendants’ statements of material facts in the same document
as his own statement of material facts, the Court will cite to the sections responding to Defendants SMFs
(pages 1–42) by their page number, but will cite to the sections setting forth Plaintiff's own material facts
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(pages 43–54) by their paragraph designation in order to most clearly designate which of Plaintiff's allegedly
material facts are being referenced.
3 Robideau also argues for the first time in his reply papers that “[d]riving the van is an exclusive duty of the
Rounds 1 position, or of the Rounds 2 position if Rounds 1 is unavailable” and “Robideau without dispute
was the only available Rounds person to drive the van at the time of Lewis’ transfer because his partner,
the Rounds 2, was not available.” Robideau Reply Mem. at 3. The Court will disregard these arguments and
alleged facts because, as they were not included in Robideau's initial motion, Plaintiff has not had a chance
to appropriately respond. See In re Various Grand Jury Subpoenas, 235 F. Supp. 3d 472, 485 (S.D.N.Y.
2017) (“The law in the Second Circuit is clear that arguments or requests for relief raised for the first time in
reply briefs need not be considered. Generally, a court does not consider issues raised in a reply brief for
the first time because if a party raises a new argument in a reply brief the opposing party may not have an
adequate opportunity to respond to it.”) (citations omitted).
4 For the first time in his reply, Robideau makes the argument that he has conclusively established he was not
in the SHU strip-frisk room during the assault because Nurse Harmon testified there were only two officers
present in the room, and that Robideau had to find his partner for their assignment at 3:30 P.M. Robideau
Reply Mem. at 4, 7. Because these alleged facts and arguments are presented for the first time in Robideau's
reply memorandum, and Plaintiff has not had an appropriate chance to respond, the Court will disregard
them. See supra note 2.
5 The court notes that factors (ii) and (iii) are generally employed when an inmate claims a prison disciplinary
or administrative action is taken in retaliation, see, e.g., Faulk v. Fisher, 545 F. App'x 56, 59 (2d Cir. 2013);
Morris v. Rabsatt, 2012 WL 976035, at *7 (N.D.N.Y. 2012), and are of dubious relevance when an inmate
claims security officers have physically assaulted him.
6 It is undisputed that Mere was not present in the van during the alleged assault on Plaintiff during his transfer
to the SHU. Pl.’s SMF at 18.
7 Mere also argues he is entitled to qualified immunity as to any claims arising from his issuance of misbehavior
tickets. See Mere Mem. at 20. However, because the Court has already granted summary judgment for these
claims, the Court will not address this argument.
8 Peck argues that Plaintiff has relied “almost exclusively on his Declaration to invent questions of fact” in
response to Peck's motion. Peck Reply Mem. at 5. Peck further argues that the Court should disregard the
assertions Plaintiff makes in his declaration because they contradict Plaintiff's deposition testimony and are
“replete with inconsistencies.” Id. at 2. The Court disagrees on both counts. Plaintiff's material assertions
that he informed Peck he was having trouble breathing and requested his inhaler multiple times find support,
not only in Plaintiff's Declaration, but in both his deposition testimony and the Germano Report. Pl.’s Dep. at
263:16–24; Pl.’s Grievance at 7B. Further, while it is true that a declaration made in response to a motion for
summary judgment may be disregarded to the extent it contradicts past deposition testimony, the two must
be “actually contradictory.” Palazzo v. Corio, 232 F.3d 38. 43 (2d Cir. 2000). The Court does not agree that
Plaintiff's Declaration is inconsistent with his deposition. Peck claims that Plaintiff states Peck was not at his
post in his declaration, but in the deposition, stated that it was Mere who was not at his post. Peck Reply
Mem. at 2. While Plaintiff does state that Mere was not at his post in his deposition, Pl.’s Dep. at 208, he also
states later that Peck was not at his post the next day, id. at 265:6–8. Similarly, Peck argues it is inconsistent
for Plaintiff to claim in his later declaration that he did not receive his inhaler until after Peck did not respond,
when he admitted in his previous deposition that he received an inhaler before Peck even began his shift.
Peck Reply Mem. at 3. However, Plaintiff makes clear that, while he did receive his inhaler the day before
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while Mere was on watch, he was still short of breath the next day, and thus requested the inhaler again from
Peck. Pl.’s Grievance at 7B; Pl.’s Decl. ¶¶ 31, 38.
9 Peck argues that, to meet the subjective prong of the deliberate indifference claim against a non-medical
official, “the plaintiff must establish that the official ‘intentionally delayed access to medical care’ ” after
the plaintiff made the problem known. Peck Mem. at 13. However, an examination of the higher court
decisions from which this doctrine springs indicates that, while they consider showing intentional delay to be
sufficient to establish deliberate indifference, they do not state that such a showing is necessary to establish
deliberate indifference. See Estelle v. Gamble, 429 U.S. 97, 104–105 (1976) (“[D]eliberate indifference to
serious medical needs of prisoners ... [is manifested] by prison guards in intentionally denying or delaying
access to medical care.”); Archer v. Dutcher, 733 F.2d 14, 16 (2d Cir. 1984) (“[I]f defendants did decide
to delay emergency medical aid ... in order to make Archer suffer, surely a claim would be stated under
Estelle.”). However, to the extent such a showing is necessary, the Court finds that a reasonable jury could
find intentional delay here due to Peck's alleged complete inaction in the face of Plaintiff's statements he
was having an asthma attack and could not breathe. See Baumann v. Walsh, 36 F. Supp. 2d 508, 512
(N.D.N.Y. 1999) (finding dispute of material fact regarding whether defendants intentionally delayed care
where evidence showed they ignored plaintiff's complaints and refused medical care).
10 The only event Plaintiff points to in the Cowan Suit that happened near in time to these events is the denial of
pro bono counsel in November 2016, five months after the alleged retaliatory events. Pl.’s Resp. Mem. at 38.
11 While Plaintiff made allegations in his Amended Complaint that “none of the [Defendants] took reasonable
steps to protect [Plaintiff] from the objectively unreasonable and conscience shocking excessive force of the
others, despite being in a position to do so,” Plaintiff seems to have abandoned this argument regarding
Kingston and Kearney and thus the Court will not address it. Kingston and Kearney specifically state in their
motion for summary judgment that they are moving to dismiss all claims against them, Kearney & Kingston
Mem. at 1, but Plaintiff did not argue in his response that they were liable due to a failure to protect. See
generally Pl.’s Resp. Mem.; Pukhovich v. City of N.Y., No. 16-CV-1474, 2018 WL 4688943 at *8 (E.D.N.Y.
Sep. 27, 2018) (finding claims abandoned where complaint contained certain claim and defendants moved
for summary judgment on “all” claims and neither party mentioned the cause of action in briefing); Singleton
v. City of Newburgh, 1 F. Supp. 2d 306, 312 (S.D.N.Y. 1998) (finding claim abandoned on summary judgment
because it was not raised in the record after being asserted in the complaint).
12 Supervisory liability claims will be dismissed against all other Defendants for the same reason and on the
same grounds.
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Mason v. Moore, Not Reported in Fed. Supp. (2020)
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2020 WL 555943
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Christopher MASON, Plaintiff,
v.
M. MOORE, T. Lamica, E. Velie, D. Rondeau,
D. Gagne, and B. Truax, Defendants.
Civ. No. 9:17-CV-1086 (GLS/DJS)
|
Signed 01/13/2020
Attorneys and Law Firms
CHRISTOPHER MASON, Plaintiff Pro Se, 12-A-0162, Cape
Vincent Correctional Facility, Rte. 12E, PO Box 739, Cape
Vincent, New York 13618.
HON. LETITIA JAMES, Attorney General of the State of
New York, OF COUNSEL: ERIK BOULE PINSONNAULT,
ESQ., Assistant Attorney General, Attorney for Defendants,
The Capitol, Albany, New York 12224.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
I. INTRODUCTION
*1 Plaintiff, an inmate in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”), commenced this action pursuant to 42 U.S.C.
§ 1983 alleging the violation of his constitutional rights.
Dkt. No. 1, Compl. The Complaint was initially reviewed by
Senior District Judge Gary L. Sharpe pursuant to 28 U.S.C. §
1915(e) and 28 U.S.C. § 1915A. Dkt. No. 5. Following that
review, the only claims that remain in this action are Eighth
Amendment excessive force and failure to intervene claims.
Id. at p. 11.
Presently before this Court is a partial Motion for Summary
Judgment seeking dismissal of any Eighth Amendment
excessive force claim regarding the use of chemical agents
and the dismissal of the failure to intervene claims against
Defendants Moore and Truax. Dkt. Nos. 45 & 45-1, Defs.’
Mem. of Law. Plaintiff opposes the Motion. Dkt. No. 47.
Defendants have filed a Reply in further support of the
Motion. Dkt. No. 48. For the reasons that follow, the Court
recommends that the Motion be granted in part and denied in
part.
II. BACKGROUND
A. Plaintiff's Failure to File a Response
to Defendants’ Rule 7.1 Statement
Pursuant to this District's Local Rules, “[t]he Court shall
deem admitted any properly supported facts set forth in
the Statement of Material Facts that the opposing party
does not specifically controvert.” N.D.N.Y.L.R. 7.1(a)(3). As
required by the Local Rules, Defendants’ counsel advised
Plaintiff of the consequences of failing to file a response to
Defendants’ Rule 7.1 Statement of Material Facts. Dkt. No.
45 at p. 3. Plaintiff, however, did not file a direct response
to Defendants’ Statement of Material Facts. Although a pro
se litigant is entitled to a liberal construction of his filings,
see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir.
2013), his pro se status does not relieve him of his obligation
to comply with the relevant procedural rules, see Marino v.
Watts, 2018 WL 3121612, at *1 (N.D.N.Y. Mar. 7, 2018),
report and recommendation adopted sub nom. Marino v.
Schult, 2018 WL 1578163 (N.D.N.Y. Mar. 30, 2018). The
Court therefore will deem the facts as set forth in Defendants’
Statement of Material Facts admitted, to the extent they are
properly supported and not inconsistent with other record
evidence offered by Defendants in support of their Motion.
B. Factual Background
This case arises out of a cell extraction that took place at
Upstate Correctional Facility on October 3, 2014. On that
date, Plaintiff's cellmate, an inmate named Hyatt, was to be
removed from his cell, but refused. Dkt. No. 45-4, Truax Decl.
at ¶ 4; Dkt. No. 45-4, Moore Decl. at ¶ 4. Inmate Hyatt was
non-compliant with numerous orders from correctional staff
to exit the cell. Dkt. No. 45-3, Ex. A, Pl.’s Dep. at p. 37.
Correctional staff made multiple attempts to convince Hyatt
to voluntarily leave his cell, including bringing five or six
different staff members in to speak with him. Id. at p. 27.
Ultimately, the use of a chemical agent was authorized by the
Superintendent of Upstate, Moore Decl. at ¶ 5, and extraction
teams were brought in to remove Hyatt and Plaintiff from
the cell. Id. at ¶ 9; Truax Decl. at ¶ 6. Prior to the chemical
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agent being sprayed into the cell, Plaintiff was directed by
Defendant Moore to get in the cell's shower “[t]o prevent
Plaintiff's being affected by the CS aerosol.” Moore Decl. at ¶
11; Pl.’s Dep. at pp. 41 & 107-108. Moore claims that Plaintiff
refused to do so, but Plaintiff alleges that he complied with
this direction. Moore Decl. at ¶ 11; Pl.’s Dep. at pp. 94 & 108.
The chemical agent was sprayed into the cell multiple times
and correctional staff then entered to extract the inmates.
Moore Decl. at ¶ 11. Plaintiff claims that during the extraction
he was repeatedly punched and kicked by corrections officers
and that neither Moore nor Truax intervened to stop the attack.
Pl.’s Dep. at pp. 55-56. Defendants deny that any improper
force was used and instead contend that Plaintiff was fully
compliant once officers entered his cell. Moore Decl. at ¶ 13;
Truax Decl. at ¶ 8. Plaintiff was brought to be decontaminated
following the use of the chemical agent. Moore Decl. at ¶ 14;
Truax Decl. at ¶ 9.
III. LEGAL STANDARD FOR
SUMMARY JUDGMENT
*2 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 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. FED. 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 Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)
and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
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 Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.
1998). “[T]he 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 Residential 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 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); accord, Soto v. Walker, 44 F.3d
169, 173 (2d Cir. 1995). 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).
IV. ANALYSIS
A. Claims Regarding the Use of Chemical Agents
Defendants first seek summary judgment on any Eighth
Amendment claim that may be presented in the case regarding
the use of chemical agents in Plaintiff's cell. Defs.’ Mem. of
Law at pp. 6-9. For the reasons that follow, it is recommended
that this part of Defendants’ Motion be granted.
First, the Court agrees with Defendants that the Complaint
as pled does not present any excessive force claim based
simply on the use of chemical agents. Plaintiff's Complaint
specifically states that “upon entry [ ] is when the ‘Excessive
Force” took place. Compl. at p. 6 (emphasis added). It then
discusses the actions of the Defendants who entered Plaintiff's
cell and allegedly assaulted him. Id. There is no dispute that
Defendant Moore was responsible for spraying the chemical
agent into the cell and that this occurred before officers
entered the cell. Moore Decl. at ¶¶ 12-13. As such, the
Complaint's excessive force allegations do not encompass the
use of the chemical agent itself.
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*3 In the alternative, summary judgment would be
appropriate on the merits of such a claim in any event.
“The Eighth Amendment prohibition on cruel and unusual
punishments precludes the unnecessary and wanton infliction
of pain and protects inmates against the use of excessive
force.” Jones v. Rock, 2013 WL 4804500, at *17 (N.D.N.Y.
Sept. 6, 2013) (internal quotations omitted) (citing Hudson v.
McMillian, 503 U.S. 1, 9-10 (1992); Gregg v. Georgia, 428
U.S. 153, 173 (1976)). Eighth Amendment excessive force
claims have both objective and subjective elements. Blyden
v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999). “The objective
component of a claim of cruel and unusual punishment
focuses on the harm done, in light of ‘contemporary standards
of decency.’ ” Wright v. Goord, 554 F.3d 255, 268 (2d Cir.
2009) (quoting Hudson v. McMillian, 503 U.S. at 8). “The
subjective component of the claim requires a showing that the
defendant had the necessary level of culpability, shown by
actions characterized by wantonness in light of the particular
circumstances surrounding the challenged conduct.” Harris
v. Miller, 818 F.3d 49, 63 (2d Cir. 2016) (quoting Wright v.
Goord, 554 F.3d at 268).
Viewing the evidence in the light most favorable to
Plaintiff, the Court presumes, without deciding, that Plaintiff's
testimony regarding the breathing difficulties and burning
sensations he endured following the use of the chemical agent,
see Pl.’s Dep. at pp. 46-47, are sufficient to establish the
objective prong of the Eighth Amendment claim at this stage
of the proceedings. See, e.g., El-Massri v. New Haven Corr.
Ctr., 2018 WL 4604308, at *10 (D. Conn. Sept. 25, 2018)
(citing cases).
Plaintiff cannot, however, raise factual questions sufficient to
withstand summary judgment with regard to the subjective
component of an Eighth Amendment claim. The record is
clear that Sgt. Moore was the individual who sprayed the
chemical agent into Plaintiff's cell. Moore Decl. at ¶ 12. He
alone, therefore, could be the proper Defendant to such a
claim. As to him the record fails to establish any degree of the
wantonness required to assert an Eighth Amendment claim.
The cell extraction resulted from the refusal of Plaintiff's
cellmate, inmate Hyatt, to leave the cell. Pl.’s Dep. at p. 24.
By Plaintiff's own account, his cellmate, inmate Hyatt, was
“belligerent,” screaming and yelling, and “very hostile” to
security staff attempting to get Hyatt to leave the cell. Id. at pp.
24 & 26. Plaintiff also testified that Hyatt repeatedly refused
to leave the cell and told security personnel to get staff to
remove him. Id. at p. 24. The record further establishes that
security staff made numerous attempts to discuss the matter
with inmate Hyatt before resorting to an extraction, including
having “roughly about five, six people” speak with Hyatt. Id.
at p. 27. Plaintiff also testified that prior to the chemical agents
being sprayed into his cell he was told by Defendant Moore
to go into the cell shower. Pl.’s Dep. at pp. 41 & 107-108;
see also Moore Decl. at ¶ 11. After the incident Plaintiff
was immediately taken to a decontamination shower. Truax
Decl. at ¶ 10. “In evaluating the use of a chemical agent in a
prison setting, courts have refused to find actionable conduct
where, as here, the deployment was used ‘in a good-faith
effort to maintain or restore discipline.’ ” Anderson v. Darby,
2017 WL 933085, at *5 (E.D.N.Y. Feb. 13, 2017), report and
recommendation adopted, 2017 WL 927611 (E.D.N.Y. Mar.
6, 2017) (quoting Little v. Mun. Corp., 51 F. Supp. 3d 473, 501
(S.D.N.Y. 2014)). The fact that inmate Hyatt, not Plaintiff,
was the disruptive inmate does not change the analysis. Cruz-
Droz v. Marquis, 2018 WL 1368907, at *3 (D. Conn. Mar.
16, 2018) (“Courts considering this issue have held that the
exposure of non-disruptive inmates to a chemical agent is not
cognizable under section 1983.”); White v. City of New York,
2017 WL 3575700, at *4 (S.D.N.Y. Aug. 17, 2017).
*4 For these reasons, summary judgment is appropriate as to
any Eighth Amendment claim regarding the use of chemical
agents.
B. Plaintiff's Failure to Intervene Claim
The Complaint alleges that Defendants Moore and Truax
failed to intervene to stop excessive force that was being
used against Plaintiff. Compl. at pp. 7-8. “A corrections
officer who does not participate in, but is present when
an assault on an inmate occurs may still be liable for any
resulting constitutional deprivation.” Henry v. Dinelle, 2011
WL 5975027, at *4 (N.D.N.Y. Nov. 29, 2011). A failure
to intervene claim requires that Plaintiff prove that “(1) the
officer had a realistic opportunity to intervene and prevent
the harm; (2) a reasonable person in the officer's position
would know that the victim's constitutional rights were being
violated; and (3) the officer does not take reasonable steps
to intervene.” Konovalchuk v. Cerminaro, 2014 WL 272428,
at *23 (N.D.N.Y. Jan. 24, 2014) (quoting Jean-Laurent v.
Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y. 2008)).
Defendants seek summary judgment on this claim on the
ground that Plaintiff failed to show that either Defendant
witnessed any improper use of force against Plaintiff or that,
even if they had, that given the short time span of the incident
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in question they had no opportunity to intervene. Defs.’ Mem.
of Law at pp. 10-11. On the record before the Court questions
of fact preclude a grant of summary judgment.
First, there are clear questions of fact about whether any
improper use of force took place at all. 1 Plaintiff alleges
that despite being compliant with staff direction he was
punched between seven and eight times and kicked seven
or eight times by correctional staff. Pl.’s Dep. at pp. 55-56.
Defendant Truax's Declaration states that Plaintiff followed
staff direction and that he was not subjected to excessive
physical force. Truax Decl. at ¶¶ 8 & 13. Defendant Moore
similarly states that when officers entered the cell Plaintiff
was compliant and was not subjected to inappropriate force.
Moore Decl. at ¶¶ 13 & 19. Moore does, however, state that
prior to entering the cell Plaintiff failed to comply with orders
about where to go within his cell. Id. at ¶ 11. The declarations,
therefore, establish that the Defendants were aware of what
was happening inside Plaintiff's cell. As a result, viewed in
the light most favorable to Plaintiff, Defendants presumably
could have seen if improper force was used.
This case is thus unlike Clark v. Gardner, 256 F. Supp.3d
154 (N.D.N.Y. 2017) upon which Defendants rely. In Clark,
the plaintiff was allegedly assaulted by an unknown group
of individuals and the supervisory staff member of the unit
where the assault allegedly took place was sued for failure
to protect. 256 F.Supp.3d at 167. There, the mere allegation
that that the defendant was the supervising officer was not
sufficient to establish liability for failure to protect. Id. at 168.
Here, however, Defendants are on record as having been able
to witness the event in question. See generally Moore Decl.;
Truax Decl. Given the question of fact about whether Plaintiff
was punched or kicked while allegedly compliant with staff
direction, see Pl.’s Dep. at pp. 55-56, summary judgment is
inappropriate on Plaintiff's claim.
*5 The Court also recommends rejecting Defendants’
argument that because the incident in question lasted only
approximately fifteen to twenty seconds, Pl.’s Dep. at p.
81, summary judgment is appropriate on the ground that
Defendants would have had not an opportunity to intervene.
See Defs.’ Mem. of Law at p. 11. The Second Circuit has
rejected the notion that there is any “bright-line” for the
amount of time under which a failure to intervene claim is
not actionable. Figueroa v. Mazza, 825 F.3d 89, 107 (2d Cir.
2016). Instead it has emphasized that:
Failure-to-intervene claims can arise
out of a limitless variety of factual
circumstances. In each case, the
question whether a defendant had
a realistic chance to intercede will
turn on such factors as the number
of officers present, their relative
placement, the environment in which
they acted, the nature of the assault,
and a dozen other considerations.
Among these considerations, of
course, the assault's duration will
always be relevant and will frequently
assume great importance.
Id. Here, again viewing the evidence in the light most
favorable to Plaintiff, the allegation is that Plaintiff, while
in the view of Defendants Moore and Truax, was compliant
with staff directions, but was nonetheless punched and kicked
multiple times. Pl.’s Dep. at pp. 55-56; Moore Decl. at ¶ 13.
This, if true, may provide a basis for failure to protect liability.
Under the circumstances, this question is best left to a jury
to resolve the factual dispute. Figueroa v. Mazza, 825 F.3d at
108; see also Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.
1994) (discussing factual nature of inquiry into whether there
was sufficient time to intercede to prevent harm).
V. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, that Defendants’ Motion for Summary
Judgment (Dkt. No. 45) be GRANTED as to claims
regarding the use of chemical agents and DENIED as to
Plaintiff's failure to intervene claim; 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) 2 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
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Mason v. Moore, Not Reported in Fed. Supp. (2020)
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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); FED. R. CIV. P. 72 & 6(a).
All Citations
Not Reported in Fed. Supp., 2020 WL 555943
Footnotes
1 The existence of such factual questions is perhaps best shown by the fact that the Defendants accused of
improperly using force have not sought summary judgment as to that claim.
2 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. 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).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Mason v. Moore, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 554816
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Christopher MASON, Plaintiff,
v.
M. MOORE et al., Defendants.
9:17-cv-1086 (GLS/DJS)
|
Signed 02/04/2020
Attorneys and Law Firms
FOR PLAINTIFF: Christopher Mason, Pro Se, 12-A-0162,
Cape Vincent Correctional Facility, Rte. 12E, PO Box 739,
Cape Vincent, NY 13618.
FOR DEFENDANTS: HON. LETITIA JAMES, New York
State Attorney General, OF COUNSEL: ERIK BOULE
PINSONNAULT, Assistant Attorney General, The Capitol,
Albany, NY 12224.
ORDER
Gary L. Sharpe, Senior District Judge
*1 The above-captioned matter comes to this court
following a Report-Recommendation and Order (R&R) by
Magistrate Judge Daniel J. Stewart duly filed on January 13,
2020. (Dkt. No. 51.) Following fourteen days from the service
thereof, the Clerk has sent the file, including any and all
objections filed by the parties herein.
No objections having been filed, 1 and the court having
reviewed the R&R for clear error, it is hereby
ORDERED that the Report-Recommendation and Order
(Dkt. No. 51) is ADOPTED in its entirety; and it is further
ORDERED that defendants’ motion for partial summary
judgment 2 (Dkt. No. 45) is GRANTED IN PART and
DENIED IN PART as follows:
GRANTED as to plaintiff pro se Christopher Mason's
Eight Amendment excessive force claim regarding the use
of chemical agents, which claims is DISMISSED; and
DENIED as to Mason's Eight Amendment failure to
intervene claim against defendants M. Moore and B. Truax;
and it is further
ORDERED that this case is now deemed trial ready and a
trial date and deadlines will be set in due course; and it is
further
ORDERED that Mason's letter motion (Dkt. No. 52) is
REFERRED to Magistrate Judge Daniel J. Stewart for his
review and consideration; and it is further
ORDERED that the Clerk provide a copy of this Order to the
parties in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 554816
Footnotes
1 On January 28, 2020, plaintiff pro se Christopher Mason filed a letter indicating that he does not have any
objections to the R&R. (Dkt. No. 52.) Instead, he requests a telephone conference to settle this case. (Id.)
The court refers this request to Judge Stewart for his review and consideration.
2 Defendants did not move for summary judgement as to Mason's Eight Amendment excessive force claim
other than to the extent that it pertained to the use of chemical agents, and, accordingly, the claim survives
to the extent that it pertains to the use of physical force during the cell extraction on October 3, 2014. (Dkt.
No. 45, Attach. 1 at 1.)
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Mason v. Moore, Not Reported in Fed. Supp. (2020)
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End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Murphy v. Onondaga County, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 1614327
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kevin MURPHY, Plaintiff,
v.
ONONDAGA COUNTY, the Onondaga County
Sheriff's Department, Carl Hummel, William Fitzpatrick,
Melanie S. Carden, and Lindsey M. Luczka, Defendants.
5:18-CV-1218
|
Signed April 2, 2024
Attorneys and Law Firms
OFFICE OF JEFFREY R. PARRY, JEFFREY R. PARRY,
ESQ., Attorneys for Plaintiff, 7030 East Genesee Street,
Fayetteville, NY 13066.
OFFICE OF JARROD W. SMITH, JARROD W. SMITH,
ESQ., Attorneys for Plaintiff, 11 South Main Street, P.O. Box
173, Jordan, NY 13080.
JOHN E. HEISLER, JR., ESQ., ONONDAGA COUNTY
DEPARTMENT OF LAW, Attorneys for Defendants, 421
Montgomery Street, 10th Floor, Syracuse, NY 13202.
DECISION and ORDER
DAVID N. HURD, United States District Judge
I. INTRODUCTION
*1 On October 11, 2018, plaintiff Kevin Murphy (“Murphy”
or “plaintiff”), a retired sergeant with the Onondaga County
Sheriff's Department, filed this 42 U.S.C. § 1983 action. Dkt.
No. 1. Although plaintiff repeatedly sought to amend his
pleading at various points in this litigation, Dkt. Nos. 50, 53,
56, 58, the common thread running through every iteration he
has presented to this Court has been roughly the same: that
high-ranking individuals in the Sheriff's Department and in
other County leadership positions committed a laundry list of
civil rights violations against him. Dkt. No. 60.
On March 18, 2022, Senior U.S. District Judge Gary L.
Sharpe, to whom this case was initially assigned, issued
a thorough, 62-page Decision & Order that substantially
narrowed the claims and issues. Dkt. No. 174. As relevant
here, Judge Sharpe's Order left only a few of the civil rights
claims remaining against a few of the originally named
defendants:
(1) § 1983 First Amendment retaliation claim(s) against the
County, the Sheriff's Department, Sheriff Conway, Captain
Dickinson, Lt. Blumer, Lt. Anderson, Sgt. Peluso, Ass't
Chief Gratien, Commissioner Hummel, DA Fitzpatrick,
ADA Carden, and ADA Luczka (Counts Three and Four);
(2) state-law claims for defamation, defamation per se,
libel, and slander, and conspiracy to commit those state-
law torts, against the County, the Sheriff's Department,
Commissioner Hummel, DA Fitzpatrick, ADA Carden,
and ADA Luczka (Counts Eight and Nine);
(3) a state-law claim for intentional infliction of emotional
distress against the County, the Sheriff's Department, and
Commissioner Hummel (Count Ten); and
(4) a state-law claim for negligent infliction of emotional
distress against the County, the Sheriff's Department,
Commissioner Hummel, DA Fitzpatrick, ADA Carden,
and ADA Luczka (Count Eleven).
Id.
Thus, in the wake of Judge Sharpe's March 18, 2022 Order,
the remaining defendants could be broken down into two
distinct camps: (a) Sheriff Conway, Captain Dickinson, Lt.
Blumer, Lt. Anderson, Sgt. Peluso, and Ass't Chief Gratien
(the “Sheriff's defendants”); and (b) the County, the Sheriff's
Department, Commissioner Hummel, DA Fitzpatrick, ADA
Carden, and ADA Luczka (the “County defendants”).
On May 5, 2023, the first camp, i.e., the Sheriff's defendants,
moved under Federal Rule of Civil Procedure (“Rule”) 56
for summary judgment on the claims remaining against them;
i.e., the § 1983 First Amendment retaliation claims in Counts
Three and Four. Dkt. No. 202. The second camp; i.e., the
County defendants, filed a notice of non-opposition, Dkt.
No. 203, and did not participate in the briefing. Thereafter,
the Sheriff's defendants’ motion for summary judgment
was briefed, Dkt. Nos. 206, 208–209, 211, and eventually
reassigned to this Court on February 16, 2024, Dkt. No. 212.
On February 28, 2024, the Sheriff's defendants’ motion was
granted. Dkt. No. 213. There, the Court deemed defendants’
statement of material facts admitted because plaintiff had
failed to properly oppose it in accordance with the Local
Rules. Id. at 12–17. Those undisputed facts, even when
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analyzed in light of the other materials that had been
offered by plaintiff, established that none of the Sheriff's
defendants were “personally involved” in conduct that would
be actionable under § 1983 as retaliation. Id. at 17–22.
*2 Further, to the extent that one or more of the Sheriff's
defendants might have been “personally involved” in certain
events identified by plaintiff, the undisputed facts established
as a matter of law that he was not speaking in his capacity
as a “private citizen” at the relevant time. Dkt. No. 213 at
22–26. Finally, even if plaintiff might have been speaking as
a “private citizen” at the relevant time, the undisputed facts
still established that he could not establish the other elements
of his § 1983 claims. Id. at 27–30. Accordingly, the Sheriff's
defendants were dismissed from this action. Id. at 31.
But that did not end this case. The second camp of defendants;
i.e., the County, the Sheriff's Department, Commissioner
Hummel, DA Fitzpatrick, ADA Carden, and ADA Luczka,
remained. These defendants have basically been bystanders to
this litigation: they did not move to dismiss, see Dkt. No. 174,
or engage in the summary judgment briefing, Dkt. No. 203.
As a result, plaintiff's § 1983 retaliation claim (and some state-
law claims for defamation and emotional distress) remained
pending against some or all of them.
On February 28, 2024, right after granting summary judgment
to the Sheriff's defendants, this Court directed plaintiff
to explain why the § 1983 retaliation claims should not
be dismissed against the County, the Sheriff's Department,
Commissioner Hummel, DA Fitzpatrick, ADA Carden, and
ADA Luczka, too. Dkt. No. 214. As the Court explained:
Upon review, plaintiff's § 1983 retaliation claims appear
to be subject to dismissal against these defendants for
substantially the reasons articulated in the February 28,
2024 Decision & Order. Plaintiff's filings indicate that
DA Fitzpatrick, at Sheriff Conway's request, conducted an
investigation into him. Dkt. No. 209-2. Plaintiff's amended
complaint alleges this investigation was “unwarranted,”
Dkt. No. 60 ¶ 234, and that there was no probable cause
to charge him, id. ¶ 236. But plaintiff's own filings tend
to establish that he was not charged. Dkt. No. 209-2. In
addition, plaintiff has not identified how this allegedly
adverse action was causally related to any protected speech.
Plaintiff has even less to say about the other defendants.
The amended complaint alleges that defendant Hummel
was notified of certain events, including plaintiff's dispute
with Sgt. Peluso, which Hummel allegedly failed to
investigate. Dkt. No. 60 ¶¶129, 138, 222. The pleading
mentions that defendant Carden called plaintiff's wife to
discuss an investigation and a “possible arrest,” id. ¶ 243,
and alleges that defendant Luczka sent him a grand jury
target letter, id. ¶ 235.
But these allegations, even if true, would not establish a
§ 1983 retaliation claim. Plaintiff's deposition testimony
barely mentions these defendants at all. And in the absence
of an underlying constitutional violation by any of the
Sheriff's Office defendants (who have all been dismissed),
a § 1983 municipal-liability claim against the County and/
or the Sheriff's Department is clearly subject to dismissal.
In short, it is hard to see how any of these defendants could
have been “personally involved” in any conduct actionable
under § 1983, let alone how any § 1983 claim against them
would survive a straightforward application of qualified
immunity.
Dkt. No. 214. Accordingly, plaintiff was given twenty-one
days in which to Show Cause, in writing, why the § 1983
retaliation claims should not be dismissed against the County
defendants. Id.
Thereafter, plaintiff requested a two-week extension of time
to respond and permission to file a twenty-page memo of law
in support of his remaining § 1983 claim against the County
defendants. Dkt. No. 215. That request was denied. Dkt. No.
216.
*3 Plaintiff soon filed a second letter motion, this time
seeking only a one-week extension of time. Dkt. No. 217. In
this second letter, plaintiff insisted that “[j]ustice in this matter
cannot be had without a few more days” and “promise[d] [ ]
a very cogent and compelling analysis of the constitutional
infractions involved as well as a clear explanation as to
why qualified immunity does not apply.” Dkt. No. 217.
Accordingly, this second letter motion was granted. Dkt. No.
218.
On March 27, 2024, plaintiff filed an 816-page response to
the Show-Cause Order. Dkt. No. 219. Upon review, the Court
will decide the matter on the basis of the submissions without
a response from the County defendants.
II. BACKGROUND
For reasons discussed in more detail infra, this background is
taken solely from plaintiff's statement of material facts, Dkt.
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No. 219-2, to the extent that each fact is supported by record
evidence cited in that document.
In October of 1990, the Sheriff's Department hired plaintiff
as a deputy road patrol officer. Pl.’s Facts ¶¶ 1–2. Plaintiff
was promoted to the rank of road patrol sergeant in February
of 2000. Id. ¶ 2. In that role, plaintiff's job duties were to
review the work of his deputies, to ensure that the Sheriff's
Department's policies and procedures were being followed,
and to make sure that criminal investigations were followed
up on. Id. ¶¶ 3–4. During his time as a sergeant, plaintiff
became aware of several “improprieties” in the Sheriff's
Department. Id. ¶ 5. He reported them to his supervisors. Id.
¶ 6. According to plaintiff:
1. He became “concerned” that a medical director at the
jail had withheld certain medical records. Pl.’s Facts ¶ 7.
He reported it to his supervisor. Id. He also reported it to
the County Attorney's Office and the District Attorney's
Office. Id. According to plaintiff, “[d]efendants” retaliated
against him by removing him from the investigation
and “bringing charges,” but he was later cleared of any
wrongdoing. Id. ¶ 9.
2. He learned that a citizen complaint involving the
“illegal” use of a taser had been mishandled by an
investigating sergeant. Pl.’s Facts ¶ 10. He learned about
the issue, followed up on the matter, completed the
investigation, and made an arrest. Id.
3. He reported to the Sheriff about the improper use of
holding cells at the jail. Pl.’s Facts ¶¶ 11–12. According to
plaintiff, the use of these cells violated law and policy. Id.
4. He learned about an unconstitutional blood draw,
which he also reported to his supervisors. Pl.’s Facts ¶
13. According to plaintiff, this could have been avoided
by following certain recommendations. Id. ¶ 14. But
“defendants” blamed him for it. Id. ¶ 15.
Plaintiff says he was denied a promotion for making these
reports. Pl.’s Facts ¶ 16. Plaintiff also says he was ordered
not to do certain police work by Captain Dickinson, who has
already been dismissed. Id. ¶¶ 17–18.
On November 16, 2018, New York Fifth Judicial District
Administrative Judge James Tormey composed a letter to DA
Fitzpatrick accusing plaintiff of possible misconduct. Pl.’s
Facts ¶¶ 20–22. Judge Tormey's letter, which also referenced
this federal lawsuit, “ask[ed] for a[n] investigation as to
whether any ‘criminal improprieties’ occurred.” Id. ¶¶ 23,
28. According to plaintiff, DA Fitzpatrick met with Sheriff
Conway a few days later. Id. ¶ 29.
Thereafter, DA Fitzpatrick, with the assistance of ADA
Luczka and ADA Carden, authored a letter stating that
plaintiff abused his power and should not have been involved
in a certain incident (that plaintiff does not describe in any
detail in his current statement of material facts) because “his
wife was involved.” Pl.’s Facts ¶¶ 30–34, 41, 42, 45.
*4 DA Fitzpatrick's letter “threaten[ed]” to place plaintiff
on the so-called “Giglio list.” Pl.’s Facts ¶ 36. But DA
Fitzpatrick ultimately “decline[d] to prosecute” plaintiff. Id.
¶ 37. Instead, DA Fitzpatrick “recommend[ed]” that plaintiff
“not be assigned to handle any significant case.” Id. ¶ 38.
According to plaintiff, ADA Luczka and her supervisor, ADA
Carden, knew there was no probable cause to charge plaintiff
with any crime. Pl.’s Facts ¶¶ 43, 46. But they tried to “blame”
plaintiff anyway. Pl.’s Facts ¶ 47. Plaintiff retired from the
Sheriff's Department in January of 2020. Id. ¶ 19.
III. LEGAL STANDARD
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). An issue of fact is material for purposes
of this inquiry if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). And a dispute of material fact is genuine
“if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id.
In assessing whether there are any genuine disputes of
material fact, “a court must resolve any ambiguities and draw
all inferences from the facts in a light most favorable to the
nonmoving party.” Ward v. Stewart, 286 F. Supp. 3d 321, 327
(N.D.N.Y. 2017) (citation omitted). Summary judgment is
inappropriate where a “review of the record reveals sufficient
evidence for a rational trier of fact to find in the [non-
movant's] favor.” Treglia v. Town of Manlius, 313 F.3d 713,
719 (2d Cir. 2002) (citation omitted).
IV. DISCUSSION
As an initial matter, plaintiff's filings raise two housekeeping
matters that impact the legal analysis. The Court's Show-
Cause Order included some explicit instructions:
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3. Plaintiff's evidentiary submission must conform to Local
Rule 56.1, which governs a party's statement of material
facts; i.e., each fact on which plaintiff relies to establish
his claim against one or more of these defendants must be
supported by a specific citation to the record that would be
sufficient to establish the cited fact at a trial;
4. Plaintiff may also submit a memorandum of law, not
to exceed ten pages in length, in response to this Order to
Show Cause[.]
Dkt. No. 215 at 5–6.
First, plaintiff did not submit any memorandum of law in
accordance with paragraph number four. Instead, he has
just filed a letter explaining that he “elected not to” file a
supporting memo of law, but that it has “occur[red] to [him]
that the Court may wish” to hear some legal analysis “having
now seen the evidence.” Dkt. No. 220. That invitation will
be declined. Plaintiff had an opportunity to file a supporting
memo of law, was given an extension of time, and still elected
not to do so. There is no reason to second-guess this decision
by plaintiff's counsel.
Second, plaintiff's statement of material facts does not
precisely conform with Local Rule 56.1 in accordance with
paragraph number three. Although plaintiff's submission
matches the form of Local Rule 56.1, it does not appear to
offer a complete version of the events relevant to his § 1983
claim; i.e., it does not set forth “each fact on which plaintiff
relies to establish his claim against one or more of these
defendants.”
This makes the analysis more difficult. On summary
judgment, “the judge must ask himself not whether he thinks
the evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented.” Anderson, 477 U.S. at
252.
*5 But in order to answer that bottom-line question, the
Court needs to know what plaintiff's version of the proof
at trial would be. To that end, Local Rule 56.1 instructs a
party to put their version of events into a single document:
“a statement of material facts.” That document, in turn,
must be supported by evidence that substantiates each fact
being offered. Importantly, though, the statement of material
facts should really be self-contained: it is supposed to
“streamline the consideration of summary judgment motions
by freeing district courts from the need to hunt through
voluminous records without guidance from the parties.” Holtz
v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001),
abrogated in part on other grounds by Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167 (2009).
Plaintiff's statement of material facts presents only a
haphazard recitation of salient events. Dkt. No. 219-2. The
first half of the document refers to events that presumably
involved his former employer, former supervisors, and/or
former colleagues. Pl.’s Facts ¶¶ 1–19. But the § 1983
retaliation claims against those defendants have already been
dismissed. Dkt. No. 213.
The second half of plaintiff's statement of material facts does
a little better job in the sense that it actually mentions three
of the remaining defendants; i.e., DA Fitzpatrick and ADAs
Luczka and Carden, but it appears to be telling only half of a
story: it jumps around from topic to topic without establishing
a coherent thread between any specific instances of plaintiff's
protected activity and any specific misconduct that could
be attributed to one or more of the remaining individual
defendants. Pl.’s Facts ¶¶ 20–53.
Presumably, that narrative thread could have been developed
in a memo of law. But plaintiff chose not to file one.
Alternatively, the Court could steel its nerve and wade into
the “voluminous records” that plaintiff submitted in support
of his statement of material facts. Dkt. Nos. 219 (exhibits 1
through 49). 1 But that would defeat the explicit instructions
given in the Show-Cause Order, which told plaintiff to put his
own version of the relevant events into a statement of material
facts that conformed with Local Rule 56.1.
After all, the Show-Cause Order emphasized that plaintiff
seemed to treat the County defendants as an afterthought:
there was little indication that DA Fitzpatrick or the two
ADAs were “personally involved” in conduct actionable
under § 1983. This Show-Cause Order did not impose any
page limit on the statement of material facts. The idea was
simple: give plaintiff a full and fair opportunity to tell his own,
complete version of relevant events to see if it would sustain
his burden at trial against one or more of these defendants.
Plaintiff did not do that. Instead, plaintiff has told a partial
version of the story in his statement of material facts, Dkt.
No. 219-2, and invited the Court to delve into the other 810
pages of material to try to make heads or tails of the rest of
the narrative. That invitation must also be declined. Instead,
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the Court will confine the legal analysis to the documents
requested in the Show-Cause Order: plaintiff's statement of
material facts, Dkt. No. 219-2, and a memorandum of law,
which plaintiff elected not to file, see Dkt. No. 220.
A. First Amendment Retaliation
*6 “To succeed on a First Amendment claim brought
pursuant to Section 1983, a plaintiff must be able to
demonstrate that (1) the conduct at issue was constitutionally
protected, (2) the alleged retaliatory action adversely affected
his constitutionally protected conduct, and (3) a causal
relationship existed between the constitutionally protected
conduct and the retaliatory action.” Wrobel v. County of Erie,
692 F.3d 22, 27 (2d Cir. 2012) (citing Camacho v. Brandon,
317 F.3d 153, 160 (2d Cir. 2003)).
As an initial matter, though, plaintiff has not identified
evidence from which a rational trier of fact could conclude
that one or more of the remaining defendants were
“personally involved” in conduct actionable under § 1983:
Commissioner Hummel. Plaintiff's statement of material facts
does not make a single reference to Commissioner Hummel.
DA Fitzpatrick. Plaintiff's statement of material facts
establishes that Judge Tormey, a non-party, sent a letter to DA
Fitzpatrick that requested an “investigation” into plaintiff's
possible misconduct. Plaintiff's statement of material facts
establishes that DA Fitzpatrick later released a written
determination in which he stated that plaintiff had abused his
power and recommended that plaintiff not be assigned to “any
significant case.” But nowhere does this statement of material
facts establish that DA Fitzpatrick exercised any control
over the terms and conditions of plaintiff's employment or
subjected him to any specific adverse action beyond the letter
itself.
ADAs Luczka and Carden. Plaintiff's statement of material
facts establish that ADAs Luczka and Carden assisted DA
Fitzpatrick in this work. Again, however, nowhere does this
statement of material facts establish that either of these two
ADAs exercised any control over the terms and conditions
of plaintiff's employment or subjected him to any specific
adverse action.
1. Plaintiff's Speech of Expressive Conduct
Even assuming that DA Fitzpatrick and/or ADAs Luczka or
Carden were “personally involved,” plaintiff's § 1983 claims
against them would still fail because the only speech or
expressive conduct identified by plaintiff in his statement of
material facts occurred in his capacity as a public employee.
First in Pickering v. Board of Education, 391 U.S. 563
(1968), and again in Connick v. Myers, 461 U.S. 138 (1983),
the Supreme Court sought to strike “a balance between the
interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services
it performs through its employees.” Connick, 461 U.S. at 140
(quoting Pickering, 391 U.S. at 568).
On one hand, “[a] government employee does not relinquish
all First Amendment rights otherwise enjoyed by citizens just
by reason of his or her employment.” City of San Diego v. Roe,
543 U.S. 77, 80 (2004). “On the other hand, a governmental
employer may impose certain restraints on the speech of its
employees, restraints that would be unconstitutional if applied
to the general public.” Id.
More recently, though, in Garcetti v. Ceballos, 547 U.S.
410 (2006), the Supreme Court “narrowed [its] jurisprudence
in the area of employee speech by further restricting the
speech activity that is protected.” Weintraub v. Bd. of Educ.
of City Sch. Dist. of City of N.Y., 593 F.3d 196, 201 (2d Cir.
2010) (cleaned up). In particular, Garcetti held that “when
public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.” 746 F.3d at
421.
*7 Under Garcetti, public employees speak as public
employees, and not as private citizens, when they “make
statements pursuant to their official duties.” 547 U.S. at
421. “Restricting speech that owes its existence to a public
employee's professional responsibilities does not infringe
any liberties the employee might have enjoyed as a private
citizen.” Id. at 421–22. Instead, “[i]t simply reflects the
exercise of employer control over what the employer itself
has commissioned or created.” Id. at 422.
In Weintraub, the Second Circuit explained that “[t]he
objective inquiry into whether a public employee spoke
‘pursuant to’ his or her official duties is ‘a practical one.’ ”
593 F.3d at 202 (quoting Garcetti, 547 U.S. at 424); see also
Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012) (“The inquiry
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into whether a public employee is speaking pursuant to her
official duties is not susceptible to a brightline rule.”).
To conduct this practical inquiry, “[c]ourts must examine the
nature of the plaintiff's job responsibilities, the nature of the
speech, and the relationship between the two.” Ross, 693
F.3d at 306. “Other contextual factors, such as whether the
complaint was also conveyed to the public, may properly
influence a court's decision.” Id. For example, speech
may be considered “pursuant to” an employee's official
responsibilities if it is “part-and-parcel of [the employee's]
concerns about his ability to properly execute his duties.”
Weintraub, 593 F.3d at 203 (cleaned up). The same is true
if the speech in question lacks a “citizen analogue”; i.e.,
a “relevant analogue to speech by citizens who are not
government employees.” Id. at 203.
“Formal job descriptions often bear little resemblance to
the duties an employee actually is expected to perform, and
the listing of a given task in an employee's written job
description is neither necessary nor sufficient to demonstrate
that conducting the task is within the scope of the employee's
professional duties for First Amendment purposes.” Garcetti,
547 U.S. at 424–25 (rejecting “the suggestion that employers
can restrict employees’ rights by creating excessively broad
job descriptions”).
Likewise, “the mere fact that a citizen's speech concerns
information acquired by virtue of his public employment does
not transform that speech into employee—rather than citizen
—speech.” Lane v. Franks, 573 U.S. 228, 240 (2014). Instead,
“[t]he critical question under Garcetti is whether the speech
at issue is itself ordinarily within the scope of an employee's
duties, not whether it merely concerns those duties.” Id.
Upon review, the application of Garcetti to the factual
narrative set out in plaintiff's statement of material facts
compels the conclusion that the speech or expressive conduct
actually identified by plaintiff was unprotected as a matter of
law. Even viewed in the light most favorable to him, plaintiff's
complaints, reports, and notifications, which were made
to his supervisors about improprieties within the Sheriff's
Department that he learned about in his capacity as an
employee, were made pursuant to his job obligations and
responsibilities as a sergeant. Pl.’s Facts ¶¶ 3–18. Thus,
because all of this activity occurred during his employment
and was required by his role as a sergeant, this speech
occurred “pursuant to” his official duties as a matter of law.
Accordingly, plaintiff's § 1983 claim is subject to dismissal
on this basis.
2. Adverse Action
Even assuming that plaintiff's speech were protected under
this general body of law, plaintiff's § 1983 claims would still
fail because the facts set forth in his statement of material facts
fail to establish that any of the named defendants took any
qualifying “adverse action” against him.
*8 “[T]he proper legal test in determining whether an
employment action is adverse in First Amendment retaliation
cases is whether the alleged acts ‘would deter a similarly
situated individual of ordinary firmness from exercising his
or her constitutional rights.’ ” Dillon v. Morano, 497 F.3d 247,
254 (2d Cir. 2007) (quoting Zelnik v. Fashion Inst. of Tech.,
464 F.3d 217, 225 (2d Cir. 2006)). “In the First Amendment
retaliation context, ‘[a]dverse employment actions include
discharge, demotion, refusal to hire, refusal to promote,
and reprimand.’ ” Fotopoulous v. Bd. of Fire Comm'rs of
Hicksville Fire Dist., 11 F. Supp. 3d 348, 364–65 (E.D.N.Y.
2014) (quoting Kaluczky v. City of White Plains, 57 F.3d 202,
208 (2d Cir. 1995)).
Importantly, though, “a combination of seemingly minor
incidents [may also] form the basis of a constitutional
retaliation claim once they reach a critical mass.” Phillips v.
Bowen, 278 F.3d 103, 109 (2d Cir. 2002) (citation omitted).
As the Second Circuit has explained:
[T]o prove a First Amendment
retaliation claim in a situation
other than the classic examples of
termination, refusal to hire or promote,
demotion, reduction in pay, and
reprimand, a plaintiff must show
that (1) using an objective standard;
(2) the total circumstances of her
working environment changed to
become unreasonably inferior and
adverse when compared to a typical or
normal, not ideal or model, workplace.
Amato, 936 F. Supp. 2d at 433 (citation omitted).
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Plaintiff has not established a triable issue of fact on the
“adverse action” element of a § 1983 retaliation claim.
Plaintiff's statement of material facts establishes that DA
Fitzpatrick received a letter from Judge Tormey that requested
plaintiff be investigated. Pl.’s Facts ¶¶ 20–31. Although
plaintiff's statement of material facts does not bother to
explain the incident that led to Judge Tormey's letter (though
the Court is aware that it formed the basis of other disputes
earlier in this case), plaintiff complains that DA Fitzpatrick
issued a written determination in response to Judge Tormey's
letter that wrongfully accused plaintiff of “an outrageous
abuse of power,” “threaten[ed]” to place him on the Giglio
list, “recommend[ed]” that he not be assigned to any
significant case, but ultimately declined to prosecute him. Id.
¶¶ 32–51.
Even viewed in the light most favorable to him, plaintiff
cannot show that he suffered an “adverse action” as a result of
these events. Plaintiff's statement of material facts establishes
that DA Fitzpatrick's investigation led to a non-prosecution
decision. Pl.’s Facts ¶ 37. Absent some articulable basis
on which to conclude otherwise, there is no indication that
the fact of this investigation (conduct by an entity other
than plaintiff's employer), or the resulting non-prosecution
decision, might qualify as an “adverse” action.
Beyond the fact of this investigation and the issuance of the
letter itself, the “adverse actions” identified by plaintiff might
be (a) the letter's threat that plaintiff could be placed on the
Giglio list, id. ¶ 36; and (b) the letter's recommendation that
plaintiff should no longer be assigned to any significant cases,
id. ¶ 38.
But as noted elsewhere, DA Fitzpatrick was not plaintiff's
employer and there is no meaningful indication that
plaintiff suffered direct consequences (employment-related
or otherwise) as a result of the letter. Notably, while the
statement of material facts says that plaintiff was ordered not
to perform certain of his job duties, Pl.’s Facts ¶ 51, plaintiff's
own version of events says that this no-work order occurred
after the ill-defined “incident” (rather than after the issuance
of DA Fitzpatrick's letter).
*9 Perhaps plaintiff's best argument is that Judge Tormey
issued his letter as retaliation for plaintiff's decision to file
this lawsuit. But Judge Tormey is not (and never was) a party
to this action. And there is no indication in the statement of
material facts that DA Fitzpatrick initiated this investigation
for any reason other than Judge Tormey's letter requesting that
he do so.
3. Adverse Action
Further, even if one or more of these defendants’ actions could
be considered “adverse,” there is no indication of any causal
relationship between any of this conduct and any of plaintiff's
identified speech or expressive activity.
To demonstrate causation, “a plaintiff must show that the
protected speech was a substantial motivating factor in the
adverse employment action.” Smith v. Cnty. of Suffolk, 776
F.3d 114, 118 (2d Cir. 2015) (quoting Cioffi v. Averill Park
Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 167 (2d Cir.
2006)). “A plaintiff may establish causation either directly
through a showing of retaliatory animus, or indirectly through
a showing that the protected activity was followed closely by
adverse action.” Id. (citing Cobb v. Pozzi, 363 F.3d 89, 108
(2d Cir. 2004)).
Even assuming that one or more of these above-referenced
actions were sufficiently “adverse” under more generous First
Amendment standard, there is still no evidence of causation
between these events and the “improprieties” about which
plaintiff complained to his supervisors.
The alleged protected activity identified by plaintiff in his
statement of material facts occurred in November of 2008,
Pl.’s Facts ¶ 6, May of 2015, id. ¶ 10, and in April of 2016,
id. ¶¶ 11, 13. But the letter from Judge Tormey was not issued
until November 16, 2018, id. ¶ 21, which means any conduct
by DA Fitzpatrick or the two ADAs occurred at some point
after that. A span of over two years between these events is
far too attenuated to create a jury question on causation.
4. The County & Sheriff's Department
In sum, plaintiff's § 1983 First Amendment retaliation
claims fail against Commissioner Hummel, DA Fitzpatrick,
ADA Luczka, and ADA Carden. In the absence of an
underlying constitutional violation against one or more of
these defendants, these § 1983 claims must be dismissed
against the County and the Sheriff's Department too. 2 See,
e.g., Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006).
B. State-Law Claims
Plaintiff's remaining claims arise under state law. Because
the parties are not diverse and jurisdiction is based on the
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presence of a federal question, the Court has “supplemental
jurisdiction” over these state-law claims. 28 U.S.C. § 1367(a).
But supplemental jurisdiction is discretionary. Where, as here,
a plaintiff's federal claims have been dismissed before trial,
the district court should decline to exercise this supplemental
jurisdiction absent exceptional circumstances. Because there
are no exceptional circumstances presented in this case, these
state-law claims will be dismissed without prejudice.
V. CONCLUSION
Plaintiff's § 1983 First Amendment retaliation claims against
the DA, two of his assistant prosecutors, and Commissioner
Hummel seemed unlikely to be viable. Out of an abundance
of caution, the Court issued the Show-Cause Order to give
plaintiff an opportunity to establish that a jury trial on
this claim was warranted against one or more of these
defendants. In seeking a second request for an extension of
time, plaintiff “promise[d] [the Court] a very cogent and
compelling analysis of the constitutional infractions involved
as well as a clear explanation as to why qualified immunity
does not apply.”
*10 But plaintiff did not deliver. Instead, he declined to file
a supporting memo of law with any legal analysis, compelling
or otherwise. So the Court has reviewed the statement of
material facts to see whether, assumed true and viewed in
the light most favorable to plaintiff, his evidentiary showing
might warrant a jury trial on the § 1983 claims. It does not.
Therefore, it is
ORDERED that
1. Plaintiff's (a) § 1983 First Amendment retaliation claims
against the County, the Sheriff's Department, Commissioner
Hummel, DA Fitzpatrick, ADA Carden, and ADA Luczka
(Counts Three and Four) are DISMISSED with prejudice;
2. Plaintiff's (b) state-law claims for defamation, defamation
per se, libel, and slander, and conspiracy to commit those
state-law torts, against the County, the Sheriff's Department,
Commissioner Hummel, DA Fitzpatrick, ADA Carden, and
ADA Luczka (Counts Eight and Nine); (c) state-law claim for
intentional infliction of emotional distress against the County,
the Sheriff's Department, and Commissioner Hummel (Count
Ten); and (d) state-law claim for negligent infliction
of emotional distress against the County, the Sheriff's
Department, Commissioner Hummel, DA Fitzpatrick, ADA
Carden, and ADA Luczka (Count Eleven) are DISMISSED
without prejudice; and
3. Plaintiff's letter motion (Dkt. No. 220) is DENIED.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 1614327
Footnotes
1 Rather than use an attorney declaration, plaintiff has elected to introduce all of these exhibits through his
own affidavit. Dkt. No. 219. This document contains legal argument by a non-attorney. This document also
purports to introduce exhibits to which plaintiff would seem to lack personal knowledge. This is an unusual
approach. But under modern summary judgment practice, documents need only be presented in a form that,
if authenticated, could be admissible at trial.
2 The Sheriff's Department is just an administrative department of the County.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Persaud v. City of New York, Not Reported in Fed. Supp. (2024)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2024 WL 2159852
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Devanand PERSAUD, Plaintiff,
v.
CITY OF NEW YORK et al., Defendants.
22-cv-2919 (AS)
|
Signed May 14, 2024
Attorneys and Law Firms
Matthew Brian Weinick, Famighetti & Weinick, PLLC,
Melville, NY, for Plaintiff.
Zachary Ellis, New York City Law Department, New York,
NY, for Defendants.
OPINION AND ORDER
ARUN SUBRAMANIAN, United States District Judge:
BACKGROUND
*1 Plaintiff Devanand Persaud worked for the New York
City Department of Finance (DOF) for nearly five years
before he was fired. Dkt. 70 ¶ 2. He says he was fired because
of his speech. Compl. ¶ 90, Dkt. 1. So he has sued Defendants
New York City and three of the DOF's top brass for First
Amendment retaliation under 42 U.S.C. § 1983. Id. ¶¶ 91–93.
Defendants have moved for summary judgment.
This case stems from a Facebook comment. Persaud is
Guyanese, and he commented on a Guyanese newspaper's
Facebook post that linked to one of its articles. Id. ¶ 9;
Dkt. 70 ¶¶ 4–6. 1 The article was titled “Gutter work.” Dkt.
70 ¶ 4; Dkt. 67-13 at 138. It recounted and commented on
an “interesting story [that had] appeared on social media.”
Dkt. 67-13 at 138. In that story, “a young man who said
he was from the ghetto” was “approached by a person who
offered him a job of cleaning gutters. He considered the
offer disrespectful. After all, according to him, Guyana is
now an oil producer and he wanted to know why the ghetto
youths should not be getting jobs pumping oil.” Id. “[M]ost
interesting,” according to the article, was “not his narration
of the incident, ... but rather the responses which his story
attracted.” Id.
The article laid out the two sides: One set of responses “said
the offer typifies how some view the ghetto—as being fit only
for certain types of work and how making these offers would
not ... help to elevate people in the ghetto.” Id. “The second set
of responses was to the effect that there is nothing wrong with
doing ... manual labour such as cleaning gutters.” Id. “The two
sets of responses typify two approaches to work in Guyana.”
Id. The article then commented on the balance between a
job's prestige and pay while canvassing various jobs available
in Guyana. Id. It concluded by noting that the issue “boils
down to one's philosophy of work,” but, ultimately, “[a]ll
work should be valued[,] whether it is cleaning the gutter or
pumping oil.” Id.
Persaud commented on the Facebook post from his personal
account, “where he identifies himself by name and discloses
his professional affiliation with the DOF.” Dkt. 70 ¶ 3. He
staked out a third, less optimistic, and more insulting position:
That is [the] only work suitable for those ghetto rats! Oil
jobs are for decent, hardworking, respectable people who
vote for democracy and progress! The oil money belongs
to supporters of democracy!
Those who didn't vote democracy on March 2, 2020
elections should not get one cent of benefit from oil wealth
or oil jobs!
*2 Let those ghetto rats go to Granger and Harmon for
jobs!
Dkt. 67-13 at 144.
Defendants say the DOF's webmaster got “four complaints
from members of the public” about Persaud's comment. Dkt.
70 ¶ 8. The complainants seem to have been living in Guyana:
When the webmaster replied to one of the messages and
noted that each complainant “used the same exact graphic,”
the complainant responded, “We have been trying our best
to clamp down on this sort of behaviour across the board
so locally our citizens have been on high alert for these sort
of derogatory remarks and we've been letting persons know
that whether the[y] are based here or abroad, we will NOT
condone it.” Dkt. 67-13 at 7. The rest of the complaints simply
sent a screenshot of Persaud's comment accompanied by a
short message or no message at all. See id. at 3–24.
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The comment was ultimately brought to the attention of both
the DOF's Department Advocate (one of its top lawyers) and
the DOF's Equal Employment and Opportunity (EEO) Office.
¶ 9. The EEO Office opened an investigation. Id. It sent
Persaud a Notice of Investigation and told him to contact
the Office within three days. ¶ 15. When he failed to do
so, the Office told him that his cooperation was “required”
and that if he didn't participate, “the matter will be reviewed
without your input.” ¶ 16. How exactly Persaud responded
is disputed, but he ultimately didn't sit for an interview or
provide a written account of his side of the story. ¶ 17.
A few months later, the Office issued its final report. ¶ 22.
It found that Persaud “engaged in misconduct by posting
derogatory comments relating to the protected category of
national origin.” Id. It also “recommended that the matter
be referred to the DOF's Department Advocate for further
action.” Id. The Department Advocate's office told Persaud
(several times) that he needed to “appear and testify” about
a “confidential, non-public disciplinary matter.” ¶¶ 28–
30. Persaud eventually responded, saying he would “NOT
be participating” in any investigation unless it involved
“misconduct ... in performance of [his] official duties.” Dkt.
67-13 at 114 (emphasis omitted).
Persaud kept his word, never appearing or testifying for
the Department Advocate's investigation. Dkt. 70 ¶ 32. The
Department Advocate then filed six disciplinary charges
against Persaud. ¶ 34. Based on his Facebook comment,
Persaud was charged with violating the DOF's code of
conduct by (1) “perform[ing] an act ... that might arouse
hatred ... on the basis of” race or national origin (among other
categories), (2) “engaging in conduct that is likely to bring
the City or agency into disrepute,” (3) “engaging in conduct
that was prejudicial to good order and discipline,” and (4)
violating the DOF's social-media policy. Dkt. 67-10 at 6–
7. The two other charges were based on Persaud's failure to
cooperate with the investigation. Id.
The charges were then heard by a state administrative-
law judge (ALJ). Dkt. 70 ¶ 49. Persaud again declined
to testify, but he “presented documentary evidence” and
(because he chose to represent himself) cross-examined the
DOF's witnesses. ¶¶ 50–51. The ALJ ruled for the DOF on
all six charges and recommended firing Persaud. ¶ 53. The
recommendation was sent to the Commissioner of the DOF,
who accepted the recommendation and fired Persaud. ¶¶ 54–
57.
LEGAL STANDARDS
*3 “The court shall grant summary judgment 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). A dispute is “genuine” if a reasonable
jury could find for either side. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
And a fact is “material” if it could “affect the outcome.” Id.
The Court views the record “in the light most favorable to
the non-movant.” Williams v. MTA Bus Co., 44 F.4th 115, 126
(2d Cir. 2022) (cleaned up). But if the non-movant will bear
the burden of proof on an issue at trial, it must point to some
evidence supporting the “essential element[s]” of its position.
Celotex Corp. v. Catrett, 477 U.S. 317, 323–26, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986).
DISCUSSION
I. The retaliation claim survives
“To survive summary judgment on a First Amendment
retaliation claim, a public employee must establish a prima
facie case by bringing forth evidence showing that (1) he
has engaged in protected First Amendment activity, (2) he
suffered an adverse employment action, and (3) there was
a causal connection between the protected activity and the
adverse employment action.” Smith v. County of Suffolk, 776
F.3d 114, 118 (2d Cir. 2015) (cleaned up).
“Once the plaintiff makes out a prima facie retaliation claim,
a government defendant may still receive summary judgment
if it establishes its entitlement to a relevant defense.” Id. at
119 (internal quotation marks omitted). The government has a
defense if it (a) would have taken the adverse action “even in
the absence of the protected conduct” (under Mount Healthy
City School District Board of Education v. Doyle, 429 U.S.
274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)) or (b) justifiably
took the action because the speech's disruption outweighed
the speaker's interest (under Pickering v. Board of Education,
391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Id.
A. Persaud engaged in protected First Amendment
activity
“The first prong—whether an employee's speech was entitled
to First Amendment protection from retaliation—requires a
two-part inquiry.” Barzilay v. City of New York, 610 F. Supp.
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3d 544, 574 (S.D.N.Y. 2022) (footnote omitted). “[T]he First
Amendment protects speech uttered by an employee [1] in
his or her capacity as a citizen [2] regarding a matter of
public concern.” Smith, 776 F.3d at 118; see also Barzilay,
610 F. Supp. 3d at 574–76. Here, Defendants don't contest that
Persaud was speaking in his personal capacity. But they do
argue that the speech was not on matters of public concern.
This argument fails.
“Whether an employee's speech addresses a matter of public
concern” is a question of law, “determined by the content,
form, and context of a given statement, as revealed by the
whole record.” Connick v. Myers, 461 U.S. 138, 147–48
& n.7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). “Speech
deals with matters of public concern when it can be fairly
considered as relating to any matter of political, social, or
other concern to the community, or when it is a subject of
legitimate news interest; that is, a subject of general interest
and of value and concern to the public.” Snyder v. Phelps,
562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011)
(cleaned up). The target audience may be “narrow” so long as
the speech “addresses matters that concern the public.” Heim
v. Daniel, 81 F.4th 212, 228 (2d Cir. 2023) (citation omitted).
The speech here easily clears this bar. Persaud expressed his
views on labor, economic development, democracy, and class
in Guyana. To be sure, he expressed them caustically. But
the “inappropriate or controversial character of a statement
is irrelevant to the question whether it deals with a matter
of public concern.” Rankin v. McPherson, 483 U.S. 378,
387, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). And though
Defendants try to isolate “ghetto rats,” the statement must
be taken in context. Connick, 461 U.S. at 147–48, 103 S.Ct.
1684. Nor does Persaud's focus on a foreign country make a
difference. See Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct.
1157, 99 L.Ed.2d 333 (1988) (describing domestic protests
of foreign governments as “classically political speech”). So
Persaud's “speech on public issues occupies the highest rung
of the hierarchy of First Amendment values, and is entitled to
special protection.” Connick, 461 U.S. at 145, 103 S.Ct. 1684.
*4 Defendants don't fight this reasoning. Instead, they argue
that Persaud's speech was unprotected because “Defendants
had a good-faith belief that [the speech] w[as] constitutionally
unprotected.” Dkt. 65 at 13 (emphasis omitted). This
argument seems too good to be true, and indeed it is.
Defendants rely on Waters v. Churchill, 511 U.S. 661, 114
S.Ct. 1878, 128 L.Ed.2d 686 (1994), and Heffernan v. City
of Paterson, 578 U.S. 266, 136 S.Ct. 1412, 194 L.Ed.2d 508
(2016). But neither case says an employer can get away with
a mistake of First Amendment law.
Rather, both cases were about an employer's mistake of
fact. Waters “decide[d] whether [Pickering balancing] should
be applied to what the government employer thought was
said, or to what the trier of fact ultimately determines to
have been said.” 511 U.S. at 664, 114 S.Ct. 1878 (plurality
opinion). It held that the employer must make a “reasonable”
investigation, and then a court should evaluate the speech
as the employer reasonably believed it to be. Id. at 678–
79, 114 S.Ct. 1878. That understanding of Waters was
repeated in Heffernan, which held “that, as in Waters, the
government's reason for demoting [the employee] is what
counts ... even if ... the employer makes a factual mistake
about the employee's behavior.” 578 U.S. at 273, 136 S.Ct.
1412.
Waters and Heffernan make a difference in cases like the
following: Employee A and Employee B have a conversation
in the workplace. Employee B reports the conversation to
their employer but leaves out some critical details. As a legal
matter, what Employee A actually said is constitutionally
protected, but the speech that Employee B reported is not.
After a reasonable investigation, the employer mistakenly
(but reasonably) believes Employee B's account. Waters
and Heffernan hold that the relevant unit of analysis for a
retaliation suit is what the employer reasonably understood
the speech to be (Employee B's account in the example
above); the factfinder does not separately determine what was
actually said. See Washington v. Nat'l R.R. Passenger Corp.,
2003 WL 22126544, at *5 (S.D.N.Y. Sept. 12, 2003) (“The
Supreme Court has directed that where there is a dispute
regarding such things as ‘what the speech was, in what tone it
was delivered, [or] what the listener's reactions were,’ a court
is to accept ‘the facts as the employer reasonably found them
to be.’ ”) (quoting Waters, 511 U.S. at 677, 114 S.Ct. 1878
(plurality opinion)).
Here, by contrast, there is no question about what was said.
Persaud's comment is in writing and undisputed. The only
questions are whether Defendants fired Persaud because of
the speech and, if so, whether they were justified in doing so.
Waters and Heffernan don't apply to a situation like this one.
B. Persaud suffered adverse actions
Next, Persaud must show an adverse employment action. “For
purposes of the First Amendment, an adverse employment
action is one that would deter a similarly situated individual
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of ordinary firmness from exercising his or her constitutional
rights.” Specht v. City of New York, 15 F.4th 594, 604 (2d
Cir. 2021) (cleaned up). Here, Persaud claims there were
three adverse actions: investigating, charging, and firing.
Defendants don't address this element at all. So for purposes
of this motion, the Court will accept that the investigation,
charges, and firing are each independent adverse actions.
C. Persaud has made a prima facie showing of
causation
The last element is causation. “To show causation, a plaintiff
must show that the protected speech was a substantial
motivating factor in the adverse employment action.” Heim,
81 F.4th at 222 (internal quotation marks omitted). “For
a number of retaliation claims, establishing the causal
connection between a defendant's animus and a plaintiff's
injury is straightforward. Indeed, some of [the Supreme
Court's] cases in the public employment context have simply
taken the evidence of the motive and the discharge as
sufficient for a circumstantial demonstration that the one
caused the other, shifting the burden to the defendant to show
he would have taken the challenged action even without the
impermissible motive.” Nieves v. Bartlett, 587 U.S. 391, 139
S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (internal quotation
marks omitted).
*5 Here, Persaud's theory of causation is straightforward.
“The plain language of several of the disciplinary charges at
the heart of the adverse actions directly implicates not only the
fact that [Persaud] had engaged in protected speech, but also
the content of that speech.” Smith, 776 F.3d at 121. “Those
charges state that” Persaud spoke “in a manner tending
to bring discredit to the [DOF]. The Department thereby
both characterized the content of the speech and cited that
characterization as the basis for several disciplinary charges.”
Id. (citations omitted) And the ALJ's decision recommending
termination recited these charges and the DOF's policies. See
Dkt. 67-11 at 2. That is “direct evidence” from which “a
reasonable juror could conclude that the [DOF's] actions were
motivated, at least in part, by a retaliatory animus.” Smith,
776 F.3d at 121–22. Because the Court holds Persaud's “direct
evidence of retaliatory intent sufficient to survive summary
judgment, [it] [need] not pass upon the sufficiency of his
indirect evidence.” Id. at 121 n.3.
D. Genuine disputes of material fact underlie the
Mount Healthy defense
“[Persaud] having presented a prima facie case of First
Amendment retaliation, [the Court] now turn[s] to whether
defendants are nonetheless entitled to summary judgment in
their favor by showing that the Department would have taken
the same adverse actions in the absence of the protected
speech.” Id. at 122 (cleaned up). “It is not enough to show that
an official acted with a retaliatory motive and that the plaintiff
was injured—the motive must cause the injury. Specifically,
it must be a ‘but-for’ cause, meaning that the adverse action
against the plaintiff would not have been taken absent the
retaliatory motive.” Nieves, 139 S. Ct. at 1722. “The operative
question is whether defendants have demonstrated that a
reasonable jury would have to find by a preponderance of the
evidence that the [DOF] would have investigated,” charged,
and fired Persaud “absent his ... speech.” Smith, 776 F.3d at
122.
Defendants argue that the charges and firing were products of
Persaud's refusal to cooperate with the investigation, not his
speech. Yet the investigation was prompted by the complaints
reacting to his speech. And the matter was referred to the
Department Advocate for charges because the investigation
found that Persaud had “engaged in misconduct by posting
derogatory comments.” Dkt. 70 ¶ 22. The fact that the whole
process was kicked off by the investigation into his speech
might be enough to conclude that the speech was a but-for
cause of the charges and firing too. That is, if not for the
investigation, Persaud never would've had the chance to not
cooperate. So the failure to cooperate was not “misconduct
that is separate and distinct from the incidents of speech,”
and the “disciplinary wheels were [not] in motion before
the Department ever learned about [Persaud's] protected
speech.” Smith, 776 F.3d at 123–24. The parties simply
haven't addressed whether that connection is a sufficient
“chain of causation,” Hartman v. Moore, 547 U.S. 250, 259,
126 S.Ct. 1695, 164 L.Ed.2d 441 (2006), or whether Persaud's
failure to cooperate is a “superseding cause, breaking the
causal chain,” Fisher v. Lufkin Indus., Inc., 847 F.3d 752, 758
(5th Cir. 2017); see also Taylor v. Ways, 999 F.3d 478, 488 n.4
(7th Cir. 2021) (collecting cases).
In any event, the charges themselves reveal mixed motives,
listing both the speech and failure to cooperate. And the
evidence Defendants produce to break that tie is not exactly
showstopping. They rely largely on their own statements. See
Dkt. 65 at 15–16. For example, the Department Advocate
testified that Persaud “would not have been terminated, but
for his failure to engage.” Dkt. 67-3 at 31:21–22. But “a
plaintiff's injury can have multiple ‘but-for’ causes, each
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one of which may be sufficient to support liability ....
The determination of whether retaliation was a ‘but-for’
cause, rather than just a motivating factor, is particularly
poorly suited to disposition by summary judgment, because
it requires weighing of the disputed facts[.]” Zann Kwan v.
Andalex Grp. LLC, 737 F.3d 834, 846 n.5 (2d Cir. 2013). Not
to mention, whether to credit a defendant's self-interested, on-
the-nose testimony is up to the jury.
*6 Defendants also point out that the charges were drafted on
the day Persaud refused to appear (which Persaud disputes).
Dkt. 70 ¶¶ 34–35. But that date was only thirteen days after his
speech, the investigation was prompted by his speech, and the
charges were mostly about his speech. See Smith, 776 F.3d at
124. Although many cases look to timing when a defendant's
motives are unclear, there were two explicit, close-in-time
motives here. The only question is whether the impermissible
motive was a but-for cause. That is disputed.
“Put simply, the evidence of record ... permits only inferences.
Those inferences may be drawn [by the jury] in either party's
favor, and [the law] require[s] more than inferences from an
employer seeking summary judgment based on the Mount
Healthy defense.” Id. at 125. So Defendants have failed to
carry their burden on this defense at this stage.
E. Genuine disputes of material fact underlie the
Pickering defense
“The government can also avoid liability under what is
commonly referred to as the Pickering balancing test. Under
this defense, a government employer may take an adverse
employment action against a public employee for speech on
matters of public concern if: (1) the employer's prediction of
the disruption that such speech will cause is reasonable; (2)
the potential for disruption outweighs the value of the speech;
and (3) the employer took the adverse employment action not
in retaliation for the employee's speech, but because of the
potential for disruption.” Anemone v. Metro. Transp. Auth.,
629 F.3d 97, 115 (2d Cir. 2011) (cleaned up). In other words,
assuming that Persaud's speech was the basis for the adverse
actions, Pickering asks whether the government was justified.
“As a general rule, the application of the balancing test is a
question of law which is properly performed by the district
court.” Gorman-Bakos v. Cornell Co-op Extension, 252 F.3d
545, 557 (2d Cir. 2001). But when, “[a]mong other items,
the parties disagree as to ... whether the ... speech disrupted,
or had the potential to disrupt, the [employer's] functioning”
and whether “plaintiffs were in fact not dismissed because of
the disruption, but because of the content of their speech,”
then those questions are “to be answered by the jury prior
to the court's application of the Pickering balancing test.”
Id. (citation omitted). “Accordingly, after these underlying
factual disputes are decided by a factfinder, the district
court should consider the factual findings to come to its
own legal conclusions about whether the employer's interest
in efficiency or the employee's interest in free speech is
paramount.” Id. at 558.
Here, genuine disputes of material fact underlie both the
DOF's prediction of disruption and whether the DOF took the
adverse actions because of those predictions. So the Court
need not balance the interests on this motion.
1. The government's interest
In evaluating the government's interest, the Supreme Court
has “recognized as pertinent considerations whether the
statement impairs discipline by superiors or harmony among
co-workers, has a detrimental impact on close working
relationships for which personal loyalty and confidence are
necessary, or impedes the performance of the speaker's duties
or interferes with the regular operation of the enterprise.”
Rankin, 483 U.S. at 388, 107 S.Ct. 2891. “[T]he manner, time,
and place of the employee's expression are [also] relevant.”
Id. At bottom, the government's core interest as employer is
in the “efficiency and effectiveness [of] government service.”
Heffernan, 578 U.S. at 270, 136 S.Ct. 1412 (cleaned up).
*7 “[T]he disruption need not be actual; the Government
may legitimately respond to a reasonable prediction of
disruption.” Locurto v. Giuliani, 447 F.3d 159, 179 (2d
Cir. 2006). And courts do give some “deference to
government predictions of harm used to justify restriction of
employee speech.” Waters, 511 U.S. at 673, 114 S.Ct. 1878
(plurality opinion). Yet even when the employer has “special
expertise ..., the deference to their conclusions has never been
complete.” Id. at 677, 114 S.Ct. 1878. And “the government
has the burden to show that the employee's activity is
disruptive to the internal operations of the governmental unit
in question.” Melzer v. Bd. of Educ., 336 F.3d 185, 197 (2d
Cir. 2003).
Here, Defendants rely on predicted disruption. But they
don't argue that Persaud's statement would affect discipline
by superiors, 2 that his job involves loyalty or confidence,
or that the statement interferes with his ability to do his
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job. Instead, they rely on coworker harmony and the DOF's
operations. Defendants assert that Persaud's job “required
him to work collaborative[ly] with his co-workers” and
was “public facing.” Dkt. 65 at 21. They also point to
several cases emphasizing the need for the “appearance
of impartiality,” arguing that Persaud's comment “risked
creating the impression that members of racial minorities
might not receive adequate services due to racial hostility.”
Id. at 19, 21 (citation omitted). And on manner, time, and
place, Defendants note that the statement was made harshly,
publicly, and during work hours.
“There is reason to question whether the employer's
prediction of the disruption that [Persaud's speech] will
cause is reasonable.” Barzilay, 610 F. Supp. 3d at 600
(internal quotation marks omitted). At this stage, it suffices
to say that Defendants' account is genuinely disputed. On
the coworker point, there is no evidence that any coworkers
saw the post, let alone reacted to it. Although the Court
respects Defendants' predictions, they have no evidence of
or arguments for potential disharmony beyond their say-so.
They haven't shown that Persaud was Facebook friends with
coworkers, that his profile was public, that similar situations
in the past have caused disruption, or anything similar. And
though “ghetto rats” could certainly offend some, it's not
obvious that Persaud's acerbic take on Guyanese political
economy would pique the DOF's accountants. Cf. Bennett
v. Metro. Gov't, 977 F.3d 530, 540 (6th Cir. 2020) (case in
which the jury was asked whether the employee's “Facebook
comment [using a racial slur] was reasonably likely to have
a detrimental impact on close working relationships” in her
workplace (emphasis omitted)).
As for public perception, Defendants' only evidence is
the four “complaints.” As noted, it's unclear who the
complainants were, but the little available evidence suggests
that they were not going to request the DOF's services any
time soon. And though Defendants' charges and briefs are
focused on potential perceptions of ethnic or racial bias,
that take on Persaud's comment is not reasonable. Everyone
mentioned in the article is Guyanese, and there is no mention
of race. Disparaging people on the basis of class or other
background characteristics could also matter, but Defendants
haven't made that argument on this motion.
*8 Nor is there much reason to think that Persaud's comment
would meaningfully reflect on the DOF. True, he listed
his affiliation on his Facebook page. But again, Defendants
haven't produced any evidence about the reach of Persaud's
comment. And his job's “public facing” elements didn't really
face the “public.” Defendants say Persaud worked with “bank
officials” and “outside auditors.” Dkt. 65 at 21. Those people
are hardly the kind to be scared off—they have to work with
the DOF. As Persaud puts it, his main work was “reconciling
bank accounts and reviewing employee timesheets.” Dkt. 68
at 22. At the very least, the evidence does not clearly show
that the government's interest is more than “minimal”:
[I]n weighing the State's interest in
discharging an employee based on any
claim that the content of a statement
made by the employee somehow
undermines the mission of the public
employer, some attention must be paid
to the responsibilities of the employee
within the agency. The burden of
caution employees bear with respect
to the words they speak will vary
with the extent of authority and public
accountability the employee's role
entails. Where, as here, an employee
serves no confidential, policymaking,
or public contact role, the danger to
the agency's successful functioning
from that employee's private speech is
minimal.
Rankin, 483 U.S. at 390–91, 107 S.Ct. 2891.
Similarly, the cases about the “appearance of impartiality” are
inapt. In fact, they provide a useful foil. Those cases involved
“the unique relationship between a police department and
the public it serves.” Locurto, 447 F.3d at 178. Persaud's
role as a DOF accountant is a far cry from a police officer,
perhaps the most public-facing job in government and the one
where real or perceived bias can be most harmful. See id.
The other cases Defendants cite also involve more disruption,
jobs that are more public-facing, or both. See Bennett, 977
F.3d at 540–41 (911 operator whose use of a racial slur on
Facebook “prompted a ‘nonstop conversation’ in the office
that lasted for days” and caused her coworkers to lose trust
in her judgment); McCullars v. Maloy, 369 F. Supp. 3d
1230, 1240–41 (M.D. Fla. 2019) (court clerk whose criticism
of the state attorney on Facebook caused “public outcry”
that was “immediate and overwhelming”); Finn v. N.Y. State
Off. of Mental Health-Rockland Psychiatric Ctr., 2011 WL
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4639827, at *21 (S.D.N.Y. Oct. 6, 2011) (food-service worker
who posted “threatening, rude, and offensive” flyers in his
workplace), aff'd, 489 F. App'x 513 (2d Cir. 2012).
Finally, the manner, time, and place arguments don't do much
to move the needle. Although harshness and publicity might
increase the risk of disruption, they are not enough on their
own. And the work-hours argument doesn't make a difference
because Defendants haven't presented any evidence linking
the time of a social-media post to its effect on the workplace
or public perception of the post.
Viewing the record in the light most favorable to Persaud,
“Defendants are not entitled to take advantage of the
Pickering defense at this juncture, and a jury should have the
opportunity to resolve whether their concern about disruption
was reasonable.” Barzilay, 610 F. Supp. 3d at 601 (internal
quotation marks omitted).
2. The government's motivation
The defense fails for another reason too. Because Defendants
focused on the Mount Healthy defense (and, to some extent,
conflated it with the Pickering defense) in their briefs, they
cited little to no evidence that Defendants were motivated
by the risk of disruption. Instead, they put nearly all of
their eggs in the failure-to-cooperate basket. So “even if
the potential disruption to the office outweighs the value
of the speech,” Defendants have not shown that Persaud
was fired “only because of the potential disruption, and not
because of the speech. That is to say, it matters not that
the potential disruption outweighs the value of the speech if
the employer subjectively makes the speech the basis of his
termination decision: such ‘retaliatory’ discharge is always
unconstitutional.” Sheppard v. Beerman, 94 F.3d 823, 827 (2d
Cir. 1996).
II. The Monell claim survives
A. The City's official policies were the moving force
behind the individual defendants' actions
*9 Defendants also say that even if the individual defendants
can be held liable, the City cannot. To hold the City liable
for a constitutional tort under § 1983, the “execution of [the
City's] policy or custom” must “inflict[ ] the injury.” Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978). “ ‘[L]ocal governing bodies [like the
City of New York] can be sued directly’ (1) when ‘the action
that is alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation or decision officially
adopted and promulgated by that body's officers’ or (2) for
‘constitutional deprivations visited pursuant to governmental
“custom” even though such a custom has not received
formal approval through the body's official decisionmaking
channels.’ ” Bernshtein v. City of New York, 496 F. App'x
140, 144 (2d Cir. 2012) (alterations in original) (quoting
Monell, 436 U.S. at 690–91, 98 S.Ct. 2018). In other words, “a
plaintiff must demonstrate that through its deliberate conduct,
the municipality was the ‘moving force’ behind the injury
alleged.” Agosto v. N.Y.C. Dep't of Educ., 982 F.3d 86, 98 (2d
Cir. 2020) (citation omitted).
Here, the DOF's code of conduct and social-media policy
are formal policies. 3 See Dkt. 70 ¶¶ 24–25; Pembaur v.
City of Cincinnati, 475 U.S. 469, 480–81, 106 S.Ct. 1292,
89 L.Ed.2d 452 (1986) (“To be sure, ‘official policy’ often
refers to formal rules or understandings—often but not
always committed to writing—that are intended to, and do,
establish fixed plans of action to be followed under similar
circumstances consistently and over time.”); Lopez v. Bay
Shore Union Free Sch. Dist., 668 F. Supp. 2d 406, 417
(E.D.N.Y. 2009) (“[T]he actual policies of the [defendant],
including the defendant's code of conduct ..., necessarily form
the basis for potential Monell liability.”).
And as noted, Persaud's firing was the result of
“implement[ing] or execut[ing]” the City's policy. Monell,
436 U.S. at 690, 98 S.Ct. 2018; see Dkt. 67-10 at 6–7.
Although the policies don't require an employee's firing,
the City doesn't argue that this fact sufficiently dilutes the
policy's role as the “moving force” behind the firing. So to
the extent that there are genuine disputes over the underlying
retaliation claim, there are also genuine disputes preventing
summary judgment over whether a “municipal policy ...
cause[d] [Persaud] to be subject to ... the deprivation of a
constitutional right.” Agosto, 982 F.3d at 97.
B. Confusion over what Monell requires
1. Final policymaker
Defendants make three arguments in response. The first two
reflect some confusion about what Monell requires. First, they
say Persaud was not fired by a final policymaker. And it's true
that the “Supreme Court has said that a municipality may be
liable for the acts of a single official—but only if that official
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is someone whose edicts or acts may fairly be said to represent
official policy for the entire municipality.” Agosto, 982 F.3d
at 98. Recent, thoughtful opinions in this district have come
out differently as to whether the head of a municipal agency
is acting as a “policymaker” when she fires an employee.
Compare Barzilay, 610 F. Supp. 3d at 618–19, with Buchanan
v. City of New York, 556 F. Supp. 3d 346, 362–64 (S.D.N.Y.
2021). Fortunately, the Court need not address that question;
identifying a policymaker's direct involvement is sufficient,
not necessary. Indeed, the policymaker-ratification theory is
typically a backup for situations where, unlike here, there is
no official, written policy. See, e.g., Agosto, 982 F.3d at 98
(“Rather than argue that there is a written municipal policy ...
[the plaintiff] pursues Monell liability on the theory that [the
defendant's] individual actions represent official policy for the
entire Department[.]” (cleaned up)). (And as noted above, the
City doesn't contest that the policies here are official policies
formulated by a policymaker.)
2. “Unconstitutional” policies and “single incidents”
*10 Second, they say there is no “evidence that the
DOF's code of conduct or its social-media policy are
themselves unconstitutional” and that a “single incident of
unconstitutional activity is not sufficient.” Dkt. 75 at 2
(internal quotation marks omitted). These arguments are
misguided.
Start at the beginning. Monell held that a municipality counts
as a “person” under § 1983. 436 U.S. at 691–92, 98 S.Ct.
2018. So a municipality is liable if, “under color of some
official policy,” it “subject[s], or cause[s] to be subjected,
any person ... to the deprivation of any rights ... secured
by the Constitution.” Id. (internal quotation marks omitted).
Monell ruled out the municipality's liability as an employer,
or a “respondeat superior theory.” Id. at 691, 98 S.Ct. 2018.
That is, it must be the municipality's choices (as manifested
through its policies and policymakers) that “inflict[ ] the
injury” rather than its employees' mere “accidents.” Id. at
693–94, 98 S.Ct. 2018.
Here, the City relies on one of Monell’s progeny, City of
Oklahoma City v. Tuttle, 471 U.S. 808, 105 S.Ct. 2427,
85 L.Ed.2d 791 (1985). Tuttle involved a plaintiff seeking
to hold a municipality “liable for a ‘policy’ of ‘inadequate
training’ based merely upon evidence of a single incident of
unconstitutional activity,” one use of excessive force. Id. at
813, 105 S.Ct. 2427 (plurality opinion); see also id. at 814
n.2, 105 S.Ct. 2427 (“The actual ‘question presented’ in the
petition for certiorari is: ‘Whether a single isolated incident
of the use of excessive force by a police officer establishes
an official policy or practice of a municipality sufficient to
render the municipality liable for damages under 42 U.S.C. §
1983.’ ” (citation omitted)).
The Court rejected this theory, and the plurality contrasted this
“policy” with that at issue in Monell. In Monell, a municipal
department had a formal policy that expressly burdened only
pregnant employees. Id. at 822, 105 S.Ct. 2427. “Obviously, it
requires only one application of a policy such as this to satisfy
fully Monell’s requirement that a municipal corporation be
held liable only for constitutional violations resulting from
the municipality's official policy.” Id. The policy in Tuttle,
by contrast, was “far more nebulous, and a good deal further
removed from the constitutional violation.” Id. Whether the
city “consciously chose[ ]” a policy of inadequate training
could not be proven by one constitutional violation. Id. at
823, 105 S.Ct. 2427. And an attenuated causal chain (such
as attributing the constitutional violation to the “ ‘policy’ of
establishing a police force”) would render Monell’s limit on
liability “a dead letter.” Id.
Following this discussion, the plurality opinion concluded
with this paragraph, which seems to be the source of the
confusion here:
Here the instructions allowed the
jury to infer a thoroughly nebulous
“policy” of “inadequate training” on
the part of the municipal corporation
from the single incident described
earlier in this opinion, and at the
same time sanctioned the inference
that the “policy” was the cause of the
incident. Such an approach provides
a means for circumventing Monell’s
limitations altogether. Proof of a single
incident of unconstitutional activity is
not sufficient to impose liability under
Monell, unless proof of the incident
includes proof that it was caused by
an existing, unconstitutional municipal
policy, which policy can be attributed
to a municipal policymaker. Otherwise
the existence of the unconstitutional
policy, and its origin, must be
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separately proved. But where the
policy relied upon is not itself
unconstitutional, considerably more
proof than the single incident will be
necessary in every case to establish
both the requisite fault on the part
of the municipality, and the causal
connection between the “policy” and
the constitutional deprivation. Under
the charge upheld by the Court
of Appeals the jury could properly
have imposed liability on the city
based solely upon proof that it
employed a non-policymaking officer
who violated the Constitution.
*11 Id. at 823–24, 105 S.Ct. 2427 (footnotes omitted).
In context, this paragraph is simply applying Monell’s
requirements to the case's less-straightforward claim. A
plaintiff must show either that his injury resulted directly from
the enforcement of the municipality's policy or by showing
a pattern demonstrating some kind of deliberate, unstated
“policy” (in Monell’s words, “custom”) that caused the injury.
See Monell, 436 U.S. at 690–91, 98 S.Ct. 2018. A “single
incident” does not establish that pattern. Tuttle, 471 U.S. at
823–24, 105 S.Ct. 2427. The footnote that appears toward the
end of the paragraph reinforces this message. Id. at 824 n.8,
105 S.Ct. 2427 (“The fact that a municipal ‘policy’ might lead
to ‘police misconduct’ is hardly sufficient to satisfy Monell’s
requirement that the particular policy be the ‘moving force’
behind a constitutional violation. There must at least be an
affirmative link between the training inadequacies alleged,
and the particular constitutional violation at issue.”).
But the phrases “unconstitutional municipal policy” and
“single incident” have spawned some confusion. Indeed,
even Justice Brennan's controlling concurrence noted
that he did “not understand, nor ... see the necessity
for, the metaphysical distinction between policies that
are themselves unconstitutional and those that cause
constitutional violations. If a municipality takes actions ...
that cause the deprivation of a citizen's constitutional rights,
§ 1983 is available as a remedy.” Id. at 833 n.8, 105 S.Ct.
2427 (Brennan, J., concurring in part and concurring in the
judgment) (citation omitted).
A few years later, in City of Canton v. Harris, 489 U.S.
378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), the Court
revisited the question whether “only unconstitutional policies
are actionable under [§ 1983].” Id. at 387, 109 S.Ct. 1197.
Like Tuttle, Harris was also an “inadequate training” case.
And it held “that there are limited circumstances in which an
allegation of a ‘failure to train’ can be the basis for liability.”
Id. In deciding what “degree of fault must be evidenced,”
the Court again looked to Monell’s “admonition ... that a
municipality can be liable ... only where its policies are
the moving force behind the constitutional violation.” Id.
at 388–89, 109 S.Ct. 1197 (cleaned up). As such, liability
was permitted “only where the failure to train amounts to
deliberate indifference to the rights of persons with whom
the police come into contact.” Id. at 388, 109 S.Ct. 1197.
Zooming out, the Court again confirmed (as it did in Tuttle)
that the key questions were whether inadequate training could
fairly be considered a city “policy” and whether that policy
“caused” the constitutional violation. Id. at 389–92, 109 S.Ct.
1197.
In applying Tuttle and Harris, at least one court in this circuit
has used the shorthand (which the City seems to adopt here)
that “[t]he policy must be either facially unconstitutional,
[under Tuttle], or unconstitutional as applied because of
the municipality's ‘deliberate indifference’ to the rights of
persons with whom municipal employees may encounter
[under Harris].” Knicrumah v. Albany City Sch. Dist., 241 F.
Supp. 2d 199, 206 (N.D.N.Y. 2003); see also Bennett v. Town
of Riverhead, 940 F. Supp. 481, 490 (E.D.N.Y. 1996).
*12 This articulation might work for some cases, like the
failure-to-train claims at issue in Tuttle and Harris. But it
misses a wide swath of Monell’s heartland: constitutional
violations caused by a policy's proper “implement[ation] or
execut[ion].” Neither Tuttle nor Harris purported to cabin or
overturn this part of Monell. Instead, they mapped Monell
onto a difficult landscape in which it was unclear what the
municipality's decisions were and whether they really caused
the tort. In Harris, there could be no municipal liability when
“one of its employees happened to apply [its] policy in an
unconstitutional manner.” 489 U.S. at 387, 109 S.Ct. 1197
(emphasis added). But if an official policy specifically directs
or authorizes an unconstitutional action, the municipality has
made a choice for which it may be held liable. And in that
application of the policy, the policy is “itself unconstitutional”
as Tuttle meant it. Cf. Tuttle, 471 U.S. at 820, 105 S.Ct.
2427 (“Respondent did not claim ... that Oklahoma City
had a ‘custom’ or ‘policy’ of authorizing its police force
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to use excessive force in the apprehension of suspected
criminals[.]”); id. at 821, 105 S.Ct. 2427 (“[T]he origins of
Monell’s ‘policy or custom’ requirement should make clear
that, at the least, that requirement was intended to prevent the
imposition of municipal liability under circumstances where
no wrong could be ascribed to municipal decisionmakers.”).
So the logic of Monell, Tuttle, and Harris confirms that the
City's policy need not be facially unconstitutional so long as
it causes the unconstitutional act. Their language does too.
Monell itself framed the “cause[s] to be subjected” inquiry
in several ways: whether the “action pursuant to official
municipal policy of some nature caused a constitutional tort,”
whether the municipality, “under color of some official policy,
‘causes’ an employee to violate another's constitutional
rights,” whether “execution of a government's policy or
custom ... inflicts the injury,” and whether “official policy [is]
the moving force of the constitutional violation.” 436 U.S. at
691–92, 694, 98 S.Ct. 2018 (emphasis added). Tuttle echoes
Monell in emphasizing the need for an “affirmative link”
between the policy and the injury, 471 U.S. at 824 n.8, 105
S.Ct. 2427, and Harris does the same in requiring that they
be “closely related,” 489 U.S. at 391, 109 S.Ct. 1197.
This reading of Monell, Tuttle, and Harris is also most
consistent with Monell’s later progeny. One of the Court's
more recent in-depth looks at Monell summarized it this way:
In sum, in Monell the Court held that “a municipality
cannot be held liable” solely for the acts of others, e.g.,
“solely because it employs a tortfeasor.” 436 U.S. at 691, 98
S.Ct. 2018. But the municipality may be held liable “when
execution of a government's policy or custom ... inflicts the
injury.” Id., at 694, 98 S.Ct. 2018 (emphasis added).
Los Angeles County v. Humphries, 562 U.S. 29, 36, 131
S.Ct. 447, 178 L.Ed.2d 460 (2010); see also Connick v.
Thompson, 563 U.S. 51, 60–61, 131 S.Ct. 1350, 179 L.Ed.2d
417 (2011) (similar); Bd. of Cnty. Comm'rs v. Brown, 520
U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (“[I]n
Monell and subsequent cases, we have required a plaintiff
seeking to impose liability on a municipality under § 1983
to identify a municipal ‘policy’ or ‘custom’ that caused
the plaintiff's injury.”); id. at 404, 117 S.Ct. 1382 (“Where
a plaintiff claims that a particular municipal action itself
violates federal law, or directs an employee to do so, resolving
these issues of fault and causation is straightforward.”);
id. at 417, 117 S.Ct. 1382 (Souter, J., dissenting) (“[T]he
policy requirement ... is certainly met when the appropriate
officer or entity promulgates a generally applicable statement
of policy and the subsequent act complained of is simply
an implementation of that policy.”); Pembaur, 475 U.S. at
479, 106 S.Ct. 1292 (“The ‘official policy’ requirement was
intended to distinguish acts of the municipality from acts
of employees of the municipality, and thereby make clear
that municipal liability is limited to action for which the
municipality is actually responsible.”); City of St. Louis v.
Praprotnik, 485 U.S. 112, 138, 108 S.Ct. 915, 99 L.Ed.2d
107 (1988) (Brennan, J., concurring in the judgment) (“Where
[the municipality's] agents act in accordance with formal
policies ... we naturally ascribe their acts to the municipalities
themselves and hold the latter responsible for any resulting
constitutional deprivations.”); Cash v. County of Erie, 654
F.3d 324, 333 (2d Cir. 2011) (similar); Jones v. Town of E.
Haven, 691 F.3d 72, 81 (2d Cir. 2012) (“[I]solated acts ... are
generally not sufficient to demonstrate a municipal custom,
policy, or usage that would justify municipal liability. On
the other hand, such acts would justify liability of the
municipality if, for example, they were done pursuant to
municipal policy[.]” (citations omitted)); Outlaw v. City of
Hartford, 884 F.3d 351, 373 (2d Cir. 2018) (“[I]nherent in
the principle that ‘a municipality can be liable under § 1983
only where its policies are the moving force [behind] the
constitutional violation,’ is the concept that the plaintiff must
show ‘a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.’ ” (quoting
Harris, 489 U.S. at 385, 389, 109 S.Ct. 1197 (alteration
in original))); Calhoun v. Ramsey, 408 F.3d 375, 379 (7th
Cir. 2005) (“The express policy theory applies, as the name
suggests, where a policy explicitly violates a constitutional
right when enforced.”); Christensen v. Park City Mun. Corp.,
554 F.3d 1271, 1280 (10th Cir. 2009) (“If a governmental
entity makes and enforces a law that is unconstitutional as
applied, it may be subject to liability under § 1983.”); Right-
Now Recycling, Inc. v. Ford Motor Credit Co., 2015 WL
1197671, at *5 (S.D. Ohio Mar. 16, 2015) (“[I]t has been
recognized that a municipality may be liable under § 1983
when a written policy as applied in a straightforward manner
results in a constitutional violation.”), aff'd, 644 F. App'x 554
(6th Cir. 2016).
*13 Not to mention, requiring facial unconstitutionality
would lead to strange results. To start, requiring a plaintiff to
prove that a policy is facially unconstitutional flips the usual
order of operations on its head:
It is not the usual judicial practice, however, nor do we
consider it generally desirable, to proceed to an overbreadth
issue unnecessarily—that is, before it is determined that
the statute would be valid as applied. Such a course
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would convert use of the overbreadth doctrine from a
necessary means of vindicating the plaintiff's own right
not to be bound by a statute that is unconstitutional
into a means of mounting gratuitous wholesale attacks
upon state and federal laws. Moreover, the overbreadth
question is ordinarily more difficult to resolve than the
as-applied, since it requires determination whether the
statute's overreach is substantial, not only as an absolute
matter, but “judged in relation to the statute's plainly
legitimate sweep,” and therefore requires consideration of
many more applications than those immediately before
the court. Thus, for reasons relating both to the proper
functioning of courts and to their efficiency, the lawfulness
of the particular application of the law should ordinarily be
decided first.
Bd. of Trustees v. Fox, 492 U.S. 469, 484–85, 109 S.Ct. 3028,
106 L.Ed.2d 388 (1989) (citation omitted).
And consider this hypothetical: A city's official policy
instructs police to use pepper spray whenever an arrestee
fails to follow police commands. That policy has some
constitutionally permissible applications (and is outside the
First Amendment context), so it isn't facially unconstitutional.
United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095,
95 L.Ed.2d 697 (1987). For example, if a suspect refuses
to raise his hands and instead reaches for a weapon, pepper
spray likely isn't excessive force. But an officer following
that policy would also plainly be using unconstitutionally
excessive force in many situations. For instance, if a suspect is
already handcuffed and simply declines to seat himself in the
backseat of the police car (without physically resisting), using
pepper spray could be excessive. See Tracy v. Freshwater,
623 F.3d 90, 98 (2d Cir. 2010). Yet under the City's theory,
so long as it drew its policy broadly enough to sweep in
some constitutional applications, it could never be held liable
for unconstitutional acts that it caused. That theory is plainly
inconsistent with both Monell (indeed, it would essentially
nullify it) and § 1983's application to acts that “cause[ ]
[any person in the United States] to be subjected” to a
constitutional tort.
Returning to the facts here, it should be clear that this case is
classic Monell. There is no question about how many grains
of unconstitutional action add up to a pile of “policy.” So
Tuttle's analysis of “single incident[s]” is inapt. Nor is there a
complicated web of causation to untangle. Instead, applying
the DOF's code of conduct and social-media policy led
directly to the investigation of Persaud, the charges leveled
against him, and his firing (subject to the causation disputes
discussed above). So there is at least a triable issue of fact
whether those policies were the “moving force” behind the
individual defendants' actions. See Inendino v. Lightfoot, 2023
WL 2349909, at *6 (N.D. Ill. Mar. 3, 2023) (holding that a
city employee's firing pursuant to a social-media policy that
prohibited posts that “can be deemed offensive” supports an
official-policy claim under Monell).
C. The summary-judgment standard
*14 Defendant's third argument is that the Court should
not have raised the official-policy issue sua sponte. Dkt.
75 at 1. For background, Defendants' summary-judgment
brief argued mainly that no final policymaker was involved,
and Persaud's summary-judgment brief addressed only that
argument. Yet the Court was left puzzled because the City's
formal policies were discussed in the briefs. So the Court
ordered the parties to submit supplemental letter briefs on the
question whether the code of conduct and social-media policy
were official policies that could support the Monell claim.
Dkt. 74.
Defendants don't cite any authority suggesting that the Court
acted outside its powers, and it didn't. Under Federal Rule
of Civil Procedure 56(e), “[i]f a party ... fails to properly
address another party's assertion of fact ... the court may ...
give an opportunity to properly support or address the fact ...
or ... issue any other appropriate order.” Here, Defendants
asserted that “Plaintiff has adduced no evidence of any
unconstitutional municipal policy.” Dkt. 65 at 23. Persaud
failed to address that assertion, but to be fair, Defendants also
failed to grapple with the relevance of the code of conduct
and social-media policy that their own briefing mentioned. So
the Court gave both sides an opportunity to address this issue
specifically.
Similarly, Rule 56(f)(3) empowers the Court to “consider
summary judgment on its own after identifying for the parties
material facts that may not be genuinely in dispute.” Here, the
Court identified the fact that the code of conduct and social-
media policy may be official policies that caused the adverse
action, and it gave the parties notice and a week to respond.
Dkt. 74. Having received those responses, it has considered
summary judgment on its own and will deny it. Under either
provision, the Court may solicit arguments that might result
in denying summary judgment.
More generally, Rule 56 permits the Court relatively wide
discretion to ensure that all issues are aired. For example, Rule
56(c)(3) empowers the Court to consider uncited materials
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in the record. And under Rule 56(f)(2), the Court may grant
summary judgment on “grounds not raised by a party” so
long as it gives “notice and a reasonable time to respond.”
Although that provision doesn't expressly authorize denying
the motion on grounds not initially raised, courts are generally
permitted far greater leeway in denying motions than in
granting them. Cf. Kowalchuck v. Metro. Transp. Auth., 94
F.4th 210, 217–18 (2d Cir. 2024) (distinguishing between
sua sponte denials and grants of summary judgment when
converting pre-motion letters to motions).
III. The collateral-estoppel issues are irrelevant to this
motion
Finally, Defendants argue that a number of the ALJ's “factual
findings are entitled to preclusive effect.” Dkt. 65 at 7
(capitalization omitted). In particular, Defendants say that
“[t]his Court is bound by” the ALJ's findings that (1) the
DOF's webmaster received four complaints, (2) Persaud
(rather than his dad) wrote the comment, (3) Persaud “was
guilty of all of the misconduct with which he was charged,”
and (4) that misconduct “warranted his termination.” Id. at 8.
As an initial matter, the motion-to-dismiss opinion in this case
already rejected Defendants' issue-preclusion arguments with
respect to other facts supposedly found by the ALJ. Persaud v.
City of New York, 2023 WL 2664078, at *3–4 (S.D.N.Y. Mar.
28, 2023) (Vyskocil, J.). The opinion specifically noted that
the purported findings must have been necessary to the ALJ's
judgment. Id. Yet Defendants have again failed to explain why
these facts were necessary to the ALJ's decision.
*15 In any event, none of these facts matters for this motion.
The first is undisputed. The second is irrelevant. See note
1, supra. And the third and fourth refer to “misconduct,”
but the ALJ's own description of Persaud's “misconduct”
includes both his “post[ing] derogatory content” and his
“refusal to cooperate.” Dkt. 67-11 at 8. The whole issue here
is identifying which one caused the adverse actions.
CONCLUSION
For these reasons, Defendants' motion for summary judgment
is DENIED. The Clerk of Court is directed to close Dkt. 64.
By May 17, 2024, the parties shall provide availability for trial
in July, August, and September 2024.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2024 WL 2159852
Footnotes
1 There is some dispute over whether he commented. Persaud says it was actually his dad who posted the
comment through Persaud's account. Dkt. 70 ¶ 7. Persaud has no evidence of that beyond his say-so. Id.
Regardless, Persaud agrees that the true speaker's identity doesn't change the legal analysis for this motion.
See Dkt. 68 at 20; Heffernan v. City of Paterson, 578 U.S. 266, 273, 136 S.Ct. 1412, 194 L.Ed.2d 508 (2016)
(holding that an employee may sue for First Amendment retaliation even if the employee didn't in fact engage
in protected speech). So the Court will simply refer to the comment as his speech.
2 Defendants briefly mention that permitting Persaud to defy the investigation would harm discipline. But that
framing conflates the Mount Healthy and Pickering defenses. The question here is whether the speech itself
would interfere with discipline.
3 The parties don't address this issue, but it seems that claims based on the DOF's policies are properly brought
against the City. See Bey v. City of N.Y. Dep't of Fin., 2012 WL 441258, at *2 (E.D.N.Y. Feb. 10, 2012).
Similarly, the City doesn't challenge that the DOF's policies are the City's policies.
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Posner v. City of New York, Not Reported in F.Supp.3d (2014)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2014 WL 185880
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Betty POSNER, Plaintiff,
v.
CITY OF NEW YORK et al., Defendants.
No. 11 Civ. 4859(JMF).
|
Jan. 16, 2014.
OPINION AND ORDER
JESSE M. FURMAN, District Judge.
*1 Plaintiff Betty Posner brings this action, pursuant to Title
42, United States Code, Section 1983, against the City of
New York (the “City”) and various members of the New York
City Police Department (the “NYPD” and, together with the
City, “Defendants”) alleging violations of her constitutional
rights. In particular, Plaintiff brings claims for false arrest,
malicious prosecution, malicious abuse of process, and failure
to intervene, as well as a claim against the City for municipal
liability. Defendants move, pursuant to Rule 56(a) of the
Federal Rules of Civil Procedure, for summary judgment
on all of Plaintiff's claims. For the reasons stated below,
Defendants' motion is GRANTED, and the Complaint is
dismissed.
BACKGROUND
The following facts, taken from the Complaint and the
admissible materials submitted by the parties, are viewed in
the light most favorable to Plaintiff, as she is the non-moving
party. See, e.g., Gould v. Winstar Commc'ns, Inc., 692 F.3d
148, 157–58 (2d Cir.2012).
A. The Investigation
On July 15, 2007, the NYPD began investigating the Hot Lap
Dance Club (“HLDC”), a night club on the fifth floor of a
building located in midtown Manhattan, based on complaints
regarding, among other things, prostitution and narcotics
sales. (Pollack Decl. (Docket No. 41), Ex. A at 2; Pollack
Decl., Ex. B at 1; Passeser Decl. (Docket No. 52), Ex. O).
The investigative team ultimately determined that HLDC
operated as an unlicensed all-nude strip club and was the site
of narcotics sales and prostitution. (Pollack Decl., Ex. B at
1). Specifically, in the course of the investigation, undercover
police officers, while visiting HLDC, were sold narcotics nine
times and made several positive agreements for prostitution
with HLDC dancers. (Id.).
More relevant for present purposes, during the course of
their investigation of HLDC, investigators examined various
business records. Among other things, they found that
HLDC's Internet domain name was registered to a corporate
entity called “Web Access, Inc,” which had been dissolved
for failure to pay franchise taxes on June 27, 2001. (Pollack
Decl., Ex. H at 9). Investigators discovered that, in or about
January 2004, Web Access had applied for and obtained a
contract to accept credit card charges in payment for services
as an existing corporate entity, even though it was not one at
the time. (Id.). In or about September 2005, Web Access also
opened a bank account in its name at what is now Sovereign
Bank, listing Plaintiff as its Owner and President and Louis
Posner as its Vice President. (Id. at 10). Plaintiff signed papers
submitted to the bank that did not mention that the corporation
had been dissolved. (Id.).
The investigation also revealed that the credit card application
submitted by Web Access stated that the company was
doing business as “Voter March,” selling “T shirts,
tapes, books and event admissions” through the website
“votermarch.com.” (Id. at 9). Investigators learned that
Voter March itself had been incorporated as a not-for-profit
corporation on February 4, 2002, and that Louis Posner was
listed as its agent for service of process. (Id. at 10). In
February 2007, Voter March opened its own corporate bank
account at Commerce Bank; a document submitted to the
bank (labeled a “Corporate Banking Resolution (For Deposit
Account)”) listed Louis Posner as President and Plaintiff as
Secretary. (Id.). The document, which was signed by both
Plaintiff and Louis Posner, falsely listed Voter March as a
“for profit” corporation. (Id.). According to Plaintiff, the
document was prepared by a bank representative. (Posner Aff.
(Docket No. 46) ¶ 74). In addition, she alleges that Voter
March's certificate of incorporation—identifying it as a non-
profit corporation—was attached to the document. (Posner
Aff. ¶ 75 & Exs. H–I).
*2 Finally, to the extent relevant here, the investigators
learned that, on December 12, 2007, “HLD Entertainment
Corp.”—which was not an actual corporation—applied for
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and obtained a contract to process credit card companies with
First Data Corporation. (Pollack Decl., Ex. H at 12). The
application, which listed Plaintiff as the company's contact
person, stated falsely that the company had been legally
incorporated, that it had been in business for one year, and
that its business was “miscellaneous food stores.” (Id.). On
March 3, 2008, HLD Entertainment Corp. also opened a
corporate checking account with Sovereign Bank, listing
Plaintiff as President and Louis Posner as Vice President and
stating that the nature of its business was “catering.” (Pollack
Decl., Ex. C). Checks from that bank account were used
to pay the rent for HLDC's loft space and were written to
persons working at HLDC who were involved in prostitution
agreements with undercover officers. (Pollack Decl., Ex. H
at 11). Additionally, credit card receivables were deposited
into Plaintiff's personal account and then moved to HLD
Entertainment' Corp's Sovereign Bank checking accounts.
(Id. at 12).
During the investigation, an analyst for the New York County
District Attorney's Office (“the D.A.'s Office”) specializing
in investigating prostitution businesses and money laundering
schemes examined the records of thirteen bank accounts in the
control of Plaintiff, Louis Posner, and the entities described
above. (Id. at 13). Among other things, the analyst concluded
that, dating back to April 2007, Plaintiff and Louis Posner
had made unexplained transfers in excess of $260,000.00.
(Id.). Further, he uncovered a pattern that, in his judgment,
revealed intent to structure transfers to avoid federal currency
transaction reporting laws. (Pollack Decl., Ex. F at 201–07;
see also Pollack Decl., Ex. H at 13).
B. The Arrest and Prosecution
On the evening of July 17, 2008, almost exactly one year after
the investigation had begun, the NYPD Vice Enforcement
Division executed a search warrant at the home of Plaintiff
and Louis Posner. (Pollack Decl., Ex. D at 1). The NYPD
arrested Betty Posner there and she was charged later the
same day, in a criminal complaint signed by Defendant
Sergeant Christopher Koch, with promoting prostitution in
the third degree, in violation of New York Penal Law
Section 230.25(1); money laundering in the second degree,
in violation of New York Penal Law Section 470.15(3); and
falsifying business records in the first and second degrees,
in violation of New York Penal Law Sections 175.10 and
175.05(3). (Pollack Decl., Ex. H at 1). The NYPD arrested
and charged Louis Posner with the same charges. (Id.).
Plaintiff was brought to Manhattan Central booking,
arraigned on July 19, 2008, and, unable to post bail,
incarcerated thereafter. (Posner Aff. ¶¶ 18, 20–21, 24). On
July 23, 2008, she was released because the grand jury had
not yet indicted her. (Id. ¶ 33). On September 4, 2008,
however, a second grand jury returned an indictment against
both Plaintiff and Louis Posner. (Pollack Decl., Ex. I). The
indictment charged Plaintiff with six counts of falsifying
business records in the second degree, in violation of New
York Penal Law Section 175.05(1). (Pollack Decl., Ex. I
at 9–11). It also charged Louis Posner with one count
of promoting prostitution in the third degree; six counts
of money laundering in the second degree; two counts of
falsifying business records in the first degree; and five counts
of falsifying business records in the second degree. (See
Pollack Decl., Ex. I).
*3 On December 10, 2008, Plaintiff filed an omnibus motion
in New York State Supreme Court seeking, among other
things, to dismiss the indictment on the grounds that the
evidence against her was insufficient as a matter of law.
(Pollack Decl., Ex. K at 1). She raised three arguments
in the motion: (1) that the relevant documents were not
business records (id. 4–5); (2) that the falsifications were not
made for monetary gain (id. at 8); and (3) that the alleged
misstatements were “innocuous” and immaterial (id. at 12).
On June 11, 2009, the Honorable Michael Obus, New York
State Supreme Court Justice, denied her motion. (Pollack
Decl., Ex. L). Based on a review of the “extensive testimony
and myriad documents introduced before the Grand Jury,”
the Court held that there was sufficient evidence to return an
indictment against Plaintiff for falsifying business records in
the second degree and “that the proceedings were properly
conducted.” (Id. at 2–3 & n. 1).
More specifically, Justice Obus concluded that the grand
jury had a sufficient basis to determine that the documents
at issue were business records because, “in submitting
documents which falsely portrayed their companies' own
identity, nature and existence, defendants knew that the bank
and credit card companies would maintain the documents
containing such relevant information to evidence the banks'
and processing companies' own activities, and that defendants
would thereby cause those companies to maintain false
business records.” (Id. at 8). Second, he determined that the
evidence was sufficient to find that the banks and credit card
companies were “cheated” of “their right to decline to transact
business with [Plaintiff and Louis Posner],” which is all the
law required. (Id. at 8–12). And third, he found that the
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evidence supported a conclusion that the misstatements were
material because “the statements at issue had misled the banks
and credit card companies to engage in transactions with
defendants.” (Id. at 9). Representatives of those companies,
Justice Obus noted, had testified “that they would never have
transacted business with defendant's entities had they known
that those entities did not presently exist” and that knowing
the business of clients' companies was important to credit
card companies “because they sought to avoid those whose
criminal or other behavior posed a risk that the processing
companies would be abandoned with unpaid charges .” (Id.
at 12–13).
On March 23, 2010, Louis Posner pleaded guilty to promoting
prostitution in the third degree. (Gould Aff. (Docket No. 48)
¶¶ 42, 48; Pollack Decl., Ex. J). (Plaintiff impugns the validity
of Louis Posner's plea (see, e.g., Gould Aff.), but there is
no reason to address the issue here.) On April 22, 2010, the
D.A.'s Office dismissed the charges against Plaintiff (Posner
Decl, Ex. B), and the State Court sentenced Louis Posner to
probation for five years. (Passeser Decl., Ex. Q at 4)
SUMMARY JUDGMENT STANDARD
*4 Summary judgment is appropriate where the admissible
evidence and the pleadings demonstrate “no genuine dispute
as to any material fact and the movant is entitled to a judgment
as a matter of law.” Fed.R.Civ.P. 56(a); see also Johnson
v. Killian, 680 F.3d 234, 236 (2d Cir.2012) (per curiam). A
dispute over an issue of material fact qualifies as genuine if
the “evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35
(2d Cir.2008). The moving party bears the initial burden of
demonstrating the absence of a genuine issue of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In moving for summary
judgment against a party who will bear the ultimate burden
of proof at trial, the movant's burden will be satisfied if he
can point to an absence of evidence to support an essential
element of the nonmoving party's claim.” Goenaga v. March
of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995)
(citing Celotex, 477 U.S. at 322–23); accord PepsiCo, Inc. v.
Coca–Cola Co., 315 F.3d 101, 105 (2d Cir.2002).
In ruling on a motion for summary judgment, all evidence
must be viewed “in the light most favorable to the non-
moving party,” Overton v. N.Y. State Div. of Military & Naval
Affairs, 373 F.3d 83, 89 (2d Cir.2004), and the court must
“resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary
judgment is sought,” Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004).
To defeat a motion for summary judgment, however, the
non-moving party must advance more than a “scintilla of
evidence,” Anderson, 477 U.S. at 252, and demonstrate more
than “some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The non-
moving party “cannot defeat the motion by relying on the
allegations in [its] pleading or on conclusory statements, or
on mere assertions that affidavits supporting the motion are
not credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518
(2d Cir.1996) (citation omitted).
DISCUSSION
As noted, Defendants move for summary judgment on all
of Plaintiff's claims. The Court will address the false arrest
and false imprisonment claims first, then turn to the claims
for malicious prosecution and malicious abuse of process,
before concluding with the failure-tointervene and municipal
liability claims.
A. False Arrest and False Imprisonment
First, Defendants challenge Plaintiff's false arrest and false
imprisonment claims on the grounds that there was probable
cause to believe that she had falsified business records, the
charge on which she was later indicted. (Defs.' Mem. Law
Supp. Mot. Summ. J. (“Defs.' Mem. Law”) (Docket No. 38)
3–14; Pollack Decl., Ex. I at 9–11). To prevail on a claim of
false arrest or false imprisonment, a plaintiff must establish
that “(1) the defendant intended to confine the plaintiff, (2) the
plaintiff was conscious of the confinement, (3) the plaintiff
did not consent to the confinement, and (4) the confinement
was not otherwise privileged.” Savino v. City of New York,
331 F.3d 63, 75 (2d Cir.2003). Probable cause to arrest is “an
absolute defense to a false arrest claim.” Jaegly v. Couch,
439 F.3d 149, 152 (2d Cir.2006); accord Gonzalez v. City
of Schenectady, 728 F.3d 149, 155 (2d Cir.2013). Moreover,
a police officer's “subjective reason for making the arrest
need not be the criminal offense as to which the known facts
provide probable cause.” Devenpeck v. Alford, 543 U.S. 146,
153, 125 S.Ct. 588, 160 L.Ed.2d 537 (2004). That is, a false
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arrest claim turns on whether there was probable cause as to
some offense, and “it is not relevant whether probable cause
existed with respect to each individual charge, or, indeed, any
charge actually invoked by the arresting officer at the time of
arrest.” Jaegly, 439 F.3d at 152; accord Zellner v. Summerlin,
494 F.3d 344, 369 (2d Cir.2007).
*5 As a general matter, “probable cause to arrest exists
when the officers have knowledge or reasonably trustworthy
information of facts and circumstances that are sufficient
to warrant a person of reasonable caution in the belief that
the person to be arrested has committed or is committing
a crime.” Gonzalez, 728 F.3d at 155 (emphasis omitted)
(internal quotation marks omitted). The inquiry is limited to
“whether the facts known by the arresting officer at the time
of the arrest objectively provided probable cause to arrest .”
Jaegly, 439 F.3d at 153. 1 Although “an officer need not
have concrete proof of each element of a crime to establish
probable cause for an arrest, probable cause means more than
bare suspicion.” Gonzalez, 728 F.3d at 155 (internal quotation
marks and citations omitted). And, as the Second Circuit has
emphasized, “it certainly means more than suspicion of some
generalized misconduct: no probable cause exists to arrest
where a suspect's actions are too ambiguous to raise more than
a generalized suspicion of involvement in criminal activity.”
Id. (internal quotation marks omitted).
Applying those standards here, the Court easily finds that,
at the time of Plaintiff's arrest, there was probable cause to
arrest her for falsifying business records. 2 Under New York
law, a person is guilty of falsifying business records in the
second degree when he or she, “with intent to defraud, ...
omits to make a true entry in the business records of an
enterprise in violation of a duty to do so which he knows
to be imposed upon him by law or by the nature of his
position....” N.Y. Penal Law § 175.05(3). As Justice Obus
concluded in holding that the evidence before the grand
jury was sufficient to support Plaintiff's indictment for that
offense, there was a “sufficient basis” to believe that Plaintiff
and her husband submitted documents to banks and credit
card processors that “falsely portrayed their companies' own
identity, nature and existence” and that they “knew that
the bank and credit card companies would maintain the
documents ... thereby caus [ing] those companies to maintain
false business records.” (Pollack Decl., Ex. L at 8). 3 Further,
a reasonable officer could certainly have concluded that, had
the banks and credit card companies “known of the true nature
and condition of [the relevant] business entities—i.e., whether
those business presently existed, and whether they provided
lap dances and prostitutes in addition to a buffet—they would
not have conducted business with those entities.” (Id. at 9). 4
Based on the totality of circumstances, officers also had
reason to believe that Plaintiff acted with intent to defraud.
In fact, a reasonable officer aware of HLDC's activities
could have inferred from the nature of the false information
itself that Plaintiff and her husband intended to deceive
the banks and credit card companies into believing that the
relevant entities were properly incorporated and involved
in innocuous activities. Despite Plaintiff's assertion to the
contrary (Pl.'s Mem. Law Opp'n Defs.' Mot. Summ. J.
(“Pl.'s Mem. Law”) (Docket No. 49) 10), even the false
statement that Voter March was a for-profit entity rather
than a non-profit entity could have been understood as
motivated by an intent to defraud. As Justice Obus explained,
one could reasonably “conclude that the misdescription was
necessary to explain to [the bank] why such large amounts of
money flowed through the coffers of an otherwise dormant,
politicalaction or public-interest styled corporation.” (Pollack
Decl., Ex. L at 13 n. 3). 5 Furthermore, as noted, an analyst
who specialized in investigating prostitution businesses and
money laundering schemes found more than $260,000 in
unexplained transfers “in a pattern of evincing an intent to
‘structure’ the transfers to avoid federal currency transaction
reporting laws.” (Pollack Decl., Ex. H at 13; see also Pollack
Decl., Ex. F at 205). That evidence—particularly in the
context of the broader investigation into the illegal activities
of, and taking place at, HLDC—was sufficient to give a
reasonable officer probable cause to believe that Plaintiff was
falsifying business records with an intent to defraud. See, e.g.,
Hall v. Brown, 489 F.Supp.2d 166, 173–174 (N.D.N.Y.2007)
(finding, on summary judgment, that there was probable
cause to arrest Plaintiff for falsifying business records based
on the investigators' study of Plaintiff's business records and
behavior that matched allegations).
*6 Plaintiff's arguments to the contrary are unavailing. Many
—if not most—of Plaintiff's arguments rely on facts that
were not known to Defendants at the time of her arrest or
on alternative explanations for the facts that were known at
the time. For instance, Plaintiff asserts that her husband did
not know that Web Access had been dissolved (Pl.'s Mem.
Law 6), and that “[e]very bank application or signature card
and every merchant credit application was completed by [her]
husband ... and [her] involvement, if any, was in signing a
few documents at his request” (Posner Aff. ¶ 50). Further, she
insists that it is “common practice for gentlemen's clubs to
list their business type as something other than a gentlemen's
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club or strip club” to protect the privacy of their employees,
many of whom “are professional white collar workers by
day.” (Pl.'s Mem. Law 12–13). The fact that Plaintiff has
innocent explanations for the information that was known
to Defendants, however, does not mean that they lacked
probable cause; it merely means that she might have had
viable arguments and defenses to the charges at trial. See,
e.g., Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 128 (2d
Cir.1997) ( “Once a police officer has a reasonable basis for
believing there is probable cause, he is not required to explore
and eliminate every theoretically plausible claim of innocence
before making an arrest.”).
Plaintiff's other arguments are similarly unpersuasive. First,
she contends that any charges relating to the September
2005 bank document submitted for Web Access were time
barred under New York law. (Pl.'s Mem Law 9 (citing
N.Y.Crim. Proc. Law § 30.12(c))). That may be true, but
Defendants were nevertheless entitled to consider the conduct
in evaluating whether there was probable cause as to the
other documents at issue. Cf., e.g., United States v. DeFiore,
720 F.2d 757, 764 (2d Cir.1983) (holding that evidence
establishing “intent, as well as the preparations and plans
that went into the scheme to defraud” were admissible
against the defendant under Rule 404(b) of the Federal Rules
of Evidence, “even though it antedate[d] the limitations
period”).
Finally, Plaintiff contends that it was not false to identify
Web Access as a corporation—and, conversely, that it was
false of Sergeant Koch to suggest otherwise in the criminal
complaint against her—because it was “still permitted to
conduct business as a de facto corporation in New York
State.” (Pl.'s Mem. Law 7). It is true that, under New
York law, “a company lacking formal corporate status but
nonetheless operating as a corporation may be considered
a de facto corporation and those who treat the entity as a
corporation in regular business dealings may not later deny
its corporate status.” L–Tec Elecs. Corp. v. Cougar Elec. Org.,
Inc. ., 198 F.3d 85, 87 (2d Cir.1999) (per curiam). But more
recent authority than that on which Plaintiff relies in her
memorandum of law indicates that the doctrine is inapplicable
where, as here, a corporation was dissolved for failure to
pay franchise taxes. See, e.g., Conte v. Cnty. of Nassau, No.
06–CV–4746 (JFB) (ETB), 2013 WL 3878738, at *24 n. 36
(E.D.N.Y. July 26, 2013) (citing cases). Further, the doctrine
applies only in the absence of fraud. See, e.g., Lodato v.
Greyhawk N. Am., L.L.C., 10 Misc.3d 418, 807 N.Y.S.2d 818,
824 (N.Y.Sup.Ct.2005) (citing cases). Regardless, the de facto
corporation doctrine is a doctrine of estoppel; it does not
follow that one who represents an entity as a valid corporation
when it has actually been dissolved as matter of law is making
a truthful statement. And it certainly does not follow that
Sergeant Koch's statement in the criminal complaint that
Web Access had been dissolved and no longer existed “was
a false, misleading, and an incomplete description of the
corporation.” (Pl.'s Mem. Law 7).
*7 In short, based on the undisputed evidence in the
record, the Court finds that Defendants had probable cause to
arrest Plaintiff for falsifying business records in the second
degree. 6 As that is a complete defense to Plaintiff's claims of
false arrest and false imprisonment, Defendants are entitled to
summary judgment on those claims, and the Court need not
reach the question of whether Defendants also had probable
cause to arrest Plaintiff for promoting prostitution or money
laundering. See, e.g., Jaegly, 439 F.3d at 152; Zellner, 494
F.3d at 369.
B. Malicious Prosecution and Malicious Abuse of
Process
Next, Defendants challenge Plaintiff's claims for malicious
prosecution and malicious abuse of process. (Defs.' Mem.
Law 14–17, 21–22). To succeed on a claim of malicious
prosecution, a plaintiff must demonstrate: “(1) the initiation
of a proceeding, (2) its termination favorably to plaintiff, (3)
lack of probable cause, and (4) malice.” Savino, 331 F.3d
at 75. The existence of probable cause as to one offense
does not defeat a malicious-prosecution claim as to another
offense. See, e.g., Posr v. Doherty, 944 F.2d 91, 100 (2d
Cir.1991) (“[W]here the issue is whether the officers had
probable cause to commence proceedings against [Plaintiff],
not with whether the charges were terminated in plaintiff's
favor, [there is a] need to separately analyze the charges
claimed to have been maliciously prosecuted.”). A malicious-
abuse-of-process claim, on the other hand, “lies against a
defendant who (1) employs regularly issued legal process
to compel performance or forbearance of some act (2) with
intent to do harm without excuse of justification, and (3)
in order to obtain a collateral objective that is outside the
legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73,
80 (2d Cir.1994). Courts in this Circuit appear to be divided
on whether the existence of probable cause defeats a claim for
malicious abuse of process. Compare, e.g., Mangino v. Inc.
Vill. of Patchogue, 814 F.Supp.2d 242, 248 (E.D.N.Y.2011)
(“[I]f plaintiff can demonstrate the elements of abuse of
process ... without relying on an inference from a lack of
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probable cause, then [a malicious-abuse-ofprocess] claim can
survive even with probable cause.”), with Widget v. Town of
Poughkeepsie, No. 12 Civ. 3459(ER), 2013 WL 1104273, at
*13 (S.D.N.Y. Mar.18, 2013) (holding that probable cause is
a defense not only to a malicious prosecution claim, but also
to a malicious abuse of process claim).
In this case, both sets of claims fail for the same reason:
Plaintiff has pointed to no admissible evidence whatsoever of
malice or intent to do harm without excuse or justification.
Plaintiff asserts that Defendants “willfully provided false
information in the criminal court complaint.” (Pl.'s Mem.
19). 7 But there is little or no evidence of falsity (as
discussed above, most of the information that Plaintiff
identifies as “false” depends on facts that were not known
to Defendants at the time or alternative explanations that
Defendants were not required to credit), and no evidence
whatsoever of willfulness. Plaintiff does insist that the charges
against her were brought solely to pressure her husband
into pleading guilty because Defendants “had a very weak
case against [him]” (Pl.'s Mem. 24); that her arrest was
“politically motivated” because her arrests were “fodder for
the conservative media” (Posner Aff. ¶ 96 (citing a post about
Louis Posner written by Ann Coulter on her personal blog));
and that Defendants' goal was “to embarrass and humiliate
plaintiff.” (Pl.'s Mem. 24). Plaintiff, however, has no evidence
to support any of those claims beyond her own speculation,
which is insufficient to avoid summary judgment. See, e.g.,
D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.1998)
(“The nonmoving party may not rely on mere conclusory
allegations nor speculation, but instead must offer some hard
evidence showing that its version of the events is not wholly
fanciful.”). 8 Plaintiff also claims that her prosecution was
brought in retaliation for her husband's refusal to pay a bribe
to members of the NYPD Vice Squad. (Pl.'s Mem. Law 24).
But that claim is premised on inadmissible double hearsay—
namely, an affidavit recounting Louis Posner's statement to
the affiant that he had been advised by two members of the
security staff about the alleged bribe attempt. (Aslan Decl.
(Docket No. 47) ¶¶ 82–93, 97). Regardless, even if Louis
Posner did refuse to pay a bribe, Plaintiff cites no evidence
tying the prosecution of her to that refusal.
*8 In sum, there is no admissible evidence to support
Plaintiff's conclusory assertions that Defendants acted
with malice and or intent to do harm without excuse
or justification. Accordingly, her claims of malicious
prosecution and malicious abuse of process fail as a matter of
law and must be dismissed.
D. Failure To Intervene and Municipal Liability
Finally, Defendants seek dismissal of Plaintiff's failure-to-
intervene and municipal liability claims. (Defs.' Mem. Law
20, 22–25). Because Defendants are entitled to summary
judgment on Plaintiff's primary claims that they violated
her constitutional rights, it follows that they are entitled to
summary judgment on her failure-to-intervene and municipal
liability claims as well. See, e.g., Matthews v. City of New
York, 889 F.Supp.2d 418, 443–44 (E.D.N.Y.2012) (noting
that failure to intervene claims are “contingent upon the
disposition of the primary claims underling the failure to
intervene claim”); Harper v. City of New York, No. 10
Civ. 7856(SAS), 2011 WL 3463156, at *8 (S.D.N.Y. Aug.5,
2011) (“Because plaintiff's Monell claim is contingent on the
existence of an independent constitutional violation, and this
Court has dismissed all of plaintiffs' claims for violations of
their constitutional rights, the claims against the City cannot
be sustained.”). Furthermore, even if there were evidence
to support Plaintiff's primary claims, she has adduced no
evidence that the violation or violations of her constitutional
rights resulted from a municipal policy, custom, or practice,
as required to hold the City liable. See Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 690–91, 98 S.Ct. 2018, 56
L.Ed.2d 611 (1978). She does not, for example, “provide any
expert testimony, training manuals, or individual evidence
relating to an absence of training in [money laundering and
prostitution].” Brown v. Cnty. of San Joaquin, No. CIV. S–04–
2008 FCD PAN, 2006 WL 1652407, 12 (E.D.Cal. June 13,
2006). Instead, she relies solely on the passing testimony of
several Defendants that they did not receive specific training
from the NYPD on the elements of money laundering or
prostitution. (Hazan Decl. (Docket No. 45) ¶ 14; Hazan
Decl., Exs. 9, 10, 11). But the evidence (including that same
testimony) makes clear that there is some training on these
issues. (Hazan Decl., Ex. 10, at 64; Hazan Decl. Ex. 11, at
35). Moreover, the testimony does not suffice to “create a
triable issue of fact in regards to [a] Monell claim based upon
a failure to train.” Brown, 2006 WL 1652407, at * 12 (citing
Ramirez v. Cnty. of Los Angeles, 397 F.Supp.2d 1208, 1228
(C.D.Cal.2005)).
CONCLUSION
For the reasons stated above, Defendants' motion for
summary judgment is GRANTED, and the Complaint is
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dismissed in its entirety. The Clerk of Court is directed to
close the case.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 185880
Footnotes
1 As Defendants correctly note (Defs.' Mem. Law 10–13), the Court's “assessment as to whether probable
cause existed at the time of the arrest is to be made on the basis of the collective knowledge of the police,
rather than on that of the arresting officer alone.” Husbands ex rel. Forde v. City of N.Y., 335 F. App'x 124,
127 (2d Cir.2009) (summary order) (citing Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir.2000)); see also
Calamia v. City of N.Y., 879 F.2d 1025, 1032–33 (2d Cir.1989) (applying the “collective knowledge doctrine”
to an Assistant District Attorney who participated in the investigation). Plaintiff does not argue otherwise.
2 The parties disagree about whether Plaintiff's later indictment for falsifying business records creates a
presumption of probable cause for purposes of her false arrest and false imprisonment claims. (Compare
Defs.' Mem. Law 5–6 (citing Walker v. Sankhi, 494 Fed. App'x 140, 142–43 (2d Cir.2012) (summary order);
Manganiello v. City of New York, 612 F.3d 149, 162 (2d Cir.2010)), with Pl.'s Mem. Law 5 (citing McClellan
v. Smith, 439 F.3d 137, 145 (2d. Cir.2005); Savino, 331 F.3d at 75; Cook v. Sheldon, 41 F.3d 73, 77–79
(2d Cir.1994))). The Court need not resolve the issue, however, as there was probable cause to arrest her
independent of any presumption that the grand jury's indictment may have created.
3 Justice Obus's decision does not have preclusive effect with respect to Plaintiff's false arrest and false
imprisonment claims. First, the precise question of whether there was probable cause at the time of arrest
was not “actually litigated” in the state court proceeding. See, e.g., Katz v. Katz, 312 F.3d 568, 573–74
(2d Cir.2002). Second, Plaintiff did not have an opportunity to appeal Justice Obus's decision because
the charges against her were eventually dismissed. See, e.g., Johnson v. Watkins, 101 F.3d 792, 793 (2d
Cir.1996). Nevertheless, Justice Obus's reasoning is helpful in analyzing the issue presented here.
4 As Justice Obus noted, representatives of the credit card processing companies testified that “they strove
to accurately assess the business of their client companies, because they sought to avoid those whose
criminal or other behavior posed a risk that the processing companies would be abandoned with unpaid
charges.” (Pollack Decl., Ex. L at 12–13). Even in the absence of testimony on that point, an officer could
reasonably have believed that the false information in the documents discussed above would have been
important to the banks and credit card companies.
5 Plaintiff's assertion that Voter March's certificate of incorporation identifying it as a non—profit corporation was
attached to the bank document—an assertion the Court credits for purposes of this motion—does make the
issue a closer one. (Pl.'s Mem. Law. 10). But Plaintiff has introduced no evidence suggesting that Defendants
knew that the certificate of incorporation was attached to the bank document. And, given the totality of the
circumstances known to Defendants, a reasonable officer could still have believed that the false statement
on the document itself was part of a fraud scheme. That Plaintiff might have had a strong argument at trial,
or that the fraud scheme was bound to fail, does not change that.
6 Defendants would be entitled to summary judgment on Plaintiff's false arrest and false imprisonment claims
even if the evidence known to Defendants prior to Plaintiff's arrest fell short of creating probable cause. That
is because there was, at a minimum, “arguable probable cause to arrest.” See, e.g., Hart v. City of New
York, No. 11 Civ. 4678(RA), 2013 WL 6139648, at *7 (S.D.N.Y. Nov.18, 2013) (“In the false arrest context,
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‘an arresting officer is entitled to qualified immunity ... if he can establish that there was arguable probable
cause to arrest. Arguable probable cause exists if either (a) it was objectively reasonable for the officer to
believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the
probable cause test was met.’ “ (quoting Ackerson v. City of White Plains, 702 F.3d 15, 21 (2d Cir.2012) (per
curiam) (alterations omitted) (citation omitted))).
7 Plaintiff's malicious prosecution claim with respect to the falsifying business records charges fails for two other
reasons. First, as discussed above, Defendants had probable cause to arrest Plaintiff for falsifying business
records, and no facts were discovered between the time of arrest and the time of charging that made apparent
“ ‘the groundless nature of the charges.’ “ Lowth v. Town of Cheektowaga, 82 F.3d 563, 569 (2d Cir.1996);
see also Stansbury v. Wertman, 721 F.3d 84, 94–95 (2d Cir.2013) (“[T]he existence of probable cause is a
complete defense to a claim of malicious prosecution.” (internal quotation marks omitted)). Second, Plaintiff's
indictment by the grand jury creates a presumption of probable cause with respect to falsifying business
records, and she has not rebutted the presumption with “evidence that the indictment was procured by fraud,
perjury, the suppression of evidence or other police conduct undertaken in bad faith.” Stansbury, 721 F.3d
at 95 (internal quotation marks omitted).
8 The NYPD Case Synopsis, prepared nine days before the arrest, does mention the possibility of media
coverage, but wholly unrelated to Louis Posner. The Case Synopsis predicted media coverage because
“[t]here ha[d] been previous media coverage involving a patron who was injured when a stripper struck him
in the eye with a high heeled shoe .... [and had] threatened litigation against the owner/operator.” (Pollack
Decl., Ex. B at 3).
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Quinones v. Rollison, Not Reported in Fed. Supp. (2020)
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2020 WL 6420181
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jose M. QUINONES, Plaintiff,
v.
Captain Adam ROLLISON, Shield No. 192,
Correction Officer Eric Wilson, Shield No. 11616,
Correction Officer Kenny Rochez, Shield No. 5196,
Correction Officer Sammy Fernandez, Shield No.
5335, and Captain Carlos Blackwood, Defendants.
18-cv-1170 (AJN)
|
Signed 11/01/2020
Attorneys and Law Firms
Ezra Spilke, Law Offices of Ezra Spilke, PLLC, Brooklyn,
NY, for Plaintiff.
Joseph Peter Zangrilli, New York City Law Department, New
York, NY, for Defendants.
OPINION & ORDER
ALISON J. NATHAN, District Judge:
*1 In 2016, Plaintiff Jose Quinones was detained at
the George R. Vierno Center on Rikers Island. On his
first day at that facility, another inmate violently attacked
him, and a corrections officer subsequently used pepper
spray to break up the altercation. Plaintiff now claims that
Defendants, a number of Department of Corrections staff,
used excessive force against him in breaking up the fight and
were deliberately indifferent to his safety. Defendants have
moved for summary judgment on both claims. For the reasons
that follow, Defendants’ motion is GRANTED.
I. BACKGROUND
A. The Facts
The following facts are undisputed: In November 2016,
the New York Police Department arrested Plaintiff Jose
Quinones. Dkt. No. 104 ¶ 3; see also Dkt. No. 93 Ex.
D. For about two weeks, Plaintiff was incarcerated at the
Manhattan Detention Center, and he and two other inmates
were subsequently transferred to the George R. Vierno Center
(GRVC) on Rikers Island. Dkt. No. 104 ¶ 5. When he arrived
at GRVC, Plaintiff asked a corrections offer which unit he
was being placed in and which gang was in control of the
unit. Id. ¶¶ 6–7. Plaintiff was informed that he was being
placed in Unit 8A, and “that the Macballas controlled the
unit.” Id. ¶ 8. The parties agree that Plaintiff did not belong
to the Macballas gang, but was instead affiliated with another
gang. Id. ¶ 9. Plaintiff testified that he was a member of
the Bloodhound Brims, which is affiliated with the Bloods.
See Quinones Dep., Dkt. No. 93 Ex. C., at 40:9–13, 45:21–
46:1. The two other inmates that came with Plaintiff from
MDC were affiliated with other gangs. Quinones Dep. 29:6–
11 (noting that these individuals were members of the Ape
and Gorilla gangs); see also Dkt. No. 104 ¶ 12. 1 Plaintiff
and the other inmates “notified the officer that their gangs had
problems with the Macballas and that plaintiff expected he
would be attacked.” Dkt. No. 104 ¶ 13. Nonetheless, Plaintiff
and the other two individuals were all placed in Unit 8A. Id. ¶
15. Plaintiff did not inform other Department of Corrections
staff members that he was concerned for his safety. Id.
The next morning, Plaintiff was let out of his cell and spoke
with a man named Mike, who he knew from his time living
in Harlem. Id. ¶ 19. Mike informed Plaintiff that Unit 8A
housed members of the Macballas and Patria gangs, and that
there were “two other Blood gang members also inside the
housing unit.” Id. ¶¶ 20–21. Plaintiff then spoke with these
“other Blood gang members” and learned that “the Bloods
shared one of the Macballas’ phones and were allowed to use
it at certain times of the day.” Id. ¶ 22. Later that day, after
confirming with other Blood members that he could use the
phone, Plaintiff made a phone call. Id. ¶ 24. On that call, he
informed the individual with whom he was speaking that “he
rejected an offer” from Department of Corrections officers “to
go into protective custody ... because he was trying to look
cool.” Id. ¶ 25.
*2 While on the phone, at about 9 AM, Plaintiff was “slashed
by another inmate.” Id. ¶ 26. Specifically, “an inmate sliced
Mr. Quinones in the cheek and neck, leaving a five-inch
gash.” Dkt. No. 105 ¶ 14. The parties disagree about the exact
details of what happened next, but here's the (undisputed)
gist: Officer Sammy Fernandez, a defendant in this action,
was working in Unit 8A at the time. Dkt. No. 104 ¶ 28.
Officer Fernandez described his job as “basically walk[ing]
around and monitor[ing] the housing area.” Fernandez Dep.,
Dkt. No. 93-8, at 25:2–47. Unit 8A contains two levels of
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cells, and Officer Fernandez was on the higher level at the
time. Id. 25:11–13, 29:17–30:3 (“I was on the top tier of the
housing area ... I was letting inmates out of their cells.”).
After Plaintiff was attacked, Officer Fernandez ran to the
stairwell, came downstairs, and “pushed his Personal Body
Alarm immediately after he saw blood on the plaintiff.” Dkt.
No. 104 ¶ 30.
Plaintiff admits that after he “was cut he turned in an
aggressive manner towards his assailant.” Id. ¶ 31. The
assailant and the Plaintiff continued to fight—though the
parties dispute who “threw the first punch.” See id. ¶ 32.
Officer Fernandez “ordered the plaintiff and other inmate to
stop,” and Plaintiff admits that Officer Fernandez said “stop”
while looking at him. Dkt. No. 104 ¶ 34. Officer Fernandez
further informed both inmates “that he would utilize his
chemical agent if they continued to fight.” Id. ¶ 35. Plaintiff
subsequently threw a garbage can in the direction of the
inmate who had cut him and others who had gathered on
the scene. Id. ¶ 36. Officer Fernandez then used a “two-
second burst of chemical agent,” and both Plaintiff and his
assailant were sprayed. Id. ¶ 37; see also Fernandez Dep.
55:1-16. After Officer Fernandez sprayed the chemical agent,
“the fight stopped and the inmates dispersed throughout the
housing area.” Id. ¶ 39. A “probe team” then arrived and
escorted both inmates out of the housing unit. Id. ¶ 40; see
also id. ¶ 43 (“Approximately five minutes after the incident
the plaintiff was escorted out of the unit.”). Defendants have
also provided undisputed video footage of this entire incident.
Def. Ex. G.
Plaintiff was soon seen in the GRVC clinic by a doctor,
and was then “referred to Urgi-Care where his laceration
wound was treated with Dermabond/Sterile strips.” Id. ¶¶ 41–
42. A subsequent Department of Corrections investigation
determined “that the plaintiff had been slashed by an inmate
who belonged to the Trinitarian gang,” not the Macballas. Id.
¶ 46. 2
B. Procedural History
In February 2018, Plaintiff filed this action under 42 U.S.C.
§ 1983. More than a year later, he filed a fourth amended
complaint, which is the operative pleading in this matter.
Dkt. No. 88. He named as defendants several Department
of Corrections staff, such as Officer Fernandez and the
officers who conducted his intake into GRVC. Id. ¶¶ 5–8. 3
Plaintiff alleged that Defendant Fernandez had violated his
constitutional rights by using excessive force. And Plaintiff
alleged that the other Department of Corrections Staff, whom
the parties refer to as the “Intake Defendants,” violated the
Fourteenth Amendment's Due Process Clause by placing
him into Unit 8A even though he expressed that he was
not a Macballas member, thereby acting with deliberate
indifference to his safety. See id.
*3 After lengthy discovery, Defendants have moved for
summary judgment on all counts. That motion is now before
the Court.
II. LEGAL STANDARD
Summary judgment is appropriate only where “there is no
genuine issue as to any material fact and ... the moving
party is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c). A dispute is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The relevant inquiry on summary judgment
is “whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Id. at 251–
52. A court is not charged with weighing the evidence and
determining its truth, but with determining whether there
is a genuine issue for trial. Westinghouse Elec. Corp. v.
N.Y. City Transit Auth., 735 F. Supp. 1205, 1212 (S.D.N.Y.
1990) (quoting Anderson, 477 U.S. at 249). Moreover, if
the evidence for the nonmoving party is a mere scintilla or
“not significantly probative,” the court may grant summary
judgment. Anderson, 477 U.S. at 249–50. A fact is “material”
only if it will affect the outcome of the suit under applicable
law, and such facts “properly preclude the entry of summary
judgment.” Id. at 248. Disputes over irrelevant facts will not
preclude summary judgment. Id. The goal is to “isolate and
dispose of factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986).
While the moving party bears the initial burden of showing
that no genuine issue of material fact exists, Atl. Mut. Ins.
Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005),
in cases where the non-moving party bears the burden of
persuasion at trial, “the burden on the moving party may be
discharged by ‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the
nonmoving party's case,” Celotex, 477 U.S. at 325. “It is
ordinarily sufficient for the movant to point to a lack of
evidence ... on an essential element of the non-movant's
claim.... [T]he nonmoving party must [then] come forward
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with admissible evidence sufficient to raise a genuine issue
of fact for trial....” Jaramillo v. Weyerhaeuser Co., 536 F.3d
140, 145 (2d Cir. 2008) (internal citations omitted); see also
Goenaga v. March of Dimes Birth Defects Found., 51 F.3d
14, 18 (2d Cir. 1995) (“Once the moving party has made a
properly supported showing sufficient to suggest the absence
of any genuine issue as to a material fact, the nonmoving
party ... must come forward with evidence that would be
sufficient to support a jury verdict in his favor.”).
III. DEFENDANTS’ MOTION IS GRANTED
A. Plaintiff's Excessive-Force Claim
against Officer Fernandez Fails
The Court begins with Plaintiff's claim that Fernandez's use
of pepper spray constituted constitutionally excessive force,
in violation of the Fourteenth Amendment. Section 1983
imposes liability on individuals who, while acting under
color of state law, deprive a plaintiff of a federal right. See
Gomez v. Toledo, 446 U.S. 635, 640 (1980). “A pretrial
detainee who is subjected to excessive force may bring a claim
under § 1983.” Cunningham v. Rodriguez, No. 01-cv-1123
(DC), 2002 WL 31654960, at *4 (S.D.N.Y. Nov. 22, 2002).
Because the Eighth Amendment's protection from cruel and
unusual punishment does not apply “ ‘until after conviction
and sentence,’ the right of pretrial detainees to be free from
excessive force amounting to punishment is protected by the
Due Process Clause of the Fourteenth Amendment.” United
States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (quoting
Graham v. Connor, 490 U.S. 386, 392 n.6 (1989)). “The
Second Circuit applies the same standard to excessive force
claims brought under the Fourteenth Amendment as under
the Eighth Amendment.” Virella v. Pozzi, No. 05-cv-10460
(RWS), 2006 WL 2707394, at *3 (S.D.N.Y. Sept. 20, 2006).
*4 To establish a violation of the “right of pretrial detainees
to be free from excessive force amounting to punishment,” a
pretrial detainee must show that the force used against him
was “objectively unreasonable.” Kingsley v. Hendrickson,
576 U.S. 389 (2015). This inquiry is “context specific,
turning upon ‘contemporary standards of decency.’ ” Blyden
v. Mancusi, 186 F.3d 252, 263 (2d Cir. 1999) (quoting
Hudson v. McMillan, 503 U.S. 1, 8 (1992)). “Considerations
such as the following may bear on the reasonableness or
unreasonableness of the force used: the relationship between
the need for the use of force and the amount of force used; the
extent of the plaintiff's injury; any effort made by the officer
to temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by
the officer; and whether the plaintiff was actively resisting.”
Kingsley, 576 U.S. at 397.
The Second Circuit has long made clear that “[n]ot every push
or shove, even if it may later seem unnecessary in the peace
of a judge's chambers, violates a prisoner's constitutional
rights.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.
1997) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d
Cir. 1973)). In other words, “plaintiff must show that the
harm incurred was more than de minimis.” Berry v. City of
New York Dep't of Corr., No. 12-cv-7819 (RWS), 2014 WL
2158518, at *5 (S.D.N.Y. May 22, 2014), aff'd sub nom.
Berry v. New York City Dep't of Correction, 622 F. App'x
10 (2d Cir. 2015). The use of pepper spray “constitutes a
significant degree of force” and can in certain cases form
the basis of a constitutional violation. Tracy v. Freshwater,
623 F.3d 90, 98 (2d Cir. 2010) (“Unquestionably, infliction
of pepper spray on an arrestee has a variety of incapacitating
and painful effects....”); see Berry, 2014 WL 2158518, at
*5. However, if the force was “applied in a good-faith
effort to maintain or restore discipline, it is unlikely to be
repugnant to the conscience of mankind, and will not amount
to excessive force under Second Circuit law.” Adilovic v. Cnty.
of Westchester, No. 08-cv-10971 (PGG), 2011 WL 2893101,
at *6 n. 12 (S.D.N.Y. July 14, 2011) (internal citation omitted)
(quoting Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000)); accord
Berry, 2014 WL 2158518, at *5.
The Court concludes that, on the undisputed facts, no
reasonable jury could conclude that Officer Fernandez's use
of force was objectively unreasonable. See Kingsley, 576
U.S. at 397. To begin, the amount of force used was small.
It is undisputed that Officer Fernandez used only a two-
second burst of pepper spray against Mr. Quinones. Dkt.
No. 104 ¶ 37. He used a similar, seconds-long spray to
subdue the assailant, and the parties agree that the “plaintiff
and his assailant were both sprayed one time [each] by
Officer Fernandez.” Id. ¶ 38 (emphasis added); see also
Def. Ex. G (surveillance video demonstrating that pepper
spray was used only for seconds). This case is thus a far
cry from United States v. Praisner, in which the pretrial
detainee alleged that he had been “sprayed six times on
four separate occasions over approximately 40 minutes, and
was not decontaminated during that period.” No. 09-cr-264
(MRK), 2010 WL 2574103 (D. Conn. Apr. 27, 2010).
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Moreover, even reading the record most favorably to Plaintiff,
Officer Fernandez's use of force was proportional to the need
for force. Plaintiff does not dispute, and the surveillance video
of the incident clearly demonstrates, that Officer Fernandez
employed the two-second burst of pepper spray against two
inmates who were in the midst of a violent fight involving
a dangerous weapon, had been warned to stop their conduct,
had nonetheless continued fighting, and had been specifically
warned that failure to do so would result in the use of pepper
spray. Dkt. No. ¶¶ 34–35.; Def. Ex. G. Plaintiff's conduct
posed a risk to other inmates, himself, Officer Fernandez,
and other prison staff. The parties agree that this limited
force was sufficient to achieve the desired end: “After the
chemical agent was utilized the fight stopped and the inmates
dispersed throughout the housing area.” Dkt. No. 104 ¶ 39; see
also Ex. G. And Officer Fernandez's repeated warnings speak
to his efforts “to temper or to limit the amount of force ...
and whether the plaintiff was actively resisting.” Kingsley,
576 U.S. at 397; accord Beauvoir v. Falco, 345 F. Supp. 3d
350, 369 (holding that this factor favored summary judgment
because “Defendants tried multiple times to convince Plaintiff
to follow their orders ... before resorting to use of force”).
Indeed, despite Fernandez's warnings, Dkt. No. 104 ¶¶ 34–
35, Plaintiff continued his involvement in the fight and threw
a garbage can at his assailant and other inmates. Id. ¶ 36.
Though Plaintiff contends that the garbage can was thrown
in self-defense, and thus the Court should disregard this fact,
Plaintiff's subjective state of mind is irrelevant—the Court
must determine if Fernandez's actions, in response to these
circumstances, was objectively reasonable. See Kingsley, 576
U.S. at 396–97.
*5 Plaintiff contends that he has established a genuine
dispute on his excessive-force claim because the pepper
spray entered his fresh wound. However, as the Supreme
Court has repeatedly admonished, a “court must make [the
objective-reasonableness] determination from the perspective
of a reasonable officer on the scene, including what the officer
knew at the time, not with the 20/20 vision of hindsight.”
Kingsley, 576 U.S. at 397. It is undisputed that Officer
Fernandez had just come onto the first floor of Unit 8A and
was the only officer on the scene, and had seconds to assess
the situation before acting. See Ex. G; Dkt. No. 104 ¶¶ 28–
29. Given the violent fight occurring before him between
two inmates, using the two-second burst of pepper spray
was not objectively unreasonable. This is true even though
Plaintiff had suffered a serious, though not-life threatening,
injury, and the pepper spray irritated his wound until he
shortly thereafter received medical treatment. Dkt. No. 104
¶ 41. Indeed, Officer Fernandez had seconds to observe that
injury, and he still used only proportionate force to “ensure
compliance of an uncooperative ... inmate,” Adilovic, 2011
WL 2893101, at *6. Crucially, unlike in Tracy, there is no
evidence that Officer Fernandez “applied pepper spray after
[the plaintiff] had already been handcuffed and was offering
no physical resistance of police commands.” 623 F.3d at
98–99. To the contrary, Officer Fernandez quickly desisted
from using pepper spray after his initial burst ended the
confrontation. See Dkt. No. 104 ¶ 37 (Plaintiff concedes that
Fernandez used a “two-second burst”); id. ¶ 39; Ex. G. And
within one hour of the incident, Plaintiff was seen and treated
by medical staff. Id. ¶ 41.
In sum, Officer Fernandez is entitled to summary judgment
because Plaintiff has not established a material issue of fact
as to the objective element of his excessive-force claim.
Accord Beauvoir, 345 F. Supp. 3d at 369 (granting defendants
summary judgment in a § 1983 case because the “use
of the pepper spray ... was permissible in the context of
needing to maintain a baseline of order in the prison system,”
even though plaintiff “was not behaving belligerently or
threateningly,” in part because “Plaintiff repeatedly resisted
multiple officers’ orders”); Berry, 2014 WL 2158518, at
**5–6 (finding evidence that defendant officer used pepper
spray to break up a violent fight between inmates insufficient
to raise a genuine dispute about excessive force, and thus
granting defendants summary judgment); see also Perry v.
Stephens, 659 F. Supp. 2d 577, 582–83 (S.D.N.Y. 2009).
B. Officer Fernandez is Also
Entitled to Qualified Immunity
Plaintiff's excessive-force claim also fails because Officer
Fernandez is entitled to qualified immunity. In other words,
even if a reasonable jury could find that Fernandez violated
the Fourteenth Amendment by using excessive force, he
would still be entitled to summary judgment because he did
not violate a clearly established constitutional right.
An officer may take advantage of qualified immunity, and
thereby avoid liability for civil damages and the burdens
of a lawsuit, if he demonstrates that his conduct “does not
violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Kisela v.
Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (internal
quotation marks omitted). “ ‘Clearly established’ means that,
at the time of the officer's conduct, the law was sufficiently
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clear that every reasonable official would understand that
what he is doing is unlawful.” Dist. of Columbia v. Wesby,
138 S. Ct. 577, 589 (2018) (quotation omitted). “[E]xisting
law must have placed the constitutionality of the officer's
conduct beyond debate.” Id. (quotation omitted). “This
demanding standard protects all but the plainly incompetent
or those who knowingly violate the law.” Id. (quotation
omitted). Moreover, the Supreme Court has “repeatedly
stressed that courts must not define clearly established law
at a high level of generality, since doing so avoids the
crucial question whether the official acted reasonably in the
particular circumstances that he or she faced.” Id. at 590
(quotation omitted). In other words, “the clearly established
right must be defined with specificity.” City of Escondido,
Cal. v. Emmons, 149 S. Ct. 500, 501 (2019) (finding that
defining the clearly established as “the right to be free of
excessive force” was too general). It is a “constitutional
right[ ] of which a reasonable person would have known” and
“reasonableness is judged against the backdrop of the law at
the time of the conduct.” Kisela v. Hughes, 138 S.Ct. 1148,
1152 (2018) (per curiam) (internal citations and quotations
omitted). Summary judgment should be granted on the basis
of qualified immunity only if “no reasonable jury, looking
at the evidence in the light most favorable to, and drawing
all inferences most favorable to, the plaintiff, could conclude
that it was objectively reasonable for the defendant to believe
that he was acting in a fashion that did not clearly violate an
established federally protected right.” Lennon v. Miller, 66
F.3d 416, 420 (2d Cir. 1995) (quoting Robison v. Via, 821 F.2d
913, 921 (2d Cir. 1987)).
*6 Plaintiff contends that “no reasonable officer in the
Second Circuit could have believed that he was entitled to
use pepper spray on the fresh, open facial cut of the victim
of an ongoing attack by another inmate.” Dkt. No. 100 at
7. This conclusory statement, however, is not enough to
defeat summary judgment on this ground, as Plaintiff points
to no Supreme Court or Second Circuit authority to this
effect. Moreover, Plaintiff omits from this statement myriad,
undisputed facts in the record. As noted, even reading the
record most favorably to Mr. Quinones, Officer Fernandez
was the sole DOC staff member that responded to an
inmate-on-inmate altercation involving a dangerous weapon,
observed Plaintiff and his assailant engaging in a fight, told
Plaintiff to “stop” (which Plaintiff concedes he heard), told
Plaintiff that failure to do so would result in the use of
chemical agent against him, and observed Plaintiff move in
an aggressive manner and throw a garbage can. Dkt. No. 104
¶¶ 30–38. Only then did Fernandez spray a two-second burst
of pepper spray to stop the conduct. Plaintiff has pointed to
no authority—let alone binding authority—and the Court has
found none suggesting that this proportionate use of non-
deadly force to regain control of a violent situation in a prison
constitutes unconstitutionally excessive force. See Wesby, 138
S. Ct. at 589.
To the contrary, the Second Circuit has stated that “the use
of entirely gratuitous force is unreasonable and therefore
excessive ... no reasonable officer could have believed that
he was entitled to use pepper spray gratuitously against a
restrained and unresisting arrestee.” Tracy, 623 F.3d at 99
n.5. Yet here, the undisputed facts establish that Officer
Fernandez's use of force was not gratuitous, Plaintiff was
not restrained, and Plaintiff continued his violent conduct
after twice being warned to desist. Similarly, in Rodriguez
v. City of New York, the plaintiff's complaint survived a
Rule 12 motion because plaintiff alleged that the corrections
officers sprayed pepper spray in an indiscriminate manner
against him after assaulting another inmate. Case. No. 14-
cv-8647 (PGG) (S.D.N.Y.), Dkt. No. 38, at 2–3, 9, 13. Yet
here, it is undisputed that Fernandez used pepper spray in a
targeted and limited manner. See Def. Ex. G. On summary
judgment, Plaintiff must offer more than allegations that
Defendants’ conduct constituted excessive force—yet even
reading the record favorably to him, no reasonable jury
could conclude that Fernandez's use of pepper spray was
or gratuitous. Because Officer Fernandez did not violate a
clearly established right, he is entitled to qualified immunity
on Plaintiff's excessive-force claim. Accord Berry, 2014 WL
2158518, at **6–7 (granting qualified immunity on similar
facts in this posture), aff'd, 622 F. App'x at 11 (holding that
defendants were “entitled to qualified immunity”); Beauvoir,
345 F. Supp. 3d at 375–76 (same).
C. Defendants Are Entitled to Summary Judgment
on Plaintiff's Deliberate-Indifference Claim
The Court next considers Mr. Quinones's claim that the
Intake Defendants—Defendants Rochez, Wilson, Rollison,
and Blackwood—were deliberately indifferent to the risk of
harm that other inmates posed to him. Specifically, Plaintiff
claims that the Intake Defendants “were notified of a credible
threat to Mr. Quinones’ safety,” as it is undisputed that upon
intake to GVRC that Plaintiff and the two other inmates
informed the Intake Defendants that they could not be placed
in Unit 8A, because the Macballas controlled that unit and
that “their gangs had problems with the Macballas and that
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plaintiff expected he would be attacked.” Dkt. No. 104 ¶¶ 10–
13. Because the Intake Defendants nonetheless placed him in
Unit 8A, Plaintiff claims that “they recklessly failed to act
with reasonable care to mitigate that threat.” Dkt. No. 100 at
9–10.
“[P]rison officials have a duty to protect prisoners from
violence at the hands of other prisoners.” Farmer v. Brennan,
511 U.S. 825, 833 (1994). Therefore, “[a]llowing an attack on
an inmate to proceed without intervening is a constitutional
violation in certain circumstances.” Rosen v. City of New York,
667 F. Supp. 2d 355, 359 (S.D.N.Y. 2009). However, not
every injury that a prisoner suffers at the hands of another
results in constitutional liability for the officials responsible
for that prisoner's safety. See Farmer, 511 U.S. at 834. Instead,
an official must act with “ ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate.” Id. at 828.
When such claims are made by a pretrial detainee such as
Mr. Quinones, they “are governed by the Due Process Clause
of the Fourteenth Amendment, rather than the Cruel and
Unusual Punishments Clause of the Eighth Amendment,”
which as discussed above applies only to convicted prisoners.
Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017).
*7 To state a claim for deliberate indifference, plaintiff's
allegations must satisfy a two-prong test, referred to as
the “objective prong” and the “subjective prong” (better
understood as the mens rea or mental element prong). See
id. at 30–32; Taylor v. City of New York, No. 16-cv-7857
(NRB), 2018 WL 1737626, at **11–12 (S.D.N.Y. Mar. 27,
2018). Under the first prong, the inmate must show that
the alleged violation was “sufficiently serious to constitute
objective deprivations of the right to due process.” Darnell,
849 F.3d at 29. The second prong requires the defendant's
deliberate indifference to the objective deprivation. See id.
at 32. Specifically, “the pretrial detainee must prove that the
defendant-official acted intentionally to impose the alleged
condition, or recklessly failed to act with reasonable care
to mitigate the risk that the condition posed to the pretrial
detainee even though the defendant-official knew, or should
have known, that the condition posed an excessive risk to
health or safety.” Id. at 35. As the Second Circuit explained,
“[i]n other words, the ‘subjective prong’ (or ‘mens rea prong’)
of a deliberate indifference claim is defined objectively.”
Id. Although Darnell involved a Fourteenth Amendment
challenge to a prisoner's conditions of confinement, its
holding also applies to failure-to-protect claims. See id. at 33
n.9 (“[D]eliberate indifference means the same thing for each
type of claim under the Fourteenth Amendment.”); Taylor,
2018 WL 1737626, at *12.
Here, the undisputed facts show that Plaintiff has failed
to establish a genuine dispute as to either prong. At best,
the record evidence shows that Plaintiff informed a still-
unidentified intake officer that he could not be housed with
Macballas gang members, in part because of “his knowledge
that Macballas did not let anyone else live with them while
inside correctional facilities.” Dkt. No. 104 ¶ 14. However,
Plaintiff did not inform “any of the officers in Unit 8A about
his safety concerns.” Id. ¶ 18. And another inmate in the unit,
Mike, whom Plaintiff knew from his time living in Harlem,
informed Plaintiff that “two other Blood gang members” also
lived in the housing unit. Id. ¶ 21. Indeed, Plaintiff admits
that he “spoke with other Blood gang members” and was
informed that the Macballas permitted Blood members use
one of the telephones in the unit at certain times of the day.
Id. ¶ 22. It is therefore undisputed that there were multiple
Blood gang members—as well as the other inmates who were
not affiliated with the Macballas, such as the two individuals
with whom Plaintiff's intake was processed—also housed in
Unit 8A, and that these individuals were not attacked by
Macballas. Id. ¶ 21.
Moreover, Plaintiff did not inform the Intake Defendants
(nor does he now contend) that there was a more specific
threat against him, such as one made by a specific Macballa
member. Cf. Rennalls v. Alfredo, 2015 WL 5730332, at *4
(S.D.N.Y. Sept. 30, 2015) (“A substantial risk of serious harm
can be demonstrated where there is evidence of a previous
altercation between a plaintiff and an attacker, coupled with a
complaint by plaintiff regarding the altercation or a request by
[a] plaintiff to be separated from the attacker.”); Velez v. City
of New York, No. 17-cv-9841 (GHW), 2019 WL 3495642,
at *4 (S.D.N.Y. Aug. 1, 2019) (“Those cases which have
found officers potentially liable for failing to prevent an
attack involved clear and specific threats against an inmate.”)
(collecting cases). Given these undisputed facts, Plaintiff has
failed to establish a genuine dispute that “the conditions,
either alone or in combination, pose an unreasonable risk of
serious damage to his health.” Walker, 717 F.3d at 135; accord
Velez, 2019 WL 3495642, at *4 (S.D.N.Y. Aug. 1, 2019) (“a
number of courts in this district have found that an inmate
informing an officer about a nebulous or untethered fear does
not put an officer on notice that the inmate is at risk of attack”)
(collecting cases); see, e.g., Desulma v. City of New York,
No. 98-cv-2078 (RMB), 2001 WL 798002, at *7 (S.D.N.Y.
July 6, 2001) (although prison official knew that the plaintiff
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feared certain inmates and had requested protective measures,
“given the lack of prior history of violence between [plaintiff]
and [his attackers,]” there was no reason for him “to infer the
existence of a threat of harm”).
*8 For the same reason, no reasonable jury could conclude
that the Intake Defendants “act[ed] intentionally to impose the
alleged condition, or recklessly fail[ed] to act with reasonable
care to mitigate the risk that the condition posed to the
pretrial detainee even though the defendant-official knew, or
should have known, that the condition posed an excessive
risk to health or safety.” Darnell, 849 F.3d at 35. There are
certainly no facts in the record, and Plaintiff does not point
to any, suggesting that the Intake Defendants intentionally
exposed Plaintiff to harm. And given the number of non-
Macballas housed in Unit 8A and the generality of Plaintiff's
comment made to a single corrections officer, Plaintiff has
not established a genuine dispute that the Intake Defendants
acted recklessly. See Dkt. No. 104 ¶¶ 16–18. Moreover, a
Department of Corrections report created after the incident
identifies the assailant as a Trinitarian gang member, not a
Macballas member. See Def. Ex. K. It is undisputed that
Plaintiff never raised concerns about any gang other than
the Macballas, and thus even with Plaintiff's statement, the
Intake Defendants were not reckless in placing him in Unit
8A, which was controlled by the Macballas. See Dkt. No. 104
¶ 46. In sum, Defendants are also entitled summary judgment
on Plaintiff's deliberate-indifference claim. 4 Accord Anselmo
v. Kirkpatrick, No. 19-cv-0350 (TJM), 2019 WL 2137469, at
*4 (N.D.N.Y. May 16, 2019) (“[A]n inmate's communications
about ‘generalized safety concerns’ or ‘vague concerns of
future assault by unknown individuals’ are insufficient to
provide knowledge that the inmate is subject to a substantial
risk of serious harm.” (quoting Ross v. City of New York, No.
12-CV-8545, 2014 WL 3844783, at *8 (S.D.N.Y. 2014) and
collecting cases).
IV. CONCLUSION
For the reasons stated above, Defendants’ motion for
summary judgment, Dkt. No. 91, is GRANTED. The Clerk
of Court is respectfully directed to enter judgment and close
this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 6420181
Footnotes
1 Plaintiff admits this fact “to the limited extent that Plaintiff believed the two other inmates to be members of
the Gorilla gang.” Dkt. No. 104 ¶ 12. However, this proposition is conclusory, not supported by any citations
to the record, and indeed contradicted by the record. The same is true for other facts contained in Plaintiff's
Response to Defendants’ 56.1 Statement and Plaintiff's Rule 56.1 statement. Plaintiff has therefore failed to
raise a genuine dispute as to certain facts. See Scott v. Harris, 550 U.S. 372, 380 (2007); Local Civil Rule
56.1(c)–(d).
2 Plaintiff contends that Defendants’ Exhibit K, a New York City Department of Corrections incident report, is
inadmissible because it constitutes hearsay. However, this incident report satisfies all requirements for the
business-record exception to hearsay, and the Court can thus consider it on summary judgment. See Federal
Rule of Evidence 803(6); United States v. Kaiser, 609 F.3d 556, 574–75 (2d Cir. 2010).
3 Plaintiff also named as Defendant Correction Officer Jane or John Doe, Dkt. No. 88 ¶ 5, but he subsequently
consented to “dismissal of the John or Jane Doe defendants,” Dkt. No. 99 ¶ 2.
4 For the same reasons, Plaintiff has not shown that the Intake Defendants violated a clearly established
constitutional right. They have pointed to no cases, let alone binding authority, holding “with specificity” that
such conduct constitutes a violation of the Fourteenth Amendment. See City of Escondido, Cal. v. Emmons,
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149 S. Ct. 500, 501 (2019). The Intake Defendants, like Officer Fernandez, are therefore also entitled to
qualified immunity.
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Rodriguez v. Gusman, Not Reported in Fed. Supp. (2024)
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2024 WL 4463459
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Marcos RODRIGUEZ, Plaintiff,
v.
Dr. Mikhail GUSMAN, Defendant.
9:22-CV-181 (GTS/MJK)
|
Signed July 24, 2024
Attorneys and Law Firms
MARCOS RODRIGUEZ, Plaintiff, pro se.
MARK G. MITCHELL, Asst. Attorney General, for
Defendant.
ERIN P. MEAD, Asst. Attorney General, for Defendant.
REPORT-RECOMMENDATION
MITCHELL J. KATZ, United States Magistrate Judge
*1 TO THE HONORABLE GLENN T. SUDDABY, United
States District Court Judge:
In this pro se civil rights action, plaintiff alleges that he was
denied constitutionally adequate medical care while he was
an inmate in the custody of Eastern Correctional Facility
(“Eastern C.F.”). Presently before this court is plaintiff's
motion for partial summary judgment as to liability only
(Dkt. No. 65), and defendant Dr. Gusman's cross-motion for
summary judgment (Dkt. No. 71). Also before the court is
plaintiff's motion to compel discovery pursuant to Fed. R. Civ.
P. 37(a)(1) (Dkt. No. 70), and motion to defer consideration
of defendant's cross-motion for summary judgment (Dkt. No.
84).
This matter has been referred to me for Report and
Recommendation by United States District Court Judge
Glenn T. Suddaby, pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y. Local Rule (“Local Rule”) 72.3(c). For the
following reasons, this court recommends that defendant Dr.
Gusman's cross-motion for summary judgment be granted,
that plaintiff's motion for partial summary judgment be
denied, that plaintiff's motion to compel discovery be
denied, and that plaintiff's motion to defer consideration of
defendant's cross-motion for summary judgment be denied.
DISCUSSION
I. PROCEDURAL HISTORY
Plaintiff commenced this action on February 28, 2022 by
filing a complaint. (Dkt. No. 1). On July 7, 2022, plaintiff filed
an amended complaint (Dkt. No. 17), which is the operative
complaint in this action. On December 16, 2022, defendants
filed a motion to dismiss for failure to state a claim. (Dkt.
No. 26). United States Magistrate Judge Andrew T. Baxter
issued a Report-Recommendation which was accepted and
adopted in its entirety by United States District Court Judge
Glenn T. Suddaby on May 4, 2023, dismissing plaintiff's
section 1983 claims against defendant Dr. Bhavsar with
prejudice, and dismissing plaintiff's state law claims without
prejudice but without leave to amend. (Dkt. Nos. 39, 40).
Defendants’ motion to dismiss the amended complaint as
against defendant Dr. Gusman was denied. Thus, what
remains is plaintiff's cause of action against Dr. Gusman for
alleged Eighth Amendment violations.
On November 21, 2023, Judge Baxter issued a text order
resetting the discovery deadline to February 22, 2024. (Dkt.
No. 54). Local Rule 16.2 provides in relevant part that
“[p]arties shall file and serve motions to compel discovery
no later than fourteen (14) days after the discovery cut-off.”
Plaintiff filed his Motion To Compel Discovery (Dkt. No.
70) on March 22, 2024, twenty-nine days after the discovery
deadline.
II. FACTS
A. Defendant's Contentions
Dr. Gusman was employed as a physician at Eastern C.F. from
October 1999 until his retirement in June 2021. (Def.’s Stmt.
of Mat. Facts ¶ 3) (Dkt. No. 71-1). Dr. Gusman returned to
working at Eastern C.F. in September 2021, on a per diem
basis. (Id. ¶ 4). Plaintiff was incarcerated at Eastern C.F. from
December 2013 to March 2022. (Id. ¶ 11).
On February 25, 2014, plaintiff complained of difficulty
urinating and requested a medical call out to be seen by a
physician. (Def.’s Stmt. of Mat. Facts ¶ 14; Dkt. No. 73-1
at 337). 1 On March 6, 2014, plaintiff was evaluated by Dr.
Bhavsar 2 for “urinary issues,” at which time Dr. Bhavsar
observed plaintiff's prostate to be enlarged upon a digital
rectal examination (“DRE”). (Def.’s Stmt. of Mat. Facts ¶¶
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15-16; Dkt. No. 73-1 at 334). Dr. Bhavsar thereafter ordered
a Prostate Specific Antigen (“PSA”) test for plaintiff. (Def.’s
Stmt. of Mat. Facts ¶ 18; Dkt. No. 73-1 at 334). “A PSA
test is a blood test used to screen for prostate cancer ... [and]
measures the amount of PSA in the patient's body.” (Gusman
Decl. ¶¶ 13-14; Dkt. No. 72-3). The results of plaintiff's
test showed that his PSA level was 2.44 ng/ml, which was
“within normal range.” (Gusman Decl. ¶¶ 13-14; Dkt. No.
73-1 at 72). According to Dr. Gusman, “[t]he normal range
for PSA varies depending on age; the normal range for PSA
for men 50-59 years old is a result less than 3.5 ng/ml and
less than 4.5 mg/ml for men 60-69 years old.” (Gusman
Decl. ¶ 14). 3 Dr. Bhavsar diagnosed plaintiff with Benign
Prostatic Hyperplasia (“BPH”), “or an enlarged prostate,”
and prescribed Tamsulosin (generic for Flomax) to treat the
symptoms associated with this condition. (Def.’s Stmt. of
Mat. Facts ¶¶ 24-25; Dkt. No. 73-1 at 334).
*2 Approximately one year later, on February 4, 2015,
plaintiff complained of difficulty urinating during a call out,
and a PSA test was ordered. (Def.’s Stmt. of Mat. Facts ¶ 29;
Dkt. No. 73-1 at 311). At that time, plaintiff reported that the
Tamsulosin was helpful, and a new prescription was provided.
(Id. ¶ 30; Dkt. No. 73-1 at 311). The PSA test was performed
on March 10, 2015 and indicated results within the normal
range at 2.71 ng/ml. (Def.’s Stmt. of Mat. Facts ¶ 31; Dkt. No.
73-1 at 90). Thereafter, routine PSA tests were performed to
monitor plaintiff's prostate, and Tamsulosin continued to be
prescribed for symptoms associated with plaintiff's enlarged
prostate. (Def.’s Stmt. of Mat. Facts ¶¶ 32-33).
In 2016, plaintiff was seen for pain in his right testicle and an
ultrasound was performed. (Gusman Decl., ¶ 17; Dkt. No. 73
at 224, 237, 248, 250). Plaintiff was diagnosed with hydrocele
(swelling caused by fluid). (Id.). Plaintiff also complained of
groin pain in 2016 which was diagnosed as a hernia after an
ultrasound was performed. (Gusman Decl., ¶ 18; Dkt. No.
73 at 257-258; Dkt. No. 73-3 at 901). On August 29, 2016,
plaintiff reported that he was able to urinate without difficulty.
(Gusman Decl., ¶ 19; Dkt. No. 73 at 249). Another PSA test
was performed on January 10, 2017 and was reported at 2.43
ng/ml, within the normal range. (Gusman Decl., ¶ 21; Dkt.
No. 73-1 at 389).
On May 9, 2017, plaintiff was seen by a urologist at Eastern
C.F. who ordered a PSA test, the result of which was within
the normal range at 2.71 ng/ml. (Gusman Decl., ¶ 21; Dkt.
No. 73 at 220; Dkt. No. 73-2 at 654; Dkt. No. 73-3 at 956).
Plaintiff was seen again by a urologist in July 2017 for a hernia
and continued complaints of right testicular pain. (Gusman
Decl., ¶ 22; Dkt. No. 73 at 218; Dkt. No. 73-3 at 955).
During the July 2017 exam, plaintiff's prostate was noted to
be “benign.” (Id. ¶ 22; Dkt. No. 73 at 218).
On October 17, 2017 and April 12, 2018, plaintiff reported
normal urination. (Def.’s Stmt. of Mat. Facts ¶¶ 41-42; Dkt.
No. 73 at 195, 209). An additional PSA test performed on
November 27, 2018 was within normal range at 2.81 ng/ml
(Gusman Decl., ¶ 24; Dkt. No. 73-1 at 401). On March 19,
2019, plaintiff again reported normal urination. (Def.’s Stmt.
of Mat. Facts ¶ 45; Dkt. No. 73 at 165). Plaintiff's December
27, 2019 PSA test result was within normal range at 2.02 ng/
ml (Gusman Decl., ¶ 25; Dkt. No. 73-1 at 412).
On October 6, 2020, plaintiff was evaluated by Dr. Gusman
for complaints of pain in the penis, incontinence, and blood in
his urine. (Def.’s Stmt. of Mat. Facts ¶ 49; Dkt. No. 73 at 133).
This was the first time Dr. Gusman saw plaintiff for these
symptoms, and the first time plaintiff complained of issues
with urination since February 2015. (Def.’s Stmt. of Mat.
Facts ¶¶ 50-51). Dr. Gusman “performed a [Digital Rectal
Exam] and noted two nodes in [plaintiff's] prostate.” (Id. ¶
52). Dr. Gusman prescribed antibiotics, ordered a PSA test,
and referred plaintiff for a urology consultation. (Gusman
Decl., ¶ 27; Dkt. No. 73 at 133). Referral requests made by
physicians are electronically sent to the facility's Scheduling
Unit which obtains the necessary approval and handles the
scheduling of the referral upon approval. (Def.’s Stmt. of Mat.
Facts ¶ 56). Plaintiff's PSA test result came back on October
21, 2020 within normal range at 2.2 ng/ml. (Gusman Decl., ¶
30, Dkt. No. 73-1 at 503).
While treating plaintiff for an unrelated medical issue on
February 16, 2021, Dr. Gusman noted that plaintiff's urology
referral was still pending. (Gusman Decl., ¶ 32; Dkt. No. 73
at 126). On May 21, 2021, plaintiff was seen by urologist Dr.
Janis, who performed a Digital Rectal Exam confirming Dr.
Gusman's findings. (Def.’s Stmt. of Mat. Facts ¶ 61; Dkt. No.
73-1 at 526). Dr. Janis ordered a PSA test and a biopsy of
plaintiff's prostate. (Gusman Decl., ¶ 33; Dkt. No. 73-1 at 526,
533-34). Dr. Gusman “had no control over when the biopsy
was performed.” (Def.’s Stmt. of Mat. Facts ¶ 62). Plaintiff's
PSA test result was reported on June 10, 2021 at 2.46 ng/ml,
within the normal range. (Def.’s Stmt. of Mat. Facts ¶ 63; Dkt.
No. 73-1 at 426). Plaintiff's biopsy was performed on August
17, 2021 and he was instructed to follow up in one month for
the results. (Def.’s Stmt. of Mat. Facts ¶¶ 64-65).
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*3 Plaintiff's biopsy results returned on August 31, 2021,
indicating the presence of prostate cancer. (Def.’s Stmt. of
Mat. Facts ¶ 66; Dkt. No. 73 at 110; Dkt. No. 73-1 at
518-19). Plaintiff's Gleason score, “a grading system used by
pathologists for prostate cancer,” was “6,” which is the lowest
grade of prostate cancer and indicates that the cancer is “stage
1 with very low to low risk (group 1), ... slow moving and
unlikely to spread, and is treatable ....” (Def.’s Stmt. of Mat.
Facts ¶¶ 67-69). Plaintiff had a follow up appointment with
Dr. Janis on October 8, 2021 at which time they discussed
plaintiff's diagnosis and treatment options. (Id. ¶ 73; Dkt.
No. 73 at 104; Dkt. No. 73-1 at 524). In November 2021,
plaintiff advised Dr. Gusman that he wanted to proceed with
radiation therapy. (Def.’s Stmt. of Mat. Facts ¶ 76; Dkt. No.
73 at 98). Dr. Gusman submitted a referral for plaintiff to see a
radiologist on November 16, 2021. (Id.). Plaintiff's radiology
consultation took place on December 2, 2021, with radiation
therapy beginning on December 21, 2021 and concluding
on January 28, 2022. (Def.’s Stmt. of Mat. Facts ¶ 77; Dkt.
No. 73 at 70, 79, 96; Dkt. No. 73-1 at 461-64). Plaintiff's
treatment was successful, rendering him “cancer-free” upon
completion. (Def.’s Stmt. of Mat. Facts ¶ 78; Dkt. No. 73-2
at 645).
B. Plaintiff's Contentions
Plaintiff asserts that his PSA test results reflected in the
clinical reports he received on April 7, 2014, March 10, 2015,
January 10, 2017, May 26, 2017, July 11, 2017, November
27, 2018, December 27, 2019, October 22, 2020, June 9, 2021
(Pl.’s Stmt. Of Mat. Facts ¶¶ 5, 8, 11, 14, 16, 21, 23, 27,
30) were not within normal range as Dr. Gusman contends.
In support of his contention, plaintiff relies on the following
language found on his reports:
The PSA assay should not be the
only test used for diagnostic purposes.
Additional evaluation using DRE,
ultrasound, TUR or similar procedures
may be used for this purpose.
Predictions of disease recurrence
should not be based solely upon values
obtained from serial PSA values
obtained on the patient.
(Dkt. 65-1 at 11).
Plaintiff further claims that he had trouble urinating even
while taking Tamsulosin, and that he would not be able to
do so at all if he did not take it. (Plaintiff Aff., ¶ 6). Plaintiff
further claims that he reported instances of pain in various
parts of his body from 2017 through 2020. (Plaintiff's Aff.
Generally).
III. SUMMARY JUDGMENT
A. Legal Standard
A court “shall grant summary judgment 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (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);
see also 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 also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d
Cir. 2005). The movant may meet this burden by showing
that 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); see also Jeffreys, 426
F.3d at 554 (“The 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. At the summary judgment stage, a
nonmoving party must offer some hard evidence showing that
its version of the events is not wholly fanciful.”). “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). 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).
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*4 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. See 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, “a pro se party's ‘bald assertion,’
unsupported by evidence, is not sufficient to overcome a
motion for summary judgment.” Carey v. Crescenzi, 923 F.2d
18, 21 (2d Cir. 1991).
When considering 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.” Hotel
Employees & Rest. Employees Union, Local 100 of New
York, N.Y. & Vicinity v. City of New York Dep't of Parks
& Recreation, 311 F.3d 534, 543 (2d Cir. 2002) (quoting
Heublein v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993)
(internal quotation marks omitted)).
B. Local Rule 56.1
Local Rule 56.1(a) requires a party moving for summary
judgment to file and serve a Statement of Material Facts with
a specific citation to the record where the fact is established.
L.R. 56.1(a). “The record for purposes of the Statement of
Material Facts includes the pleadings, depositions, answers to
interrogatories, admissions and affidavits.” Id. In turn, Local
Rule 56.1(b) mandates that the party opposing a motion for
summary judgment “file a separate Response to the Statement
of Material Facts. The opposing party's response shall mirror
the movant's Statement of Material Facts by admitting and/or
denying each of the movant's assertions in a short and concise
statement, in matching numbered paragraphs.” L.R. 56.1(b).
“Each denial shall set forth a specific citation to the record
where the factual issue arises.” Id.; see also Lee v. City of Troy,
520 F. Supp. 3d 191, 198 (N.D.N.Y. 2021) (“Because a naked
denial of a fact the movant claims to be undisputed would do
little to help the Court, the opposing party must support every
denial with a citation to record evidence supporting a genuine
dispute of material fact.”). “The Court may deem admitted
any properly supported facts set forth in the Statement of
Material Facts that the opposing party does not specifically
controvert.” L.R. 56.1(b) (emphasis omitted).
Here, Dr. Gusman filed and served an 81-paragraph Rule 56.1
Statement of Material Facts. (Dkt. No. 71-1). In opposition,
plaintiff filed a Response To Defendant's Statement of
Material Facts in which he denied 27 of the 81 assertions in
Dr. Gusman's Statement of Material Facts. (Dkt. No. 92 at
10-29). Plaintiff's failure to provide a response in accordance
with Local Rule 56.1(b) to the remaining 54 factual assertions
in Dr. Gusman's Statement of Material Facts permits this court
to deem admitted Dr. Gusman's properly supported facts that
plaintiff does not specifically controvert. See L.R. 56.1(b);
see also T.Y. v. New York City Dep't of Educ., 584 F.3d
412, 418 (2d Cir. 2009) (citations omitted) (“A nonmoving
party's failure to respond to a Rule 56.1 statement permits the
court to conclude that the facts asserted in the statement are
uncontested and admissible.”).
IV. STATUTE OF LIMITATIONS
A. Legal Standard
“The statute of limitations for claims brought under Section
1983 is governed by state law, and in this case, is the three-
year period for personal injury actions under New York State
law.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir.
2009); see also Owens v. Okure, 488 U.S. 235, 250-51 (1989);
N.Y.C.P.L.R. § 214(5). Unless the limitations period is tolled
for some reason, a plaintiff must file his Section 1983 civil
rights action within three years of the accrual of each cause
of action.
*5 “Federal law governs the question of when a [Section
1983] claim accrues.” M.D. v. Southington Bd. of Educ., 334
F.3d 217, 221 (2d Cir. 2003) (quoting Leon v. Murphy, 988
F.2d 303, 309 (2d Cir. 1993)). Generally, under federal law,
a cause of action accrues when “the plaintiff knows or has
reason to know of the injury which is the basis of his action.”
Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002)
(citations omitted).
Although federal law determines when a Section 1983 claim
accrues, state tolling rules determine whether the limitations
period has been tolled. See Abbas v. Dixon, 480 F.3d 636,
641 (2d Cir. 1997). A single violation with continuing
“consequences” does not extend the accrual of the statute
of limitation. See Melendez v. Schneiderman, No.13-CV-622
(GLS/ATB), 2014 WL 2154536, at *12 (N.D.N.Y. May 22,
2014) (citing, inter alia, Doe v. Blake, 809 F. Supp. 1020,
1025 (D. Conn. 1992) (a “continuing violation” which would
change the accrual date is occasioned by continuing unlawful
acts, not by continued ill effects from the original violation)).
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In “rare and exceptional” cases, the doctrine of equitable
tolling may apply to defeat an argument that the action was
not timely filed. See Abbas,480 F.3d at 642; see also Veltri
v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d
Cir. 2004) (“Equitable tolling is an extraordinary measure that
applies only when plaintiff is prevented from filing despite
exercising that level of diligence which could reasonably be
expected in the circumstances.”). “Equitable tolling allows
the court to extend the statute of limitations past the time of
expiration as necessary to avoid inequitable circumstances.”
Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (citation
omitted). To apply equitable tolling, the court must find that
“extraordinary circumstances” prevented the plaintiff from
performing the required act, and that plaintiff acted “with
reasonable diligence” during the period that he seeks to
toll. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005)
(quoting Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004)).
B. Analysis
Plaintiff filed this action on February 28, 2022. 4 (Dkt. No.
1). This court previously ruled that absent equitable or other
tolling, any claim which accrued prior to February 23, 2019 is
time-barred. (Dkt. No. 39 at 6). In his motion papers, plaintiff
appears to concede that “claims of [d]eliberate indifference
before February 23 rd 2019 are time barred.” (Pl. Mem. Of
Law at 7). As set forth below, plaintiff has failed to raise a
material question of fact establishing Dr. Gusman's deliberate
indifference to his medical care after February 2019, and
summary judgment is warranted. 5
V. DENIAL OF MEDICAL CARE
A. Legal Standard
*6 Claims that prison officials have intentionally
disregarded an inmate's serious medical needs fall under
the Eighth Amendment umbrella of protection from the
imposition of cruel and unusual punishments. See Farmer
v. Brennan, 511 U.S. 825, 832 (1994). Prison officials must
ensure that inmates receive adequate medical care. Id. (citing
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)).
In order to state a claim based on constitutionally inadequate
medical treatment, the plaintiff must allege “acts or omissions
sufficiently harmful to evidence deliberate indifference to
serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106
(1976). There are two elements to the deliberate indifference
standard. See Smith v. Carpenter, 316 F.3d 178, 183-84
(2d Cir. 2003). The first element is objective and measures
the severity of the deprivation, while the second element
is subjective and ensures that the defendant acted with a
sufficiently culpable state of mind. Id. (citing Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996)).
1. Objective Element
To meet the objective requirement, the alleged deprivation
of adequate medical care must be “sufficiently serious.”
Salahuddin, 467 F.3d at 279 (citing Farmer, 511 U.S. at
834). “Determining whether a deprivation is an objectively
sufficiently serious deprivation entails two inquiries.” Id.
The first question is whether the plaintiff was actually
deprived of adequate medical care. Id. Prison officials who
act “reasonably” in response to the inmate's health risk will
not be found liable under the Eighth Amendment because the
official's duty is only to provide “reasonable care.” Id. (citing
Farmer, 511 U.S. at 844-47).
The second part of the objective test asks whether the
purported inadequacy in the medical care is “sufficiently
serious.” Id. at 280. The court must examine how the care
was inadequate and what harm the inadequacy caused or will
likely cause the plaintiff. Id. (citing Helling v. McKinney, 509
U.S. 25, 32-33 (1993)). If the “unreasonable care” consists
of a failure to provide any treatment, then the court examines
whether the inmate's condition itself is “sufficiently serious.”
Id. (citing Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir.
2003)).
However, in cases where the inadequacy is in the medical
treatment that was actually afforded to the inmate, the inquiry
is narrower. Id. If the issue is an unreasonable delay or
interruption of ongoing treatment, then the “seriousness”
inquiry focuses on the challenged delay itself, rather than on
the underlying condition alone. Id. (citing Smith, 316 F.3d
at 185). The court in Salahuddin made clear that although
courts speak of a “serious medical condition” as the basis for
a constitutional claim, the seriousness of the condition is only
one factor in determining whether the deprivation of adequate
medical care is sufficiently serious to establish constitutional
liability. Salahuddin, 467 F.3d at 280.
2. Subjective Element
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The second element is subjective and asks whether the official
acted with “a sufficiently culpable state of mind.” Id. (citing
Wilson v. Seiter, 501 U.S. 294, 300, (1991)). To satisfy the
second element, a plaintiff must demonstrate more than a
“negligent” failure to provide adequate medical care. Id.
(citing Farmer, 511 U.S. at 835-37). Instead, a plaintiff must
show that the defendant was “deliberately indifferent” to
that serious medical condition. Id. Deliberate indifference is
equivalent to subjective recklessness. Id. (citing Farmer, 511
U.S. at 839-40).
*7 To rise to the level of deliberate indifference, the
defendant must have known of and disregarded an excessive
risk to the inmate's health or safety. Id. (citing Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). The defendant
must “both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and
he must also draw the inference.” Chance, 143 F.3d at 702
(quoting Farmer, 511 U.S. at 837). The defendant must
be subjectively aware that his or her conduct creates the
risk; however, the defendant may introduce proof that he or
she knew the underlying facts, but believed that the risk to
which the facts gave rise was “insubstantial or non-existent.”
Farmer, 511 U.S. at 844. The court in Salahuddin stated that
the defendant's belief that his conduct posed no risk of serious
harm “need not be sound so long as it is sincere,” and “even if
objectively unreasonable, a defendant's mental state may be
nonculpable.” Salahuddin, 467 F.3d at 281.
“The totality of an inmate's medical care must be considered
in order to determine whether a prison official has acted with
deliberate indifference to serious medical needs.” Wandell v.
Koenigsmann, 99-CV-8652, 2000 WL 1036030, *3 (S.D.N.Y.
2000). Prison officials have broad discretion in determining
the nature and character of medical treatment afforded to
inmates. See Sonds v. St. Barnabas Hosp. Corr. Health Servs.,
151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) (citations omitted).
An inmate does not have the right to treatment of his choice.
See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986).
Medical decisions will constitute “indifference” only when
they are contrary to accepted medical standards. See Harding
v. Kuhlmann, 588 F. Supp. 1315, 1316 (S.D.N.Y. July 19,
1984). It is well established that an inmate who disagrees with
his physician over the appropriate course of treatment has no
claim under § 1983 if the treatment provided is adequate. See
Chance, 143 F.3d at 703.
Disagreements over medications, diagnostic techniques,
forms of treatment, the need for specialists, and the timing
of their intervention implicate medical judgments and not the
Eighth Amendment. Sonds, 151 F. Supp. 2d at 312 (citing
Estelle v. Gamble, 429 U.S. 97, 107 (1976)). Even if those
medical judgments amount to negligence or malpractice,
malpractice does not become a constitutional violation simply
because the plaintiff is incarcerated. Id.; see also Daniels
v. Williams, 474 U.S. 327 (1986) (noting that negligence is
not actionable under Section 1983); Palacio v. Ocasio, No.
02-CV-6726, 2006 WL 2372250, at *11 (S.D.N.Y. Aug. 11,
2006), aff'd, 345 Fed. App'x 668 (2d Cir. 2009) (“It is well
settled that the negligent failure to diagnose a serious medical
condition does not create a cause of action under 42 U.S.C.
§ 1983.”). “To succeed in showing deliberate indifference,
[the plaintiff] must show that the acts of defendants involved
more than lack of due care, but rather involved obduracy
and wantonness in placing his health in danger.” LaBounty v.
Coughlin, 137 F.3d 68, 72-73 (2d Cir. 1998); see also Cuoco
v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000) (“Mere medical
malpractice is not tantamount to deliberate indifference, but
it may rise to the level of deliberate indifference when it
involves culpable recklessness, i.e., an act or a failure to act ...
that evinces a conscious disregard of a substantial risk of
serious harm.”) (citations omitted).
B. Analysis
Plaintiff's Eighth Amendment claim against Dr. Gusman is
based on the following allegations of deliberate indifference
to medical needs: a) ignoring complaints of difficulty
urinating; b) improperly prescribing Tamsulosin; c) ignoring
plaintiff's allegedly abnormal PSA test; d) failing to “oversee”
the care and treatment provided by other physicians; e) delay
in having plaintiff examined by a urologist; f) delay in
scheduling a biopsy; and g) failing to advise plaintiff of his
biopsy results for six weeks. (Dkt. Nos. 17, 65).
*8 All of plaintiff's claims are belied by the record which
supports a recommendation that plaintiff's motion for partial
summary judgment be denied and that Dr. Gusman's cross-
motion for summary judgment be granted.
1. Objective Element
Plaintiff cannot demonstrate that he was actually deprived
of adequate medical care or that the purported inadequacy
was “sufficiently serious.” Salahuddin, 467 F.3d at 279. As
set forth below, the record establishes that the care provided
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to plaintiff by Dr. Gusman was reasonable, and, therefore,
adequate under the Eighth Amendment.
First, plaintiff's allegations that his complaints of difficulty
urinating from 2014 to 2020 were ignored and not properly
treated are not factually accurate and are therefore without
merit. The medical records establish that after March 2014,
plaintiff only complained of difficulty urinating on one other
occasion, February 4, 2015, in response to which a PSA
test was ordered and a new prescription for Flomax was
written. (Gusman Decl., ¶ 16; Dkt. No. 73-1 at 12). In fact,
after February 4, 2015, plaintiff reported normal urination on
numerous occasions. (Dkt. No. 73 at 166, 196, 210, 250).
It was not until October 6, 2020, more than five and a half
years after plaintiff's last complaint, that he again complained
of difficulty urinating. (Gusman Decl., ¶ 26). Considering its
efficacy, Dr. Gusman continued prescribing Tamsulosin for
plaintiff's symptoms. Plaintiff's unsubstantiated lay opinion
to the contrary is without merit and is tantamount to
nothing more than a disagreement with Dr. Gusman's medical
judgment which does not give rise to an Eighth Amendment
claim for medical indifference. See Reyes v. Gardener, 93 Fed.
App'x 283, 285 (2d Cir. 2004) (“[Plaintiff] has offered no
evidence ... showing that the prescribed medication regimen
deviated from reasonable medical practice for the treatment
of his condition.”).
Next, plaintiff incorrectly claims that his consistently
“abnormal” PSA test results evidenced a sufficiently serious
condition for which Dr. Gusman deprived him care. Plaintiff's
contention that his PSA levels of 2.44 ng/ml on April 7, 2014
(Dkt. No. 73-1 at 72), 2.71 ng/ml on March 10, 2015 (Dkt. No.
73-1 at 75), 2.43 ng/ml on January 10, 2017 (Dkt. No. 73-1
at 90), 2.71 ng/ml on May 9, 2017 (Dkt. No. 73 at 221), 2.81
ng/ml on November 27, 2018 (Dkt. No. 73-1 at 102), 2.02 ng/
ml on December 27, 2019 (Dkt. No. 73-1 at 113) and 2.22
ng/ml on October 22, 2020 (Dkt. No. 73-1 at 204) all support
a finding of medical indifference in violation of his Eighth
Amendment rights is without merit. However, the repeated
PSA screenings, without more, negate plaintiff's contention
that he was deprived of adequate medical care, and evidence
that his condition was in fact being monitored by his health
care providers. Furthermore, plaintiff does not advance any
evidence refuting Dr. Gusman's statement that further testing
was not medically indicated given plaintiff's PSA results, lack
of positive findings upon performing a Digital Rectal Exam,
and lack of symptomology. (Gusman Decl. ¶ 67). Plaintiff's
unsubstantiated lay opinion that Dr. Gusman should have
ordered additional testing or referred him to a urologist sooner
based on the PSA results is conclusory and at best, seems to
be based upon the benefit of hindsight which is insufficient
to implicate the Eighth Amendment “and is not properly
the subject of a Section 1983 action.” Groves v. Davis, 11-
CV-1317 (GTS/RFT), 2012 WL 651919, at *5 n. 9 (N.D.N.Y.
Feb. 28, 2012).
*9 Nor does plaintiff's perceived delay in Dr. Gusman
having diagnosed and/or treated his prostate cancer raise
any genuine issues of material fact sufficient to defeat
defendants’ cross-motion for summary judgment. Insofar
as there is no medical evidence, notwithstanding regular
medical care, in the record suggesting that plaintiff suffered
from prostate cancer before October 2020, the court cannot
find a corresponding delay in diagnosing and/or treating
the same. To the contrary, the record establishes that prior
to October 2020, Dr. Gusman adequately treated plaintiff's
complaints and chose a course of treatment which, in
his professional medical opinion, was supported based on
plaintiff's symptomology and presentation. In response to
Dr. Gusman's uncontroverted medical opinion (see Gusman
Decl., generally) and the evidence contained in the medical
records (Dkt. Nos. 73, 73-1, 73-2, 73-3), plaintiff presents
no evidence other than his own self-serving and conclusory
statements to establish that he had cancer prior to October 6,
2020 and that Dr. Gusman should have prescribed a different
course of treatment. See Scott v. Koenigsmann, 12-CV-1551
(MAD), 2016 WL 1057051, at *12 (N.D.N.Y. Mar. 14, 2016)
(The record lacked facts supporting plaintiff's contention that
her condition was “fast degenerating,” “life threatening”);
see also Abreu v. Farley, 11-CV-06251, 2019 WL 1230778
at *12 (W.D.N.Y. Mar. 15, 2019) (plaintiff's contention that
he suffered a “sufficiently cardiovascular event” rejected
where “plaintiff faile[d] to provide any evidence, medical or
otherwise”, ... “to associate his alleged symptoms with any
other cardiovascular health-related issues”).
In any event, plaintiff's assertion that Dr. Gusman should
have diagnosed plaintiff's cancer sooner, without more, does
not support plaintiff's Section 1983 claim. See Whitfield
v. O'Connell, 402 Fed. App'x 563, 566 (2d Cir. 2010)
(determining that “even assuming that Whitfield's earlier
laboratory reports suggested that he might be suffering from
a urinary tract infection, any failure on the part of the
Defendants to properly diagnose this condition would not
constitute deliberate indifference, but rather, at worst, medical
malpractice.”), cert. denied, 563 U.S. 952 (2011); Haynes v.
City of New York, 19-CV-1925, 2020 WL 4926178, at *11
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(S.D.N.Y. August 20, 2020) (observing that “allegations of
negligent misdiagnosis ... do not suggest that the defendant
acted with a conscious disregard to inmate health or safety”).
As to plaintiff's claim based on the purported delay in being
seen by a urologist following his October 6, 2020 visit with
Dr. Gusman, the record clearly establishes that Dr. Gusman
made a referral request for plaintiff to see a urologist that same
day. (Gusman Decl. ¶ 71). Dr. Gusman and Nurse DePalo
assert that, after having made the referral request, Dr. Gusman
was no longer involved in the referral process. (Gusman
Decl., ¶ 3); see also Joyner v. Greiner, 195 F. Supp. 2d 500,
506 (S.D.N.Y. 2002); see also Burton v. Lynch, 664 F. Supp.
2d 349, 359–60 (S.D.N.Y. 2009). Nurse DePalo further stated
that seven months for an inmate to wait for an appointment
with a urologist during COVID-19 was not unreasonable.
(Dkt. No. 72-5, ¶¶ 6, 7).
In opposition to Dr. Gusman's contention that he is not liable
for any alleged delay in plaintiff seeing a urologist after the
October 6, 2020 examination, plaintiff relies on Loyd v. Lee,
570 F.Supp. 2d 556 (S.D.N.Y. August 14, 2008) (motion
to dismiss denied where the amended complaint plausibly
alleged that doctors knew that plaintiff was experiencing
extreme pain and loss of mobility, knew that the course of
treatment being prescribed was ineffective and declined to
do anything to improve plaintiff's submission beyond re-
submitting MRI request forms), Hathaway v. Coughlin, 37
F.3d 63 (2d. Cir. 1994) (court held that a prison doctor could
be found to have been deliberately indifferent to a prisoner's
serious medical needs because of constant complaints and
failure to make a referral to a specialist until after the
lawsuit was commenced), Stevens v. Goord, 535 F.Supp. 2d.
373 (S.D.N.Y. 2008) (the court concluded that the doctor's
decision not to pursue a course of treatment given plaintiff's
pain and discomfort for approximately eight months served
as a basis for plaintiff's constitutional claim), Price v. Reilly,
697 F.Supp. 2d. 344, 362 (E.D.N.Y. March 8, 2010) (a
rational jury could find that the defendants acted with
deliberate indifference to plaintiff's serious medical needs
where there was at least a nine month delay in arranging
a kidney transplant test despite plaintiff's repeated requests
and defendant's statement that they had “other priorities right
now”), Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000)
(court reversed grant of summary judgment, holding that
a rational jury could find that the named defendants were
deliberately indifferent to plaintiff's serious medical needs
where plaintiff's cavity was left untreated for one year in
the absence of a court order or plaintiff's consent to the
extraction of the non-implicated tooth). Plaintiff's reliance on
these cases is misplaced, as the facts in this case are easily
distinguishable.
*10 Unlike the plaintiffs in Loyd, Hathaway, Stevens, Price,
and Barkley who either complained of continuing pain for a
prolonged period of time before receiving further treatment,
did not see a specialist despite numerous requests until after
an action was commenced, or repeatedly inquired about the
status of their medical testing, Dr. Gusman referred plaintiff
to a urologist the same day that he had cause to believe that
plaintiff needed additional medical care.
Moreover, although plaintiff did seek medical attention
between October 6, 2020 and May 21, 2021, while waiting
to be seen by the urologist, he did not report a continuation,
let alone a worsening, of the symptoms which necessitated
plaintiff's October 6, 2020 examination in the first instance.
Rather, plaintiff sought medical attention for prescription
refills (Dkt. No. 73 at 123, 124, 125, 126, 127, 128, 132,
133), COVID testing (Dkt. No. 73 at 130; Dkt. No. 73-1 at
424, 459), blood work (Dkt. No. 73-1 at 425, 426), back pain
(Dkt. No. 73 at 123; Dkt. No. 73-1 at 484), and wrist pain
(Dkt. No. 73 at 132; Dkt. No. 73-2 at 737). Only on February
16, 2021 during a sick call to discuss a medication dosing,
did plaintiff inquire about the status of his urology referral.
(Dkt. No. 73 at 127). The record does not evidence that
plaintiff reported any pain or other symptoms related to his
prostate condition at any of his encounters with the medical
staff during this timeframe. (Dkt. No. 73 at 127). Notably,
when plaintiff was finally seen by the urologist and received a
diagnosis for prostate cancer, it was noted to be at the lowest
risk category, and, as evidenced by the record, treatable.
The cancer was diagnosed because of the care provided to
plaintiff. Based on these facts, even if there was objectively
any avoidable delay between October 6, 2020 and May 21,
2021 (noting the impact of the Covid pandemic), the delay
was not “substantially serious,” and plaintiff has not raised
a genuine issue satisfying the objective factor. See Motta v.
Wright, No. 9:06-CV-1047 (NAM/GJD), 2009 WL 1437589,
at *16 (N.D.N.Y. May 20, 2009) (finding alleged three-and-
a-half year delay in treatment did not satisfy objective factor
of Eighth Amendment analysis where defendants presented
evidence that delay was not “substantially serious,” including
evidence of the slow progression of the disease and the
minimal effect of the delay on plaintiff's condition).
Similarly, the court finds that there was no actionable delay
in performing the biopsy ordered by Dr. Janis following
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plaintiff's May 21, 2021 consultation. The biopsy ordered was
performed on August 17, 2021, less than three months after
the May 21, 2021 consultation. The record establishes that Dr.
Gusman neither ordered the biopsy nor had any control over
when it was performed, precluding imposing any liability
on him for lack of any personal involvement. Dr. Gusman
retired from DOCCS in June 2021, shortly after the May 21,
2021 consultation with Dr. Janis and before the biopsy was
performed. (Gusman Decl., at ¶ 1).
Finally, plaintiff's claim that his Eighth Amendment rights
were violated because of a perceived delay in communicating
his biopsy results to him is not supported by the record.
Dr. Gusman was still retired when plaintiff's biopsy results
were received on August 31, 2021 by Dr. Loricchioandola
at Eastern C.F. and therefore, Dr. Gusman cannot be held
liable. (Declaration of Dr. Gusman at ¶¶ 1, 77). Upon receipt
of plaintiff's biopsy results, a follow-up appointment was
scheduled for plaintiff to see Dr. Janis on October 8, 2021
to discuss the same. In November 2021, plaintiff advised
Dr. Gusman, who had returned from retirement in September
2021 on a per diem basis, that he wanted to treat his prostate
cancer with radiation (Gusman Decl., at ¶¶ 37-38). Dr.
Gusman promptly submitted a referral request for plaintiff
to see a radiologist. (Gusman Decl., at ¶¶ 37-38). Plaintiff's
radiation therapy began on December 21, 2021 and concluded
on January 28, 2022. (Gusman Decl., ¶ 38).
2. Subjective Element
*11 Even if plaintiff were found to have satisfied the
objective prong of deliberate indifference, the record does
not support a finding that Dr. Gusman acted recklessly with
respect to a known risk of harm, or that he “was subjectively
aware that his conduct created a substantial risk of harm to
the inmate.” Gazzola v. Cnty of Nassau, 16-CV-909, 2022
WL 2274710, *8 (E.D.N.Y. June 23, 2022). Having been
diagnosed with an enlarged prostate in March 2014 (Gusman
Decl., ¶ 12; Dkt. No. 73-1 at 5), plaintiff's routine PSA
test results were recorded on an approximate yearly basis.
At all times, plaintiff's PSA test results were within the
normal range. Plaintiff was also prescribed Tamsulosin which
plaintiff acknowledged alleviated his urination difficulties.
(Dkt. No. 73 at 165, 195, 209, 249). He also received digital
rectal exams when medically indicated.
Plaintiff's misunderstanding of his laboratory result does not
support a finding that Dr. Gusman knew that the course
of treatment he provided to plaintiff was ineffective or that
Dr. Gusman disregarded “an excessive risk to [plaintiff's]
health or safety.” Farmer, 511 U.S. at 827. Plaintiff's
lay interpretation of his PSA lab reports was sufficiently
explained by Dr. Gusman who, unlike plaintiff, has the
requisite training and education to properly interpret such
results. (Gusman Decl., ¶ 7).
Nor could a jury conclude on this record that Dr. Gusman's
purported failure to ensure that plaintiff was seen for a urology
consultation earlier than seven months after his original
referral constituted deliberate indifference. As previously
discussed, Dr. Gusman continued to treat plaintiff between
October 2020 and May 2021, during which time plaintiff
failed to complain of any exacerbation of his symptoms.
Plaintiff has failed to otherwise advance what substantial
risk of serious harm Dr. Gusman purportedly knew of and
disregarded while the referral was pending. Absent any
indication that Dr. Gusman was reckless in failing to ensure
that plaintiff was seen any sooner for his urology consultation,
plaintiff's claim cannot survive summary judgment. See Kemp
v. Wright, No. 01-CV-562 (JG), 2005 WL 893571, at *6
(E.D.N.Y. Apr. 19, 2005) (“Dr. Halko's failure to follow-up
sooner on the referral did not ‘evince[ ] a conscious disregard
of a substantial risk of serious harm.’ ”) (citing Hernandez,
341 F.3d at 144); Oh v. Saprano, No. 3:20-CV-237, 2020
WL 4339476, at *6 (D. Conn. July 27, 2020) (“Even if RN
Tutu should have followed up on [plaintiff's] requests to
ensure that [he received his referral], her failure to do so, at
most, constituted negligence, which cannot support an Eighth
Amendment deliberate indifference claim.”).
The record is clear that Dr. Gusman treated plaintiff and
responded to his complaints. The record does not indicate
that Dr. Gusman ignored, or left untreated, any complaints
of acute pain or symptom exacerbation relative to plaintiff's
condition. Plaintiff received frequent medical care, as his
voluminous medical records demonstrate. Based on this
record, plaintiff cannot satisfy the state of mind prong
of an Eighth Amendment claim, as he cannot show that
Dr. Gusman “acted intentionally to impose the alleged
condition or recklessly failed to act with reasonable care.”
Darnell, 849 F.3d at 35. Even if Dr. Gusman “misdiagnosed”
plaintiff, which the court is not suggesting occurred, and
that misdiagnosis caused plaintiff unintended harm, or if Dr.
Gusman failed to seek out some other course of treatment,
such conduct was at most negligent, as the record indicates
he had no reason to suspect that plaintiff had prostate cancer
prior to October 6, 2020.
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The court concludes that there is no genuine dispute
of material fact with respect to either the objective or
subjective prongs of plaintiff's Eighth Amendment deliberate
indifference claim. Accordingly, it is recommended that
plaintiff's motion for summary judgment be denied and
that Dr. Gusman's cross-motion for summary judgment be
granted.
VI. Qualified Immunity
*12 Dr. Gusman contends that if the court were to find
that his actions violated plaintiff's Eighth Amendment rights,
he is nevertheless shielded from liability by the doctrine of
qualified immunity. (Def. Mem. of Law at 23-25). Inasmuch
as the court is recommending that Dr. Gusman's cross-motion
for summary judgment be granted on other grounds, it finds
it unnecessary to reach the qualified immunity argument.
VII. Motion to Compel 6
On November 21, 2023, Judge Baxter issued a text order
resetting the discovery deadline to February 22, 2024. (Dkt.
No. 54). Local Rule 16.2 provides in relevant part that
“[p]arties shall file and serve motions to compel discovery
no later than fourteen (14) days after the discovery cut-off.”
Plaintiff filed his Motion To Compel Discovery (Dkt. No.
70) on March 22, 2024, twenty-nine days after the discovery
deadline. Plaintiff's motion is therefore untimely. 7
Even if timely filed, plaintiff's Fed. R. Civ. P. 37 motion to
compel, which the court will treat as a motion pursuant to Fed.
R. Civ. P. 56(d), is nevertheless denied. Under Rule 56(d),
“[i]f a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to justify its
opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.” Fed.
R. Civ. P. 56(d). District courts have discretion over discovery
rulings, including under Rule 56. See Moccia v. Saul, 820
F. App'x 69, 70 (2d Cir. 2020) (summary order); see also
Walden v. Sanitation Salvage Corp., No. 14-CV112, 2015 WL
1433353, at *2 (S.D.N.Y. Mar. 30, 2015) (same). “A party
seeking to delay resolution of a summary judgment motion
on grounds that he has been deprived of certain discovery
materials ‘must show that the material sought is germane to
the defense, and that it is neither cumulative nor speculative,
and a bare assertion that the evidence supporting a plaintiff's
allegations is in the hands of the defendant is insufficient.’
” Alphonse Hotel Corp. v. Tran, 828 F.3d 146, 151 (2d Cir.
2016) (quoting Paddington Partners v. Bouchard, 34 F.3d
1132, 1138 (2d Cir. 1994)).
Here, plaintiff has made no showing that he has been deprived
of any information that is germane to the prosecution of his
motion for partial summary judgment or to the defense of
Dr. Gusman's cross-motion for summary judgment. Absent
from plaintiff's submissions is any plausible explanation as
to how the information he seeks is relevant to the alleged
deprivation of his constitutional rights and how Dr. Gusman
was indifferent to his medical needs. The information plaintiff
seeks production of is not material to whether Dr. Gusman
knew or should have known that plaintiff was suffering from
prostate cancer and/or intentionally failed to treat him, let
alone evidence that Dr. Gusman delayed treatment to punish
plaintiff, or intentionally ignored a life-threatening condition.
Instead, the record shows that as soon as plaintiff presented
with symptoms suggestive of prostate cancer on October 6,
2020, he was properly examined, tested, and referred to a
urologist for consultation. See Taft v. Fricke, 17-CV-0346
(GTS/CFH), 2019 WL 5197180, at *14 (N.D.N.Y. July 26,
2019) (holding that even if the plaintiff was misdiagnosed
and that the misdiagnoses caused the plaintiff unintended
harm, and the defendant doctor was negligent, the subjective
element is still lacking since the defendant doctor had no
reason to suspect that the plaintiff had diabetes).
*13 WHEREFORE, based on the findings above, it is
RECOMMENDED, that plaintiff's motion for summary
judgment (Dkt. No. 65) be DENIED IN ITS ENTIRETY,
and it is
RECOMMENDED, that defendant's cross-motion for
summary judgment (Dkt. No. 71) be GRANTED IN ITS
ENTIRETY, and it is
RECOMMENDED, that plaintiff's motion to compel
discovery (Dkt. No. 70) and motion to defer consideration
of defendant's cross-motion for summary judgment (Dkt. No.
84) be DENIED IN THEIR ENTIRETY, and it is
RECOMMENDED that plaintiff's Amended Complaint
(Dkt. No. 17) be DISMISSED IN ITS ENTIRETY WITH
PREJUDICE; and it is
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ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron
v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28
U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).
All Citations
Not Reported in Fed. Supp., 2024 WL 4463459
Footnotes
1 All page references are to CM/ECF's pagination system except for the medical records (Dkt. Nos. 73, 73-1,
73-2, 73-3), which are to the bates numbers located on the bottom of each page.
2 As previously set forth, Dr. Bhavsar was terminated as a defendant from this action pursuant to Judge
Suddaby's May 4, 2023 Decision and Order. (Dkt. No. 40).
3 Plaintiff was fifty years old in March 2014.
4 In Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993), modified on other grounds, 25 F.3d 81 (2d Cir. 1994),
the Second Circuit discussed the prison-mailbox rule, in which the court deems a pro se prisoner's complaint
filed on the date that the prisoner delivered the complaint to prison officials for transmittal to the court.
5 Even if the allegations preceding February 23, 2019 were subject to tolling and not time-barred, there is no
material question of fact as to whether Dr. Gusman was deliberately indifferent prior to February 2019, and
plaintiff's amended complaint should still be dismissed in its entirety.
6 On April 18, 2024, plaintiff filed a Motion to Defer Consideration of Defendant's Cross-Motion for Summary
Judgment (Dkt. No. 89) which the court will also treat as motion pursuant to Fed. R. Civ. P. 56(d) even though
it is arguably duplicative of plaintiff's motion to compel.
7 Plaintiff's Motion To Compel is perplexing considering the sequence in which it was filed. Plaintiff filed his
motion for partial summary judgment on February 1, 2024, approximately seven weeks prior to filing his
discovery motion. Having filed a motion for partial summary judgment, logic dictates that plaintiff must have
determined that he did not require any additional information to advance his legal and/or factual arguments.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Rucano v. Annucci, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 3293504
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Anthony RUCANO, Plaintiff,
v.
Anthony ANNUCCI, et al., Defendants.
No. 9:18-CV-218 (GTS/CFH)
|
Signed 05/19/2021
Attorneys and Law Firms
Anthony Rucano, Plaintiff pro se.
MATTHEW D. WAGONER, ESQ., The Wagoner Firm
PLLC, 150 State Street, Suite 504, Albany, New York
12207, Attorneys for defendants, D. Venettozzi, A Rodriguez,
Michael Kirkpatrick, D. Uhler, Lt. Durkin, R. Bishop, P.
Devlin, G.T. King, J. Breyette, C.O. Tucker.
VINCENT M. MIRANDA, ESQ., JAMES PETER BLENK,
ESQ., Lippes Mathias Wexler Friedman LLP, 50 Fountain
Plaza, Suite 1700, Buffalo, New York 14202, Attorneys for
defendant J. Kowalowski.
REPORT-RECOMMENDATION AND ORDER 1
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Anthony Rucano (“plaintiff”),
who was, at all relevant times, in the custody of
the New York State Department of Corrections and
Community Supervision (“DOCCS”), brings this action
pursuant to 42 U.S.C. § 1983, alleging that defendants,
DOCCS Director of Special Housing/Inmate Disciplinary
Program, Donald Venettozzi (“Venettozzi”); DOCCS Acting
Director of Special Housing/Inmate Disciplinary Program,
Anthony Rodriguez (“Rodriguez”); Superintendent of
Clinton Correctional Facility (“Clinton C.F.”), Michael
Kirkpatrick (“Supt. Kirkpatrick”); Superintendent of Upstate
Correctional Facility (“Upstate C.F.”), Donald Uhler (“Supt.
Uhler”); Clinton C.F. correctional lieutenant (“Lt.”), Charles
Durkin (“Lt. Durkin”); Clinton C.F. correction captain
(“Capt.”), Reginald Bishop (“Capt. Bishop”); Clinton C.F.
correction captain, Patrick Devlin (“Capt. Devlin”); Clinton
C.F. correction sergeant (“Sgt.”), Gregory T. King (“Sgt.
King”); Clinton C.F. correction officer (“C.O.”), Jamie
Breyette (“C.O. Breyette”); Clinton C.F. correction officer,
Cory Tucker (“C.O. Tucker”)—who, at all relevant times
were employed by DOCCS—and Clinton C.F. Recreation
Program Leader II, J. Kowalowski (“Kowalowski”)—a
civilian civil service employee—violated his constitutional
rights under the First Amendment. See Dkt. No. 25 (“Amen.
Compl.”). 2
Presently pending before the Court is (1) the motion
for summary judgment pursuant to Federal Rule of Civil
Procedure (“Fed. R. Civ. P.”) 56 filed by Venettozzi,
Rodriguez, Supt. Kirkpatrick, Supt. Uhler, Capt. Bishop,
Capt. Devlin, Sgt. King, C.O. Breyette, C.O. Tucker
(collectively, where appropriate, “defendants”), see Dkt. No.
178; and (2) the separate motion for summary judgment
pursuant to Fed. R. Civ. P. 56 filed by Kowalowski, see
Dkt. No. 179. Plaintiff filed a response in opposition to
defendants’ motion, see Dkt. No. 193, and filed a separate
response in opposition to Kowalowski's motion, see Dkt.
No. 194. Defendants filed a reply to plaintiff's response
opposition of their motion, see Dkt. No. 195, and Kowalowski
filed a separate reply to plaintiff's response in opposition
to his motion, see Dkt. No. 196. For the reasons that
follow, it is recommended that defendants’ motion for
summary judgment (Dkt. No. 178) be granted in its entirety,
Kowalowski's motion for summary judgment (Dkt. No. 179)
be granted in its entirety, and plaintiff's Amended Complaint
(Dkt. No. 25) be dismissed with prejudice in its entirety.
I. Background
A. Plaintiff's Factual Assertions and Claims 3
1. February 2016 Disciplinary Proceeding
*2 The facts are reviewed in the light most favorable to
plaintiff as the non-moving party. See subsection II.A., infra.
In November 2015, while incarcerated at Clinton C.F.,
plaintiff was elected as the new Secretary of the Inmate
Liaison Committee (“ILC”). See Amen. Compl. at 12 ¶ 43.
In this role, plaintiff “was in charge of maintaining financial
records, ILC agendas and other ILC related paperwork.” Id.
Plaintiff states that, at “the ILC's first meeting with ILC Staff
Advisor [ ]Kowalowski in November of 2015, [Kowalowski]
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issued the ILC members a warning, ‘You all have a target on
your back, be careful!” Id. at ¶ 44.
Plaintiff alleges that his “first act” as ILC Secretary “was
to address problems with the inmate population receiving
showers per [DOCCS] Directive # 4009.” Amen. Compl. at
13 ¶ 48. Plaintiff drafted a memorandum, dated December 9,
2015 (“the December 9, 2015 memorandum”), in which he
addressed the issues concerning Clinton C.F.’s inmate shower
policy and his proposed solutions. See id. Plaintiff sent the
December 9, 2015 memorandum to, among others, New
York State Assemblyman Daniel O'Donnell. See id. at 13-14
at ¶ 48; Dkt. No. 25-1 at 85-88. Following the December
2015 ILC meeting, plaintiff sent a similar, but more detailed,
proposal to Clinton C.F. executive staff. See id. at 14 ¶¶ 50,
51.
On December 16, 2015, plaintiff submitted a proposed
ILC agenda, which outlined “five assaults on inmates by
staff, violations of [DOCCS] Directive # 4803 (inappropriate
removal from job), Directive # 2771 ([failure of the Clinton
C.F. accountant to reconcile deposits from inmate fundraiser
sales]), and the request to review and implement one of
the various proposed solutions ... to address the problems
concerning inmate showers.” Amen. Compl. at 14 ¶ 54
(internal citations omitted); see id. 10 ¶ 33. Plaintiff alleges
that, “[a]t the next weekly ILC meeting[,] Kowalowski told
[him]” that “ ‘[i]f [he] submitted this [a]genda [plaintiff]
would go to Upstate Box for 270 days[.]” Id. at 15 ¶ 55.
Based on the “angry tone of [Kowalowski's] voice[,]” plaintiff
perceived “this as a threat, and was coerced to submit a
‘watered down’ ILC [a]genda ....” Id. Plaintiff submits both
versions of the proposed December 2015 agenda, the first
of which, dated December 16, 2015, is five pages long,
and raises the above-mentioned issues. See Dkt. No. 25-1 at
115-19. The second version of the agenda, dated December
23, 2015, is a one-page document that omits the complaints
of assaults by staff, but includes condensed versions of the
remaining issues raised in the originally proposed agenda. See
id. at 121.
At the January 6, 2016 ILC meeting, “Kowalowski violently
snatched a piece of paper out of [plaintiff's] hand which
listed ... new proposed TV channels,” and stated, “I took it, so
what. You are not as important as you think you are.” Amen.
Compl. at 15 ¶ 56. On January 11, 2016, plaintiff wrote a
letter to New York State Assemblyman Daniel J. O'Donnell
in which he explained “the ILC Agenda [he] submitted and
the abusive treatment [he] was subjected to by [ ]Kowalowski
since then[,]” and that he “feared retaliation because Clinton
is known throughout the State, weapon thrown in your cell,
imaginary assault on staff charges, etc.” Id. at ¶ 57 (citing
Dkt. No. 25-1 at 123). Plaintiff further states that, in his role
as Facility Media Review Committee (“FMRC”) co-chair,
Kowalowski “made numerous disputed rulings on some [of
plaintiff's] adult magazines ..., which [plaintiff] appealed to”
to Central Office Media Review Committee (“COMRC”).
Id. at 16 ¶ 59. On January 15, 2016, Director of Education
Linda Hollmen (“Hollmen”) responded to a series of three
letters dated December 16, 17, and 23, 2015, relating to
plaintiff's COMRC appeal. See id. at ¶ 60; Dkt. No. 25-1 at
147. Hollmen explained that the COMRC determined that the
two editions of Cheri magazine at issue contained models that
“may be portrayed as being under age, appealing to a prurient
interest and therefore may promote the sexual performance of
a minor.” Dkt. No. 25-1 at 147.
*3 In a letter dated January 23, 2016, plaintiff responded
to Hollmen's January 15, 2016 letter, and “using the same
[ ]DOCCS letterhead [he] had been using for over a year (with
law library Supervisor Officer Tedfords knowledge), ... asked
for the ILC Supervisors [sic] name in Albany.” Amen. Compl.
at 16 ¶ 60. On January 29, 2016, plaintiff “sent [ ]Kowalowski
a copy [of this letter] via internal mail.” Id. Plaintiff alleges
that, within “a few hours after mailing [a copy of his letter]
to [ ]Kowalowski, [Kowalowski] went to the Captains [sic]
Office with a copy of the letter that he had just received
and, upon information and belief, spoke to Capt. Bishop.”
Id. at ¶ 61. Plaintiff contends that Kowalowski and Capt.
Bishop “conspired to cover-up embezzlement of ... ILC funds
and other improprieties revealed in the December [ ] 2015
Agenda.” Id. Moreover, plaintiff avers, “[i]n furtherance of
this conspiracy, Capt. Bishop directed Sgt. King to write
[plaintiff] a false [misbehavior report] for forgery” for using
DOCCS letter head on the letter he addressed to the COMRC.
Id.
On January 29, 2016, Sgt. King issued plaintiff a misbehavior
report (“the January 29, 2016 misbehavior report”), charging
plaintiff with violations of five DOCCS rules, including
that plaintiff “forged letterhead depicting a state form from
[DOCCS] ... that he had created ... on a computer in
the law library[,]” which he used in “a letter of personal
nature ....” Dkt. No. 25-1 at 155. Plaintiff avers that
“Kowalowski [i]nitiat[ed] [r]etaliation – The January 29[ ],
2016” misbehavior report. Amen. Compl. at 16. Plaintiff
states that he was placed on keeplock status pending his
disciplinary hearing. See id. at 17 ¶ 62.
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Plaintiff's Tier III disciplinary hearing relating to the January
29, 2016 misbehavior report began on February 4, 2016 (“the
February 2016 disciplinary hearing”). See Amen. Compl.
at 17 ¶ 64. Plaintiff states that the “regularly assigned Tier
III Hearing Officer,” non-party Lt. Miller, did not preside
over his case, but rather, Supt. Kirkpatrick “designated” Lt.
Durkin to preside over his Tier III hearing. Id. Plaintiff
alleges that Lt. Durkin did not normally preside over such
hearings and that he “was unfamiliar with the procedures
and stopped frequently to read from instructions on how
to hold the hearing.” Id. Plaintiff contends that “[t]hese
circumstances let [him] know that [he] was about to be
railroaded and revealed an ongoing conspiracy now involving
Supt. Kirkpatrick[,] Lt. Durkin ..., and Capt. Bishop ... to
insure a finding of guilt regardless of the facts.” Id. (internal
quotation marks omitted). Plaintiff alleges that, “off-the-
record and before the hearing, [Lt. Durkin] agree[d] the
[January 29, 2016 misbehavior report wa]s problematic.” Id.
at 18 ¶ 65. On February 5, 2016, “[t]he day after the hearing
started[,]” plaintiff states that Kowalowski visited his cell
“because ... Lt. Durkin[ ] told him that [plaintiff] accused him
of threatening [plaintiff] with retaliation.” Id. at ¶ 66. Plaintiff
avers that, during this meeting, “Kowalowski told [him that]
if [he] had come to the ILC meeting at 10 AM on January
29[ ], 2016, hours before [plaintiff] received the [January 29,
2016 misbehavior report], he would have ‘squashed’ th[at
misbehavior report].” Id.
Plaintiff alleges that, on the last day of the hearing, his “boss
[at the Clinton C.F. law library], [non-party] Officer Tedford,
testified that he was aware [that plaintiff] was using [DOCCS]
letterhead and had no problem with [him doing] as long
as it was being used for communication with [ ]DOCCS
employees.” Id. at 19 ¶ 70. At the conclusion of the hearing on
February 11, 2016, “despite ... Tedford[’s] testi[mony]” and
plaintiff's “non-existent disciplinary history [for his] entire
incarceration,” he was found guilty and sentence to 90 days
in the Clinton C.F. Special Housing Unit (“SHU”). Id. at ¶
71. On February 15, 2016, plaintiff administratively appealed
Lt. Durkin's disciplinary determination. See id. at 20 ¶ 72;
Dkt. No. 25-1 at 168-70. On March 15, 2016, Rodriguez
reduced plaintiff's sanction to 45 days of SHU confinement
and loss of packages, commissary, and phone. See id. at
21 ¶ 77; Dkt. No. 25-1 at 176. Plaintiff submitted a letter
requesting reconsideration of his administrative appeal on
March 16, 2016. See Dkt. No. 25-1 at 178-79. On April 6,
2016, Rodriguez reversed Lt. Durkin's February 11, 2016
disciplinary determination. See Amen. Compl. at 21 ¶ 78;
Dkt. No. 25-1 at 181.
*4 Liberally construed, the Amended Complaint alleges
that, based on the facts relating to the February 2016
disciplinary hearing, Kowalowski, Capt. Bishop, Sgt. King,
Supt. Kirkpatrick, Lt. Durkin, and Rodriguez conspired to
violate plaintiff's First Amendment rights by filing a false
misbehavior report that resulted in SHU confinement in
retaliation for plaintiff engaging in protected conduct relating
to his service as ILC Secretary. See Amen. Compl. at 12-21,
69.
2. March 2016 Disciplinary Proceeding
On February 18, 2016, plaintiff filed an inmate grievance
(CL-68902-16), alleging that he had been issued a false
misbehavior report (the January 29, 2016 misbehavior report)
in retaliation for his January 23, 2016 letter to Hollmen
in which he requested the name of the ILC advisor in the
Albany office. See Amen. Compl. at 20 ¶ 73; Dkt. No.
25-1 at 4-6. In particular, plaintiff requested that the Inmate
Grievance Program (“IGP”) “review and investigate the facts
and circumstances of [his] grievance in conjunction with
[the January 29, 2016] misbehavior report; reverse, dismiss
and expunge ticket from [his] record, and restore [him] to
[his] law library job and housing area.” Dkt. No. 25-1 at 6.
Plaintiff alleges that non-party IGP Supervisor Gregory filed
his grievance incorrectly ....” Id. The Clinton C.F. Inmate
Grievance Resolution Committee (“IGRC”) denied plaintiff's
grievance, explaining, as relevant here, that “[t]he grievance
program can not be used as an additional substitute appeal
mechanism. An individual decision or disposition resulting
from a disciplinary proceeding is not grievable.” Id. at 7.
Plaintiff appealed the IGRC's response to the Superintendent
on March 4, 2016. See id. On March 11, 2016, Supt.
Kirkpatrick concurred with the IGRC's response. See id. at
8. On March 21, 2016, plaintiff appealed Supt. Kirkpatrick's
decision. See id. On July 6, 2016, the Central Office Review
Committee (“CORC”) upheld Kirkpatrick's determination.
See id. at 9.
On February 28, 2016, C.O. Breyette and C.O. Tucker came
to plaintiff's cell in Clinton C.F.’s keeplock block to inform
plaintiff that he was being transferred to Upstate C.F. and to
pack up his belongings. See Amen. Compl. at 20 ¶ 74, 21
¶ 79. Plaintiff “requested to see OMH when [he] was told
[he] was being packed up on the draft to [Upstate C.F.].”
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Id. at ¶ 74. 4 Plaintiff states that, while C.O. Breyette and
C.O. Tucker packed his belongings outside of his presence
when he was in OMH, “an ice pick was allegedly recovered
on the inside ledge of [his] cell above the bars.” Id. at 21 ¶
80. Plaintiff alleges that the ice pick was “planted in [his]
cell ....” Id. at 20 ¶ 74. Capt. Bishop signed off on an unusual
incident report (“UIR”) concerning the weapon. See id. at 22
¶ 84; see Dkt. No. 25-2 at 9-11 (Mar. 1, 2016 UIR, listing
incident date for the discovery of the ice pick in plaintiff's
cell as Feb. 28, 2016). Plaintiff has included, as an exhibit,
the photograph, of the ice pick, which is dated February 29,
2016. See Dkt. No. 25-2 at 12. “On the morning of February
29[ ], 2016, while still in an OMH [o]bservation cell,” plaintiff
alleges that “Capt[.] Devlin, the security captain in charge
of the secure evidence locker and logbooks, banged hard
on [plainitff's] cell and said ‘What the [f]uck are you still
doing here?” to which plaintiff replied, “Why did I get 90
days, the maximum sentence for my first non-violent Tier III
[misbehavior report]?” Id. at ¶ 75. Plaintiff alleges that, “[a]s
[Capt. Devlin] was walking away[,] he said ‘You'll see.’ ” Id.
*5 On March 1, 2016, plaintiff was transferred from Clinton
C.F. to Upstate C.F. and placed in SHU. See Amen. Compl.
at 21 ¶ 80. On March 2, 2016, plaintiff received an inmate
misbehavior report authored by C.O. Breyette, dated February
28, 2016 (“the February 2016 misbehavior report”), which
charged him with possession of a weapon in violation of
DOCCS Rule 113.10 based on the discovery of the ice pick in
plaintiff's keeplock cell at Clinton C.F. See id. at 20 ¶ 74; Dkt.
No. 25-2 at 7. Over the course of March 4, 22, and 29, 2016, a
Tier III disciplinary hearing was held at Upstate C.F. relating
to the February 2016 misbehavior report. See id. at 22 ¶ 82.
Plaintiff alleges that Capt. Bishop “conspired with [Supt.]
Ulher of [Upstate C.F.], a former [c]aptain of [s]ecurity at
[Clinton C.F.] in 2008[,] to be assigned as the hearing officer
at [Upstate C.F.] to hold [the] hearing, even though [Upstate
C.F.] employs a full-time ... Hearing Officer whose only job
is to hold hearings.” Id. Plaintiff further contends that “[t]his
conspiracy involved insuring [sic] that [he] was found guilty
of possessing the weapon planted in [his] cell in a continuing
course of retaliation for [his] protected free speech conduct
as a duly elected ILC representative,” including reporting
alleged wrongdoing by personnel at Clinton C.F. Id. at ¶ 83.
Plaintiff alleges that, on March 22, 2016, he “requested the E-
Block (Unit) log book entries from 9:00 a.m. on February 28,
2016, until 5:00 p.m., on March 1, 2016, multiple times ... and
was told” by Capt. Bishop that he would be given “a copy of
the ... log for the incident entry in the log book” but that the
entries for “[t]he 29 th ... and March 1 st , [were] irrelevant ...
[.]” Amen. Compl. at 23 ¶ 87 (quoting Dkt. No. 25-2 at 41-42).
Plaintiff “objected” to this answer, stating that “there wasn't
a weapon found in my cell that day[,]” February 28, 2016.
Id. Over plaintiff's objection, Capt. Bishop instructed plaintiff
that the log book entries from February 28, 2016, were “... all
you get. That's all you're getting.’ ” Id. at 24 ¶ 89 (quoting
Dkt. No. 25-2 at 44). Plaintiff also contends that Capt. Bishop
told him, “I'm going to get you when the evidence was booked
into evidence. That's what you're getting. Not getting the days
before or the days after of any of it.” Id. at 25 ¶ 95 (quoting
Dkt. No. 25-2 at 56). Plaintiff “objected, stating ‘I feel this
evidence wasn't logged in on February 28, 2016, and without
seeing the previous ... and the forward pages, I won't be able to
identify whether or not it was logged in at the time. Specially
[sic] since [ ] the evidence drop box log book [ ] doesn't have
a date [ ] when the evidence was entered into the drop box ....’
” id. at 24 ¶ 90 (quoting Dkt. No. 25-2 at 44-45). Plaintiff
states that he was “asked if [he] ha[d] the chain of custody
from the evidence drop box logbooks,” to which he replied,
“ ‘No.... The log book is missing a date that's supposed to be
there for weapons entered into the ... drop box log book[,]’
” and contends that this missing date “explained multiple
inconsistencies showing [his] request [wa]s very relevant and
material.” Id. at ¶ 91 (quoting Dkt. No. 25-2 at 45).
Plaintiff further alleges that C.O. Tucker testified at the
hearing by phone, and stated that C.O. Breyette had shown
him the weapon recovered from plaintiff's cell on February
29, 2016, “but [that] [Capt. Bishop] refused to allow
[plaintiff] to question C.O. Tucker about brining [plaintiff] an
I-64 form (recording property packed up) to Mental Health
Unit on February 29, 2016.” Amen. Compl. at 25 ¶ 94 (citing
Dkt. No. 25-2 at 52-54). Plaintiff further states that non-party
Sgt. Baker testified by phone that he wrote a memorandum to
non-party Lt. Menard “on the day of the incident, identified
on the memo as February 29, 2016, not February 28, 2016,
the date of the [misbehavior report].” Amen. Compl. at 24
¶ 92. When plaintiff “questioned” this inconsistency, “Capt.
Bishop stated, ‘we'll look at that to see if it's a clerical error
or not,’ ” but plaintiff avers that “no effort [wa]s made to
question Sgt. Baker while he [wa]s still on the phone.” Id.
(quoting Dkt. No. 25-2 at 50). However, plaintiff states that
he asked Sgt. Baker, “[d]id you drop the ... weapon in the box
the same date that you ... wrote the memo?” to which Sgt.
Baker replied, “ ‘It was on the same day.’ ” Id. at 24-25 ¶ 93
(quoting Dkt. No. 25-2 at 51). When Sgt. Baker testified again
later in the proceeding, Capt. Bishop prevented plaintiff from
eliciting an answer from Sgt. Baker as to whether he had ever
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“ ‘secured evidence in the drop box in previous times[,]’ ” or
if he “ ‘kn[e]w what [he was] supposed to do in the evidence
drop box sign in sheet when [he] secure[d] evidence.’ ” Id. at
26 ¶¶ 99, 100 (quoting Dkt. No. 25-2 73-74). Capt. Bishop
then asked Sgt. Baker if he had “secure[d]” the weapon “on
[February 28,] 2016[,] in the evidence drop box[,]” to which
Sgt. Baker replied, “Yes I did.” Id. at ¶ 101 (quoting Dkt. No.
25-2 at 75).
*6 Plaintiff alleges that Capt. Bishop's evidentiary rulings
prevented him “from acquiring documents crucial to [his]
retaliation defense,” Amen. Compl. at 24 ¶ 91, and that he
“was stopped from making a complete record.” Id. at 23 ¶ 86
(citing Dkt. No. 25-2 at 42). In addition, plaintiff states that
“[Capt.] Devlin ... failed to move the alleged weapon from ...
the Evidence Drop Box to ... the Secured Evidence Locker for
eight days, when the Directive requires it to be moved within
72 hours.” Id. at 27 ¶ 103. Plaintiff posits that “[t]his lends
further support to the fact that these log book entries, along
with the [misbehavior report], were falsified and fabricated in
retaliation against [him].” Id. Based on the foregoing, plaintiff
contends that, on “February 29[ ], 2016, [ ]Capt[.] Devlin
conspired with Capt. Bishop to fabricate the [February 28,
2016 misbehavior report], which is supported by the picture
of the weapon ... recorded in the [UIR] as being photographed
on February 28[ ], 2016, but was recorded by [non-party] C.O.
Stiles as being photographed on February 29[,] 2016.” Id. at
23 ¶ 87 (citing Dkt. No. 25-2 at 12).
On March 29, 2016, plaintiff was found guilty of possession
a weapon and sanctioned to 120 days in SHU with 30 days
suspended and four months loss of good time credit. See
Amen. Compl. at 28; Dkt. No. 25-2 at 110. On April 11, 2016,
plaintiff appealed Capt. Bishop's disciplinary determination.
See id. at 32 ¶ 132; Dkt. No. 25-2 at 117-23. On June
13, 2016, Venettozzi modified Capt. Bishop's disciplinary
determination, reducing plaintiff's sanctions to 90 days in
SHU and expunged the four months of loss of good time
credit. See id. at 34 ¶ 138; Dkt. No. 25-2 at 148. On August
15, 2016, plaintiff commenced a proceeding pursuant to N.Y.
C.P.L.R. article 78 challenging the March 29, 2016 Tier
III hearing determination in New York State court. See id.
at 40-41 ¶¶ 164, 166; Dkt. No. 25-3 at 4-6. On July 10,
2017, after both parties had submitted briefs state court,
Rodriguez 5 administratively reversed and expunged Capt.
Bishop's March 29, 2016 Tier III hearing determination on
the basis that “circumstances surrounding the incident raise
question to inmate's culpability.” Dkt. No. 25-3 at 40; see id.
at 41; Amen. Compl. at 42 ¶ 173.
Liberally construed, the Amended Complaint alleges that
Capt. Bishop, C.O. Breyette, C.O. Tucker, Capt. Devlin,
Supt. Kirkpatrick, Supt. Uhler, Rodriguez, and Venettozzi
conspired to retaliate against plaintiff in violation of his
First Amendment rights by filing a false misbehavior report
and brining a disciplinary proceeding against him, which
resulted in SHU confinement and loss of privileges, for his
protected conduct relating to his service as ILC Secretary.
See Amen. Compl. at 20-42, 70. Further, plaintiff alleges that
Capt. Bishop violated his Fourteenth Amendment procedural
due process rights by depriving him of an impartial hearing
officer, and denying him documentary and testimonial
evidence, which prevented plaintiff from mounting a full
defense. See id. at 24-27, 70.
II. Present Motions
A. Arguments and Evidence in Support of Defendants’
Motion for Summary Judgment (Dkt. No. 178)
1. First Amendment Retaliation
Claims—Both Disciplinary Hearings
Defendants aver that plaintiff's First Amendment retaliation
claims must fail “because there is no direct evidence of
retaliatory motive.” Dkt. No. 178-2 at 17. In particular,
defendants posit, no causal connection exists between
defendants’ actions of issuing plaintiff misbehavior reports,
conducting disciplinary hearings, or the resulting sanctions
and plaintiff's constitutionally protected activities relating
to his service on the ILC. See id. Defendants contend that
plaintiff's “conclusory allegations to the contrary cannot
raise a genuine factual dispute.” See id. Rather, defendants
argue, the issuance of misbehavior reports and the resulting
disciplinary hearings and sanctions were done in furtherance
of defendants’ job duties and to “ensure that DOCCS policies
were followed and [to] ensure the safety of the officers and
inmates.” Id. at 18. To the extent that DOCCS policies were
not followed, defendants state, “these errors were harmless
and did not violate the Constitution.” Id. at n. 8. Moreover,
defendants contend, plaintiff cannot establish that Lt. Durkin,
C.O. Tucker, C.O. Breyette, and Supt. Uhler acted with
retaliatory animus, because those defendants “did not even
know that [plaintiff] was a member of the ILC.” Id.; see Dkt.
No. 178-7 at 1 ¶ 4 (Sworn affidavit of Lt. Durkin stating,
that “I was not aware that [plaintiff] served on the ILC and
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did not know of any activities he engaged in as a part of that
involvement until the hearing on February 4, 2016, .... Nor
did I ever discuss [plaintiff's] involvement in the ILC with any
other [d]efendant.”); Dkt. No. 178-10 at 1 ¶ 3 (Sworn affidavit
of C.O. Tucker, stating that, “[a]t the time of the events in
question, I did not know that [plaintiff] was a member of
the [ILC]. Nor did I know [plaintiff] had written letters or
agendas with regard to activities on ILC, or engaged in any
other constitutionally protected activities.”); Dkt. No. 178-5
at 1 ¶ 3 (Sworn affidavit of C.O. Breyett, stating “I did not
know that [plaintiff] was a member of Clinton's [ILC], nor
did I know about any activities he undertook with respect to
the ILC.”); Dkt. No. 178-11 at 2 ¶ 4 (Sworn affidavit of Supt.
Uhler, stating that, “[a]t the time of the events in question, I
was not aware that [plaintiff] had been a member of the [ILC]
at Clinton, as I did not work at that facility. I was not aware
that [plaintiff] had engaged in any constitutionally protected
behavior.”).
*7 Similarly, defendants contend that, although “Capt.
Devlin, Sgt. King, and Capt. Bishop” were aware that plaintiff
was on the Clinton C.F. ILC, they “did not know that plaintiff
authored the Dec. 9 Memo, or the Dec. 16 Agenda.” See Dkt.
No. 178-2 at 18; Dkt. No. 178-6 at 2 ¶ 4 (Sworn affidavit
of Capt. Devlin, stating “I was aware that [plaintiff] was
a member of the [ILC] at Clinton but did not know that
he authored a memo on December 9, 2015, regarding the
adverse effects of Clinton's shower policy. Nor did I know
that on December 16, 2015, he drafted the memo outlining
assaults on inmates, inappropriate removal from jobs, and a
request to review and implement issues with the showers,
or that he ultimately submitted a ‘watered down’ version
of this agenda.”); Dkt. No. 178-8 at 1 ¶ 2 (Sworn affidavit
of Sgt. King, acknowledging that he knew of plaintiff's
involvement on the Clinton ILC, but had no knowledge of
the December letter or agenda); Dkt. No. 178-4 at 1, 2 ¶¶ 4,
5 (Sworn affidavit of Capt. Bishop, acknowledging that he
knew of plaintiff's involvement on the Clinton ILC, but had
no knowledge of the December letter or agenda).
Defendants also contend that “[n]o inference of retaliation
arises from the facts in this case.” Dkt. No. 178-2 at 18. First,
defendants aver, no inference of retaliation arises from the
administrative reversal of plaintiff's March 2016 disciplinary
determination during the pendency of his N.Y. C.P.L.R. article
78 proceeding. See id. In particular, defendants argue that
“[t]he evidence shows that [ ]Venettozzi and [ ]Rodriguez
acted because they wanted to do their jobs and ensure that no
constitutional violations had occurred[,]” and that plaintiff's
“speculative allegations to the contrary cannot raise a genuine
issue of fact.” Id. Defendants assert that plaintiff's filing of
a voluminous amount of letters, some of which were only
sent to Venettozzi and some of which were only sent to
Rodriguez, “overwhelmed their usual review process and
caused confusion about the status of his requests.” Id. at
18-19. Defendants submit the sworn affidavit of Venettozzi,
which explains that, “[a]t the time of the events in question,
[he] was the Director of Special Housing/Inmate Disciplinary
Program employed by [DOCCS,]” and that his “job duties
include[d] reviewing and deciding administrative appeals
from Tier III disciplinary hearings.” Dkt. No. 178-12 at 1 ¶
2. Venettozzi states that he “did not work at Clinton [C.F.]
and was not personally involved with the issuance of either
Inmate Misbehavior Report ... in this case. Nor was [he]
involved with the hearings, other than to review [plaintiff's]
appeals from their decisions.” Id. at ¶ 3. Further, Venettozzi
explains that, “[a]side from Acting Director Rodriguez, who
works in the same office ..., [he] never spoke with any of
the other defendants about this case during the relevant time
period[,]” and that he has “no memory of speaking with ...
Rodriguez about this case during the relevant time period.”
Id. at 1-2 ¶ 3. Venettozzi also denies having knowledge that
plaintiff “had engaged in constitutionally protected activity at
the time the [misbehavior reports] were issued, or the hearings
were held.” Id. Venettozzi explains that plaintiff “filed
numerous letters and requests with [his] office” and that,
“[a]s an administrative matter, it was difficult to keep track
of them all, especially since some” letters from Venettozzi's
and Rodriguez's office “crossed in the mail with some of
[plaintiff's] requests, and [because plaintiff] sent multiple
requests regarding the same matters.” Id. at 2 ¶ 5. Venettozzi
indicates that, “[u]pon information and belief, ... Rodriguez
reviewed some of [plaintiff's] letters, and [he] reviewed
others[,]” but that neither of he nor Rodriguez “knew about
the correspondence that was reviewed by the other[,]” and
denies retaliating against plaintiff or conspiring with any other
defendant to do so. Id.; see id. at ¶ 4.
Venettozzi states that, on September 28, 2016, his office sent
plaintiff a letter in response to a September 22, 2016 letter that
plaintiff submitted requesting reconsideration of the March
2016 disciplinary determination, “informing [plaintiff] that,
because the matter was currently the subject of litigation,
[Venettozzi's office] would not reconsider the issue at that
time.” Dkt. No. 178-2 at 5 ¶ 25. However, Venettozzi
further explains that, on July 10, 2017, Rodriguez issued
the decision that administratively reversed and expunged
plaintiff's March 2016 disciplinary determination. See id.
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at ¶¶ 26-27. Venettozzi states that, “[u]pon information
and belief, ... Rodriguez issued [the] reversal because he
was reviewing part of the correspondence from [plaintiff],
without realizing that [Venettozzi] had reviewed another
part[,]” and that Rodriguez “was not aware that [Venetozzi
had issued the September 28, 2016 letter putting [plaintiff's]
requests for reconsideration of the [March 2016 disciplinary
determination] on hold.” Id. at ¶ 27. Venettozzi also states that
Rodriguez was not aware that plaintiff had commenced a N.Y.
C.P.L.R. article 78 proceeding. See id. However, Venettozzi
posits that none of the actions taken by his office were done
in retaliation for plaintiff's ILC activities, and, in fact, were
all favorable to plaintiff. See id. at 5-6 ¶ 28.
*8 Defendants also submit Rodriguez's sworn affidavit in
support of their motion for summary judgment. See Dkt.
No. 178-9. Rodriguez, like Venettozzi, states that he has no
memory of speaking with Venettozzi about plaintiff's case, did
not discuss the case with any other defendants in this action,
and denies conspiring or retaliating against plaintiff. See id.
at 2 ¶ 3. He further explains that he was not even aware that
plaintiff engaged in constitutionally protected activity at the
time DOCCS personnel issued either misbehavior report. See
id. Rodriguez reiterates Venettozz's explanation that, given
plaintiff's large volume of submissions, it became difficult to
keep track of plaintiff's requests, especially given that plaintiff
“made multiple requests regarding the same matters.” Id.
at ¶ 4. Like Venettozzi, Rodriguez believes that Venettozzi
reviewed some of plaintiff's submissions, while he reviewed
others. See id. at ¶ 6. Further, Rodriguez explains that, he “was
not aware that ... Venettozzi had issued” his September 28,
2016 letter putting plaintiff's request for reconsideration of
the March 2016 disciplinary determination on hold pending
the article 78 proceeding. Id. at 5 ¶ 28. Rather, Rodriguez
“believed, based on correspondence from [plaintiff] that
[he] had reviewed, [that plaintiff] was merely considering
bringing such an action. Additionally, the case was not in
[Rodriguez's] list of urgent cases, as [plaintiff] had already
served his sentence.” Id. Rodriguez explains that, on July
10, 2017, he issued the decision administratively reversing
and expunging the March 2016 disciplinary determination,
because he “believed, based upon the location of where the
weapon was found, that it was possible that someone else had
placed the weapon [where it was recovered in plaintiff's cell],
not [plaintiff].” Id. at ¶ 29. However, Rodriguez submits that,
“had [he] known that an Article 78 proceeding was pending,
[he] would not have issued a decision until the proceeding was
complete.” Id. at 6 ¶ 30. Moreover, Rodriguez indicates he did
not take any action concerning plaintiff's case in retaliation for
plaintiff's ILC activities and, in any event, “all of the actions
that [he] and [his] office took were favorable to [plaintiff].”
Id. at ¶ 31.
Further, defendants argue that, plaintiff's assertion that an
inference of retaliation arises from Captain Devlin's alleged
comments, “ ‘What the fuck are you still doing here?’ and
[ ] ‘You'll see,’ in response to [plaintiff's] inquiry ... about
his [February 2016 disciplinary determination,]” lacks force.
Dkt. No. 178-2 at 19. Defendants submit Capt. Devlin's
affidavit in which he acknowledges that he saw plaintiff in
his cell “at some point,” but “vehemently den[ies] that [he]
ever said” either of those comments or “ever threaten[ed]
him or otherwise imply[ied] that anyone was about to go
after him.” Dkt. No. 178-6 at 2 ¶ 8. “Thus,” defendants aver,
“the only evidence in this case illustrates that the event never
happened.” Dkt. No. 178-2 at 19. In any event, defendants
contend that these “benign and ambiguous” comments fail
to establish that Capt. Devlin acted with retaliatory animus
because plaintiff does not allege having any prior interactions
with Capt. Devlin, and Capt. Devlin was unaware of plaintiff's
ILC activities. Id. at 20; see Dkt. No. 178-6 at 2 ¶ 4.
2. Section 1983 Conspiracy Claims
a. February 2016 Disciplinary Proceeding
Defendants aver that, contrary to plaintiff's allegation that
Supt. Kirkpatrick, Lt. Durkin, and Capt. Bishop conspired to
have Lt. Durkin assigned as the hearing officer at the February
2016 disciplinary proceeding, “the evidence establishes that
they never discussed Lt. Durkin's appointment with one
another and, thus, could not have conspired.” Dkt. No.
178-2 at 21. Rather, defendants aver, Supt. Kirkpatrick
independently appointed Lt. Durkin to preside over the
hearing without discussing the appointment with either Lt.
Durkin or Capt. Bishop. See id. Defendants point to Supt.
Kirkpatrick's affidavit in which he indicates that his “decision
to assign [Lt.] Durkin as the hearing officer on the first
[misbehavior report] was not motivated by a desire to retaliate
against [plaintiff] for his participation on the ILC,” Dkt.
No. 178-13 at 4 ¶ 19, and that his “assign[ment of] Lt.[ ]
Durkin as the hearing officer .... was appropriate as he had not
taken part in investigating the incidents underlying the [first
misbehavior report], and had served as hearing officer on 22
hearings.” Id. at 2 ¶ 8.
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In his sworn affidavit, Lt. Durkin states that he never
discussed plaintiff's involvement on the ILC with any other
defendant in this action, and that he “did not request to
be appointed [as] the hearing officer” or “discuss being
appointed the hearing officer with any other [d]efendant.”
Dkt. No. 178-7 at 2 ¶¶ 4, 9. Lt. Durkin states that he was
not “unfamiliar with the hearing procedures, as [he] had
previously served as a hearing officer on 22 occasions[,]”
“did not state that the [February 2016 misbehavior report]
was ‘problematic[,]’ ” or “inform Kowalowski that [plaintiff]
had accused him of retaliation.” Id. at 3 ¶¶ 11, 12, 13.
Moreover, Lt. Durkin states that his determination that
plaintiff was guilty of using “DOCCS letterhead for a purpose
that was unrelated to official government business,” namely
for “try[ing] to obtain adult magazines of a sexual nature,”
was based on his understanding of DOCCS regulations, and
not to retaliate against plaintiff. Id. at ¶ 15. As stated above,
Lt. Durkin denies having knowledge that plaintiff served on
the Clinton C.F. ILC or of his specific activities as secretary
of that body, and never discussed plaintiff's involvement on
the ILC with any other defendant. See id. at 2 ¶ 4.
*9 In addition, defendants submit Capt. Bishop's affidavit
in which he explains that, “on or around January 26, 2016,
[he] believe[s] [he] read a letter that [plaintiff] had written
on DOCCS letterhead[,]” which “was not regarding official
government business[,]” but instead consisted of “personal
correspondence regarding an adult magazine with sexual
content that [plaintiff] wished to obtain.” Dkt. No. 178-4 at 2
¶ 9. Capt. Bishop states that such use of DOCCS letterhead
“was ... inappropriate ..., and a clear violation of [DOCCS]
Directive No. 0008.” Id. He further notes that, on January 29,
2016, Sgt King issued plaintiff a misbehavior report based on
plaintiff's improper use of DOCCS letterhead, but states that
he “did not direct Sgt. King to write this [misbehavior report]”
and states that he “did not have any personal involvement
in the issuance of th[is] misbehavior report or the [February
2016 disciplinary] hearing.” Id. at 2-3 ¶¶ 10, 11.
Finally, defendants contend that Rodriguez was not involved
with the first misbehavior report or the February 2016
disciplinary proceeding and, therefore, did not engage in any
conspiracy. See Dkt. No. 178-2 at 21; Dkt. No. 178-9 at 1-2
¶ 3. In his sworn affidavit, Rodriguez states, “I did not work
at ... Clinton [C.F.] and was not personally involved with the
issuance of either Inmate Misbehavior Report ... in this case.
Nor was I involved with the hearings, other than to review
[plaintiff's] appeals from their decisions.” Dkt. No. 178-9 at
1-2 ¶ 3. Rodriguez also denies discussing this case with any
other defendant aside from Venettozzi, who worked in the
same office, and posits that he has “no memory of speaking
with ... Venettozzi about this case during the relevant time
period.” Id. at 4 ¶ 3.
b. March 2016 Disciplinary Proceeding
Defendants argue that the evidence establishes that no
conspiracy existed with respect to the February 2016
misbehavior report and March 2016 disciplinary proceeding.
See Dkt. No. 178-2 at 22. Defendants argue that plaintiff's
contention that, because the handwritten date on the last
page of the UIR under the photograph of the weapon is
February 29, 2016, rather than February 28, 2016, fails to
demonstrate that Capt. Bishop and Capt. Devlin engaged in
a conspiracy. See id. Defendants posit that the date contained
on this document, at most, establishes a harmless ministerial
error. See id. Defendants also aver that C.O. Breyette “had no
contact with either Capts. Devlin or Bishop.” Id. In support
of this contention, defendants cite C.O. Breyette's affidavit,
which states that he “did not communicate about this incident
with any other defendant in this case, other than [C.O.]
Tucker, who searched [plaintiff's] cell with him.” See id.
(citing Dkt. No. 178-5 at 2 ¶ 11). C.O. Tucker also stated in his
affidavit that he “had no communications with anyone about
the events underlying [C.O. Breyette's misbehavior report],
other than [C.O.] Breyette ....” Dkt. No. 178-10 at 2 ¶ 10.
Defendants contend that the record evidence establishes
that, contrary to plaintiff's allegations, Supt. Kirkpatrick
independently assigned Capt. Bishop to preside as the H.O. at
the March 2016 disciplinary hearing without ever discussing
his decision with either Capt. Bishop or Supt. Uhler. See
Dkt. No. 178-2 at 22. Defendants explain that, because
the discovery of the weapon that gave rise to the second
misbehavior report occurred at Clinton C.F., Supt. Kirkpatrick
was responsible for assigning the H.O. to preside over the
disciplinary hearing, and neither Capt. Bishop nor Supt.
Uhler had any involvement in that decision. See id. at
22-23. In his affidavit, Supt. Uhler explains that, “[a]t the
time of the events in question, [he] was employed ... as
the Superintendent of Upstate [C.F.]” and that, he neither
appointed Capt. Bishop as the hearing officer for the March
2016 disciplinary proceeding, or discussed his appointment
with anyone, including Supt. Kirkpatrick. Dkt. No. 178-11
at 1, 2 ¶¶ 2, 6. “In fact,” Supt. Uhler states, he “did not
have any other role in the [March 2016 disciplinary] hearing,
other than the fact that [he] (or [his] designee) conducted a
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review of the hearing to ensure that all proper procedures
were followed, as is done for all hearings held at Upstate
[C.F.]” Id. Supt. Kirkpatrick indicates in his sworn affidavit
that “[i]t is common procedure and courtesy to have a hearing
officer from the facility where the incident occurred [conduct
the hearing] if the inmate has been transferred from that
facility before the hearing takes place.” Dkt. No. 178-13 at
3 ¶ 13. Supt. Kirkpatrick states that he “did not discuss the
appointment with [Capt.] Bishop or [Supt.] Uhler.” Id. at
2 ¶ 11. Moreover, defendants reassert that Rodriguez and
Venettozzi “never discussed this case with any of the other
[d]efendants[ ]” and, therefore, did not engage in a conspiracy.
Dkt. No. 178-2 at 23.
3. Procedural Due Process Claim Against Capt. Bishop
Relating to the March 2016 Disciplinary Proceeding
*10 Defendants argue that plaintiff had no constitutionally
protected liberty interest with respect to his due process
claims relating to the March 2016 disciplinary hearing
“because his sentence of 120 days in SHU does not constitute
an atypical hardship since there were no other adverse
conditions of confinement.” Dkt. No. 178-2 at 25 (citations
omitted). Indeed, defendants contend, plaintiff served only 92
days for both of his SHU sentences. See id. at 26. Defendants
also posit that the imposition of loss of packages, commissary,
and phone privileges does not constitute adverse conditions
such that plaintiff's SHU sanction was atypical. See id.
Further, defendants submit that, contrary to plaintiff's
argument, he was afforded all process due. See Dkt. No.
178-2 at 26. In this regard, defendants argue that Capt. Bishop
was a fair and impartial hearing officer. See id. at 27. In
particular, defendants point to Capt. Bishop's sworn affidavit
in which he stated that he was properly appointed to preside
over the March 2016 disciplinary hearing because he did
not investigate the February 28, 2016 incident, and because
his name appears on the UIR only as a matter of form. See
id. Capt. Bishop explained that he “did not draft [the] UIR
or investigate the claims within it” and that his “name was
listed on the UIR as the ‘person reporting’ because, as a
matter of course, the [c]aptain's name was listed on all UIRs.”
Dkt. No. 178-4 at 3 ¶ 14. Supt. Kirkpatrick corroborated
Capt. Bishop's explanation, explaining that Capt. “Bishop
did not investigate the incident giving rise to the March
2016 misbehavior report].” Dkt. No. 178-13 at 3 ¶ 16. Supt.
Kirkpatrick stated that Capt. Bishop's “name is listed on the
UIR simply because the Captain's name is listed on the UIR as
a matter of course” and that his “own name is [also] listed on
the UIR, not because [he] investigated the incident [or] ha[d]
personal knowledge of the events described in the document,
but simply because [he] was the Superintendent of the facility
at the time the UIR was issued, and [his] name [wa]s listed
as a matter of course.” Id. Supt. Kirkpatrick further explained
the procedure for how a UIR is filed:
The UIR initial paperwork is written
by the line officer, who submits the
paperwork to the Sergeant for review.
The Sergeant then reviews and submits
it to the Watch Commander, who
reviews and electronically files the
UIR and submits all paperwork related
to the UIR. The Watch Commander
then submits it to the Captain, who
reviews and makes sure the paperwork
is complete and in order. The Captain
then submits it to the Superintendent.
Id. at ¶ 17. Supt. Kirkpatrick corroborated Capt. Bishop's
statement that he did not investigate the March 2016 incident
by explaining that, “[n]one of these individuals, aside
from the line officer and Sergeant, are considered to have
‘investigated’ the incident merely by being part of this chain
of review.” Id. Thus, defendants urge, plaintiff's due process
claim in this regard lacks merit and must be dismissed. See
Dkt. No. 178-2 at 27.
Next, defendants contend that plaintiff's due process rights
were not violated when he was not provided all of the drop
box logbook dates that he requested. See Dkt. No. 178-2 at
27. Defendants urge that plaintiff was afforded all process
to which he was due because he was provided access to the
February 28, 2016 logbook entries and allowed to question
Sgt. Baker, the individual who had photographed the weapon,
who confirmed that the weapon had been recovered and
photographed on that date. See id. Defendants posit that the
additional pages plaintiff requested (i.e. the pages spanning
from February 29, 2016, to March 1, 2016), were not relevant
to the March 2016 disciplinary hearing and, therefore, Capt.
Bishop did not violate his due process rights by denying
plaintiff access to those log book entries. See id. at 27-28.
*11 With respect to plaintiff's contention that defendants
violated DOCCS evidence rules when the weapon recovered
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from his cell on February 28, 2016, was not purged from the
evidence drop box for approximately eight days instead of
within 72 hours, as required pursuant to DOCCS Directive
4910A, defendants posit that such a mistake constitutes, at
most, harmless error and did not violate plaintiff's due process
rights. See Dkt. No. 178-2 at 28. Capt. Bishop explained in his
sworn affidavit that he determined that, although the failure
to purge the evidence drop box within the time required under
Directive 4910A constituted “a procedural violation,” he “it
was harmless because no one accessed the dropbox during
those 8 days.” Dkt. No. 178-4 at 5 ¶ 25. Relying on Capt.
Devlin's sworn affidavit, defendants posit that, because no
one accessed the evidence drop box during the eight days the
weapon remained there, that evidence was “unaltered.” Dkt.
No. 178-2 at 28; see Dkt. No. 178-6 at 3 ¶ 10 (Capt. Devlin's
affidavit stating, although the weapon was not removed from
the evidence drop box within 72 hours, as contemplated under
DOCCS Directive 4910A, “no one accessed the drop box
during this time.”).
Moreover, citing Capt. Bishop's affidavit, defendants argue
that the incorrect handwritten date of February 29, 2016,
contained under the photograph of the weapon, was due
solely to a clerical error and is not relevant to the weapons
charge that formed the basis of the second misbehavior report.
See Dkt. No. 178-2 at 28; Dkt. No. 178-4 at 4 ¶ 22. Capt.
Bishop explained that, on March 29, 2016, the last day
of the March 2016 disciplinary hearing, he questioned Sgt.
Baker, who stated that the correct date on which the weapon
was recovered and photographed was February 28, 2016,
and that the handwritten date contained on the photograph
was a “clerical error.” Id. at 5 ¶ 23. Capt. Bishop noted
that, between the second and third days of the March 2016
disciplinary hearing, Sgt. Baker reviewed his attendance
records, which indicated that he was not working on February
29, 2016, but was working on February 28, 2016, and that
he had photographed the weapon; therefore, Capt. Bishop
“concluded that the 28 th ” was the correct date, “and the hand-
written date was an error.” See id. at ¶ 24. In any event,
defendants contend, “[t]he date on the photograph did not
impact the [h]earing [d]ecision.” Dkt. No. 178-2 at 29.
4. Defendants’ Remaining Arguments
In addition, defendants contend that the Amended Complaint
should be dismissed as to all defendants with respect to
plaintiff's First Amendment retaliation and Section 1983
conspiracy claims for lack of personal involvement. See Dkt.
No. 178-2 at 10-16. In this regard, defendants rely exclusively
on their arguments and evidence as to the merits of plaintiff's
First Amendment and Section 1983 conspiracy claims. See
id. Similarly, drawing exclusively on their arguments on the
merits of plaintiff's First Amendment retaliation and Section
1983 conspiracy claims, defendants aver that they are entitled
to qualified immunity. See id. at 29-32.
B. Arguments and Evidence in Support of Kowalowski's
Motion for Summary Judgment (Dkt. No. 179)
1. First Amendment Retaliation
Kowalowski first argues that his statements, which plaintiff
alleges constituted “threats,” do not constitute adverse action
and are not causally related to plaintiff's constitutionally
protected activities on the ILC. See Dkt. No. 179-4 at
7. First, with respect to Kowalowski's statement that ILC
members “have a target on their backs” and therefore, must
“be careful,” Kowalowski argues that the context in which
he made this statement establishes that it was not meant
as a threat, but rather, as advice. See id. In particular,
Kowalowski explains that he made this statement to the
entire class of ILC inmates, as he did to every new class
of ILC members, and “meant this as a truthful warning to
the ILC members.” Dkt. No. 179-3 at 2 ¶ 7. Kowalowski
states, it “was clear from the context of the conversation,”
that he gave this advice because “inmates tend to see ILC
members as the scapegoat for jail conditions that frustrate
inmates” and “tensions can arise between security and
staff and ILC members.” Id. at 2 ¶¶ 8, 9, 10. Therefore,
Kowalowski argues that, understood in the proper context
and notwithstanding plaintiff's conclusory assertions to the
contrary, this statement cannot constitute adverse action to
support plaintiff's First Amendment retaliation claim. See
Dkt. No. 179-4 at 7. In addition, Kowalowski contends that no
causal connection exists between this statement and plaintiff's
constitutionally protected ILC activities, as “[t]here is no
indication that [p]laintiff had even made a constitutionally-
protected statement in the meeting prior to Kowalowski, let
alone a statement that actually motivated Kowalowski to
express this ‘threat.’ ” Id. at 8-9. Indeed, Kowalowski argues,
plaintiff did not even perceive this statement as a threat at the
time it was made and only later viewed the statement in this
light based on “hearing second-hand accounts of the fate of
other [ILC] members ....” Id. at 8.
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*12 Next, Kowalowski denies threatening plaintiff with
SHU confinement in retaliation for the content contained in
plaintiff's proposed December 2015 ILC agenda. See Dkt.
No. 179-4 at 9. Kowalowski points out that, at deposition,
plaintiff only recalled that Kowalowski objected to the length
of the proposed agenda. See id. (citing Dkt. No. 179-2 at 63
(Deposition Transcript). Plaintiff testified at deposition that,
while he could not recall “exactly why [Kowalowski] said he
wasn't going to submit” the proposed December 2015 ILC
agenda, Dkt. No. 179-2 at 61, plaintiff watered the agenda
down to omit “issues expressed about the assaults by staff.”
Id. at 62. While plaintiff did not recall whether Kowalowski
took issue with the inclusion of complaints of assault by
staff, plaintiff stated that “there had to be some discussion
about that, because it was removed. And it wouldn't be
removed without there being some discussion about it not
being appropriate for the agenda.” Id. at 63. Plaintiff also
testified that he “remember[ed] loosely, very vaguely, that
there was a conversation that a lot of th[e] stuff [included in
the proposed agenda] c[ould] be taken care of off the record.”
Id. Kowalowski also points to plaintiff's January 11, 2016
letter to New York State Assemblyman O'Donnell, noting that
plaintiff stated only that Kowalowski objected to the proposed
agenda's length and the highlighting of prison administrator's
names. See id. In particular, plaintiff's January 11, 2016,
letter to Assemblyman O'Donnell, states that Kowalowski
informed him that he could not submit his proposed five-page
agenda because it was “too long[ ] and [plaintiff] highlighted
their (administration's) names.” Dkt. No. 25-1 at 124. In
his letter to Assemblyman O'Donnell, plaintiff posits that
“the real reason why [Kowalowski] was upset” is because
the proposed agenda “talk[ed] about misrepresentation and/
or misappropriation of $10,000 in ILC fundraiser money,
violating [DOCCS] Directive 2771.” Id. Further, Kowalowski
states that, upon observing the length of the proposed agenda,
he simply relayed a directive from Supt. Kirkpatrick to
plaintiff that the Clinton C.F. administration would no longer
accept ILC agendas longer than one page or containing more
than four or five individual items. See Dkt. No. 179-3 at
4 ¶ 21. Kowalowski states that he did not comment on or
direct plaintiff to “water down” the content of the proposed
agenda. Id. at 4-5 ¶¶ 26-28. “In fact,” Kowalowski states, he
“did not review the agenda in any detail before counseling
[plaintiff] regarding its length.” Id. at 5 ¶ 28. At most,
Kowalowski states, he believed that submitting an agenda
longer than one page would have resulted in Clinton C.F.
cancelling the ILC meeting, but not a SHU sanction for any
ILC member. See id. at 5-6 ¶ 27. Thus, Kowalowski argues,
his instruction regarding the length of the proposed agenda
did not constitute a threat, and no causal connection exists
between the alleged threat and the constitutionally protected
contents of the proposed agenda. See Dkt. No. 179-4 at 10, 11.
Further, Kowalowski contends that plaintiff's allegation that
he “snatched” a piece of paper from plaintiff's hand, which
contained a list of proposed television channels, and stating,
“You are not as important as you think you are” does not
constitute a threat sufficient to support a First Amendment
retaliation claim. Dkt. No. 179-4 at 13 (quoting Amen.
Compl. at 15 ¶ 56). In particular, Kowalowski contends
that, even assuming that he took the piece of paper and
made these comments, his actions do not rise to the level
of adverse action. See id. Kowalowski avers, plaintiff's
allegations amount to, at most, “generalized discourtesy,”
which is not actionable under Section 1983. Id. at 14.
Kowalowski also argues that plaintiff has failed to establish a
First Amendment retaliation claim against him based on his
alleged involvement with the January 29, 2016 misbehavior
report relating to plaintiff's use of DOCCS letter head. See
Dkt. No. 179-4 at 14-17. Kowalowski explains that he is
the co-chair of the FMRC, which is an entirely separate role
from his position as ILC Advisor. See Dkt. No. 179-3 at 5,
6 ¶¶ 35, 36. Kowalowski contends that plaintiff received a
magazine that was flagged by civilian mail staff and referred
to the FMRC, a member of which ultimately determined that
the magazine contained prohibited pornographic content. See
Dkt. No. 179-4 at 14. Kowalowski explains that, although he
did not personally review plaintiff's magazine, in his role as
co-chair of the FMRC he “sign[s] all determinations made
by members of the FMRC.” Dkt. No. 179-3 at 6 ¶ 36;
see id. at ¶ 39. When plaintiff “approached [Kowalowski]
about the status of his magazine, [Kowalowski] told him
that he was entitled to appeal the FMRC decision to the
COMRC in Albany.” Id. at ¶ 42. Plaintiff testified at his
deposition that “[t]here was nothing untoward about” the
way Kowalowski presented this message to him and that
“[t]here was no feelings on [sic] animosity about it[,]” and that
plaintiff “didn't take it personally in any way. [Kowalowski]
was doing his job.” Dkt. No. 179-2 at 104. Plaintiff appealed
the FMRC's determination and the COMRC affirmed the
FMRC's determination on appeal. See Dkt. No. 179-3 at
6 at ¶ 41. Kowalowski notes that, on January 23, 2016,
plaintiff sent a memorandum, drafted on official DOCCS
interdepartmental communication letterhead, to Hollmen
in which he objected to the terminology and reasoning
the COMRC used in its decision affirming the FMRC's
determination. See Dkt. No. 25-1 at 149-52.
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Kowalski states that, “[i]n January of 2016, [Capt.] Bishop
summoned [him] to his office[,]” where they met with non-
party Deputy Superintendent Bell (“Deputy Supt. Bell”). Dkt.
No. 179-3 at 6 ¶ 43. Capt. Bishop informed Kowalowski that
he and Deputy Supt. Bell “had learned that [plaintiff] had
been using certain letterhead in his correspondence.” Id. at ¶
44. Capt. Bishop and Deputy Supt. Bell showed Kowalowski
the letterhead, which Kowalowski “recognized ... from other
correspondence that [he] had seen from [plaintiff].” Id.
However, Kowalowski “do[es] not know the substance of
the correspondence that [Capt.] Bishop showed [him].” Id.
at ¶ 45. “Capt. Bishop asked [Kowalowski] if [he] would
be willing to write a misbehavior report against [plaintiff]
for his use of the letterhead.” Id. at 7 ¶ 47. Although
Kowalowski “understood [Capt.] Bishop's objection, [he]
refused his request.” Id. at ¶ 48. Kowalowski explains that,
although he “understood the letterhead to be an issue for
the security administration[, i]t did not relate to [his] role as
Resident Coordinator or ILC Advisor[ ]” and Kowalowski
“had no special knowledge or awareness of the relevant
facts” concerning plaintiff's letter. Id. Kowalowski further
states that, “[a]t the time of [his] meeting with [Capt.]
Bishop and [Deputy Supt.] Bell, [he] was not aware of any
connection between the review of [plaintiff's] magazine and
the letterhead.” Id. at ¶ 50. Moreover, Kowalowski states
that, although he “subsequently learned that [Sgt.] King
wrote a misbehavior report against [plaintiff] relating to
the letterhead[,]” he did not encourage Sgt. King or any
other DOCCS personnel to write a misbehavior report, did
not participate in any way in the February 2016 Tier III
disciplinary hearing, id. at ¶ 53, and was not referenced in
the January 2016 misbehavior report. See Dkt. No. 179-4 at
17. Thus, Kowalowski contends, the record evidence does
not establish a claim of retaliation against him with respect
to the issuance of the January 29, 2016 misbehavior report,
because he did not issue the misbehavior report or otherwise
have any involvement in the issuance of that misbehavior
report, and no causal connection exists between plaintiff's ILC
activities and Kowalowski's “tangential involvement” with
the FMRC review of plaintiff's magazine and the January 29,
2016 misbehavior report and subsequent sanction. See id. at
17-19.
Section 1983 Conspiracy
*13 Kowalowski first argues that, for the reasons set
forth above, plaintiff's Section 1983 conspiracy claim lacks
merit. See Dkt. No. 179-4 at 22. Alternatively, Kowalowski
contends that plaintiff's conspiracy claim should be dismissed
because all of the alleged conduct complained of occurred
while defendants were acting within the scope of their
employment. See id. at 22-23.
C. Plaintiff's Responses in Opposition
1. Plaintiff's Response in Opposition to Defendants’
Motion for Summary Judgment (Dkt. No. 193)
Plaintiff first controverts defendants’ contention that he
failed to establish their personal involvement, arguing that,
“when the defendants retaliated against [him] for [his]
constitutionally conduct as an ILC member submitting an
[a]genda in accordance with DOCCS Directive #4002 ...,
setting forth grievances on behalf of the inmate population,
they became personally involved in the constitutional
violations against [him].” Dkt. No. 193-2 at 10-11. He
also posits that “[n]umerous [i]nferences of [r]etaliation are
[a]pparent from the [f]acts of [t]his [c]ase.” Id. at 20. He
also avers that Lt. Durkin's “retaliation and conspiracy against
[him] was apparent when he violated [his] Due Process rights
in the [February 2016 disciplinary] hearing.” Id. Plaintiff
argues that “[t]he fact that Sgt. King conspired and retaliated
against [him] is not defeated because Sgt. King did not know
about the Dec. 9 th letter or the Dec. 16 th Agenda, as his
lack of knowledge of this memo and agenda did not prevent
him from conspiring and retaliating ....” Id. (internal citation
omitted).
Plaintiff contends that “Kowalowski's statement that he was
summoned to Capt. Bishop's office, ... and was asked by
Capt. Bishop if he would be willing to write a misbehavior
report ..., provides a strong causal connection/inference that
once Capt. Bishop was unable to have Kowalowski write
the [January 2016 misbehavior report, he instead directed
Sgt. King to write it.” Id. Plaintiff avers that C.O. Breyette's
and C.O. Tucker's lack of knowledge of plaintiff's ILC
activities “did not prevent them from conspiring with other
defendants ... to retaliate against [him].” Id. at 15. Plaintiff
also asserts that contrary to Capt. Devlin's assertion, he did
make the statements, “What the fuck are you still doing
here” and “You'll see[,]” and that Capt. Devlin was aware
of the December 9 letter and December 16 Agenda. Id. at
16. Further, plaintiff avers that the wrong date contained on
the photograph of the weapon, along with Capt. Devlin's
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statements “shows the big picture,” and raises an inference
that Capt. Devlin retaliated against him. Dkt. No. 193-2 at 21.
Moreover, plaintiff avers that Supt. Kirkpatrick “conspired
with [Capt.] Bishop and [Supt.] Uhler when he assigned
[Capt.] Bishop to be [the] hearing officer ....” Id. at 16.
Plaintiff urges that this assignment was “irregular” and, along
with the fact that he signed the UIR, evidences that Supt.
Kirkpatrick conspired with Capt. Bishop and Supt. Uhler to
retaliate against him. Id. In addition, plaintiff contends that
the “multiple failures of ... Rodriguez and ... Venettozzi in
the processing, handling and decision making of [his second
administrative] appeal is indicative of the IDP Directors
[sic] inability to promulgate the Policies, Procedures and
Practices properly for all inmates in the ... custody ... of
[ ]DOCCS.” Id. at 20. Plaintiff posits that Venettozzi's and
Rodriguez's contentions that plaintiff's submission of an
“exorbitant number of letters” confused the review process
and that they reviewed his requests without each other's
knowledge are “weak excuse[s].” Id.
*14 Plaintiff further argues that he “can provide a factual
basis supporting a meeting of the minds, such that defendants
entered into an agreement, express or tacit, to achieve the
unlawful end result of retaliation against [him] for [his]
activities on the ILC.” Dkt. No. 193-2 at 22. Plaintiff
posits that defendants’ affidavits constitute “unsupported
allegations that they did not discuss [his] claims,” which
“lack[ ] substance and merit.” Id. For instance, plaintiff
contends, “Capt. Bishop clearly directed Sgt. King to write
the first [misbehavior report] after he tried, and failed, to have
Kowalowski do so.” Id. at 23. He states that Capt. “Bishop's
sworn affidavit that he had nothing to do with the [first
misbehavior report] is highly doubtful, being that he tried to
have Kowalowski do so and failed.” Id. “In furtherance of
this conspiracy,” plaintiff states, Supt. “Kirkpatrick assigned
Lt. Durkin ... to be [his] hearing officer,” rather than non-
party “Lt. Miller, who was the person regularly assigned to
handle such hearings, left for the day.” Id. Plaintiff states that
defendant have failed to provide him proof that Lt. Miller was
“overwhelmed” to justify Lt. Durkin's appointment, therefore
strongly implying “that Lt. Durkin was assigned with the
specific purpose of finding [him] guilty[.]” Id. at 12. Thus,
plaintiff avers, the February 2016 disciplinary hearing was the
result of a conspiracy. See id. at 23.
Plaintiff contends that the March 2016 disciplinary hearing
was also the result of a conspiracy because “it is disputed
that [C.O.] Breyette, as author of the misbehavior report,
did not discuss this case with anyone else, with said
discussions ... in tacit agreement to achieve the unlawful end
of retaliation against [him] for [his] protected conduct ...
as a member of the ILC.” Dkt. No. 193-2 at 23 (internal
citations omitted). Plaintiff contends that Supt. Kirkpatrick's
act of assigning Capt. Bishop as the hearing officer at the
March 2016 disciplinary hearing is “taken outside the scope
of his employment duties,” and that Capt. Bishop's and Supt.
Uhler's “tacit agreement” to allow Capt. Bishop to preside
over the hearing “resulted in their participation in retaliation
against [him].” Id. at 24. Plaintiff also opposes Venettozzi's
and Rodriguez's assertions that they did not collaborate in
reviewing plaintiff's requests, and states that their statements,
“together with the facts asserted in [his] Verified Complaint[,]
provides admissible proof ... that they tacitly agreed to
conspire and obstruct justice by delaying the timely reversal
of [his] administrative appeal during it's [sic] initial review,
as opposed to one year later.” Id. (internal citations omitted).
In addition, plaintiff opposes defendants’ arguments
concerning his Fourteenth Amendment due process claims.
See Dkt. No. 193-2 at 24. He contends that his SHU
constituted “atypical and significant hardship” because he
“was left in [his] cell for 4 days without [his] high blood
pressure medication and without no [sic] clothing but
what [he] was wearing.” Id. at 25. Plaintiff contends that
Capt. Bishop violated his procedural due process rights by
preventing him from eliciting testimony about the chain of
custody of the weapon from non-party Sgt. Baker. See id.
at 27-28. He also contends that the date contained on the
photograph of the weapon was “not a clerical error by Sgt.
Baker, but just another fantasy of the defendants that finds
absolutely zero support in the record[,] a far cry from harmless
error.” Id. at 28 (emphasis omitted). Further, plaintiff reasserts
that he was denied due process because Capt. Bishop was
a partial hearing officer based on his involvement with
the UIR and his alleged involvement in a conspiracy with
Supt. Kirkpatrick and Supt. Uhler. Id. at 27-29. Finally,
plaintiff contends that defendants are not entitled to qualified
immunity, because “there is no objectively reasonable view
of the facts that show that defendants believed that their
actions were not intentional and did not violate [his] clearly
established constitutional rights.” Id. at 29.
2. Plaintiff's Response in Opposition to Kowalowski's
Motion for Summary Judgment (Dkt. No. 194)
In opposition to Kowalowski's motion for summary
judgment, plaintiff first argues that “there is overwhelming
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evidence that Kowalowski engaged in adverse actions which
were ... causally ... related to [his] constitutionally protected
conduct as a member of the ILC[.]” Dkt. No. 194-1
at 11. Plaintiff premises this argument on the fact that
he has established “that Kowalowski and the defendants
he conspired with have previously engaged in this same
retaliatory conduct with ILC members serving before [him].”
Id. He further contends that “it is not a coincidence that
[Kowalowski] threatened [him] with 270 days in SHU”
because Emerenciano, another inmate at Clinton C.F.,
“received 270 days in SHU for a misbehavior report written
by Kowalowski.” Id. at 13. Plaintiff avers that Kowalowski's
statement that ILC inmates have “ ‘a target on [their]
backs,’ considered together with [Capt.] Bishop requesting
that [Kowalowski] (once again, like he did to Emerenciano)
write the [misbehavior report] against [plaintiff], show a
causal connection between [plaintiff's] protected conduct ...
and the adverse action [of the] false [misbehavior report]
and confinement.” Id. at 14. Plaintiff avers that “[i]t is of no
moment that Kowalowski chose not to write the [misbehavior
report] against [him],” because “it only reveals his attempt to
shield himself from being identified as part of the conspiracy
against the ILC.” Id. Moreover, plaintiff argues that, because
the revised agenda did not contain “items about assaults by
staff, and other serious issues,” Kowalowski's statement that
he did not read the contents of the proposed agenda is false.
Id. at 15. In addition, plaintiff contends that Kowalowski's act
of “violently snatch[ing]” a piece of paper out of his hand
“represented the ‘final straw’ that compelled [him], through
fear, to ... document this violent act[,]” which he suggests
establishes that Kowalowski's threats did, in fact, “dissuade”
his First Amendment activities. Id. In this regard, plaintiff
contends that his letter to Assemblyman O'Donnell provides
documentary support for his claims against Kowalowski. See
id. at 16. As a final matter, plaintiff reiterates his argument
that he has “provided a factual basis supporting a meeting of
the minds of Kowalowski with [Supt.] Kirkpatrick and [C.O.]
Bishop showing that they entered into an agreement, whether
expressly or tacitly, to achieve the unlawful end of retaliation
against [him] for [his] constitutionally protected conduct as a
member of the ILC reporting the atrocities [at Clinton C.F.].”
Id. at 19.
D. Defendants’ Reply to Plaintiff's
Opposition (Dkt. No. 195)
*15 Defendants aver that they have met their burden
of proving that no genuine issue of fact exists as to
plaintiff's claims, in opposition to which, plaintiff has failed
to “produce evidence” demonstrating otherwise, as required
pursuant to Rule 56.1(b) of the Federal Rules of Civil
Procedure. Dkt. No. 195 at 6. Further, defendants posit, to
the extent that plaintiff has failed to “cite hard evidence”
in opposition, “the [C]ourt should deem [his] unsupported
‘disputed’ facts admitted.” Id. With respect to plaintiff's
retaliation and conspiracy claims relating to the February
2016 disciplinary hearing, defendants contend that plaintiff
offers no evidence to controvert their entitlement to summary
judgment, and instead relies solely an unsupported “multi-
step inferential chain” to show that defendants conspired to
retaliate against him for his activities on the ILC. Id. at 9.
Further, defendants contend, even assuming arguendo that
plaintiff could establish retaliatory motive, he would have
received the same punishment because “there is no dispute
that ... plaintiff committed the most serious, if not all, of the
prohibited conduct charged in the misbehavior report.” Id. at 8
(internal quotation marks and citations omitted)). Defendants
contend that plaintiff “admitted on multiple occasions that he
used DOCCS letterhead to obtain a magazine that” included
prohibited sexual content. Id. Defendants also oppose, as
belated, plaintiff's argument, contained in his declaration in
opposition, that the January 6, 2016 letter did not contain
DOCCS letterhead because it did not contain a certain logo.
See Dkt. No. 193 at 3 ¶ 12; Dkt. No. 195 at 9.
E. Kowalowski's Reply to Plaintiff's
Opposition (Dkt. No. 196)
In reply to plaintiff's opposition, Kowalowski asserts that,
even if the Court accepts plaintiff's allegations against
Kowalowski as true, the alleged “threats” do not constitute
adverse action. See Dkt. No. 196 at 3. Kowalowski further
argues that plaintiff has failed to proffer evidence to establish
that he “ever commented on, let alone, veto[ed],” any
specific “topic” contained in the December 2016 ILC agenda.
Id. Moreover, Kowalowski contends plaintiff's assertions
pertaining to inmate Emerenciano are irrelevant, fail to
establish any causal connection between any adverse action
and plaintiff's protected activities, and “are of no evidentiary
value[.]” Id. at 6. In any event, Kowalowski contends
that the Emerenciano case is factually distinguishable from
the present matter, Emerenciano filed a grievance against
Kowalowski before Kowalowski wrote a misbehavior report
against that inmate; therefore, unlike plaintiff, Kowalowski
avers, “Emerenciano had an actual, individualized conflict
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with Kowalowski before a misbehavior report [was] issued.”
Id. at 6.
Kowalowski also contends that plaintiff's allegation that
Kowalowski was involved in the decision to instruct Sgt.
King to file the January 2016 misbehavior report relating
to plaintiff's use of letterhead based on his attendance at
the meeting with Capt. Bishop and Deputy Supt. Bell is
“wholly speculative” and “based on no competent evidence.”
Dkt. No. 196 at 6. Kowalowski avers that plaintiff's
reliance on his January 11, 2016 letter to Assemblyman
O'Donnell establishes only plaintiff's “ability to document
the minute indignities he perceived and to speculate ... about
malfeasance by DOCCS employees,” but not Kowalowski's
participation in the January 2016 misbehavior report. Id. at
7. Furthermore, as with his retaliation claims, Kowalowski
argues that the “facts” plaintiff relies on in support
of his conspiracy allegations against him are, in fact,
plaintiff's “own conclusory statements about what he believes
occurred.” Id. at 8. In the alternative, Kowalowski avers that
plaintiff's conspiracy claim against him “must fail under the
intracorporate conspiracy doctrine.” Id. at 9.
III. Discussion 6
A. Legal Standard
Summary judgment may be granted only if the submissions
of the parties taken together “show[ ] 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);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “The party moving for summary judgment bears
the initial burden of showing, through the production of
admissible evidence, that no genuine issue of material fact
exists.” Price v. Oropallo, No. 9:13-CV-0563 (GTS/TWD),
2014 WL 4146276, at *4 (N.D.N.Y. Aug. 19, 2014) (citing
Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006)).
Facts are material if they may affect the outcome of the case
as determined by substantive law. See Anderson, 477 U.S. at
248. A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. (internal quotation marks omitted). “In
determining whether summary judgment is appropriate, [the
Court will] resolve all ambiguities and draw all reasonable
inferences against the moving party.” Skubel v. Fuoroli, 113
F.3d 330, 334 (2d Cir. 1997).
*16 Only after the moving party has met this burden is the
nonmoving party required to produce evidence demonstrating
that genuine issues of material fact exist. See Salahuddin, 467
F.3d at 273. The nonmoving party must do more than “simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. 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).
A party opposing summary judgment is required to submit
admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72,
81 (2d Cir. 2010) (“It is well established that in determining
the appropriateness of a grant of summary judgment, [the
court] ... may rely only on admissible evidence.”) (internal
quotation marks and citation omitted). “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). A plaintiff's verified complaint is
to be treated as an affidavit. 7 See Colon v. Coughlin, 58
F.3d 865, 872 (2d Cir. 1995) (“A verified complaint is to be
treated as an affidavit ... and therefore will be considered in
determining whether material issues of fact exist ....”). “ ‘The
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)
(brackets omitted) (quoting Anderson, 477 U.S. at 252).
Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit stated,
[t]here are many cases in which we
have said that a pro se litigant is
entitled to special solicitude, that a
pro se litigant's submissions must
be construed liberally, and that such
submissions must be read to raise the
strongest arguments that they suggest.
At the same time, our cases have
also indicated that we cannot read
into pro se submissions claims that
are not consistent with the pro se
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litigant's allegations, or arguments that
the submissions themselves do not
suggest, that we should not excuse
frivolous or vexatious filings by pro
se litigants, and that pro se status does
not exempt a party from compliance
with relevant rules of procedural and
substantive law ....
Id. (internal quotation marks, citations, and footnote omitted);
see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008) (“On occasions too numerous to count, we
have reminded district courts that when [a] plaintiff proceeds
pro se, ... a court is obligated to construe his pleadings
liberally.”) (internal quotation marks and citations omitted).
B. First Amendment Retaliation
In order to establish a First Amendment retaliation claim
under Section 1983, a prisoner must show the following: that
“(1) ... the speech or conduct at issue was protected, (2) ...
the defendant took adverse action against the plaintiff, and
(3) ... there was a causal connection between the protected
speech and the adverse action.” Espinal v. Goord, 558 F.3d
119, 128 (2d Cir. 2009) (internal quotation marks and citations
omitted). “[I]n the prison context ... adverse action” is
“defined ... objectively[ ] as retaliatory conduct that would
deter a similarly situated individual of ordinary firmness from
exercising ... constitutional rights.” Gill v. Pidlypchak, 389
F.3d 379, 381 (2d Cir. 2004) (internal quotation marks and
citation omitted). “[T]his objective test applies even where
a particular plaintiff was not himself subjectively deterred;
that is, where he continued to file grievances and lawsuits.”
Id. With respect to the third element of the test, 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 v. Gillespie, 791 F. Supp. 2d
353, 370 (S.D.N.Y. 2011) (quoting Espinal, 558 F.3d at 129).
*17 “Even 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.” (italics omitted)).
“[P]risoner retaliation claims are easily fabricated, and ...
pose a substantial risk of unwarranted judicial intrusion
into matters of general prison administration.” Bennett v.
Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal quotation
marks and citations omitted). Accordingly, the Second Circuit
requires courts to “examine prisoners’ claims of retaliation
with skepticism and particular care.” Colon v. Coughlin, 58
F.3d 865, 872 (2d Cir. 1995). 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) (citing Brown v. Middaugh, 41 F. Supp. 2d
172, 191 (N.D.N.Y. 1999)). Consequently, a plaintiff must
set forth non-conclusory allegations to sustain a retaliation
claim. See Green, 2006 WL 846272, at *3; 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).
Here, it is undisputed that plaintiff's ILC activities constitute
constitutionally protected activity. See Dolan v. Connolly,
794 F.3d 290, 295 (2d Cir. 2015) (holding that “filing
or voicing grievances on behalf of a prison population
as a member of an inmate grievance body, such as the
ILC,” constitutes constitutionally protected activity); Dkt.
No. 178-2 at 17 (Defendants’ memorandum of law in
support of motion for summary judgment, acknowledging
that plaintiff's “activities on the ILC meet the first prong of
the [First Amendment] retaliation test.”); Dkt. No. 179-4 at
5 (Kowalowski's memorandum of law in support of motion
for summary judgment, acknowledging same). However,
as defendants and Kowalowski have established through
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admissible evidence that no retaliatory motive or causal
connection exists between plaintiff's protected activities on
the ILC and the alleged adverse action, plaintiff's First
Amendment retaliation claims must be dismissed.
1. February 2016 Disciplinary Proceeding
a. Sgt. King
Defendants have established entitlement to summary
judgment dismissing plaintiff's First Amendment retaliation
claim against Sgt. King based on the allegedly false January
2016 misbehavior report. As an initial matter, “[i]t is well
settled that filing false or unfounded misbehavior charges
against an inmate does not give rise to a per se constitutional
violation actionable under section 1983.” Burroughs v.
Petrone, 138 F. Supp. 3d 182, 205 (N.D.N.Y. 2015) (internal
quotation marks and citation omitted). Indeed, the Second
Circuit has made clear that “a prison inmate has no general
constitutional right to be free from being falsely accused in a
misbehavior report. There must be more, such as retaliation
against the prisoner for exercising a constitutional right.”
Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997).
*18 It is well settled that “[a]llegations of adverse actions
alone ... are insufficient to establish retaliation absent facts
supporting an inference of a causal connection between the
adverse actions and the protected conduct.” Baskerville v.
Blott, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002). Factors
indicating retaliatory motive include: (1) temporal proximity
between the protected activity and the alleged retaliatory act;
(2) an inmate's prior good disciplinary record; (3) vindication
at a hearing on the matter; and (4) statements by the defendant
concerning his motivation. See id. (citing Colon, 58 F.3d
at 872-73). With regard to temporal proximity, the Second
Circuit “has not drawn a bright line to define the outer
limits beyond which a temporal relationship is too attenuated
to establish a causal relationship between the exercise of
a federal constitutional right and an allegedly retaliatory
action.” Gorman-Bakos v. Cornell Co-op. Extension of
Schenectady Cty, 252 F.3d 545, 554 (2d Cir. 2001).
However, as the Second Circuit explained:
[P]risoner retaliation claims are
easily fabricated, and ... pose a
substantial risk of unwarranted judicial
intrusion into matters of general
prison administration. Accordingly,
while we have held that temporal
proximity between protected conduct
and an adverse action constitutes
circumstantial evidence of retaliation,
we have consistently required some
further evidence of retaliatory animus
before permitting a prisoner to proceed
to trial on a retaliation claim.
Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (summary
order) (internal citations and quotation marks omitted).
Here, although the purported adverse action of Sgt. King's
issuance of the allegedly false January 29, 2016 misbehavior
report occurred within close temporal proximity to plaintiff's
submissions of the December 9, 2015 memorandum and
the December 16, 2015 proposed ILC agenda, it is well-
settled that “temporal proximity without more is insufficient
to survive summary judgment.” Flynn v. Ward, No. 15-
CV-1028 (TJM/CFH), 2018 WL 3195095, at *11 (N.D.N.Y.
June 7, 2018) (internal quotation marks and citation omitted).
Further, defendants have proffered admissible evidence
establishing that plaintiff's submission of the December 2016
memorandum and proposed agenda was not “a substantial
or motivating factor” in Sgt. King's decision to issue the
January 29, 2016 misbehavior report. Burton, 664 F. Supp.
2d at 367. In his sworn affidavit, Sgt. King acknowledges
that, although he was aware that plaintiff was a member
of the Clinton C.F. ILC, he did not have knowledge of
plaintiff's December 9, 2015 memorandum to Assemblyman
O'Donnell or the December 16, 2016 proposed ILC agenda,
and that his issuance of the misbehavior report “was not
motivated by a desire to retaliate against [plaintiff] for his
activities on [the ILC], or for any other constitutionally
protected activity.” See Dkt. No. 178-8 at 1 ¶ 3, 2 ¶ 8;
see also Van Dunk v. Brower, No. 11-CV-4564 (ER), 2013
WL 5970172, at *9 (S.D.N.Y. Nov. 7, 2013) (“To prove a
causal connection, the plaintiff must demonstrate that the
individuals who engaged in retaliation had knowledge of the
protected conduct.”); Henson v. Gagnon, No. 9:13-CV-0590
(GTS/TWD), 2015 WL 9809874, at *12-13 (N.D.N.Y. Dec.
10, 2015) (granting summary judgment and dismissing a
pro se inmate's First Amendment retaliation claim against a
correction officer for failure to establish causation where the
correction officer submitted a sworn statement that he had
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no knowledge of the plaintiff's grievance against him at the
time he conducted a cell search and issued the plaintiff a
misbehavior report, and the plaintiff offered no evidence to
refute the correction officer's sworn statement), report and
recommendation adopted, No. 9:13-CV-0590 (GTS/TWD),
2016 WL 204494 (N.D.N.Y. Jan. 15, 2016). Further, plaintiff
does not aver, and the record does not indicate, that Sgt.
King ever had any prior dealings with plaintiff, or made
any statements evidencing that Sgt. King had any retaliatory
animus against plaintiff. See Baskerville, 224 F. Supp. 2d
at 732. Moreover, although the February 2016 Tier III
disciplinary decision was ultimately reversed on plaintiff's
administrative appeal, “no admissible record evidence exists
indicating that the reversal was based on a finding that the
misbehavior report in question was intentionally false or even
unintentionally false.” LeBron v. Selsky, No. 9:05-CV-0172
(GTS/DRH), 2010 WL 1235593, at *5 n.9 (N.D.N.Y. Mar.
31, 2010).
*19 In any event, the admissible evidence establishes
that Sgt. King issued the January 2016 misbehavior report
because he reasonably believed that plaintiff had abused
his position as a law library clerk by using DOCCS
letterhead for personal correspondence, in violation DOCCS
Directive No. 0008, in order to obtain sexually explicit adult
magazines—not for any retaliatory purpose. See Dkt. No.
178-8 at 2 ¶ 6. Defendants proffer, as an exhibit to Sgt.
King's affidavit, a copy of DOCCS Directive No. 0008,
which explicitly provides, in relevant part, that “Official
Department stationary will only be used for the transaction
of official governmental business.” Id. at 6. Plaintiff's own
documentary evidence—namely, the copy of his January
23, 2016 memorandum to Hollmen—demonstrates that he
used DOCCS interdepartmental communication letterhead
for his correspondence with the COMRC concerning the
FMRC's decision to prohibit plaintiff from obtaining two
issues of Cheri magazine. See Dkt. No. 25-1 at 149-52.
Indeed, plaintiff does not deny that he used DOCCS letterhead
for personal use, and contends only that he did so with the
permission of his boss in the law library. See Amen. Compl.
at 19 ¶ 70. However, plaintiff relies entirely on his own
self-serving statements, and cites no evidence in support of
his contention that his boss's alleged permission provided
a valid exception to official DOCCS rules concerning the
use of department letterhead. Consequently, defendants have
established through admissible evidence that Sgt. King would
have issued plaintiff the January 2016 misbehavior report
regardless of whether he harbored retaliatory animus against
plaintiff. See Scott, 344 F.3d at 287-88; Brooks, 2014 WL
1292232, at *18 (citation omitted). Plaintiff's shifting 8 and
conclusory assertions to the contrary fail to raise a genuine
issue of material fact as to his First Amendment retaliation
claim against Sgt. King and are insufficient to overcome
defendants’ documentary case. Flaherty v. Coughlin, 713
F.2d 10, 13 (2d Cir.1983) (“[M]ere conclusory allegations or
denials are insufficient to withstand a motion for summary
judgment once the moving party has set forth a documentary
case”) (internal quotation marks and citation omitted),
overruled on other grounds, Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002); Zembko v. Northwestern Mut. Life
Ins. Co., No. 3:05-CV-918 (AHN), 2007 WL 948323, at *4
n.1 (D. Conn. Mar. 26, 2007) (“[A] nonmovant's self-serving
conclusory statements that dispute the movant's evidence
cannot create material issues of fact to avoid summary
judgment.” (internal quotation marks and citation omitted)).
Based on the foregoing, it is recommended that plaintiff's First
Amendment retaliation claim against Sgt. King be dismissed.
b. Capt. Bishop
Plaintiff's First Amendment retaliation claim against Capt.
Bishop based on the January 2016 misbehavior report and
resulting sanctions is premised exclusively on his speculative
assertion that Capt. Bishop instructed Sgt. King to issue
the misbehavior report after he allegedly consulted with
Kowalowski. See Amen. Compl. at 16 ¶ 61.
Defendants’ admissible documentary evidence establishes
that Capt. Bishop, although aware that plaintiff was a member
of the ILC, had no knowledge of the December 9, 2015
memorandum to Assemblyman O'Donnell or the December
16, 2015 proposed ILC agenda; had not read either document;
never discussed either document with Kowalowski; and did
not instruct Sgt. King to issue the January 2016 misbehavior
report. See Dkt. No. 178-4 at 1 ¶ 4, 2-3 ¶¶ 5, 6, 10. Further,
the record is devoid of facts or evidence indicating that
Capt. Bishop made any statements to plaintiff or anyone else
evidencing a retaliatory motive with respect to the January
2016 misbehavior report. See Baskerville, 224 F. Supp.
2d at 732. Moreover, plaintiff's conclusory and speculative
assertion that Capt. Bishop directed Sgt. King to issue
plaintiff the misbehavior report—a contention that both Capt.
Bishop and Sgt. King deny—is insufficient to support a
First Amendment retaliation claim against Capt. Bishop with
respect to the January 2016 misbehavior report. See Dkt. No.
178-4 at 2-3 ¶ 10; Dkt. No. 178-8 at 2 ¶ 6 (Sgt. King's affidavit
stating, “Capt[.] Bishop did not direct me to write the IMR
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and .... I did not discuss the 1 st IMR with Capt[.] Bishop
before I wrote it or thereafter.”); see also Henson, 2015 WL
9809874, at *12 (“[C]onclusory statements are not sufficient
to support causation on retaliation claims; the claims must
be supported by specific facts.”). In addition, Kowalowski's
declaration, in which he states that Capt. Bishop asked him
to write plaintiff a misbehavior report based on plaintiff's use
of DOCCS letterhead does not establish that Capt. Bishop
instructed Sgt. King to issue the January 2016 misbehavior
report, or that Capt. Bishop had retaliatory motive relating to
plaintiff's December 2015 ILC activities. See Dkt. No. 179-3
at 6-7 ¶¶ 43-48. Rather, Kowalowski's declaration establishes,
at most, that Capt. Bishop objected to plaintiff's use of official
DOCCS letterhead, see id. at 7 ¶ 47, which, as explained
above, defendants reasonably believed that plaintiff had used
in violation of DOCCS rules for personal purposes. See Dkt.
No. 178-8 at 2 ¶ 6.
*20 Plaintiff's contention in opposition that Capt. Bishop
“conceded” that he was involved in the issuance of Sgt. King's
January 2016 misbehavior report because Capt. Bishop stated
in his affidavit that he “d[id] not believe [he] ever discussed
[the proposed ILC agenda] with any other defendant in this
case” fails to raise a genuine issue of material fact. Dkt.
No. 193-2 at 12. This cherry-picked statement is taken out
of context, and fails to account for Capt. Bishop's and Sgt.
King's statements that Capt. Bishop did not instruct Sgt.
King to issue plaintiff the January 2016 misbehavior report.
See Dkt. No. 178-4 at 2-3 ¶ 10; Dkt. No. 178-8 at 2 ¶
6. Plaintiff does not proffer any other evidence, admissible
or otherwise, in opposition. See Riehl v. Martin, No. 9:13-
CV-439 (GLS/TWD), 2014 WL 1289601, at *4 (N.D.N.Y.
Mar. 31, 2014) (“The nonmovant must come forward with
admissible evidence sufficient to raise a genuine issue of fact
for trial in order to avoid summary judgment.”). Accordingly,
it is recommended that plaintiff's First Amendment claim
against Capt. Bishop based on the January 2016 misbehavior
report and February 2016 disciplinary hearing be dismissed.
c. Lt. Durkin
Defendants submit Lt. Durkin's sworn affidavit in which
he states that his determination that plaintiff was guilty of
using “DOCCS letterhead for a purpose that was unrelated
to official government business” for “try[ing] to obtain adult
magazines of a sexual nature” was based on his understanding
of DOCCS regulations, and not to retaliate against plaintiff.
Dkt. No. 178-7 at 3 ¶ 15. Further, Lt. Durkin's sworn affidavit
explains that he “did not request to be appointed [as] the
hearing officer” at the February 2016 disciplinary hearing or
“discuss being appointed the hearing officer with any other
[d]efendant.” Id. at 2 ¶¶ 4, 9. Moreover, Lt. Durkin states
that, contrary to plaintiff's contention, he was not “unfamiliar
with the hearing procedures, as [he] had previously served
as a hearing officer on 22 occasions.” Id. at 3 ¶ 11. In
addition, Lt. Durkin denies stating off the record that “the
[February 2016 misbehavior report] was ‘problematic[,]’ ”
or “inform[ing] Kowalowski that [plaintiff] had accused him
of retaliation.” Id. at 3 ¶¶ 12, 13. Plaintiff's conclusory
allegation that Lt. Durkin “railroaded” him by finding him
guilty in retaliation for his December 2015 ILC activities
finds no support in the record and fails to establish that
Lt. Durkin acted with a retaliatory animus against plaintiff.
Amen. Compl. at 17 ¶ 64. Plaintiff's conclusory assertions in
opposition are insufficient to raise a genuine issue of fact to
defeat defendants’ documentary case. See Flaherty, 713 F.2d
at 13; Zembko, 2007 WL 948323, at *4 n.1. Therefore, it
is recommended that plaintiff's First Amendment retaliation
claim against Lt. Durkin be dismissed.
d. Supt. Kirkpatrick
Defendants submit Supt. Kirkpatrick's sworn affidavit, which
explains that, contrary to plaintiff's contention, his decision to
assign Lt. Durkin to preside over the February 2016 hearing
was not unusual or inappropriate, as Lt. Durkin “had not taken
part in investigating the incidents underlying the [January
2016 misbehavior report], ... he had served as hearing officer
on 22 hearings,” and was “not motivated by a desire to
retaliate against [plaintiff] for his participation on the ILC,
or for any other constitutionally protected activity.” Dkt. No.
178-3 at 2 ¶ 8, 4 ¶ 19. Plaintiff's conclusory allegations to
the contrary fails to rebut Supt. Kirkpatrick's sworn affidavit,
which is corroborated by Lt. Durkin's sworn affidavit. See
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998)
(“Conclusory allegations, conjecture and speculation ... are
insufficient to create a genuine issue of fact.”). Consequently,
it is recommended that plaintiff's First Amendment retaliation
claim against Supt. Kirkpatrick based on his decision to
assign Lt. Durkin as the hearing officer at the February 2016
disciplinary hearing be dismissed.
e. Rodriguez
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Defendants proffer Rodriguez's sworn affidavit, in which he
states that “[n]one of [his] actions were motivated by an
intent to retaliate against [plaintiff], nor did [he] retaliated
against [plaintiff]. In fact, [he] was not aware that [plaintiff]
had engaged in a constitutionally protected activity at the
time the” misbehavior reports were issued, or the hearings
were held. Dkt. No. 178-9 at 2 ¶ 3. Thus, as defendants have
submitted admissible documentary evidence that Rodriguez
did not have knowledge of plaintiff's constitutionally
protected activity at the time he made his determinations
with respect to plaintiff's administrative appeal, defendants
have demonstrated that no causal connection exists between
the protected conduct and Rodriguez's actions. See Henson,
2015 WL 9809874, at *12-13; Van Dunk, 2013 WL 5970172,
at *9. Moreover, the record is devoid of evidence, such
as prior interactions or statements made by Rodriguez to
plaintiff or other defendants to Rodriguez indicating that
Rodriguez harbored any retaliatory animus against plaintiff.
See Baskerville, 224 F. Supp. 2d at 732. As defendants
contend, plaintiff's conclusory and speculative assertions to
the contrary do not raise a genuine issue of material fact
sufficient to defeat defendants’ documentary case. See Dkt.
No.178-2 at 17; Flaherty, 713 F.2d at 13; Zembko, 2007
WL 948323, at *4 n.1. Consequently, it is recommended
that plaintiff's First Amendment retaliation claim against
Rodriguez based on the February 2016 disciplinary hearing
and subsequent administrative appeal, be dismissed.
2. March 2016 Disciplinary Proceeding
a. C.O. Breyette and C.O. Tucker
*21 The sworn affidavits of C.O. Breyette and C.O.
Tucker constitute admissible documentary evidence that
establishes that those defendants had no knowledge of
plaintiff's involvement with the Clinton C.F. ILC or that he
had engaged in constitutionally protected activity in his role
as ILC secretary. See Dkt. No. 178-5 at 1 ¶ 3; Dkt. No. 178-10
at 1 ¶ 3. Therefore, defendants have established that neither
C.O. Breyette nor C.O. Tucker had the requisite knowledge
of plaintiff's constitutionally protected activities to sustain a
First Amendment retaliation claim against them. See Henson,
2015 WL 9809874, at *12-13; Van Dunk, 2013 WL 5970172,
at *9. Further, plaintiff does not allege that he had any prior
interaction with C.O. Breyette or C.O. Tucker, or that either
of those defendants made any statements or took any previous
actions evidencing a retaliatory motive. See Baskerville, 224
F. Supp. 2d at 732. In addition, more than two months passed
between plaintiff's constitutionally protected December 2015
ILC activities, C.O. Breyette's and C.O. Tucker's February
28, 2016 search of plaintiff's cell and resulting misbehavior
report; thus, “[p]laintiff has not made a strong showing
temporal proximity in support of his retaliation claim”
against these defendants. Pierrot v. Hahn, No. 9:15-CV-1415
(DNH/CFH), 2017 WL 4221117, at *8 (N.D.N.Y. July
28, 2017), report and recommendation adopted, No. 9:15-
CV-1415 (DNH/CFH), 2017 WL 4221072 (N.D.N.Y. Sept.
21, 2017); see Webster v. Fischer, 694 F. Supp. 2d 163, 183-84
(N.D.N.Y.) (holding that it was “questionable whether the
disciplinary action followed [the] plaintiff's complaints close
enough in time to raise an inference of retaliation” where
“at least two months passed between plaintiff's complaints
and the April 14, 2006 misbehavior reports and the resulting
determination that [the] plaintiff was guilty of the charges,
which was issued at the conclusion of disciplinary hearing on
April 19, 2009”), aff'd, 398 F. App'x 683 (2d Cir. 2010).
Moreover, although Rodriguez reversed plaintiff's guilty
determination on administrative appeal because he “believed,
based upon the location of where the weapon was found,
that it was possible that someone else had placed the weapon
there, not [plaintiff],” Dkt. No. 178-9 at ¶ 29—“no admissible
record evidence exists indicating that the reversal was based
on a finding that the misbehavior report in question was
intentionally false or even unintentionally false.” LeBron,
2010 WL 1235593, at *5 n.9. Indeed, defendants have
established that C.O. Breyette would have issued plaintiff the
misbehavior report regardless of improper retaliatory motive.
See Scott, 344 F.3d at 287-88; Brooks, 2014 WL 1292232,
at *18 (citation omitted). C.O. Breyette and C.O. Tucker
explain that they conducted a search of plaintiff's cell together
on February 28, 2016 because plaintiff “was scheduled to
be transferred to a different facility” and “[i]t is protocol to
search [an] inmate's room when it is being packed.” Dkt. No.
178-5 at 2 ¶¶ 5, 6; Dkt. No. 178-10 at 2 ¶¶ 4, 5. C.O. Breyette
and C.O. Tucker both state that, during the cell search, they
discovered “weapon on the ledge above the metal bars of
the cell. It was a long, thin piece of metal, 7 inches long
and 1/8 inches wide with a sharp point on one end and a
handle on the other[, which] looked a bit like an ice pick.”
Dkt. No. 178-5 at 2 ¶ 8; Dkt. No. 178-10 at 2 ¶ 7. C.O.
Breyette explains that he issued plaintiff the February 2016
misbehavior report because an inmate “possessing a weapon
is a serious violation of the DOCCS policy that endangers
officers and other inmates[,]” and both he and C.O. Tucker
explain that they “were not motivated by a desire to retaliate
against him for his activities on [the ILC], or for any other
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constitutionally protected activity[,]” but rather “to maintain
a safe and secure environment at Clinton for both officers
and inmates.” Dkt. No. 178-5 at ¶ 13; Dkt. No. 178-10 at 2
¶ 11. Thus, “[t]he record ... establishes that the misbehavior
report was issued not with retaliatory intent, but simply
because contraband ... was in fact recovered from [p]laintiff's
cell during that search.” LeBron, 2010 WL 1235593, at *5.
Aside from plaintiff's conclusory allegation in his unverified
Amended Complaint that an unidentified person “planted”
the ice pick in his cell, he advances no arguments and
proffers no evidence, admissible or otherwise, in opposition
to defendants’ motion in this regard. Amen. Compl. at 20 ¶
74; see Dkt. No. Dkt. No. 193-2 at 14-15. Accordingly, it
is recommended that plaintiff's First Amendment retaliation
claims against C.O. Breyette and C.O. Tucker be dismissed.
b. Capt. Devlin
*22 As an initial matter, defendants have submitted Capt.
Devlin's sworn affidavit in which he acknowledges that he
was aware that plaintiff was a member of the Clinton C.F. ILC,
but was unaware that plaintiff authored the December 9, 2015
memorandum to Assemblyman O'Donnell or the December
16, 2015 proposed ILC agenda. See Dkt. No. 178-6 at 2 ¶ 4.
Further, Capt. Devlin denies banging on plaintiff's OMH cell;
saying, ‘What the [f]uck are you still doing here?” or “You'll
see,” in response to plaintiff's statement, “Why did I get 90
days, the maximum sentence for my first non-violent Tier III
[misbehavior report]?” Id. at 2 ¶¶ 7-8; Amen. Compl. at 20
¶ 75. Thus, defendants have established, through admissible
evidence, that, “[a]t the time of the events in question,” Dkt.
No. 178-6 at 1 ¶ 2, 2 ¶ 4, Capt. Devlin lacked knowledge
of plaintiff's constitutionally protected December 2015 ILC
activities, such that he did not make the purported statements
in retaliation for plaintiff's protected conduct. See Henson,
2015 WL 9809874, at *12-13; Van Dunk, 2013 WL 5970172,
at *9. In any event, courts in this circuit have held that more
explicit threats than the vague statements alleged here do not
rise to the level of adverse action sufficient to support a First
Amendment retaliation claim. See Kemp v. LeClaire, No. 03-
CV-844S (WMS), 2007 WL 776416, at *15 (W.D.N.Y. Mar.
12, 2007) (holding that threats from official that the plaintiff's
“day [was] coming,” that he would “be sent to [his] mother
in a black box,” and that he would “get [his] ass kicked”
were insufficient to establish adverse action to support a First
Amendment retaliation claim); Bartley v. Collins, No. 95-
CIV-10616 (RJH), 2006 WL 1289256, at *6 (S.D.N.Y. May
10, 2006) (holding that verbal threats such as “we going to get
you, you better drop the suit” do not rise to level of adverse
action).
Further, Capt. Devlin's lack of knowledge of plaintiff's
constitutionally protected ILC activities undercuts plaintiff's
allegation that Capt. Devlin did not remove the ice pick
from the evidence dropbox within 72 hours so that the
February 2016 misbehavior report could be “fabricated”
in retaliation for plaintiff's constitutionally protected ILC
activities. Amen. Compl. at 23 ¶ 87; See Henson, 2015
WL 9809874, at *12-13Van Dunk, 2013 WL 5970172, at
*9. Indeed, contrary to plaintiff's conclusory allegations, the
record is devoid of facts or evidence supporting plaintiff's
contention that Capt. Devlin's failure to remove the ice pick
from the dropbox within the time period required pursuant
to DOCCS Directive 4910A occurred for any reason aside
from administrative oversight. See Amen. Compl. at 23 ¶ 87.
Moreover, as Capt. Devlin explains in his sworn affidavit,
the fact that the ice pick was not removed from the evidence
dropbox within 72 hours had no impact on plaintiff's March
2016 disciplinary hearing because “no one accessed the
dropbox during th[at] time.” Dkt. No. 178-6 at 3 ¶ 10. Thus,
the admissible evidence demonstrates that Capt. Devlin's
failure to remove the icepick from the evidence drop box
within the 72 hour-period contemplated under DOCCS's
policy does not constitute adverse action and is not causally
related to plaintiff's constitutionally protected activities. In
opposition, plaintiff's speculative and conclusory allegations
that the photograph of the weapon, along with Capt. Devlin's
statements to him on February 29, 2016 “shows the big
picture,” and raises an inference that Capt. Devlin retaliated
against him, Dkt. No. 193-2 at 21, fail to defeat defendants’
documentary case. See Flaherty, 713 F.2d at 13; Zembko,
2007 WL 948323, at *4 n.1. Accordingly, it is recommended
that plaintiff's First Amendment retaliation claim against
Capt. Devlin be dismissed.
c. Capt. Bishop
Plaintiff's First Amendment retaliation claims against Capt.
Bishop relating to the March 2016 disciplinary hearing are
conclusory and belied by defendants’ admissible evidence.
Capt. Bishop's sworn affidavit states that “[n]one of the
actions that [he] took with regard to [plaintiff] had anything
to do with his participation as a member of the ILC[,]” and
“were not motivated by a desire to retaliate against him for his
activities on [the ILC], or any other constitutionally protected
activity.” Dkt. No. 178-4 at 5 ¶ 27. Further, as discussed
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above, the March 2016 Tier III hearing and resulting
sanctions occurred more than two months after plaintiff had
engaged authored the December 9, 2015 memorandum to
Assemblyman O'Donnell or drafted the proposed December
16, 2015 ILC memorandum and, therefore, the timeline does
not raise a strong inference of retaliation. See Webster, 694
F. Supp. 2d at 183-84; Pierrot, 2017 WL 4221117, at *8.
Further, the record is devoid of statements Capt. Bishop
made to plaintiff that could evidence that Capt. Bishop
found plaintiff guilty of weapons possession based on a
retaliatory animus. See Baskerville, 224 F. Supp. 2d at 732.
Moreover, although Capt. Bishop's March 2016 Tier III
disciplinary decision was ultimately reversed on plaintiff's
administrative appeal because Rodriguez “believed, based
upon the location of where the weapon was found, that it was
possible that someone else had placed the weapon there, not
[plaintiff],” the record is devoid of evidence indicating that
Rodriguez reversed that determination because a review of
the proceeding evidenced that Capt. Bishop's determination
was influenced by or premised on a retaliatory motive.
Indeed, the sworn affidavits of C.O. Breyette and C.O. Tucker
establish, the icepick was recovered from plaintiff's cell
on February 28, 2016, see Dkt. No. 178-5 at 2 ¶ 8; Dkt.
No. 178-10 at 2 ¶ 7, and, based on that evidence, Capt.
Bishop concluded that plaintiff was guilty of possessing a
weapon in violation of DOCCS rule 113. Dkt. No. 178-4
at 5 ¶ 27. Therefore, defendants have established that Capt.
Bishop would have found plaintiff guilty of the charges
in the February 2016 misbehavior report and imposed the
resulting sanctions regardless of any retaliatory motive. See
Scott, 344 F.3d at 287-88; Brooks, 2014 WL 1292232, at
*18 (citation omitted). Thus, aside from plaintiff's conclusory
allegations, nothing before the undersigned suggests that
plaintiff's constitutionally protected ILC activities were “a
substantial or motivating factor” in any of Capt. Bishop's
actions relating to the March 2016 disciplinary hearing and
resulting sanctions. Burton, 664 F. Supp. 2d at 367.
*23 Similarly, no inference of retaliation concerning
Capt. Bishop may be inferred based on plaintiff's filing
of Grievance CL-68902-16. Plaintiff's grievance challenged
the guilty determination from his February 2016 Tier
III disciplinary hearing relating to his use of DOCCS
letterhead. See Dkt. No. 25-1 at 4-6. Plaintiff only mentions
Capt. Bishop in this grievance for the proposition the
January 2016 misbehavior report was issued in error, as
purportedly evidenced by the fact that Capt. Bishop, along
with other DOCCS personnel, had “received letters from
[plaintiff] on various topics, on [DOCCS] letterhead” prior
to plaintiff using that letterhead in his correspondence
with Hollmen. Dkt. No. 25-1 at 5. Plaintiff does not
allege any wrongdoing against Bishop in the grievance,
which was lodged against Kowalowski for his alleged
involvement with the first misbehavior report “in retaliation
for [plaintiff] requesting the name of the ILC Advisor
in Albany Central Office while responding to [the] letter
from ... Hollmen.” Id. at 4. Indeed, the only relief sought
through that grievance was reversal and expungement of
his February 2016 disciplinary determination. Id. at 4. As
the IGRC's decision denying the grievance made clear,
plaintiff's grievance was not an appropriate “substitute appeal
mechanism. An individual decision or disposition resulting
from a disciplinary proceeding is not grievable.” Id. at 7.
Moreover, the record is devoid of facts that would allow the
Court to draw the “legitimate inference” that Capt. Bishop
retaliated against plaintiff based on his grievance filed against
Kowalowski. Espinal, 558 F.3d at 130; see Wright v. Goord,
554 F.3d 255, 274 (2d Cir. 2009) (dismissing a retaliation
claim against a correction officer where the only alleged
basis for retaliation was a complaint written against another
officer); see also Burroughs v. Mitchell, 325 F. Supp. 3d 249,
282 (N.D.N.Y. 2018) (“As a general matter, it is difficult to
establish one defendant's retaliation for complaints against
another defendant.” (internal quotation marks and citation
omitted)). In any event, plaintiff does not allege that Capt.
Bishop was aware that he was mentioned in the grievance,
or that he took adverse action based on that grievance, but
instead, conclusorily alleges that “[j]ust two (2) days” after his
grievance was filed by IGP Supervisor Gregory on February
26, 2016, some unidentified individual(s) “planted” the
icepick in his cell. See Amen. Compl. at 20 ¶ 74. Accordingly,
it is recommended that plaintiff's First Amendment retaliation
claim against Capt. Bishop relating to the March 2016
disciplinary hearing be dismissed.
d. Supt. Kirkpatrick, Supt.
Uhler, Venettozzi, and Rodriguez
Even affording the Amended Complaint the most liberal
construction possible, plaintiff does not allege any specific
claims of retaliation against Supt. Kirkpatrick, Supt. Uhler,
Venettozzi, and Rodriguez. See Amen. Compl. at 20-42.
Rather, plaintiff's retaliation claims insofar as asserted against
these defendants, are premised exclusively on their purported
involvement in the alleged conspiracy against him based on
his December 2015 ILC activities. See id. Thus, as plaintiff
has only conclusorily alleged that Supt. Kirkpatrick, Supt.
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Uhler, Venettozzi, and Rodriguez retaliated against him, he
has failed to meet his “heightened burden” in establishing a
First Amendment retaliation claim because has not pleaded
his claim against these defendants “with particularity.”
Green, 2006 WL 846272, at *3 (citing Brown, 41 F. Supp.
2d at); Williams, 111 F. Supp. 2d at 290. Moreover, as
discussed in detail below, plaintiff's Section 1983 conspiracy
claims lack merit and are belied by defendants’ admissible
evidence. Consequently, it is recommended that plaintiff's
First Amendment retaliation claims based on the March 2016
disciplinary hearing against Supt. Kirkpatrick, Supt. Uhler,
Venettozzi, and Rodriguez be dismissed.
3. Kowalowski
Kowalowski is entitled to summary judgment dismissing
plaintiff's First Amendment retaliation claim. As to plaintiff's
contention that Kowalowski retaliated against him through
his comment that ILC inmates “all have a target on your
back, be careful,” Kowalowski has established through his
sworn declaration that he made that comment to the entire
ILC, as he did with each new ILC class, in order to give them
awareness that their status could draw heightened attention
from staff and other inmates. Amen. Compl. at 12 ¶ 44;
see Dkt. No. 179-3 at 2 ¶ 7. Further, to sustain a First
Amendment retaliation claim, a plaintiff's constitutionally
protected conduct must be a “a substantial or motivating
factor in the prison official's decision to take action against
him.” Burton v. Lynch, 664 F. Supp. 2d 349, 367 (S.D.N.Y.
2009) (internal quotations, brackets, and citations omitted).
Here, however, Kowalowski's comment at the November
2015 ILC meeting was, “by definition—unconnected to”
plaintiff's constitutionally protected ILC conduct that took
place in December 2015—as Kowalowski made the comment
before plaintiff had engaged in that conduct. Richard v.
Fischer, 38 F. Supp. 3d 340, 357 (W.D.N.Y. 2014) (internal
quotation marks and citation omitted); see Dkt. No. 179-4
at 8-9. Moreover, plaintiff's allegation that, on January 6,
2016, “Kowalowski violently snatched a piece of paper
out of [plaintiff's] hand which listed ... new proposed TV
channels,” and stated, “I took it, so what. You are not as
important as you think you are[,]” Amen. Compl. at 15 ¶
56, fails to establish a claim of First Amendment retaliation.
Even accepting plaintiff's allegations as true, Kowalowski's
actions and comments in this regard amount to, at most,
“harassing comments and hostile behavior [that] do not
constitute adverse actions sufficient to state a retaliation
claim.” Quezada v. Roy, No. 14-CV-4056(CM), 2015 WL
5970355, at *21 (S.D.N.Y. Oct. 13, 2015) (citation and
internal quotation marks omitted). In any event, plaintiff's
own documentary evidence belies his assertion. Specifically,
plaintiff submits the January 8, 2016 ILC's letter to Supt.
Kirkpatrick, in which the ILC complains that Kowalowski
would not show the ILC Clinton C.F.’s contract with
Charter Cable, but does not raise any complaints concerning
Kowalowski's purported threats and plaintiff does not contend
that he ever filed a grievance or made any other complaint
about this incident. See Dkt. No. 25-1 at 143.
*24 Further, Kowalowski denies threatening plaintiff with
SHU confinement in retaliation for plaintiff including
complaints about assault by staff in his proposed December
2015 ILC agenda. See Dkt. No. 179-4 at 9. Plaintiff's claim
in this regard fails for several reasons. First, Kowalowski
states, in his sworn affidavit, that he never read the contents
of the proposed ILC agenda, and that when he instructed
plaintiff not to submit the proposed agenda, he was simply
relaying a directive from Supt. Kirkpatrick that the Clinton
C.F. administration would no longer accept ILC agendas
longer than one page or containing more than four or five
individual items. See Dkt. No. 179-3 at 4 ¶ 21. He explains
that he did not threaten plaintiff with 270 days in SHU,
as he believed, at most, plaintiff's submission of a five-
page ILC agenda would result in Clinton C.F. cancelling
the ILC meeting. See id. at 5-6 ¶ 27. Next, plaintiff's
own documentary evidence belies his claim. For instance,
in his January 11, 2016 letter to Assemblyman O'Donnell,
plaintiff stated only that Kowalowski objected to the proposed
agenda's length and the highlighting of prison administrator's
names, and indicated that “the real reason why [Kowalowski]
was upset” was because the proposed agenda “talk[ed] about
misrepresentation and/or misappropriation of $10,000 in ILC
fundraiser money, violating [DOCCS] Directive 2771.” Dkt.
No. 25-1 at 124. Conspicuously missing from plaintiff's
January 11, 2016 letter is any mention that Kowalowski
objected to the contents of the proposed agenda, and makes no
mention of Kowalowski taking issue with plaintiff's inclusion
of complaints against staff or instructing plaintiff to “water
down” the agenda. Dkt. No. 179-3 at 4-5 ¶¶ 26-28 (citing
Amen. Compl. at 15 ¶ 55); see Dkt. No. 25-1 at 123-26.
Moreover, the evidence in the summary judgment record
establishes that Kowalowski did not issue the January 2016
misbehavior report, was not involved with Sgt. King's
decision to issue the misbehavior report relating to plaintiff's
use of DOCCS letterhead, and did not participate in the
February 2016 disciplinary hearing. See Dkt. No. 179-3 at
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7 ¶¶ 47-48, 53, 54. Indeed, Kowalowski “did not personally
review [plaintiff's] magazine[ ]” in his capacity as co-chair
of the FMRC, and did not approve the FMRC's decision
concerning plaintiff's magazine in retaliation for plaintiff's
ILC activities, but rather, because the magazine at issue
contained prohibited content. Id. at 6 ¶ 39; see id. at ¶¶ 36, 40.
Plaintiff's conclusory assertions in opposition are insufficient
to defeat Kowalowski's documentary case in support of
summary judgment. Flaherty, 713 F.2d at 13; Zembko, 2007
WL 948323, at *4 n.1.
In addition, the undersigned concludes that plaintiff's reliance
on inmate Emerenciano's SHU sentence and lawsuit against
Kowalowski is unpersuasive. As Kowalowski avers, see Dkt.
No. 196 at 5,6, plaintiff has not proffered any evidence to
establish a causal connection between underlying facts of
inmate Emercenciano's case and the present action. Indeed,
Kowalowski's sworn declaration establishes that he did not
threaten plaintiff with 270 days in SHU, see Dkt. No. 179-4
at 5-6 ¶ 27, and the uncontroverted evidence establishes
that plaintiff never received a 270-day SHU sentence.
Although plaintiff has sought to supplement his pleadings in
his response in opposition, his speculative and conclusory
assertions fail to rebut Kowalowski's admissible evidence.
See Perez v. New York City Dep't of Corr., No. 10-CV-2697
(RRM/RML), 2012 WL 3704744, at *3 (E.D.N.Y. Aug. 27,
2012) (rejecting the plaintiff's reliance on incidents involving
other inmates to support a constitutional claim against the
New York City Dept. of Corrections, reasoning that the
plaintiff had not “allege[d] anything other than his own
conclusory statements to suggest that there [wa]s any causal
connection between the alleged incidents and the alleged
deprivation of [the] plaintiff's constitutional rights.” (citation
omitted)). Consequently, it is recommended that plaintiff's
First Amendment retaliation claims against Kowalowski be
dismissed.
C. Section 1983 Conspiracy - February
2016 Disciplinary Proceeding
In order to support a claim for conspiracy pursuant to § 1983,
there must be “(1) an agreement ...; (2) to act in concert to
inflict an unconstitutional injury; and (3) an overt act done
in furtherance of that goal causing damages.” Ciambriello
v. County of Nassau, 292 F.3d 307, 324-25 (2d Cir. 2002);
Cusamano v. Sobek, 604 F. Supp. 2d 416, 468 (N.D.N.Y.
2009). “An agreement must be proven with specificity as bare
allegations of a conspiracy supported only by allegations of
conduct easily explained as individual action is insufficient.”
McRae v. Fischer, No. 9:17-CV-0146 (BKS/CFH), 2018
WL 3432743, at *6 (N.D.N.Y. June 6, 2018), report and
recommendation adopted, No. 9:17-CV-00146 (BKS/CFH),
2018 WL 3432700 (N.D.N.Y. July 16, 2018). Although exact
specifics are not required, “the pleadings must present facts
tending to show agreement and concerted action.” Anilao v.
Spota, 774 F. Supp. 2d 457, 512-13 (E.D.N.Y. 2011) (citations
omitted). Conclusory, vague, and general allegations are
insufficient to support a conspiracy claim. See Ciambriello,
292 F.3d at 325. Where “there is no underlying constitutional
violation, there can be [no] § 1983 cause of action for
conspiracy.” Bibeau v. Soden, No. 8:08-CV-0671 (LEK/
RFT), 2009 WL 701918, at *8 (N.D.N.Y. Mar. 13, 2009);
see also Taylor v. New York Dep't of Corr. Servs., No. 9:10-
CV-140 (MAD/RFT), 2012 WL 913678, at *9 (N.D.N.Y.
Feb. 23, 2012) (“[T] he failure of a plaintiff to show an
underlying constitutional violation on which to base a section
1983 conspiracy claim means the conspiracy claims fails as
a matter of law.”), report and recommendation adopted sub
nom. Taylor v. New York Dep't of Corr., No. 9:10-CV-140
(MAD/RFT), 2012 WL 913564 (N.D.N.Y. Mar. 16, 2012).
*25 First, as plaintiff has failed to establish a First
Amendment retaliation claim against any defendant based
on the January 2016 misbehavior report and February 2016
disciplinary hearing, he has “failed to show an underlying
constitutional violation on which to base his section 1983
conspiracy claim” and, therefore, his “conspiracy claim
fails as a matter of law.” Taylor, 2012 WL 913678, at
*9; Bibeau, 2009 WL 701918, at *8. Alternatively, even
assuming plaintiff could establish a retaliation claim, the
Amended Complaint and supporting documentary evidence
is bereft of “facts tending to show agreement and concerted
action.” Anilao, 774 F. Supp. 2d at 512-13. Indeed, as set
forth in detail above, plaintiff's claims in this regard consist
exclusively of “bare allegations of a conspiracy,” McRae,
2018 WL 3432743, at *6, which he fails to support with
any specific facts or evidence demonstrating that defendants
engaged in a meeting of the minds, “such as time, place, or
manner in which ... defendants conspired against plaintiff”
to violate his rights with respect to the events surrounding
the February 2016 disciplinary proceeding. Avent v. Reardon,
No. 1:19-CV-1565 (GTS/CFH), 2020 WL 7705938, at *7
(N.D.N.Y. Dec. 28, 2020).
Capt. Bishop's, Sgt. King's, Lt. Durkin's, Supt. Kirkpatrick's,
and Rodriguez's sworn affidavits, and Kowalowski's sworn
declaration establish that those defendants did not enter into
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an agreement to act in concert to retaliate against plaintiff
—which no evidence in the summary judgment record
controverts. See Ciambriello, 292 F.3d 307, 324-25. Plaintiff's
allegations that Capt. Bishop directed Sgt. King to issue the
January 2016 misbehavior report is belied by defendants’
admissible evidence. In his sworn affidavit, Sgt. King states
that
Capt[.] Bishop did not direct me
to write the IMR and I did not
use a “false” [misbehavior report]
because Capt[.] Bishop told me to.
I authored a truthful [misbehavior
report] because I believed (and
still believe) that [plaintiff] violated
DOCCS policy by attempting to use
his status as a law library clerk to
use DOCCS letterhead for personal
correspondence.... I did not discuss
the [January 2016 misbehavior report]
with Capt[.] Bishop before I wrote it or
thereafter.
Dkt. No. 178-8 at 2 ¶ 6. Capt. Bishop's sworn affidavit
corroborates Sgt. King's sworn affidavit, as Capt. Bishop
explains that he “did not direct Sgt. King to write this
[misbehavior report]” and he “did not have any personal
involvement in the issuance of th[is] misbehavior report or
the [February 2016 disciplinary] hearing.” Dkt. No. 178-4 at
2 ¶ 9.
Further, plaintiff's contention that Supt. Kirkpatrick conspired
with Lt. Durkin to find plaintiff guilty of the charges in the
January 2016 misbehavior report fails. Supt. Kirkpatrick's
states in his sworn affidavit that his “decision to assign
[Lt.] Durkin as the hearing officer on the [January 2016
misbehavior report] was not motivated by a desire to retaliate
against [plaintiff] for his participation on the ILC,” Dkt. No.
178-13 at 4 ¶ 19, and that his “assign[ment of] Lt.[ ] Durkin as
the hearing officer .... was appropriate as [Lt. Durkin] had not
taken part in investigating the incidents underlying the [first
misbehavior report], and had served as hearing officer on 22
hearings.” Id. at 2 ¶ 8. Lt. Durkin states that he never discussed
plaintiff's involvement on the ILC with any other defendant
in this action, and that he “did not request to be appointed [as]
the hearing officer” or “discuss being appointed the hearing
officer with any other [d]efendant.” Dkt. No. 178-7 at 2 ¶¶
4, 9.
Moreover, Rodriguez's sworn affidavit establishes that he
“did not work at ... Clinton [C.F.] and was not personally
involved with the issuance of either Inmate Misbehavior
Report ... in this case. Nor was [he] involved with the
hearings, other than to review [plaintiff's] appeals from their
decisions.” Dkt. No. 178-9 at 1-2 ¶ 3. Rodriguez also denies
discussing this case with any other defendant aside from
Venettozzi, who worked in the same office, and posits that
he has “no memory of speaking with ... Venettozzi about
this case during the relevant time period.” Id. at 4 ¶ 3.
In addition, although Kowalowski states that Capt. Bishop
discussed plaintiff's use of letterhead with him during a
January 2016 meeting, Kowalowski states that, while he
“subsequently learned that [Sgt.] King wrote a misbehavior
report against [plaintiff] relating to the letterhead[,]” he did
not encourage Sgt. King or any other DOCCS personnel to
write a misbehavior report, did not participate in any way in
the February 2016 Tier III disciplinary hearing, id. at ¶ 53,
and was not referenced in the January 29, 2016 misbehavior
report. See Dkt. No. 179-4 at 17.
*26 In opposition, to the extent plaintiff attempts to
controvert defendants’ admissible evidence concerning
his conspiracy allegations relating to the February 2016
disciplinary hearing, plaintiff advances only conclusory
assertions. Plaintiff's contention that “[t]he fact that Sgt.
King conspired and retaliated against [him] is not defeated
because Sgt. King did not know about the Dec. 9 th letter
or the Dec. 16 th Agenda, as his lack of knowledge of this
memo and agenda did not prevent him from conspiring and
retaliating[,]” Dkt. No. 193-2 at 12, is wholly conclusory and
unsupported by any admissible evidence. Thus, plaintiff has
failed to raise a genuine issue of material fact sufficient to
defeat defendants’ documentary case. See Flaherty, 713 F.2d
at 13; Zembko, 2007 WL 948323, at *4 n.1. Accordingly,
it is recommended that plaintiff's Section 1983 conspiracy
claim against Capt. Bishop, Sgt. King, Lt. Durkin, Supt.
Kirkpatrick, and Rodriguez relating to the February 2016
disciplinary hearing be dismissed.
D. Procedural Due Process Claims Against Capt. Bishop
Relating to the March 2016 Disciplinary Hearing
“To state a claim for procedural due process, there must
first be a liberty interest which requires protection.” Lewis
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v. Murphy, No. 9:12-CV-00268 (NAM/CFH), 2014 WL
3729362, at *7 (N.D.N.Y. July 25, 2014) (citing Valmonte
v. Bane, 18 F.3d 992, 998 (2d Cir. 1994)). To establish a
procedural due process claim under § 1983, a plaintiff must
show that he (1) possessed a liberty interest, and (2) was
deprived of that interest without being afforded sufficient
process. See Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir.
2004). “Prison discipline implicates a liberty interest when
it ‘imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.’ ” Id.
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). As
to the first factor, “[t]he prevailing view in this [C]ircuit is
that, by its regulatory scheme, the State of New York has
created a liberty interest in remaining free from disciplinary
confinement.” Liao v. Malik, No. 9:13-CV-1497 (GTS/DEP),
2016 WL 1128245, at *4 (N.D.N.Y. Feb. 26, 2016) (collecting
cases). As to the second factor, the plaintiff bears the “burden
of proving that the conditions of his confinement constituted
an atypical, significant hardship in relation to the ordinary
incidents of prison life in order to recover damages” under
§ 1983. Vasquez v. Coughlin, 2 F. Supp. 2d 255, 260
(N.D.N.Y. 1998). Although there are no bright-line rules for
this inquiry, the Second Circuit has advised district courts that
SHU confinements of fewer than 101 days, “could constitute
atypical and significant hardships if the conditions were more
severe than the normal SHU conditions ... or [the] record
showed that even relatively brief confinements under normal
SHU conditions were, in fact, atypical.” Palmer v. Richards,
364 F.3d 60, 65 (2d Cir. 2004); see Ortiz, 380 F.3d at 654 (“To
be sure, with respect to ‘normal’ SHU confinement, we have
held that a 101–day confinement does not meet the Sandin
standard of atypicality.” (quoting Sealey v. Giltner, 197 F.3d
578, 589 (2d Cir. 1999)).
Here, defendants aver—and plaintiff does not dispute—that
plaintiff served a total of 92 days in SHU as a result of both the
February and March 2016 disciplinary determinations. See
Dkt. No. 178-2 at 26; Dkt. No. 178-12 at 2 ¶ 12; see id. at
7-8 (exhibit A to Supt. Kirkpatrick's, listing a chronological
history of plaintiff's SHU confinement). Thus, plaintiff's SHU
confinement, alone, is insufficient to establish atypicality. See
Ortiz, 380 F.3d at 654. Where, as here, the SHU confinement
“was not long enough to constitute an atypical and significant
deprivation by itself,” the undersigned must “look to the
conditions of confinement” to determine whether a due
process violation has occurred. Smith v. Hamilton, 9:15-
CV-0496 (BKS/ATB), 2016 WL 3823395, at *3 (N.D.N.Y.
July 12, 2016) (quoting Palmer, 364 F.3d at 66).
*27 In opposition to defendants’ motion for summary
judgment—citing only to his unverified Amended Complaint
—plaintiff contends that his 92-day stint in SHU constituted
“atypical and significant hardship” because, for the first four
days, he did not have his high blood pressure medicine or
a change of clothes, and was “denied a time cut and PIMS
level 2.” Dkt. No. 193-2 at 25. As defendants aver, see Dkt.
No. 195 at 14, the portion of the Amended Complaint that
plaintiff relies on in support of his contention that he was
deprived his blood pressure medicine and a change of clothes,
demonstrates that these alleged deprivations occurred prior
to the February 2016 disciplinary hearing and relate, instead,
to plaintiff's placement in a keep-lock cell on January 29,
2016—not as a result of the February 2016 misbehavior
report or March 2016 disciplinary hearing. See Amen. Compl.
at 16, 17 ¶¶ 61, 62. Therefore, plaintiff cannot establish
a due process claim relating to his January 2016 keeplock
confinement based on Capt. Bishop's guilty determination
at the March 2016 disciplinary hearing. Further, insofar
as plaintiff contends that he was denied a PIMS level
two classification, his due process claim fails “[b]ecause
the PIMS ..., like any security classification ... does not
create a liberty interest protected by due process.” Cicio
v. Williams, No. 9:11-CV-1196 (TJM), 2013 WL 3101692,
at *5 (N.D.N.Y. June 18, 2013). In any event, plaintiff
has offered no evidence in support of these belated and
conclusory allegations—made for the first time in opposition
to defendants’ motion for summary judgment; therefore,
plaintiff has failed to establish that he experienced atypical
and significant hardship during his 92-day confinement in
SHU. See Palmer, 364 F.3d at 65; see also Kerzer, 156 F.3d at
400 (“Conclusory allegations, conjecture, and speculation ...
are insufficient to create a genuine issue of fact.”); Cusamano
v. Sobek, 604 F. Supp. 2d 416, 492 (N.D.N.Y. 2009) (“[W]hile
special solicitude permits a pro se plaintiff to effectively
amend the allegations of his complaint while responding to a
motion to dismiss for failure to state a claim (which, typically,
comes relatively early in an action), it does not permit him to
do so while responding to a motion for summary judgment
(which, typically, comes relatively late in an action, for
example, where, as here, after the defendants have completed
discovery based on the allegations contained in the plaintiff's
complaint.”).
In addition, it is well settled that the loss of packages,
commissary, and phone privileges does not establish an
atypical or significant hardship. See Vega v. Artus, 610 F.
Supp. 2d 185, 200 (N.D.N.Y. 2009) (“ ‘[T]he loss of phone,
package, and commissary privileges does not give rise to a
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protected liberty interest under New York law.’ ” (internal
quotation marks and citation omitted)); McEachin v. Selsky,
No. 9:04-CV-0083 (FJS/RFT), 2010 WL 3259975, at *9
(N.D.N.Y. Mar. 30, 2010) (“It is expected that confinement
in SHU will be accompanied by a loss of privileges that
prisoners in the general population enjoy and such conditions
fall ‘within the expected parameters of the sentence imposed
by a court of law.’ ”) (quoting Frazier v. Coughlin, 81
F.3d 313, 317 (2d Cir. 1996)); see also Borcsok v. Early,
No. 9:03-CV-395 (GLS/RFT), 2007 WL 2454196, at *9
(N.D.N.Y. 2007) (holding that a 90–day confinement in
SHU alone with 90–day loss of packages, commissary
and telephone privileges was insufficient to raise a liberty
interest where plaintiff made no showing that the conditions
of confinement were atypical or constituted a significant
hardship). Consequently, as plaintiff has failed to establish
that the conditions of his confinement in SHU constituted
an atypical and significant hardship, it is recommended that
plaintiff's due process claims be dismissed on that basis alone.
Moreover, defendants are entitled to summary judgement
dismissing plaintiff's specific procedural due process claims
relating to Capt. Bishop's conduct as the hearing officer at
the March 2016. The Due Process Clause of the Fourteenth
Amendment states: “[n]o State shall ... deprive any person
of life, liberty, or property without due process of law.” U.S.
CONST. amend. XIV § 1. “A liberty interest may arise from
the Constitution itself, ... or it may arise from an expectation
or interest created by state laws or polices.” Wilkinson v.
Austin, 545 U.S. 209, 221 (2005) (internal citations omitted).
“Although prison inmates necessarily have their liberty
severely curtailed while incarcerated, they are nevertheless
entitled to certain procedural protections when disciplinary
actions subject them to further liberty deprivations such as
loss of good-time credit or special confinement that imposes
an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir.
2004) (citations omitted).
The constitutionally mandated due process requirements for
prison disciplinary hearings include (1) written notice of the
charges to the inmate; (2) the opportunity to appear at a
disciplinary hearing and a reasonable opportunity to present
witnesses and evidence in support of his defense, subject to
a prison facility's legitimate safety and penological concerns;
(3) a written statement by the hearing officer explaining his
decision and the reasons for the action being taken; and (4)
in some circumstances, the right to assistance in preparing
a defense. See Wolff v. McDonald, 418 U.S. 539, 564-70
(1974); Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004).
*28 The due process clause of the Fourteenth Amendment
also guarantees that “[a]n inmate subject to a disciplinary
hearing is entitled to ... an impartial hearing officer.” Allen
v. Cuomo, 100 F.3d 253, 259 (2d Cir. 1996) (citing Wolff,
418 U.S. at 570-71). “Due process in this context requires
only that the hearing officer's decision not be ‘arbitrary.’ ”
Kimbrough v. Fischer, No. 9:13-CV-0100 (FJS/TWD), 2014
WL 12836864, at *4 (N.D.N.Y. Oct. 21, 2014) (quoting
Wolff, 418 U.S. at 571), report and recommendation adopted,
No. 9:13-CV-100 (FJS/TWD), 2016 WL 660919 (N.D.N.Y.
Feb. 18, 2016). A decision is not “arbitrary” if it is
supported by “some evidence.” Superintendent v. Hill, 472
U.S. 445, 455 (1985). “This standard is extremely tolerant
and is satisfied ‘if there is any evidence in the record
that supports’ the disciplinary ruling.” Sira, 380 F.3d at 69
(quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d
Cir. 2000)). “[O]nly ‘reliable’ evidence can constitute ‘some
evidence.’ ” Id. at 76 (quoting Luna, 356 F.3d at 488). “The
subsequent modification of [plaintiff's] determination during
the administrative appeals process ... does not impact the due
process analysis,” and “[t]he outcome of an administrative
appeal or a state court proceeding does not, by itself, resolve
the question of whether a constitutional violation occurred.”
Alexander v. Fischer, No. 9:14-CV-548 (GLS/ATB), 2015
WL 10568892, at *4 (N.D.N.Y. Dec. 21, 2015) (citing Walker
v. Bates, 23 F.3d 652, 657 (2d Cir. 1994) (additional citations
omitted), report and recommendation adopted, No. 9:14-
CV-548(GLS/ATB), 2016 WL 1261124 (N.D.N.Y. Mar. 30,
2016).
Here, plaintiff does not allege that he did not receive
timely written notice of the charges against him; was not
offered employee assistance to prepare for his Tier III
disciplinary hearing; or that Capt. Bishop did not issue a
written decision that included the evidence he relied on and
his reasoning for his ultimate disposition. See Amen. Compl.
at 22-23. Therefore, plaintiff's claims are limited to whether
Capt. Bishop acted impartially; deprived plaintiff of certain
evidence he requested at the March 2016 disciplinary hearing;
erred in reaching certain conclusions based on the evidence
elicited at the hearing. See id. at 22 ¶ 84, 23 ¶ 87.
Plaintiff's Amended Complaint, read liberally, contends that
Capt. Bishop was not an impartial hearing officer because
he was involved in the underlying incident giving rise to the
March 2016 disciplinary hearing he presided over as hearing
officer since his name appears on the UIR relating to the
discovery of an icepick in plaintiff's cell on February 28,
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2016. See Amen. Compl. 22 ¶ 84. Plaintiff also relies on his
retaliation claim that Capt. Bishop “conspired with [Supt.]
Ulher of [Upstate C.F.], a former [c]aptain of [s]ecurity at
[Clinton C.F.] in 2008[,] to be assigned as the hearing officer
at [Upstate C.F.] to hold [the] hearing, even though [Upstate
C.F.] employs a full-time ... Hearing Officer ...” to establish
that Capt. Bishop was not a fair and impartial hearing
officer. Id. However, defendants proffer Capt. Bishop's sworn
affidavit in which he states that [he] did not draft [the]
UIR or investigate the claims within it” and that his “name
was listed on the UIR as the ‘person reporting’ because,
as a matter of course, the Captain's name was listed on all
UIRs.” Dkt. No. 178-4 at 3 ¶ 14. Supt. Kirkpatrick's sworn
affidavit further explains that “Bishop did not investigate
the incident giving rise to the March 2016 misbehavior
report,]” and that Capt. Bishop's “name is listed on the UIR
simply because the [c]aptain's name is listed on the UIR as
a matter of course.” Dkt. No. 178-13 at 3 ¶ 16. Moreover,
Supt. Kirkpatrick's sworn affidavit establishes the paperwork
procedure for how UIRs are processed. See id. at ¶ 17.
In particular, Supt. Kirkpatrick's sworn affidavit establishes
that a captain reviews the UIR forms to make sure they are
properly completed, but that the captain is not “considered to
have ‘investigated’ the incident merely by being part of this
chain of review.” Id. Moreover, Supt. Kirkpatrick's and Capt.
Bishop's sworn affidavits establishes that it was “common
procedure and courtesy” for Capt. Bishop to preside over the
March 2016 disciplinary hearing even though the hearing was
held at Upstate C.F., because the incident giving rise to the
proceeding—the discovery of the icepick in plaintiff's cell
—occurred at Clinton C.F. Dkt. No. 178-13 at 3 ¶ 13; see
Dkt. No. 178-4 at 3 ¶ 16. In addition, the sworn affidavits
of Supt. Kirkpatrick, Capt. Bishop, and Supt. Uhler, establish
that Supt. Kirkpatrick, as part of his duties as superintendent
of Clinton C.F., independently assigned Capt. Bishop to serve
as the hearing officer at the March 2016 disciplinary hearing
—without engaging any prior discussions of the assignment
with Capt. Bishop or Supt. Uhler. See id.; see Dkt. No. Dkt.
No. 178-11 at 2 ¶ 6; Dkt. No. 178-4 at 13 ¶ 16. Thus,
defendants have established through admissible evidence
that Capt. Bishop was not appointed to serve as hearing
officer for the purpose of ensuring a finding of guilt and
that he was not involved in the investigation relating to the
charges contained in the February 2016 misbehavior report.
Plaintiff's conclusory arguments in opposition, which amount
to only reassertions of the claims contained in his unverified
Amended Complaint, see Amen. Compl. 22 ¶ 84; Dkt. No.
193-2 at 21, fail to raise a genuine issue of material fact.
*29 Next, plaintiff alleges that Capt. Bishop violated his
procedural due process rights by declining to grant him access
to “requested ... E-Block (Unit) log book entries from 9:00
a.m. on February 28, 2016, until 5:00 p.m., on March 1,
2016,” and provided him only with log book entries from
February 28, 2016. Amen. Compl. at 23 ¶ 87; see id. at 24 ¶
89. Plaintiff notes that the handwritten date contained on the
photograph of the icepick recovered from his cell on February
28, 2016, was dated February 29, 2016, and that non-party
C.O. Stiles recorded the weapon “as being photographed on
February 29[,] 2016.” Id. at 23 ¶ 87. Plaintiff believes that
the logbook entries for the days before and after February 28,
2016, were relevant to his defense at the hearing because “the
evidence drop box log book [ ] [did not] have a date [ ] when
the evidence was entered into the drop box,” and he “feel[s]
this evidence wasn't logged in on February 28, 2016, and
[that] without seeing the previous ... and the forward pages,
[he was not] able to identify whether or not it was logged in at
the time.” Id. at 24 ¶ 90. Plaintiff relies on the inconsistency
between the date of the February 28, 2016 misbehavior report
and the date on the photograph of the weapon in support of his
contention that, on “February 29[ ], 2016, [ ]Capt[.] Devlin
conspired with Capt. Bishop to fabricate the [February 28,
2016 misbehavior report].” Id. at 23 ¶ 87.
Capt. Bishop's sworn affidavit establishes that the
handwritten date of February 29, 2016, contained under the
photograph of the weapon, was due solely to a clerical error
and is not relevant to the weapons charge that formed the basis
of the February 2016 misbehavior report. See Dkt. No. 178-2
at 28; Dkt. No. 178-4 at 4 ¶ 22. As plaintiff acknowledges, he
“questioned” the inconsistency at the hearing by asking Sgt.
Baker, “[d]id you drop the ... weapon in the box the same date
that you ... wrote the memo?” to which Sgt. Baker replied, “ ‘It
was on the same day.’ ” Amen. Compl. at 24-25 ¶ 93 (quoting
Dkt. No. 25-2 at 51). As Capt. Bishop explains, on March
29, 2016, the last day of the March 2016 disciplinary hearing,
he questioned Sgt. Baker, who stated that the correct date
on which the weapon was recovered and photographed was
February 28, 2016, and that the handwritten date contained
on the photograph was a “clerical error.” Id. at 5 ¶ 23.
Moreover, Capt. Bishop noted that, between the second and
third days of the March 2016 disciplinary hearing, Sgt. Baker
reviewed his attendance records, which indicated that he
was not working on February 29, 2016, but was working
on February 28, 2016, and that he had photographed the
weapon; therefore, Capt. Bishop “concluded that the 28 th ”
was the correct date, “and the handwritten date was an error.”
See id. at ¶ 24. Thus, as defendants aver, Capt. Bishop
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did not deprive plaintiff procedural due process based on
his decision not to provide plaintiff with the additional log
book dates because those pages were irrelevant, as it was
established that the date contained on the photograph of the
icepick was a mere scrivener's error that had no impact on
the outcome of the hearing. See Torres v. Selsky, No. 9:02-
CV-0527 (DNH/DEP), 2005 WL 948816, at *7 (N.D.N.Y.
Apr. 25, 2005) (“Evidence considered to be irrelevant or
unnecessary to the issues truly in contention may, in a
hearing officer's discretion, properly be excluded in such a
proceeding.” (citation omitted)).
Similarly, plaintiff's contention that Capt. Bishop violated his
due process by preventing plaintiff from asking Sgt. Baker
whether he had ever “ ‘secured evidence in the drop box
in previous times[,]’ ” or if he “ ‘kn[e]w what [he was]
supposed to do in the evidence drop box sign in sheet when
[he] secure[d] evidence’ ” is meritless. Amen. Compl. at 26 ¶¶
99, 100 (quoting Dkt. No. 25-2 73-74). As the record makes
clear, Capt. Bishop asked Sgt. Baker if he had “secure[d]”
the weapon “on [February 28,] 2016[,] in the evidence drop
box[,]” to which Sgt. Baker replied, “Yes I did.” Id. at ¶
101 (quoting Dkt. No. 25-2 at 75). As discussed above, Sgt.
Baker's testimony at the hearing established that the wrong
date had been recorded on the photograph, but that he entered
the weapon into evidence on February 28, 2016, the last
day he worked before being off on February 29, 2016. Dkt.
No. 178-4 at 5 ¶¶ 23, 24. Thus, the exclusion of plaintiff's
proposed line of questioning was appropriate, as it was neither
relevant nor necessary to plaintiff's defense at the hearing.
See Tafari v. McCarthy, 714 F. Supp. 2d 317, 377 (N.D.N.Y.
2010) (“ ‘A hearing officer does not violate due process by
excluding irrelevant or unnecessary testimony.’ ” (quoting
Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir. 1999)).
*30 Further, plaintiff cannot establish a procedural due
process claim based on Capt. Devlin's violation of DOCCS
Directive 4910A by failing to remove the icepick from the
evidence drop box within 72 hours. It is well established that
“[v]iolations of state law do not give rise to claims under 42
U.S.C. § 1983 ...[, and, m]ore specifically, a violation of a
DOCCS directive does not state a claim for a constitutional
violation under § 1983.” Tuitt v. Chase, No. 9:11-CV-0776
(DNH/TWD), 2013 WL 877439, at *10 (N.D.N.Y. Jan. 30,
2013) (internal citation omitted), report and recommendation
adopted, No. 9:11-CV-0776 (DNH/TWD), 2013 WL 877617
(N.D.N.Y. Mar. 8, 2013). In any event, defendants have
established that, although the weapon remained in the
evidence dropbox longer than contemplated under DOCCS
Directive 4910A, the evidence was not ultimately affected in
any way, because “no one accessed the drop box during this
time.” Dkt. No. 178-6 at 3 ¶ 10. Thus, plaintiff's procedural
due process claim in this regard fails. In addition, to the
extent that plaintiff argues that the disciplinary hearing was
the result of a false misbehavior report, see Amen. Compl.
at 24-27, 70, his conclusory assertion does not alter the
foregoing analysis. It is well settled that prison inmates have
no constitutionally guaranteed immunity from being falsely
or wrongfully accused of conduct for which they are subjected
to a deprivation of a protected liberty interest provided that,
as plaintiff was here, the prisoner was afforded sufficient
procedural due process. See Freeman v. Rideout, 808 F.2d
949, 951 (2d Cir. 1986). Similarly, to the extent that plaintiff
relies on the July 2017 administrative reversal of the March
2016 disciplinary decision to establish that Capt. Bishop
violated his procedural due process rights, his claim fails.
See Alexander, 2015 WL 10568892, at *4 (citing Walker,
23 F.3d at 657 (additional citations omitted)). Based on the
foregoing, it is recommended that plaintiff's procedural due
process claims against Capt. Bishop be dismissed.
E. Section 1983 Conspiracy – March
2016 Disciplinary Proceeding
Plaintiff has failed to establish a First Amendment retaliation
claim against any defendant based on the February 2016
misbehavior report and March 2016 disciplinary hearing, and
failed to establish that Capt. Bishop violated his due process
rights at the March 2016 disciplinary hearing; therefore, as
plaintiff has “failed to show an underlying constitutional
violation on which to base his section 1983 conspiracy claim,”
his “conspiracy claim fails as a matter of law.” Taylor,
2012 WL 913678, at *9; Bibeau, 2009 WL 701918, at
*8. In any event, plaintiff's Section 1983 conspiracy claims
relating to the March 2016 disciplinary hearing are wholly
conclusory and belied by defendants’ admissible evidence.
C.O. Breyette's and C.O. Tucker's sworn affidavits both state
that they recovered a weapon from plaintiff's cell on February
28, 2016, which provided the basis for C.O. Breyette's
misbehavior report. See Dkt. No. 178-5 at 2 ¶¶ 8, 10; Dkt.
No. 178-10 at 2 ¶ 7. Both C.O. Breyette and C.O. Tucker
state that he did not communicate about the incident with any
other defendant in this action concerning the discovery of the
weapon, and deny conspiring with anyone against plaintiff.
See Dkt. No. 178-5 at 2 ¶ 11; Dkt. No. 178-10 at 2 ¶ 10.
Further, Capt. Bishop's, Supt. Kirkpatrick's, and Supt. Uhler's
sworn affidavits establish that Supt. Kirkpatrick appointed
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Capt. Bishop to preside over the March 2016 disciplinary
hearing without consulting with Capt. Bishop or Supt. Uhler,
and that he appointed Capt. Bishop to preside as the hearing
officer even though the hearing took place at Upstate C.F.
following plaintiff's transfer pursuant to “common procedure
and courtesy” because the underlying incident had occurred
at Clinton C.F. Dkt. No. 178-13 at 3 ¶ 13; see Dkt. No.
178-11 at 1, 2 ¶¶ 2, 6; Dkt. No. 178-4 at 3 ¶ 16, 5 ¶ 27.
Indeed, in his sworn affidavit, Supt. Kirkpatrick states that
he “did not discuss the appointment with [Capt.] Bishop or
[Supt.] Uhler.” Dkt. No. 178-13 at 2 ¶ 11. Likewise, Capt.
Devlin, Venettozzi, and Rodriguez all deny conspiring against
plaintiff or discussing the February 2016 incident. See Dkt.
No. 178-6 at 3 ¶¶ 12, 16; Dkt. No. 178-9 at 1-2 ¶ 3; Dkt. No.
178-12 at ¶ 4.
Plaintiff's contentions in opposition are devoid of any specific
factual allegations, and plaintiff has not proffered any
evidence to controvert defendants’ sworn statements. See
Dkt. No. 193 at 12, 13, 15, 16. Indeed, plaintiff has not
advanced any specific facts or evidence demonstrating that
defendants engaged in a meeting of the minds, “such as time,
place, or manner in which ... defendants conspired against
plaintiff” to violate his rights with respect to the events
surrounding the March 2016 disciplinary proceeding. Avent,
2020 WL 7705938, at *7. Consequently, it is recommended
that plaintiff's Section 1983 conspiracy claim against C.O.
Breyette, C.O. Tucker, Capt. Bishop, Capt. Devlin, Supt.
Kirkpatrick, Supt. Uhler, Venettozzi, and Rodriguez based on
the March 2016 disciplinary hearing be dismissed.
*31 In light of the foregoing recommendations that
defendants are entitled to summary judgment dismissing
plaintiff's First Amendment retaliation claims and Section
1983 conspiracy claims on the merits, the undersigned
declines to address defendants’ arguments regarding personal
involvement 9 and qualified immunity.
IV. Conclusion
WHEREFORE, based on the findings set forth above, it is
hereby:
RECOMMENDED, that defendants’ Motion for Summary
Judgment (Dkt. No. 178) be GRANTED IN ITS
ENTIRETY, and it is further
RECOMMENDED, that Kowalowski's Motion for
Summary Judgment (Dkt. No. 179) be GRANTED IN ITS
ENTIRETY, and it is further
RECOMMENDED, plaintiff's Amended Complaint (Dkt.
No. 25) be DISMISSED IN ITS ENTIRETY WITH
PREJUDICE; and it is further
ORDERED, that the Clerk of the Court serve a copy of
this Report-Recommendation and Order on all parties in
accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen 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.
Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 6(a), 6(e), 72. 10
All Citations
Not Reported in Fed. Supp., 2021 WL 3293504
Footnotes
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y.L.R. 72.3(c).
2 Following initial review of plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), Chief U.S.
District Court Judge Glenn T. Suddaby, in a Decision and Order dated October 25, 2018, (1) accepted
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plaintiff's Amended Complaint for filing only to the extent that it asserted (a) First Amendment retaliation and
conspiracy claim against Capt. Bishop, Lt. Durkin, Sgt. King, Supt. Kirkpatrick, Rodriguez, and Kowalowski;
and (b) First Amendment retaliation, Fourteenth Amendment due process, and conspiracy claims against
Capt. Bishop, C.O. Breyette, Capt. Devlin, Supt. Kirkpatrick, Supt. Uhler, C.O. Tucker, Rodriguez, and
Venettozzi; and (2) dismissed, without prejudice, the remaining claims asserted in plaintiff's Amended
Complaint. Dkt. No. 35 at 18. The Court subsequently denied plaintiff's motion for reconsideration of the
October 25, 2018 Decision and Order. See Dkt. Nos. 36, 48. Further, in a Decision and Order dated
September 27, 2019, as relevant here, the Court denied plaintiff's motion for leave to file a second amended
complaint, see Dkt. No. 87, and Ordered that plaintiff's Amended Complaint (Dkt. No. 25) remains the
operative pleading. See Dkt. No. 106.
3 To the extent that plaintiff's exhibits are relevant to the causes of action at issue on the present motion,
the Court will consider them as part of the Amended Complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d
Cir. 2004) (“A complaint is deemed to include any written instrument attached to it as an exhibit, materials
incorporated in it by reference, and documents that, although not incorporated by reference, are integral to
the complaint.” (internal quotation marks and citations omitted)).
4 Plaintiff's use of the acronym “OMH” refers to the Office of Mental Health.
5 Although Venettozzi's name appears on the document reversing and expunging the March 2016 disciplinary
determination, see Dkt. No. 25-3 at 40, Rodriguez is the person that actually made the determination to
reverse and expunge plaintiff's disciplinary sentence and Venetozzi's name is contained on the document
based on internal DOCCS policy. See Dkt. No. 195-17 at 1 (Rodriguez's affidavit in further support of motion
for summary judgment, explaining that, Venettozzi's name appears on the July 10, 2017 decision “because,
whenever he's in the office, all correspondence goes out in his name.”).
6 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been
provided to plaintiff.
7 Plaintiff's Amended Complaint in this case was not properly verified. See Amen. Compl. at 80.
8 The undersigned declines to consider plaintiff's contention, for the first time in opposition to defendants’
motion for summary judgment, that the stationary he used in correspondence with the FMRC was not official
DOCCS letterhead because it did not contain a certain logo. See Dkt. No. 193 at 3 ¶ 12; Lyman v. CSX
Transportation, Inc., 364 F. App'x 699, 701 (2d Cir. 2010) (summary order) (affirming the district court's
determination that it should not consider claims raised for the first time in opposition to summary judgment);
Auguste v. Department of Corrections, 424 F. Supp. 2d 363, 368 (D. Conn. 2006) (holding that a plaintiff
“cannot amend his complaint in his memorandum in response to [the] defendants’ motion for summary
judgment”). Nor is the undersigned inclined to recommend allowing plaintiff to further amend the complaint
to add new allegations against the defendants at this late stage in the case. Regardless of whether plaintiff
perfectly reproduced official DOCCS letterhead, the admissible evidence makes clear that plaintiff attempted
to use official DOCCS letterhead for his personal correspondence—a violation of DOCCS rules. See Dkt. No.
178-8 at 6. Therefore, plaintiff's belated assertions in this regard do not impact the undersigned's analysis as
to plaintiff's First Amendment retaliation claim against Sgt. King.
9 The undersigned notes that defendants’ arguments regarding personal involvement are based exclusively on
their arguments concerning the merits of plaintiff's First Amendment retaliation and Section 1983 conspiracy
claims, while conceding Capt. Bishop's personal involvement with the alleged due process violations at the
March 2016 Tier III disciplinary hearing. See Dkt. No. 178-2 at 10-16.
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10 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 Report-Recommendation
& Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed
period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(C).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00578-ML Document 165 Filed 03/24/26 Page 309 of 427

Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 3672105
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Walter RUSYNIAK; and Anthony Rusyniak, Plaintiffs,
v.
Ena Paola GENSINI; Gunilla De Montaigu;
and Concha Futura, S.A., Defendants.
No. 5:07–CV–0279 (GTS/GHL).
|
Oct. 30, 2009.
Attorneys and Law Firms
Costello, Cooney & Fearon, PLLC, Robert M. Smith, Esq.,
Kristen L. Pickard, Esq., of Counsel, Syracuse, NY, for
Plaintiffs.
Hiscock & Barclay, LLP, Robert A. Barrer, Esq., of Counsel,
Syracuse, NY, for Defendants Gunilla De Montaigu and
Concha Futura, S.A.
Greene, Hershdorfer & Sharpe, Victor J. Hershdorfer, Esq., of
Counsel, Syracuse, NY, for Defendant Ena Paola Gensini.
MEMORANDUM DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently pending before the Court in the above-
captioned action is a motion by Defendants containing two
alternative requests for relief: (1) a request for reconsideration
of Part III.D.5 of the Court's Decision and Order of May
5, 2009, denying Defendants' request for dismissal of all of
Plaintiffs' claims due to the doctrine of forum non conveniens;
and (2) a request for dismissal of the First Cause of Action
of Plaintiffs' Third Amended Complaint (asserting a claim of
violation of Panama law) as barred by the three-year statute of
limitations set forth in the certified translation of Article 1652
of the Panamanian Code. (Dkt. No. 61.) For the reasons set
forth below, Defendants' motion is granted in part, and denied
in part.
I. REQUEST FOR RECONSIDERATION
To the extent that Defendants' motion requests
reconsideration of the Court's decision to denying their
request for dismissal of all of Plaintiffs' claims due to the
doctrine of forum non conveniens, that motion is untimely.
Defendants' motion was filed on June 8, 2009. (Dkt. No.
61.) The Order of which reconsideration was sought was
entered on May 5, 2009. (Dkt. No. 56.) See N.D.N.Y.
L.R. 7.1(g) (setting ten-day deadline for motions for
reconsideration). Defendants' attempt to characterize the
Order of which reconsideration is sought as being the Court's
Text Order of May 29, 2009, is unconvincing. That Text
Order merely indicates the extent to which Plaintiffs' signed
Third Amended Complaint fails to comport with the Court's
Decision and Order of May 5, 2009 (and was issued in
response to Plaintiffs' request for guidance). Even liberally
construed, Defendants' motion for reconsideration expressly
and repeatedly challenges the substance of the Court's Order
of May 5, 2009 (specifically, Part III.D.5. thereof), and only
that Order. (See, e.g., Dkt. No. 61, Part 2, ¶ 4; Dkt. No. 61,
Part 4, Points II and III.)
In any event, even if the Court were to consider the
merits of Defendants' motion for reconsideration, the Court
would deny that motion as without cause: there has been
no intervening change of controlling law, no previously
unavailable evidence, and there exists no clear error of law or
manifest injustice with regard to the relevant portion of the
prior decision in question.
For these reasons, Defendants' request for reconsideration is
denied.
II. REQUEST FOR DISMISSAL OF FIRST CAUSE OF
ACTION
To the extent that Defendants' motion alternatively requests
the dismissal of the First Cause of Action of Plaintiffs'
Third Amended Complaint (asserting a claim of violation of
Panama law) as barred by the three-year statute of limitations
set forth in the certified translation of Article 1652 of the
Panamanian Code, that motion is granted.
Defendants are correct that Plaintiffs failed, in their response
papers, to oppose this request. (See Dkt. No. 63.) The closest
that Plaintiffs come to opposing this request is when, in a
supplemental letter request, they (correctly) point out that
Defendants have improperly broadened the target of their
Panamanian-statute-of-limitations argument from Plaintiffs'
First Cause of Action to all of Plaintiffs' causes of action.
(Dkt. No. 66; see also Dkt. No. 61, Part 4, at 7–8.) As a
result of Plaintiffs' failure to address Defendants' argument
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Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
regarding Plaintiffs' First Cause of Action, Defendants'
burden on this motion is somewhat lightened with regard to
that cause of action. 1
*2 After carefully reviewing the parties' motion papers, and
Plaintiffs' Third Amended Complaint, the Court finds that
Defendants have met their lightened burden on their motion
to dismiss Plaintiff's First Cause of Action. The Court reaches
this conclusion based on substance of the certified translation
provided by Defendants (i.e., the certified translation of
Article 1652 of the Commercial Code of the Republic of
Panama). (Dkt. No. 61, Part 3.) The Court reaches this
conclusion also based on the reasons stated in Part III.D.7.a.
of the Court's Order of May 5, 2009. (See Dkt. No. 56, at 44–
47.) See also Rusyniak v. Gensini, 629 F.Supp.2d 203, 231–
33 (N.D.N.Y.2009) (Suddaby, J.).
For these reasons, Defendants' request to dismiss Plaintiff's
First Cause of Action is granted.
ACCORDINGLY, it is
ORDERED that Defendants' motion (Dkt. No. 61) is
GRANTED in part, and DENIED in part, in accordance
with the above Decision and Order; and it is further
ORDERED that Defendants' motion for reconsideration of
the May 5, 2009 Decision and Order is DENIED, however,
the First Cause of Action of Plaintiffs' Third Amended
Complaint (Dkt. No. 58) is DISMISSED as barred by the
three-year statute of limitations set forth in the certified
translation of Article 1652 of the Panamanian Code; and it is
further
ORDERED that counsel for all parties are directed to attend
an in-person pretrial conference on NOVEMBER 19, 2009
at 2:00 p.m. in Judge Suddaby's chambers in Syracuse, New
York, at which counsel are directed to appear with settlement
authority.
All Citations
Not Reported in F.Supp.2d, 2009 WL 3672105
Footnotes
1 See Cossey v. David, 04–CV–1501, 2007 WL 3171819, at *7 (N.D.N.Y. Oct. 29, 2007) (Lowe, M.J. adopted
by Scullin, J.) (noting that, where plaintiffs do not respond to defendants' argument made in their summary
judgment motion, plaintiffs are deemed to have consented to defendants' argument, and thus defendants
must only satisfy “their modest burden of demonstrating entitlement to the relief requested through that
argument”); Saunders v. Ricks, 03–CV–598, 2006 WL 3051792, at *9 (N.D.N.Y. Oct. 18, 2006) (Lowe, M.J.
adopted by Hurd, J.) (“By failing to respond to Defendants' first argument ... Plaintiff may be deemed to
have consented to that argument under Local Rule of Practice 7.1(b)(3). Thus, Plaintiff's claim against those
Defendants may be dismissed on that ground alone [provided that] ... Defendants have met their modest
threshold burden to demonstrate entitlement to the relief requested in their motion for summary judgment.”);
Beers v. GMC, 97–CV–0482, 1999 U.S. Dist. LEXIS 12285, at *27–31 (N.D.N.Y. March 17, 1999) (McCurn,
J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their
motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants
with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3] ).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:23-cv-00578-ML Document 165 Filed 03/24/26 Page 311 of 427

Smith v. Woods, Not Reported in F.Supp.2d (2006)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Smith v. Collins, S.D.N.Y., October 1, 2015
2006 WL 1133247
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Jeff SMITH, Plaintiff,
v.
Robert K. WOODS, Deputy Superintendent;
Joseph R. Belarge, Captain; G.J. O'Donnell,
Sergeant; F.S.A. Antonelli; and Wayne
Holt, Correction Officer, Defendants.
No. 9:03-CV-480.
|
April 24, 2006.
Attorneys and Law Firms
Jeff Smith Plaintiff, Pro Se, New York, NY.
Hon. Eliot Spitzer, Attorney General of the State of New
York, Kelly L. Munkwitz, Esq., Asst. Attorney General, of
Counsel, Department of Law, Albany, NY, for Defendants.
DECISION and ORDER
DAVID N. HURD, District Judge.
*1 Plaintiff, Jeff Smith, brought this civil rights action
pursuant to 42 U.S.C. § 1983. By Report-Recommendation
dated March 17, 2006, the Honorable George H.
Lowe, United States Magistrate Judge, recommended that
defendants' motion for summary judgment be granted, and
that plaintiff's motion for partial summary judgment be
denied. (Docket No. 51). The plaintiff has filed objections to
the Report-Recommendation. (Docket No. 53).
Based upon a de novo determination of the portions of
the report and recommendations to which the plaintiff
has objected, the Report-Recommendation is accepted and
adopted in whole. See 28 U .S.C. 636(b)(1). Accordingly, it
is ORDERED that
1. Defendants' motion for summary judgment is GRANTED;
Plaintiff's motion for partial summary judgment is DENIED.
and
The complaint is DISMISSED in its entirety.
The Clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
GEORGE H. LOWE, Magistrate Judge.
REPORT-RECOMMENDATION
This matter has been referred to me for Report and
Recommendation by the Honorable David N. Hurd, United
States District Judge, pursuant to 28 U.S.C. § 636(b) and
Local Rule 72.3(c) of the Rules of Practice for this Court.
In this pro se civil rights action brought under 42 U.S.C. §
1983, Jeff Smith (“Plaintiff”) alleges that five employees of
Upstate Correctional Facility-Deputy Superintendent Robert
K. Woods, Captain Joseph R. Belarge, Sergeant G.J.
O'Donnel, Food Service Administrator Richard Antonelli,
and Correction Officer Wayne Holt (“Defendants”)-violated
his rights under the First, Fourth, Eighth, and Fourteenth
Amendments by (1) retaliating against him for having
previously filed a complaint, (2) subjecting him to an
unreasonable search and seizure, (3) subjecting him to a
damaged bunk bed while he was housed in the Upstate
Correctional Facility Special Housing Unit, and (4) taking
away his “good time” credits without affording him due
process. (Dkt. No. 5 [Plf.'s Am. Compl.].) 1
Currently before the Court is Defendants' motion for
summary judgment (Dkt. No. 37), and Plaintiff's motion
for partial summary judgment (Dkt. No. 38), both brought
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Because both motions were filed on the same day (February
11, 2005), and neither was filed in response to the other,
I construe each motion as a “motion” and neither motion
as a “cross-motion.” Both Plaintiff and Defendants have
responded to each other's motion (Dkt.Nos.42, 45), and
replied to the other's response (Dkt.Nos.47, 48).
Generally, Defendants' motion raises six issues: (1) whether
Plaintiff has failed to establish (or even state) a First
Amendment retaliation claim; (2) whether Plaintiff has failed
to state a Fourth Amendment claim, (3) whether Plaintiff
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has failed to establish (or even state) an Eighth Amendment
claim; (4) whether Plaintiff has failed to exhaust his available
administrative remedies regarding his Eighth Amendment
claim; (5) whether Plaintiff has failed to establish (or even
state) a Fourteenth Amendment due process claim; (6)
whether Plaintiff has failed to establish (or properly state) a
conspiracy claim; and (7) whether Defendants are protected
by qualified immunity. (Dkt. No. 37, Part 25 [Defs.' Mem. of
Law].)
*2 Generally, Plaintiff's motion raises three issues: (1)
whether Plaintiff is entitled to judgment as a matter of law on
his First Amendment retaliation claim; (2) whether Plaintiff
is entitled to judgment as a matter of law on his Eighth
Amendment claim; and (3) whether Plaintiff is entitled to
judgment as a matter of law on his Fourteenth Amendment
due process claim. (Dkt. No. 38, Part 3 [Plf.'s Mem. of Law].)
Although I liberally construe Plaintiff's Amended Complaint
as containing a Fourth Amendment claim, I do not liberally
construe his motion as requesting judgment as a matter of law
on his Fourth Amendment claim, especially given the burden
on a movant under the Federal Rules of Civil Procedure. See
Fed.R.Civ.P. 7(b)(1) (requiring that movants “shall set forth
the relief or order sought,” and “shall state with particularity
the grounds [for the relief requested]”).
For the reasons discussed below, I answer each of the six
questions posed in Defendants' motion in the affirmative, and
I answer each of the three questions posed in Plaintiff's motion
in the negative. As a result, I recommend that Defendants'
motion for summary judgment be granted and that Plaintiff's
motion for partial summary judgment be denied.
I. SUMMARY JUDGMENT STANDARD
Under Rule 56(e) of the Federal Rules of Civil
Procedure, summary judgment is warranted if “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In determining whether a genuine issue of
material 2 fact exists, the Court must resolve all ambiguities
and draw all reasonable inferences against the moving party.
Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997)
(citation omitted); Thompson v. Gjivoje, 896 F.2d 716, 720
(2d Cir.1990) (citation omitted).
However, when the moving party has met its initial burden of
establishing the absence of any genuine issue of material fact,
the nonmoving party must come forward with “specific facts
showing that there is a genuine issue for trial.” Fed.R.Civ.P.
56(e); see also Matsushita Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585-87 (1986). The
nonmoving party must do more than “simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 477
U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). “A dispute regarding
a material fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Ross v. McGinnis, 00-CV-0275, 2004 WL 1125177, at
*8 (W.D.N.Y. March 29, 2004) [internal quotations omitted]
[emphasis added].
Imposed over this general burden-shifting framework is the
generous perspective with which the Court must view a pro se
plaintiff's pleadings. “[I]n actions in which one of the parties
appears pro se, this Court is faced with the ... responsibility
of granting significant liberality in how pro se pleadings are
construed.” Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 467
(S.D.N.Y.1998); see Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (per curiam) (pro se pleadings held “to less stringent
standards than formal pleadings drafted by lawyers.”); Ortiz
v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989). For example,
where a plaintiff is proceeding pro se, and the defendant
has filed a dispositive motion, the Court must construe the
plaintiff's complaint and opposition papers liberally so as to
raise the strongest arguments that they suggest. See Weixel
v. Bd. of Ed. of City of New York, 287 F.3d 138, 146 (2d
Cir.2002) (motion to dismiss in civil rights case); Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (motion for summary
judgment in civil rights case); Thomas v. Irving, 981 F.Supp.
794, 799 (W.D.N.Y.1997) (motion for summary judgment in
civil rights case).
*3 However, although “[t]he work product of pro se litigants
should be generously and liberally construed, ... [a pro se
litigant's] failure to allege either specific facts or particular
laws that have been violated renders [an] attempt to oppose
defendants' motion ineffectual.” Kadosh v. TRW, Inc., 91-
CV-5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994).
In other words, “[p]roceeding pro se does not otherwise
relieve a [party] from the usual requirements to survive
a motion for summary judgment .” Bussa v. Aitalia Line
Aeree Italiane S.p.A., 02-CV-10296, 2004 WL 1637014,
at *4 (S.D.N.Y. July 21, 2004) (citations omitted), accord,
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Durran v. Selsky, 251 F.Supp.2d 1208, 1211 (W.D.N.Y.2003)
(citations omitted).
II. STATEMENT OF MATERIAL FACTS
The facts set forth in a defendant's Rule 7.1(a)(3) Statement
of Material Facts will be taken as true to the extent those
facts are supported by the evidence in the record 3 and are not
specifically controverted by the plaintiff. 4
To “specifically controvert[ ]” each of the statements of
material fact in a defendant's Rule 7.1(a)(3) Statement of
Material Facts, a plaintiff must file a response to the Statement
of Material Facts that “mirror[s] the movant's Statement
of Material Facts by admitting and/or denying each of the
movant's assertions in matching numbered paragraphs” and
that “set[s] forth a specific citation to the record where the
factual issue arises.” 5
Portions of the record sufficient to create a “factual issue”
include affidavits or verified complaints (which are treated as
affidavits for purposes of summary judgment). 6 However, to
be sufficient to create a “factual issue,” such an affidavit or
verified complaint must, among other things, be based “on
personal knowledge.” 7 An affidavit or verified complaint is
not based on personal knowledge if, for example, it is based
on mere “information and belief” or hearsay. 8
Similarly, such an affidavit or verified complaint must not
be conclusory. 9 Of course, an affidavit may be conclusory
because its assertions are too general. 10 However, even
where an affidavit's assertions are specific (e.g., with respect
to time, place, persons, events, conversation, etc.), that
affidavit may still be deemed conclusory if it is (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.” 11
Indeed, it has long been the rule in the Second Circuit
that “issues of credibility sufficient to defeat a motion for
summary judgment are not created if the contradicting or
impeaching evidence is too incredible to be believed by
reasonable minds.” Price v. Worldvision Enterprises, Inc., 455
F.Supp. 252, 266, n. 25 (S.D.N.Y.1978), aff'd without opinion,
603 F.2d 214 (2d Cir.1979).
*4 Here, Defendants have a filed Rule 7.1 Statement
of Material Facts, and supporting affidavits and exhibits.
(Dkt. No. 37, Parts 2-25.) Plaintiff has filed a response to
Defendants' Rule 7.1 Statement. (Dkt. No. 42, Part 1.) In
addition, Plaintiff has filed (1) declarations and exhibits in
opposition to the affidavits of Defendants Woods, Belarge,
Holt, Antonelli, and Holden (Dkt. No. 42, Parts 1, 3), and
(2) a verified Amended Complaint (Dkt. No. 5). Finally,
because Plaintiff is proceeding pro se and this is a civil
rights action, I will consider, in evaluating Plaintiff's response
to Defendants' motion for summary judgment, Plaintiff's
declaration and exhibits in support of his motion for partial
summary judgment. (Dkt. No. 38, Parts 1, 4.)
I address Plaintiff's responsive documents in more detail
below. However, a few general observations are appropriate
here. Plaintiff's Rule 7.1 Response contains hardly any
citations to the record, much less any citations to admissible
evidence; rather, to the extent that Plaintiff's Rule 7.1
Response contains any citations at all, those citations are often
to other portions of Plaintiff's Response or to his Amended
Complaint (which are, themselves, conclusory), or to exhibits
that do not support his denial of the fact asserted. Moreover,
his Declarations and verified Amended Complaint are often
argumentative in nature (in violation of Local Rule 7.1[a]
[2] ) and not based on personal knowledge (but only hearsay
or pure speculation). Finally, his Declarations and verified
Amended Complaint are often conclusory and replete with
inconsistencies and improbabilities.
For example, he asserts that “[a]t no time did [he] possess[ ]
[Inmate Alcivar's] legal materials other than [the times when
he and Inmates Lipman and Robles approached Defendant
Holt with such materials].” 12 However, his own letters and
deposition testimony contain repeated representations that he
was, at other times, in possession of such materials. 13
Similarly, he asserts that the documents allegedly discovered
by Defendant O'Donnell in Plaintiff's “cube” on August 31,
2002, were in fact “the exact same materials intercepted by
Woods through the U.S. mail.” 14 However, those documents
contained copies of two letters-dated July 4, 2002, and July
16, 2002-from Plaintiff to Inmate Alcivar's two daughters. 15
Plaintiff offers no explanation as to why Inmate Alcivar's
daughters would be returning copies of those letters to
Plaintiff between August 19, 2006, and August 31, 2002-
the time period during which Defendant Woods allegedly
intercepted Plaintiff's mail. 16
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Generally, I find such assertions by Plaintiff to be too
incredible to be believed by reasonable minds.
Accordingly, the following material facts, even when viewed
most favorably to Plaintiff, are supported by evidence in the
record, and are not specifically controverted by Plaintiff:
Background
1. From July of 2002 until November of 2002 (the time period
relevant to the allegations contained in Plaintiff's Amended
Complaint), Plaintiff was an inmate in the care and custody
of the New York State Department of Correctional Services
(“DOCS”), incarcerated at the Greene Correctional Facility
(“Greene C.F.”). 17
*5 At all times relevant to this action, Defendant Robert
K. Woods was the Deputy Superintendent for Security at
Greene C.F.; Defendant Joseph R. Belarge was a Captain
at Greene C.F.; Defendant G.J. O'Donnel was a Sergeant
at Greene C.F.; Defendant Richard Antonelli was a Food
Services Administrator at Greene C.F.; and Defendant Wayne
Holt was a Corrections Officer at Greene C.F. 18
Plaintiff's Legal Assistance to Inmate Peter Alcivar
and Communications with Inmate Alcivar's Daughters
3. At some point in 2001, Inmate Peter Alcivar filed a civil
rights action against DOCS and employees of Greene C.F.
and Woodbourne C.F. in the United States District Court for
the Northern District of New York (civil action number 9:01-
CV-1198). 19
4. On or about May 7, 2002, Plaintiff provided legal assistance
to Inmate Alcivar by answering a question regarding an
affidavit. 20 At the time, Plaintiff was not an inmate law
clerk. 21
5. On or about May 10, 2002, Inmate Alcivar was admitted to
Albany Medical Center to receive treatment for cancer. 22
6. On or about July 4, 2002, Plaintiff wrote and sent a letter
to Inmate Alcivar's two daughters about Inmate Alcivar's
pending federal civil rights action. 23 In pertinent part, the
letter stated,
I am writing to inform you of my assistance to Peter [Alcivar]
in the above referenced matter [case number 9:01-CV-1198]
where he has a Section 1983 of the U.S.C.A. Civil Rights
complaint against the Department of Correctional Services
now pending in the United States District Court for the
Northern District of New York; that is if he (Peter) hasn't
already told both of you that I am helping him with the filing
of his motions, etc....
Getting right to the point for the purpose of writing you, and
letting you know what is going on with Peter's case. There is
[sic] two inmates that Peter trusted with his papers and other
legal documents, that is one inmate that housed [sic] in the
same dorm as him and myself....
I have already wrote [sic] to the court on June 24, 2002,
informing said court as to Peter's current situation.... See copy
of the letter addressed to the court ... enclosed with this letter
I am writing you....
Peter told me that you have copies of all his papers, those of
which are the same as the papers I have here....
[I]f you wish ... you all could come to the facility to see me,
I would then go over the case with all of you, tell all of you
what I know from Peter, the research that I have done for him
and the list of cases of authority that I have and would cite in
his motions and use at trial; I also could give you all of his
legal documents right there....
Both of you should ... let Peter know that he should not worry
about the case, it is not going to be dismissed ... because I
already wrote to the court for him. 24
7. On or about July 6, 2002, Inmate Alcivar died at Albany
Medical Center. 25
*6 8. On or about July 16, 2002, Plaintiff wrote and sent a
second letter to Alcivar's two daughters. 26 In pertinent part,
the letter states: “The box containing the legal documents
should be following this letter, I am going to hold a copy of
the complaint so if you should find a lawyer he or she could
visit me at the facility and go over the facts the claim is based
on.” 27 In addition, the last page of the letter states:
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NOTE: Read the “TO/From” memo form note that I made up,
get it notarize [sic] and sign it in front of the notary public.
Make a copy for your files and send me the original.
It is an idea to have that note in my files so non [sic] of the
officers and staff members would ask what I am doing with
Mr. Alcivar [sic] legal documents if he is no longer here. By
doing the above your [sic] are giving me consent to have said
documents in my possession. 28
9. On or about August 8, 2002, Plaintiff wrote and sent a
third letter to Alcivar's two daughters. 29 In pertinent part,
the letter states: “Please send me that ‘To/From’ note if you
already have it notarized, I told you I need it for the copy of
the complaint I told you that I would hold....”
Plaintiff's Communications with Defendant Woods
and the Search of Plaintiff's Prison Cell (or “Cube”)
10. On or about July 16, 2002, Plaintiff wrote and sent a note
to Defendant Woods. 30 The note stated: “Please be advised
that I need to talk to you in reference to the above subject
inmate [i.e., Inmate Alcivar] which is a matter of importance.
This must be in person at your earliest convenience. Thank
you for your professional attention to this request.” 31
11. On or about July 21, 2002, Plaintiff wrote and sent a
second note to Defendant Woods. 32 The note stated: “Please
note that on the above subject date [i.e., July 16, 2002] I wrote
to you requesting to see you. I must speak to you before July
23, 2002. This matter is very important. Thank you for your
attention.” 33
12. Defendant Woods did not respond to Plaintiff's notes for
two reasons: (1) Defendant Woods did not receive either of
the two notes until after the date referenced by Plaintiff (i.e.,
July 23, 2002) had passed; and (2) Defendant Woods believed
that Plaintiff's notes were “cryptic.” 34
13. On or about August 5, 2002, Plaintiff wrote and sent
a third note to Deputy Superintendent Woods. 35 The note
stated, in pertinent part:
Please take notice that since you have neglected to answer
the above two (2) requests [i.e., dated July 16, 2002, and
July 21, 2002] to meet with me about a very serious matter
concerning a <DEAD> man's legal documents, in the future
if anything should come of a matter of said documents being
in my possession or the inmate's family should have any
questions of same and I answer those questions according to
law, you and the administration cannot take any action against
the inmate's family nor myself. 36
*7 14. On or about August 6, 2002, Defendant Woods sent
a memorandum to Plaintiff. 37 That memorandum stated, in
pertinent part:
Your August 5th letter ... makes reference to legal documents
belonging to deceased Inmate Alcivar.... I have directed Law
Library Officer Holt to speak to you and recover from you any
legal documents of deceased Inmate Alcivar.... In fact, you
should have turned over any such documents to Law Library
Officer Holt immediately. 38
15. On August 7, 2002, Plaintiff received Defendant Woods'
memorandum. 39
16. Meanwhile, on or about August 5, 2002, Defendant
Holt asked Plaintiff for Inmate Alcivar's legal documents. 40
Plaintiff denied having such documents. 41
17. As a result, at some point between August 5, 2002,
and August 31, 2002, Defendant Woods directed Defendant
Belarge to have Plaintiff's cell (or “cube”) searched and to
interview Plaintiff about his statements made in his August 5,
2002, note. 42
18. At some point on August 31, 2002 (apparently
between 8:30 a.m. and 11:00 a.m.), Defendant Belarge
had Plaintiff's cell (or “cube”) searched by Defendant
O'Donnell (and apparently Defendant Holt and two other
corrections officers). 43 At some point (apparently during this
search), Defendant O'Donnell discovered Inmate Alcivar's
legal documents (as well as various correspondence between
Plaintiff and Inmate Alcivar's two daughters). 44
19. At approximately 11:00 a.m. on August 31, 2002,
Defendants Belarge and O'Donnell interviewed Plaintiff
about his statements in his August 5, 2002, note to Defendant
Woods. 45 At approximately 2:50 p.m. on August 31,
2002, Defendant O'Donnell stored Inmate Alcivar's legal
documents (as well as various correspondence between
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Plaintiff and Inmate Alcivar's two daughters) in an evidence
locker at Greene C.F. 46
Plaintiff's Misbehavior Report,
Disciplinary Hearing, and Appeal
20. Relying on the documents discovered and the subsequent
interview conducted, Defendants Belarge and O'Donnell
issued Plaintiff a misbehavior report on August 31, 2002. 47
The misbehavior report charged Plaintiff with three offenses:
(1) providing legal assistance to Inmate Alcivar without
prior authorization in violation of Inmate Rule 180.17; (2)
exchanging legal materials with Inmate Alcivar without
authorization in violation of Inmate Rule 113.15; and (3)
soliciting materials from Inmate Alcivar's family members
without authorization in violation of Inmate Rule 103.20. 48
21. During the time period at issue (i.e., May through
August of 2002), Rule 180.17 of DOCS' Standards of
Inmate Behavior prohibited inmates from providing legal
assistance to other inmates without prior approval from the
Superintendent or his designee; 49 Rule 113.15 of DOCS'
Standards of Inmate Behavior prohibited inmates from
exchanging personal property (such as legal materials) with
other inmates without authorization; 50 and Rule 103.20 of
DOCS' Standards of Inmate Behavior prohibited inmates
from requesting or soliciting goods or services from any
person other than an immediate family member without the
consent or approval of the Superintendent or his designee. 51
*8 22. On September 6, 2002, Plaintiff received a
disciplinary hearing, conducted by Defendant Antonelli. 52
Defendant Antonelli found Plaintiff guilty of all three charges,
and imposed the following penalties: 90 days in S.H.U., 90
days loss of packages privileges, 90 days loss of commissary
privileges, 90 days loss of telephone privileges, and three
months loss of “good time” credits . 53 In reaching his finding
of guilt, Defendant Antonelli relied on (1) the assertions by
Defendants Belarge and O'Donnell in Plaintiff's misbehavior
report that Plaintiff had made certain admissions to them
during an interview, (2) Defendant Antonelli's belief that
Plaintiff had made certain admissions in his correspondence
to Inmate Alcivar's daughters, and (3) Defendant Antonelli's
understanding that certain legal materials belonging to Inmate
Alcivar had been found in Plaintiff's cell (or “cube”). 54
23. Also on September 6, 2002, Plaintiff appealed Defendant
Antonelli's disciplinary decision to Donald Seksky, Director
of DOCS' Special Housing/Inmate Disciplinary Program,
who affirmed that decision on October 28, 2002. 55 Plaintiff's
appeal did not complain about any lack or denial of witnesses
at his disciplinary hearing; similarly, Mr. Selky's appellate
decision did not address such a complaint. 56
24. On October 24, 2002, Greene C.F. officials conducted a
discretionary review of Plaintiff's SHU sentence. 57 Based
upon this review, Plaintiff's SHU time was reduced from 90
days to 75 days. 58 However, Plaintiff's good time loss was
unaffected by the discretionary review. 59
Meetings Between Defendants
Woods, Belarge and O'Donnell
25. At some point between August 5, 2002, and August
31, 2002, Defendant Woods met with Defendant Belarge
to discuss Plaintiff. 60 Defendant Belarge then met with
Defendant O'Donnell to discuss Plaintiff. 61
26. Both meetings (which were held prior to the issuance
of Plaintiff's misbehavior report on August 31, 2002) were
held according to standard procedure at Greene C.F. 62
Specifically, the purpose of the meetings was to discuss how
to investigate whether Plaintiff had violated prison rules. 63
Plaintiff's Bunk(s) in SHU
27. As a result of his disciplinary conviction, Plaintiff was
housed in Greene C.F.'s SHU from approximately September
6, 2002, to November 21, 2002. 64
28. At no point (either during or after the above-described
time period) did Plaintiff file any written grievances, or
submit any letters of complaint, about an alleged defect in any
of the bunk beds that he was assigned while in SHU. 65
29. On February 8, 2005, Defendant Belarge had photographs
taken of the bunk beds that Plaintiff was assigned while
he was in SHU; and on April 22, 2005, Defendant Belarge
had photographs taken of the other bunk beds that Plaintiff
suggests he may have been assigned. 66 Those photographs
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are made part of the record at Exhibit A to the February 10,
2005, Affidavit of Defendant Belarge, and at Exhibits A and
B to the April 29, 2005, Affidavit of Kenneth Scattergood. 67
Between September 6, 2002, and February 10, 2005, there
was no record of any repairs made to any of the bunk beds that
Plaintiff was assigned while in SHU; and between September
6, 2002, and April 22, 2005, there was no record of any repairs
made to any of the other bunk beds that Plaintiff suggests he
may have been assigned while in SHU. 68
III. ANALYSIS
A. Whether Plaintiff Has Failed to Establish (or Even
State) a First Amendment Retaliation Claim
*9 In their memorandum of law, Defendants argue that
Plaintiff has failed to establish (or even state) a First
Amendment retaliation claim against Defendant Antonelli
because (1) he fails to establish that he had been engaging in
speech or conduct that is protected by the First Amendment,
and (2) in any event, he fails to establish a causal link
between that protected activity and any adverse action against
him by Defendant Antonelli. (Dkt. No. 37, Part 25 at
15-16 [Defs.' Mem. of Law].) Liberally construed, Plaintiff's
response papers argue that (1) he had a constitutionally
protected liberty right to make an oral and written complaint
about Defendant Antontelli's management of the prison
mess hall, and (2) as a result of Plaintiff's complaints (and
an “encounter” between Plaintiff and Antonelli one week
before Plaintiff's disciplinary hearing), Defendant Antonelli
retaliated against Plaintiff during Plaintiff's disciplinary
hearing by, among other things, depriving Plaintiff of his
statutorily protected right to receive “good time” credits
(which would have accelerated Plaintiff's release on parole).
(Dkt. No. 42, Part 2 at 9 [Plf.'s Response].)
Claims of retaliation like those asserted by Plaintiff find their
roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d
379, 380-81 (2d Cir.2004). Central to such claims is the notion
that in a prison setting, corrections officials may not take
actions which would have a chilling effect upon an inmate's
exercise of First Amendment rights. See Gill, 389 F.3d at
381-383. Because of the relative ease with which claims of
retaliation can be incanted, however, courts have scrutinized
such retaliation claims with “skepticism and particular care.”
Colon v. Coughlin, 58 F.3d 865, 872 (2d. Cir.1995); see also
Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983). As the
Second Circuit has noted,
[t]his is true for several reasons. First,
claims of retaliation are difficult to
dispose of on the pleadings because
they involve questions of intent and
are therefore easily fabricated. Second,
prisoners' claims of retaliation pose a
substantial risk of unwarranted judicial
intrusion into matters of general prison
administration. This is so because
virtually any adverse action taken
against a prisoner by a prison official-
even those otherwise not rising to the
level of a constitutional violation-can
be characterized as a constitutionally
proscribed retaliatory act.
Dawes v. Walker, 239 F.3d 489, 491 (2d Cir.2001) (citations
omitted), overruled on other grounds, Swierkewicz v. Sorema
N.A., 534 U.S. 506 (2002).
To prevail on a First Amendment claim under 42 U.S.C.
§ 1983, a Plaintiff must prove by the preponderance of
the evidence that: (1) the speech or conduct at issue was
“protected”; (2) the defendants took “adverse action” against
the plaintiff-namely, action that would deter a similarly
situated individual of ordinary firmness from exercising his or
her constitutional rights; and (3) there was a causal connection
between the protected speech and the adverse action-in other
words, that the protected conduct was a “substantial or
motivating factor” in the defendants' decision to take action
against the plaintiff. Mount Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 287 (1977); Gill, 389 F.3d at 380
(citing Dawes v. Walker, 239 F.3d 489, 492 [2d. Cir.2001] ).
Under this analysis, adverse action taken for both proper and
improper reasons may be upheld if the action would have
been taken based on the proper reasons alone. Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).
*10 Here, Plaintiff's claim fails for several reasons. I
acknowledge that the First Amendment protects, not only
the filing of written grievances and complaints, but, under
some circumstances, the making of oral complaints to
corrections officers. 69 However, even assuming Plaintiff
had a constitutionally protected right to make both written
and oral complaints about Defendant Antonelli, no evidence
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exists establishing (or even suggesting) that any complaints
by Plaintiff against Defendant Antonelli impacted Defendant
Antonelli's disciplinary decision.
For example, no evidence exists that Plaintiff submitted any
grievances or complaints against Defendant Antonelli, only
that he submitted a letter to Deputy Superintendent Eldred
complaining about “Mess Hall Dishwashing Machines”
approximately three weeks before the disciplinary hearing. 70
Plaintiff's letter did not mention Defendant Antonelli. 71
In any event, no evidence exists indicating that Defendant
Antonelli knew about any grievances against him by Plaintiff
at the time of Plaintiff's disciplinary hearing. 72 Similarly, no
evidence exists that he ever confronted Defendant Antonelli
with an oral complaint about the mess hall-other than
Plaintiff's vague and uncorroborated assertions that he “met”
with, or had an “encounter” with, Defendant Antonelli about
the mess hall before the disciplinary hearing. 73 Finally, the
record evidence establishes that Defendant Antonelli could,
and indeed would, have reached the same disciplinary hearing
decision (and imposed the same penalties) despite any such
complaints or grievances by Plaintiff (i.e., based upon the
evidence as presented to him at Plaintiff's disciplinary hearing
decision). 74
As a result, I recommend that the Court dismiss Plaintiff's
First Amendment retaliation claim.
B. Whether Plaintiff Has Failed to State a Fourth
Amendment Claim
I do not construe Defendants' memorandum of law as
expressly arguing that any Fourth Amendment claim asserted
by Plaintiff should be dismissed for failure to state a claim
under Rule 12(b)(1) of the Federal Rules of Civil Procedure,
which permits motions to dismiss for “lack of jurisdiction
over the subject matter” of a claim. However, I do construe
that memorandum of law, as well as defense counsel's
questions of Plaintiff during his deposition, as suggesting
that Plaintiff has failed to assert a Fourth Amendment claim
(regarding the search of his property by Defendants at
Greene C.F.) over which federal courts have subject matter
jurisdiction. 75
Under Rule 12 of the Federal Rules of Civil Procedure,
“[w]henever it appears by suggestion of the parties or
otherwise that the court lacks jurisdiction of the subject
matter, the court shall dismiss the action.” Fed.R.Civ.P. 12(h)
(3). Thus, the Court has a duty to examine whether or not it has
subject matter jurisdiction over Plaintiff's attempted Fourth
Amendment claim.
Here, I find that the Court does not have subject matter
jurisdiction (pursuant to 42 U.S.C. § 1983 or otherwise)
over that claim, which is asserted in Paragraphs 44 and
15 of Plaintiff's Amended Complaint. 76 Specifically, the
allegations contained in Paragraph 15 of his Amended
Complaint are the sole factual basis for Plaintiff's Fourth
Amendment claim. 77 In pertinent part, that paragraph alleges
that on “August 31, 2002, 11:20 A.M., Belarge ... had
plaintiff's personal property searched [for Alcivar's materials]
by three officers, one of whom was Holt....” 78
*11 The problem with Plaintiff's Fourth Amendment claim
is that, even if the search occurred as Plaintiff alleged, that
search was of a prisoner's cell (or “cube”). “[T]he Fourth
Amendment proscription against unreasonable searches does
not apply within the confines of a prison cell.” Hudson v.
Palmer, 468 U.S. 517, 526 (1984). 79 Nor does the Fourth
Amendment proscription apply within the confines of a prison
“cube.” 80 Indeed, Plaintiff appears to recognize this point of
law. 81
I note that I do not liberally construe Plaintiff's Amended
Complaint as asserting a Fourth Amendment claim against
Defendant Woods for (allegedly) unreasonably searching and
seizing various pieces of Plaintiff's outgoing and incoming
mail in August of 2002. However, even if I did so construe
that Amended Complaint, I would conclude that this Court
would not have subject matter jurisdiction over that claim.
The only portion of Plaintiff's Amended Complaint that
regards such a search and seizure by Defendant Woods of
Plaintiff's mail is vague and conclusory. 82 Even taking as
true Plaintiff's allegations, the mail in question consisted
of clearly identifiable contraband (e.g., legal materials
belonging to Inmate Alcivar in packages to, or from, persons
bearing the last name of Alcivar). 83 I fail to see how
any search and confiscation of such contraband would have
violated the Fourth Amendment. Indeed, such a search and
confiscation would appear to have been expressly authorized
by DOCS Directive No. 4422 (which regards the Inmate
Correspondence Program). 84
As a result, I recommend that the Court dismiss Plaintiff's
Fourth Amendment claim.
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C. Whether Plaintiff Has Failed to Establish (or Even
State) an Eighth Amendment Claim
In their memorandum of law, Defendants argue that Plaintiff
has failed to establish (or even state) an Eighth Amendment
claim because (1) Plaintiff has not established (or even
alleged) a deprivation that is “sufficiently serious” for
purposes of the Eighth Amendment, and (2) he has not
established that Defendants were deliberately indifferent to
Plaintiff's health or safety. (Dkt. No. 37, Part 25 at 11,
13-14 [Defs.' Mem. of Law].) Liberally construed, Plaintiff's
response papers argue that (1) he has established a deprivation
that is “sufficiently serious” through his evidence that he
experienced a back injury while in SHU as a result of his
“twisted bunk,” and (2) he has established such deliberate
indifference through his testimony that he orally complained
to Defendants Woods and Belarge (as well as others) of his
back injury and the fact that they “ignored” his complaints.
(Dkt. No. 42, Part 2 at 13-15 [Plf.'s Response].)
“[A] prison official violates the Eighth Amendment only
when two requirements are met. First, the deprivation must
be, objectively, ‘sufficiently serious'.... [Second,] a prison
official must have a ‘sufficiently culpable state of mind.’ “
Farmer v. Brennan, 511 U.S. 825, 834 (1994). “In prison-
conditions cases that state of mind is one of deliberate
indifference to inmate health or safety....” Farmer, 511 U.S.
at 834.
*12 With regard to the first element, “the plaintiff must
demonstrate that the conditions of his confinement resulted
in ‘unquestioned and serious deprivations of basic human
needs' or ‘deprive inmates of the minimal civilized measures
of life's necessities.’ “ Davidson v. Murray, 371 F.Supp.2d
361, 370 (W .D.N.Y.2005) (citing Rhodes v. Chapman, 452
U.S. 337, 347 [1981] ). “As recognized by the Supreme Court
in Rhodes, ‘the Constitution does not mandate comfortable
prisons,’ ... and conditions that are ‘restrictive and even
harsh ... are part of the penalty that criminal offenders pay for
their offenses against society.’ “ Davidson, 371 F.Supp.2d at
370 (quoting Rhodes, 452 U.S. at 347, 349).
With regard to the second element, “[i]n prison-conditions
cases [the requisite] state of mind is one of deliberate
indifference to inmate health or safety....” Farmer, 511 U.S.
at 834. “[D]eliberate indifference describes a state of mind
more blameworthy than negligence.” Id. at 835. “Deliberate
indifference” exists if an official “knows of and disregards an
excessive risk to inmate health or safety; the official must both
be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also
draw the inference.” Id. at 837.
1. Sufficiently Serious Deprivation
Plaintiff alleges that he was diagnosed with
“spondylolisthesis” 85 in September of 2002 as a result of
sleeping on a defective bed. 86 As far as I can tell from
available reported decisions, all federal courts faced with
evidence of such an injury on a dispositive motion in a
prisoner civil rights case explicitly or implicitly assume,
for the sake of argument, that the injury constitutes a
serious medical need. 87 I do not make such an assumption
here because, unlike the prisoners in those other civil
rights cases, Plaintiff does not allege that his Eighth
Amendment deprivation consisted of his “spondylolisthesis”
but his defective (or “twisted”) bunk bed. In addition
to being supported by the express language of Plaintiff's
Amended Complaint, 88 this reading of Plaintiff's allegations
is supported by his testimony in his deposition that he is
not asserting a claim that the medical staff was deliberately
indifferent to any serious medical need. 89
This is apparently why Defendants, in their motions papers,
do not challenge Plaintiff's allegation that he suffered from
“spondylolisthesis,” but do challenge his allegation that he
was assigned a bunk bed that was in any way defective. 90
In support of that argument, Defendants submit evidence that
none of the bunk beds to which Plaintiff was assigned while
in SHU (1) showed any visible defects (much less the defect
that Plaintiff alleges, i.e., being “twisted”) at or after the time
in question, and (2) were either complained about by other
inmates or repaired at or after the time in question. 91
*13 More convincing, however, is the temporal disconnect
between the onset of Plaintiff's back injury and his assignment
to the allegedly defective bunk bed in question. Although
Defendants do not appear to argue that the onset of Plaintiff's
injury pre-dated his assignment to the allegedly defective
bunk bed, 92 there is evidence indicating that Plaintiff's
back injury existed before he was assigned to the allegedly
defective bunk bed (i.e., Bunk Number “OS-A1-20(b)”) on
September 23, 2002. 93 There is even evidence indicating that
Plaintiff's back injury existed before he was admitted to SHU
on September 6, 2002. 94
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Even if Plaintiff were alleging that his back injury existed
before September 6, 2002, but that his injury was exacerbated
by his various bunk beds while in SHU, I would reach the
same conclusion. As I described above, the first element
of the Eighth Amendment's two-part test is “objective,” not
“subjective.” Simply stated, the Eighth Amendment does
not mandate “comfortable” bunk beds. 95 For these reasons,
I find that Plaintiff has failed to establish a “sufficiently
serious” deprivation for purposes of the Eighth Amendment.
2. Deliberate Indifference
Even if Plaintiff had established a “sufficiently serious”
deprivation for purposes of the Eighth Amendment, I would
find that he has not established that Defendants acted with
deliberate indifference to Plaintiff's health or safety.
To the extent that Plaintiff alleges that any of the Defendants
“knew” that Plaintiff would be assigned to an allegedly
defective bunk (Bunk Number “OS-A1-20(b)” in Cell
“A1-20”) before Plaintiff began his incarceration in the
Greene C.F. SHU on September 6, 2002, I find that
those allegations are wholly conclusory and without any
evidentiary support whatsoever in the record. (Dkt. No. 5, ¶¶
3 5, 37, 39, 43 [Am. Compl.].)
However, Plaintiff also asserts (rather conclusorily) that
Defendants knew about the allegedly defective bunk after
Plaintiff was assigned to it. 96 More specifically, Plaintiff
submits testimony that (1) he orally complained to Defendant
Woods about the bunk in question on or about September 27,
2002, (2) Plaintiff orally complained to Defendant Belarge
about the bunk in question on September 18, 2002, and (3)
Plaintiff orally complained to other corrections officers about
the bunk in question at various other times. 97 Setting aside
the lack of any testimony (of which I am aware) that Plaintiff
ever orally complained to Defendants O'Donnell, Antontelli
or Holt, there is a fatal flaw with Plaintiff's reliance on this
evidence.
The problem is that, even if this evidence is true, there is
no evidence that Defendants or anyone “ignored” Plaintiff's
oral complaints. Indeed, the evidence shows that Plaintiff
was assigned to the allegedly defective bunk bed for only
about two weeks (between September 23, 2002, and October
7, 2002), and that he was then moved in response to his
oral complaints. 98 Any assertion by Plaintiff that Defendants
Woods and Belarge, upon hearing Plaintiff orally complain
about the bunk, told Plaintiff to “[t]ell the officer about it” or
“tell it to the officer on the unit” does not indicate deliberate
indifference by supervisors such as Defendants Woods or
Belarge, especially given that Plaintiff was subsequently then
purposely assigned to a different bunk. 99
*14 In addition, the evidence shows that no one at Greene
C.F. in any way interfered with the prompt and adequate
medical care provided to Plaintiff regarding his back. Plaintiff
acknowledges that his medical care at Greene C.F. included
the following: (1) a CAT scan on October 17, 2002, and
second CAT scan at some point between October 22, 2002,
and December 11, 2002, (2) physical therapy on October
24, November 5, November 8, and November 18, 2002; (3)
an MRI examination on January 10, 2003; and (4) being
provided “pain killers” on September 13, 2002, five packets
of Naproxen (500 mg. each) on December 11, 2002, and more
“pain killers” on or after January 10, 2003, along with a back
brace. 100
Finally, I note that the evidence shows that, on October
24, 2002, Greene C.F. officials shortened Plaintiff's stay in
SHU 15 days (reducing his sentence in SHU from 90 days
to 15 days). 101 Under the circumstances, I find that no
reasonable fact-finder could conclude, based on the record
before me, that Defendants acted with deliberate indifference
to Plaintiff's health or safety
As a result, I recommend that the Court dismiss Plaintiff's
Eighth Amendment claim.
D. Whether Plaintiff Has Failed to Exhaust His Available
Administrative Remedies Regarding His Eighth
Amendment Claim
In their memorandum of law, Defendants argue Plaintiff
has failed to established that he exhausted his available
administrative remedies regarding his Eighth Amendment
claim because he acknowledges that he did not file a written
administrative grievance with respect to the alleged condition
of his bunk bed. (Dkt. No. 37, Part 25 at 11-13 [Defs.' Mem. of
Law].) Liberally construed, Plaintiff's response papers argue
that (1) no administrative remedy was available because a
complaint about a defective bunk bed is not a grievable matter,
(2) even if a complaint about a bunk bed were a grievable
matter, he was misled by the Supervisor of the Inmate
Grievance Resolution Committee (“IGRC”) into believing
that the matter was not grievable, and (3) in any event,
although he did not file a written grievance regarding his
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bunk, he filed several oral complaints regarding the bunk
(i.e., to Defendant Woods, Defendant Belarge, the IGRC
Supervisor, and various other corrections officers and/or
sergeants). (Dkt. No. 42, Part 2 at 13-15 [Plf.'s Response].)
The Prison Litigation Reform Act of 1995 (“PLRA”) requires
that prisoners who bring suit in federal court must first
exhaust their available administrative remedies: “No action
shall be brought with respect to prison conditions under §
1983 ... by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e. The Department
of Correctional Services (“DOCS”) has available a well-
established three-step grievance program:
First, an inmate is to file a
complaint with the Grievance Clerk. An
inmate grievance resolution committee
(“IGRC”) representative has seven
working days to informally resolve
the issue. If there is no resolution,
then the full IGRC conducts a hearing
and documents the decision. Second,
a grievant may appeal the IGRC
decision to the superintendent, whose
decision is documented. Third, a grievant
may appeal to the central office
review committee (“CORC”), which
must render a decision within twenty
working days of receiving the appeal, and
this decision is documented.
*15 White v. The State of New York, 00-CV-3434, 2002
U.S. Dist. LEXIS 18791, at *6 (S.D.N.Y. Oct 3, 2002)
(citing N.Y. Comp.Codes R. & Regs. Tit. 7, § 701.7).
Generally, if a prisoner has failed to follow each of these steps
prior to commencing litigation, he has failed to exhaust his
administrative remedies. Rodriguez v. Hahn, 209 F.Supp.2d
344, 347-48 (S.D.N.Y.2002); Reyes v. Punzal, 206 F.Supp.2d
431, 433 (W.D.N.Y.2002).
However, the Second Circuit has recently held that a three-
part inquiry is appropriate where a defendant contends that
a prisoner has failed to exhaust his available administrative
remedies, as required by the PLRA. See Hemphill v. State
of New York, 380 F.3d 680, 686, 691 (2d Cir.2004). First,
“the court must ask whether [the] administrative remedies
[not pursued by the prisoner] were in fact ‘available’ to
the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted).
Second, if those remedies were available, “the court should ...
inquire as to whether [some or all of] the defendants may
have forfeited the affirmative defense of non-exhaustion by
failing to raise or preserve it ... or whether the defendants'
own actions inhibiting the [prisoner's] exhaustion of remedies
may estop one or more of the defendants from raising the
plaintiff's failure to exhaust as a defense.” Id. (citations
omitted). Third, if the remedies were available and some
of the defendants did not forfeit, and were not estopped
from raising, the non-exhaustion defense, “the Court should
consider whether ‘special circumstances' have been plausibly
alleged that justify the prisoner's failure to comply with the
administrative procedural requirements.” Id. (citations and
internal quotations omitted).
1. Availability of Administrative Remedies
Plaintiff admits (repeatedly) that he filed no written grievance
about his bunk bed. 102 He argues, however, that no written
grievance could have been filed, because a defective bunk bed
is not a grievable matter. In support of this argument, he offers
only conclusory assertions, testimony containing (at best)
inadmissible hearsay, and documents that are completely
immaterial to the fact in question. 103 Defendants, on the
other hand, offer the affidavit of IGRC Supervisor Marilyn
Berlin, who swears, inter alia, that “[c]omplaints about
maintenance issues and cell conditions [such as defective
bunk beds] are proper subjects of grievances.” (Dkt. No.
48, Part 6, ¶ 3 [Berlin Aff.].) As a result, I must reject
Plaintiff's unsupported assertion that a defective bunk bed is
not grievable.
This does not end the inquiry, however, because “a remedy
that prison officials prevent a prisoner from utilizing is not an
‘available’ remedy under [the Prison Litigation Reform Act].”
Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001), cited by
Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir.2004) (holding
that “[t]he defendants' failure to implement the multiple
rulings in [plaintiff's] favor rendered administrative relief
‘unavailable’ under the PLRA.”). More specifically, case law
exists supporting the proposition that, assuming plaintiff was
instructed by prison officials, contrary to prison regulations,
that he could not file a grievance, and plaintiff indeed did
not initiate the grievance process by filing that grievance
in reliance on that misrepresentation, “the formal grievance
proceeding required by [the prison grievance system] was
never ‘available’ to [plaintiff] within the meaning of [the
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PLRA].” See Brown v. Croak, 312 F.3d 109, 112-113 (3d
Cir.2002), cited by Giano v. Goord, 380 F.3d 670, 677 n. 6
(2d Cir.2004).
*16 Here, however, I can find absolutely no evidence in
the record before me that IGRC Supervisor Berlin (or any
prison official at Greene C.F.) at any time advised Plaintiff
that a defective bunk bed is not a grievable matter. Again, in
support of his argument that the IGRC made such a remark
to him, Plaintiff offers only vague testimony containing (at
best) inadmissible hearsay, and documents that are immaterial
to the fact in question. 104 Plaintiff's vague and conclusory
argument is made even more incredible in light of IGRC
Supervisor Berlin's sworn statement denying that Plaintiff
ever orally complained to her about his (allegedly) defective
bunk bed, or that she told him that the matter was not
grievable. 105
2. Estoppel
Defendants have preserved their affirmative defense of non-
exhaustion by raising it in their Answer. (Dkt. No. 17, ¶
29 [Defs.' Answer] ) Moreover, no evidence (or even an
argument) exists that any Defendant is estopped from raising
this defense because of his or her actions inhibiting Plaintiff's
exhaustion of remedies; Plaintiff merely argues that a non-
party to this action (the IGRC Supervisor) advised him that
his allegedly defective bunk bed was not a grievable matter.
3. “Special Circumstances” Justifying Failure to Exhaust
Finally, Plaintiff provides no evidence that “special
circumstances” exist justifying his failure to exhaust his
available administrative remedies. Plaintiff alleges that, on
several occasions during the relevant time period, he made
oral complaints about his allegedly defective bunk bed to
various employees of Greene C.F., including Defendants
Woods and Belarge. For the sake of argument, I will
set aside the vagueness of this allegation, its incredibility
given numerous other inconsistencies and improbabilities
in Plaintiff's papers, and its total lack of support by any
corroborating evidence. The problem with Plaintiff's reliance
on this allegation is that, even if it were true, it would not
justify Plaintiff's failure to file a written grievance about his
bunk bed.
Plaintiff was 51 years old at the time of this incident; he
had been incarcerated in several New York State correctional
facilities before the incident; and he had even attended a year
of law school. 106 He admits that, at the time of the incident,
he was familiar with the grievance process at Greene C.F. 107
Indeed, he had filed grievances immediately before and
during this very time period. 108 Simply stated, it would have
been unreasonable for Plaintiff to believe that he could fulfill
the grievance requirement-which included a requirement
that the IGRC's decision be appealed to the Greene C.F.
Superintendent and then to CORC before exhaustion had
occurred-by making some oral complaints to various passers
by, whomever they might be.
As a result of Plaintiff's failure to exhaust his available
administrative remedies, I recommend that his Eighth
Amendment claim be dismissed.
E. Whether Plaintiff Has Failed to Establish (or Even
State) a Fourteenth Amendment Due Process Claim
*17 In their memorandum of law, Defendants argue that
Plaintiff's due process claim (which is based on the manner
in which his disciplinary hearing was conducted, and which
sought damages only and not injunctive relief) is not
cognizable because a judgment in his favor would necessarily
imply the invalidity of his disciplinary conviction (which
resulted in a loss of good-time credits and thus affected
the overall length of Plaintiff's confinement) and Plaintiff
has not established that that conviction has been reversed,
expunged, or invalidated. (Dkt. No. 37, Part 25 at 10-11
[Defs.' Mem. of Law, citing, inter alia, Heck v. Humphrey,
512 U .S. 477 (1994) and Edwards v. Balisok, 520 U.S.
641 (1997) ].) Liberally construed, Plaintiff's response papers
argue (without any legal support) that, even though Plaintiff's
loss of his good-time credits had not been invalidated on
appeal, for Defendants to obtain summary judgment “they
must prove their innocence beyond a shadow of a reasonable
doubt,” which (he argues) they have not done. (Dkt. No. 42,
Part 2 at 10-13 [Plf.'s Response].)
I reject Plaintiff's argument, and specifically his proffered
legal standard on this motion for summary judgment.
Under the circumstances, Defendants have met their modest
threshold burden with regard to this issue. 109 To avoid
dismissal on summary judgment grounds, Plaintiff must
introduce evidence raising a question of fact as to (1) whether
or not his disciplinary conviction affected the overall length
of Plaintiff's confinement by resulting in a loss of good-
time credits or (2) whether or not his disciplinary conviction
has been reversed, expunged, or invalidated. 110 He has not
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done so. Indeed, the evidence shows (and Plaintiff concedes)
that (1) Plaintiff's disciplinary conviction affected the overall
length of Plaintiff's confinement by resulting in a loss of good-
time, and (2) his disciplinary conviction was not reversed,
expunged, or invalidated. 111
As a result, I recommend that Plaintiff's Fourteenth
Amendment due process claim be dismissed.
F. Whether Plaintiff Has Failed to Establish (or Even
State) a Claim for Conspiracy
In their memorandum of law, Defendants argue that Plaintiff
has failed to establish (or even state) a claim for conspiracy
because (1) such a claim falls not under 42 U.S.C. § 1983 but
42 U.S.C. § 1985, which applies specifically to conspiracies,
(2) to succeed on a conspiracy claim under 42 U.S.C. § 1985,
Plaintiff must allege and show “a meeting of the minds,” and
(3) Plaintiff has not alleged and shown such a meeting of
the minds but has offered mere speculative and conclusory
allegations of conspiracy, see, e.g., Dkt. No. 5, ¶¶ 21-22
(Am.Compl.). (Dkt. No. 37, Part 25 at 8-9 [Defs.' Mem. of
Law].) Liberally construed, Plaintiff's response argues that
the evidence does establish such a meeting of the minds
because (1) in their affidavits, Defendants Woods, Antonelli,
and Belarge all swear that they met to plan a strategy
regarding Plaintiff, and (2) that strategy clearly violated
DOCS' policies and procedures, which never involve a group
of high-ranking officials (such as a deputy superintendent,
captain, and sergeant) meeting to plan a strategy regarding an
inmate, but which involve merely letting a disciplinary charge
be filed and decided by a hearing officer. (Dkt. No. 42, Part
2 at 7-8 [Plf.'s Response].)
*18 I agree with Defendants largely for the reasons stated,
and based upon the cases cited, in their memorandum of
law. (Dkt. No. 37, Part 25 at 8-9 [Defs.' Mem. of Law].)
Plaintiff's attempted conspiracy claim, which is asserted
under 42 U.S.C. § 1983, should actually be asserted under
42 U.S.C. § 1985. See Webb v. Goord, 340 F.3d 105, 110
(2d. Cir.2003) (construing Section 1983 claim styled as
“Conspiracy to Violate Civil Rights” as Section 1985 claim).
To maintain an action under Section 1985, a plaintiff “must
provide some factual basis supporting a meeting of the minds,
such that defendants entered into an agreement, express or
tacit, to achieve the unlawful end.” Webb, 340 F.3d at 110
[internal quotation marks and citations omitted]. Where a
plaintiff does not provide such a factual basis, but only
conclusory, vague or general allegations, such a conspiracy
claim fails. Id. (dismissing conclusory allegation “that any
such meeting of the minds occurred among any or all of
the defendants”); Boddie v. Schneider, 105 F.3d 857, 862
(2d. Cir.1997) (dismissal of “conclusory, vague or general
allegations of conspiracy to deprive a person of constitutional
rights” is proper).
Here, Plaintiff's conspiracy claim is conclusory, vague and
general. It is uncontroverted that, at some point between
August 5, 2002, and August 31, 2002, a meeting took
place between Defendant Woods and Defendant Belarge,
and a meeting took place between Defendant Belarge and
Defendant O'Donnell, and that the purpose of both meetings
was to discuss Plaintiff. (See, supra, Statement of Fact Nos.
25-26.) The issue is whether the purpose of that meeting was
“to achieve an unlawful end” or to simply investigate whether
Plaintiff had violated prison rules.
Defendants offer evidence that the purpose of the meeting
was to lawfully investigate Plaintiff, and Plaintiff has offered
no evidence to the contrary. Plaintiff merely argues that
DOCS' policies and procedures would never involve a group
of high-ranking officials (such as a deputy superintendent,
captain, and sergeant) meeting to discuss a Plaintiff. Even if
Plaintiff had made this assertion in an affidavit or declaration
rather than in a memorandum of law, I would have difficulty
imagining how Plaintiff (despite his legal training and
considerable experience as an inmate) could possibly have
personal knowledge of such a fact. Furthermore, as a matter
of common sense, it seems to me that where (as here) an
inmate has made a mysterious representation to a deputy
superintendent implying that he has possession of a deceased
inmate's legal materials, it would be entirely conceivable
(and appropriate) for the deputy superintendent to initiate an
investigation of the matter, which investigation would involve
lawful meetings with subordinates.
In any event, I need not base my recommendation on
Plaintiff's lack of personal knowledge or on my common
sense: the fact is that Plaintiff has adduced absolutely no
evidence in support of his vague and conclusory allegation
that Defendants Woods, Belarge and O'Donnell entered into
an agreement to achieve an unlawful end. As a result,
I recommend that the Court dismiss Plaintiff's conspiracy
claim.
G. Whether Defendants Are Protected by Qualified
Immunity
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*19 In their memorandum of law, Defendants argue that they
are entitled to qualified immunity because they could not have
reasonably known that their conduct was in violation of a
clearly established statutory or constitutional right. (Dkt. No.
37, Part 25 at 17 [Defs.' Mem. of Law].) Liberally construed,
Plaintiff's response argues (without citing any evidence) that,
under the circumstances, any reasonable person would have
reasonably known their conduct was violating Plaintiff's
clearly established constitutional rights. (Dkt. No. 42, Part 2
at 15-17 [Plf.'s Response].)
Again, I must reject Plaintiff's conclusory argument.
“Once qualified immunity is pleaded, plaintiff's complaint
will be dismissed unless defendant's alleged conduct,
when committed, violated ‘clearly established statutory or
constitutional rights of which a reasonable person would have
known.’ “ Williams, 781 F .2d at 322 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 815 [1982] ). Regarding the issue
of whether a particular right was clearly established, courts
in this circuit consider three factors:
(1) whether the right in question was
defined with ‘reasonable specificity’;
(2) whether the decisional law of the
Supreme Court and the applicable circuit
court support the existence of the right
in question; and (3) whether under
preexisting law a reasonable defendant
official would have understood that his or
her acts were unlawful.
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir.1991) (citations
omitted), cert. denied, 503 U.S. 962 (1992). 112 Regarding the
issue of whether a reasonable person would have known he
was violating such a clearly established right, this “objective
reasonableness” 113 test is met if “officers of reasonable
competence could disagree on [the legality of defendant's
actions].” Malley v. Briggs, 475 U.S. 335, 341 (1986); see
also Malsh v. Correctional Officer Austin, 901 F.Supp. 757,
764 (S.D.N.Y.1995) (citing cases); Ramirez v. Holmes, 921
F.Supp. 204, 211 (S.D.N.Y.1996). As the Supreme Court
explained,
[T]he qualified immunity defense ... provides ample
protection to all but the plainly incompetent or those who
knowingly violate the law.... Defendants will not be immune
if, on an objective basis, it is obvious that no reasonably
competent officer would have concluded that a warrant should
issue; but if officers of reasonable competence could disagree
on this issue, immunity should be recognized.
Malley, 475 U.S. at 341. Furthermore, courts in the
Second Circuit recognize that “the use of an ‘objective
reasonableness' standard permits qualified immunity claims
to be decided as a matter of law.” Malsh, 901 F.Supp. at 764
(citing Cartier v. Lussier, 955 F.2d 841, 844 [2d Cir.1992]
[citing Supreme Court cases] ).
Here, based on my liberal construction of all of Plaintiff's
motion papers and response papers, I will assume, for the
sake of argument, that Plaintiff is claiming he had, among
others, the following rights: (1) a right to have Defendant Holt
take control of Inmate Alcivar's legal materials when Plaintiff
offered those materials to Defendant Holt, and to later
acknowledge his failure to take control of those materials;
(2) a right to have Defendant Woods personally visit Plaintiff
in his “cube,” and not launch a disciplinary investigation
against him, following Plaintiff's notes to Defendant Woods;
(3) a right to have Defendants Belarge and O'Donnell
not open or read Plaintiff's correspondence to and from
Inmate Alcivar's two daughters, following Plaintiff's notes to
Defendant Woods; (4) a right to have Defendant Antonelli
recuse himself based on the (alleged) fact that Plaintiff
and Defendant Antonelli, one week before the disciplinary
hearing, had had an “encounter” regarding the conditions of
the equipment in the prison mess hall; and (5) a right to be
either transferred to a new cell in SHU, or provided with
a new bunk bed in SHU, immediately upon making an oral
complaint about his bunk bed to Defendants Woods, Belarge,
O'Donnell, Antonelli and/or Holt (or upon the observations of
that bunk bed by those Defendants).
*20 As an initial matter, it is unclear to me that any of
these rights were “clearly established” in the summer and fall
of 2002 (or are clearly established now). In any event, even
if these rights were clearly established, it appears entirely
reasonable to me for Defendants to have concluded that their
treatment of Plaintiff did not violate these rights (or any
rights). Simply stated, I can find no evidence in the record that
Defendants Holt, Woods, Belarge, O'Donnell or Antonelli
did anything wrong. At the very least, officers of reasonable
competence could have disagreed as to the lawfulness of
Defendants' actions..
As a result, even if the Court does not dismiss all of
Plaintiff's claims for the reasons stated earlier in this Report-
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Recommendation, I recommend that the Court dismiss all of
Plaintiff's claims based on qualified immunity.
H. Plaintiff's Motion for Partial Summary Judgment
Based on the above reasons, I find that Plaintiff's motion for
partial summary judgment-which (at best) contains arguments
regarding the issues discussed above-is without merit. I reach
this conclusion for the independent reason that Plaintiff's
Rule 7.1 Statement of Material Facts (Dkt. No. 38, Part 2)
generally does not contain any citations to the record; and, to
the extent that Rule 7.1 Statement does contain citations to
the record, the record generally does not actually support the
facts asserted. See N.D .N.Y. L.R. 7.1(a)(3) ( “Failure of the
moving party to submit an accurate and complete Statement
of Material Facts shall result in a denial of the motion.”)
[emphasis in original].
As a result, I recommend the denial of Plaintiff's motion for
partial summary judgment.
ACCORDINGLY, it is
RECOMMENDED that Defendants' motion for summary
judgment (Dkt. No. 37) be GRANTED; and it is further
RECOMMENDED that Plaintiff's motion for partial
summary judgment (Dkt. No. 38) be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have ten 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 TEN 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
Svcs., 892 F.2d 15 [2d Cir.1989] ); 28 U.S.C. § 636(b);
Fed.R.Civ.P. 6(a), 6(e), 72.
All Citations
Not Reported in F.Supp.2d, 2006 WL 1133247
Footnotes
1 Given my duty to liberally construe a pro se plaintiff's civil rights complaint, I construe Plaintiff's Amended
Complaint as including a claim that various Defendants violated Plaintiff's rights under the Fourth Amendment
to be free from unreasonable searches and seizures. See Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir.2005)
(“We leave it for the district court to determine what other claims, if any, [the plaintiff] has raised. In so doing,
the court's imagination should be limited only by [the plaintiff's] factual allegations, not by the legal claims
set out in his pleadings.”) [citations omitted]. (See also Dkt. No. 5, ¶ 44 [Plf.'s Am. Compl., alleging that
Defendants Woods and Holt “violat[ed] plaintiff's 4th ... Amendment[ ] rights”], ¶ 15 [alleging that Defendant
Belarge “had plaintiff's personal property searched by three officers, one of whom was Holt”]; Dkt. No. 37,
Part 23, Ex. A at 26-28 [Munkowitz Decl., attaching transcript of deposition of Plaintiff, in which he explains
his claim under the Fourth Amendment based on the alleged unjustified search and seizure of his property].)
2 A fact is “material” only if it would have some effect on the outcome of the suit. Anderson v. Liberty Lobby,
477 U.S. 242, 248 (1986).
3 See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004) (citations omitted).
4 See Local Rule 7.1(a)(3) (“Any facts set forth in the Statement of Material Facts shall be deemed admitted
unless specifically controverted by the opposing party.”).
5 Local Rule 7.1(a)(3); see, e.g., Jones v. Smithkline Beecham Corp., 309 F.Supp.2d 343, 346 (N.D.N.Y.2004)
(McAvoy, J.) (“[W]here Plaintiff has failed to provide specific references to the record in support of her denials
or has otherwise failed to completely deny Defendant's assertions of fact, those assertions will be taken as
true.”); Lee v. Alfonso, 97-CV-1741, 2004 U.S. Dist. LEXIS 20746, at *15 (N.D.N.Y. Feb. 10, 2004) (Scullin,
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C.J.) (“Plaintiff does not offer any facts to support his claims that would raise an issue of fact. Nor has he
overcome his failure to respond to Defendants' Rule 7.1(a)(3) Statement. Therefore, Defendants' version
of the facts remains uncontroverted.”); Margan v. Niles, 250 F.Supp.2d 63, 67 (N.D.N.Y.2003) (Hurd, J.)
(“Plaintiff's Rule 7.1(a)(3) statement, which contains numerous denials, does not contain a single citation to
the record. Because plaintiff's response Rule 7.1(a)(3) statement does not comply with the local rules, it has
not been considered.”); Mehlenbacher v. Slafrad, 99-CV-2127, 2003 U.S. Dist. LEXIS 9248, at *4 (N.D.N.Y.
June 4, 2003) (Sharpe, M.J.) (“Since [the plaintiff] has failed to respond to the defendant's statements of
material fact, the facts as set forth in the defendants' Rule 7.1 Statement ... are accepted as true.”); Adams v.
N.Y. State Thruway Auth., 97-CV-1909, 2001 U.S. Dist. LEXIS 3206, at *2, n. 1 (N.D.N.Y. March 22, 2001)
(Mordue, J.) (“[T]o the extent plaintiff's responses violate Local Rule 7. 1, and are not properly admitted or
denied, the Court will deem defendant's statement of fact admitted by plaintiff.”); see also Holtz v. Rockefeller,
258 F.3d 62, 74 (2d Cir.2001) (“[A] Local Rule 56.1 statement is not itself a vehicle for making factual
assertions that are otherwise unsupported in the record.”).
6 See Patterson v. County of Oneida, 375 F.2d 206, 219 (2d. Cir.2004) (“[A] verified pleading ... has the effect of
an affidavit and may be relied upon to oppose summary judgment.”); Fitzgerald v. Henderson, 251 F.3d 345,
361 (2d Cir.2001) (holding that plaintiff “was entitled to rely on [his verified amended complaint] in opposing
summary judgment”), cert. denied, 536 U.S. 922 (2002); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1993)
(“A verified complaint is to be treated as an affidavit for summary judgment purposes.”) [citations omitted];
Fed.R.Civ.P. 56(c) (“The judgment sought shall be rendered forthwith if the ... affidavits ... show that there
is no genuine issue as to any material fact....”).
7 Fed.R.Civ.P. 56(e) (“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth
such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to
the matters stated therein.”); see also U.S. v. Private Sanitation Indus. Ass'n of Nassau/Suffolk, Inc., 44 F.3d
1082, 1084 (2d Cir.1995) [citations omitted], cert. denied sub nom, Ferrante v. U.S., 516 U.S. 806 (1995).
8 See Patterson, 375 F.3d at 219 (“[Rule 56(e)'s] requirement that affidavits be made on personal knowledge
is not satisfied by assertions made ‘on information and belief.’... [Furthermore, the Rule's] requirement that
the affiant have personal knowledge and be competent to testify to the matters asserted in the affidavits
also means that the affidavit's hearsay assertion that would not be admissible at trial if testified to by the
affiant is insufficient to create a genuine issue for trial.”); Sellers v. M .C. Floor Crafters, Inc., 842 F.2d 639,
643 (2d Cir.1988) (“[Defendant's] affidavit states that it is based on personal knowledge or upon information
and belief.... Because there is no way to ascertain which portions of [Defendant's] affidavit were based on
personal knowledge, as opposed to information and belief, the affidavit is insufficient under Rule 56 to support
the motion for summary judgment.”); Applegate v. Top Assoc., Inc., 425 F.2d 92, 97 (2d Cir.1970) (rejecting
affidavit made on “suspicion ... rumor and hearsay”); Spence v. Maryland Cas. Co., 803 F.Supp. 649, 664
(W.D.N.Y.1992) (rejecting affidavit made on “secondhand information and hearsay”), aff'd, 995 F.2d 1147
(2d Cir.1993).
9 See Fed.R.Civ.P. 56(e) (requiring that non-movant “set forth specific facts showing that there is a genuine
issue for trial”); Patterson, 375 F.3d at 219 (2d. Cir.2004) (“Nor is a genuine issue created merely by the
presentation of assertions [in an affidavit] that are conclusory.”) [citations omitted]; Applegate, 425 F.2d at
97 (stating that the purpose of Rule 56[e] is to “prevent the exchange of affidavits on a motion for summary
judgment from degenerating into mere elaboration of conclusory pleadings”).
10 See, e.g., Bickerstaff v. Vassar Oil, 196 F.3d 435, 452 (2d Cir.1998) (McAvoy, C.J., sitting by designation)
(“Statements [for example, those made in affidavits, deposition testimony or trial testimony] that are devoid of
any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary
judgment.”) [citations omitted]; West-Fair Elec. Contractors v. Aetna Cas. & Sur., 78 F.3d 61, 63 (2d Cir.1996)
(rejecting affidavit's conclusory statements that, in essence, asserted merely that there was a dispute between
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the parties over the amount owed to the plaintiff under a contract); Meiri v. Dacon, 759 F.2d 989, 997 (2d
Cir.1985) (plaintiff's allegation that she “heard disparaging remarks about Jews, but, of course, don't ask me
to pinpoint people, times or places.... It's all around us” was conclusory and thus insufficient to satisfy the
requirements of Rule 56[e] ), cert. denied, 474 U.S. 829 (1985); Applegate, 425 F.2d at 97 (“[Plaintiff] has
provided the court [through his affidavit] with the characters and plot line for a novel of intrigue rather than
the concrete particulars which would entitle him to a trial.”).
11 See, e.g., Jeffreys v. City of New York, 426 F.3d 549, 554-555 (2d Cir.2005) (affirming grant of summary
judgment to defendants in part because plaintiff's testimony about an alleged assault by police officers
was “largely unsubstantiated by any other direct evidence” and was “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”) [citations and internal quotations omitted]; Argus, Inc. v. Eastman Kodak
Co., 801 F.2d 38, 45 (2d Cir.1986) (affirming grant of summary judgment to defendants in part because
plaintiffs' deposition testimony regarding an alleged defect in a camera product line was, although specific,
“unsupported by documentary or other concrete evidence” and thus “simply not enough to create a genuine
issue of fact in light of the evidence to the contrary”); Allah v. Greiner, 03-CV-3789, 2006 WL 357824, at
*3-4 & n. 7, 14, 16, 21 (S.D.N.Y. Feb. 15, 2006) (prisoner's verified complaint, which recounted specific
statements by defendants that they were violating his rights, was conclusory and discredited by the evidence,
and therefore insufficient to create issue of fact with regard to all but one of prisoner's claims, although
verified complaint was sufficient to create issue of fact with regard to prisoner's claim of retaliation against
one defendant because retaliatory act occurred on same day as plaintiff's grievance against that defendant,
whose testimony was internally inconsistent and in conflict with other evidence); Olle v. Columbia Univ.,
332 F.Supp.2d 599, 612 (S.D.N.Y.2004) (plaintiff's deposition testimony was insufficient evidence to oppose
defendants' motion for summary judgment where that testimony recounted specific allegedly sexist remarks
that “were either unsupported by admissible evidence or benign”), aff'd, 136 Fed. Appx. 383 (2d Cir.2005)
(unreported decision).
12 (Dkt. No. 42, Part 1, ¶ 7 [Plf.'s Response to Woods Aff.].)
13 (See, e.g., Dkt. No. 37, Part 22, Ex. A at 31 [Munkowitz Decl., attaching transcript of Plaintiff's deposition,
in which he testifies that, when Defendant Holt failed to take “control” of Inmate Alcivar's legal documents,
Defendant Holt left Plaintiff “stuck with them as well as the other two inmates”], 31-32 [admitting that he
did not return the documents to the law clerk's work station in the law library out of a fear that the document
may fall into another inmate's hands], 32 [admitting that he took the documents to “honor” Inmate Alcivar's
“wishes”], 33 [admitting that he took the documents after Inmate Alcivar's death based on his belief that “they
were not supposed to be in the law library after the inmate was deceased”]; Dkt. No. 37, Part 18, Ex. B at
6-9 [Antonelli Aff., attaching letter dated 7/4/02 from Plaintiff, in which he states, “There is [sic] two inmates
that Peter trusted with his papers and other legal documents, that is one inmate that housed [sic] in the same
dorm as him and myself.... Peter told me that you have copies of all his papers, those of which are the same
as the papers I have here”]; Dkt. No. 37, Part 18, Ex. B at 10-12, 14 [Antonelli Aff., attaching 7/16/02 letter
from Plaintiff, in which he states, “I am going to hold a copy of the complaint” in Inmate Alcivar's federal
civil rights action]; Dkt. No. 37, Part 7 [Ex. C to Woods Aff., attaching Plaintiff's 8/5/02 letter, in which he
states, “in the future if anything should come of a matter of said documents being in my possession ... you
and the administration cannot take any action against the inmate's family nor myself”] [emphasis added].)
14 (Dkt. No. 42, Part 1, ¶ 5.B. [Plf.'s Response to Antonelli Aff.].)
15 (Dkt. No. 37, Part 18 at 6-8, 10-12 [Ex. B to Antonelli Aff., attaching contraband allegedly found in Plaintiff's
“cube”].)
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16 (Dkt. No. 5, ¶ 12 [Am. Compl.].)
17 (Dkt. No. 37, Part 2, ¶ 2 [Defs.' Rule 7.1 Statement]; Dkt. No. 42, Part 1, ¶ 2 [Plf.'s Rule 7.1 Response]; Dkt.
No. 5, ¶ 4 [Am. Compl].)
18 (Dkt. No. 37, Part 2, ¶¶ 4-8 [Defs.' Rule 7.1 Statement]; Dkt. No. 42, Part 1, ¶¶ 4-8 [Plf.'s Rule 7.1 Response];
Dkt. No. 5, ¶ ¶ 3, 3(a), 3(b), 3(c) [Am. Compl.].)
19 (Dkt. No. 42, Part 1, ¶ 12 [Plf.'s Rule 7.1 Response]; Dkt. No. 5, “Facts of the Incident,” ¶¶ 1-3 [Am. Compl.];
Dkt. No. 37, Part 18, Ex. B at 18-37 [Antonelli Aff., attaching pleading and motion from lawsuit].)
20 (Dkt. No. 37, Part 2, ¶ 12 [Defs.' Rule 7.1 Statement]; Dkt. No. 42, Part 1, ¶ 12 [Plf.'s Rule 7.1 Response,
admitting that, on one occasion, Plaintiff answered a question posed by Inmate Alcivar regarding an affidavit,
which question and answer were communicated with the help of Inmate Law Clerk George Robles]; Dkt. No.
5, “Facts of the Incident,” ¶ 2 [Am. Compl.]; Dkt. No. 37, Part 18 [Ex. B. to Antonelli Aff.].)
21 (Dkt. No. 37, Part 2, ¶ 13 [Defs.' Rule 7.1 Statement]; Dkt. No. 42, Part 1, ¶ 13 [Plf.'s Rule 7.1 Response].)
22 (Dkt. No. 1, “Facts of the Incident,” ¶ 1 [Am. Compl.]; Dkt. No. 42, Part 1, ¶ 6 [Plf.'s Response to Antonelli
Aff., asserting that Inmate Alcivar was “admitted to Albany Medical Center Hospital three days after Robles
asked plaintiff the question [about] an affidavit and its contents”].)
23 (Dkt. No. 37, Part 18, Ex. B at 6-9 [Antonelli Aff., attaching letter dated 7/4/02 from Plaintiff to Raida and Raisa
Alcivar, and letter dated 6/24/02]; Dkt. No. 37, Part 23, Ex. A at 79-80 [Munkwitz Dec., attaching transcript of
Plaintiff's deposition, in which Plaintiff admits having written and sent the letter dated 7/4/02].)
24 (Dkt. No. 37, Part 18, Ex. B at 6-9 [Antonelli Aff., attaching letter dated 7/4/02 from Plaintiff to Raida and
Raisa Alcivar, and letter dated 6/24/02].)
25 (Dkt. No. 37, Part 2, ¶ 11 [Defs.' Rule 7.1 Statement]; Dkt. No. 42, Part 1, ¶ 11 [Plf.'s Rule 7.1 Response];
Dkt. No. 5, “Facts of the Incident,” ¶ 3 [Am. Compl.].)
26 (Dkt. No. 37, Part 2, ¶ 18 [Defs.' Rule 7.1 Statement, asserting that Plaintiff wrote and sent the letter and
memorandum]; Dkt. No. 42, Part 1, ¶ 18 [Plf.'s Rule 7.1 Response, not specifically denying that Plaintiff
wrote and sent the letter and memorandum]; Dkt. No. 37, Part 16, ¶ 9 [Antonelli Aff.]; Dkt. No. 37, Part 18,
Ex. B at 10-12, 14 [Antonelli Aff., attaching 7/16/02 letter, the last page of which refers to an attached “To/
From” memorandum]; Dkt. No. 37, Part 23, Ex. A at 81-82 [Munkwitz Decl., attaching transcript of Plaintiff's
deposition, in which he admitted writing and sending the letter and memorandum].)
27 (Dkt. No. 37, Part 18, Ex. B at 10 [Antonelli Aff., attaching 7/16/02 letter].)
28 (Dkt. No. 37, Part 18, Ex. B at 10-12, 14 [Antonelli Aff., attaching 7/16/02 letter, the last page of which refers
to an attached “To/From” memorandum].)
29 (Dkt. No. 37, Part 16, ¶ 9 [Antonelli Aff.]; Dkt. No. 37, Part 18, Ex. B at 13 [Antonelli Aff., attaching 8/8/02
letter]; Dkt. No. 37, Part 23, Ex. A at 81-82 [Munkwitz Decl., attaching transcript of Plaintiff's deposition, in
which he admitted writing and sending the letter].)
30 (Dkt. No. 37, Part 3, ¶ 3 [Woods Aff.]; Dkt. No. 37, Part 4, Ex A [Woods Aff.]; Dkt. No. 37, Part 2, ¶ 20 [Defs.'
Rule 7.1 Statement, asserting fact]; Dkt. No. 42, Part 1, ¶ 20 [Plf.'s Rule 7.1 Response, admitting fact].)
31 (Dkt. No. 37, Part 4, Ex A [Woods Aff.].)
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32 (Dkt. No. 37, Part 3, ¶ 3 [Woods Aff.]; Dkt. No. 37, Part 5 [Ex. B to Woods Aff.]; Dkt. No. 37, Part 2, ¶ 20 [Defs.'
Rule 7.1 Statement, asserting fact]; Dkt. No. 42, Part 1, ¶ 20 [Plf.'s Rule 7.1 Response, admitting fact].)
33 (Dkt. No. 37, Part 5 [Ex. B to Woods Aff.].)
34 (Dkt. No. 37, Part 3, ¶¶ 4-5 [Woods Aff.]; Dkt. No. 37, Part 2, ¶ 21 [Defs.' Rule 7.1 Statement, asserting fact];
Dkt. No. 42, Part 1, ¶ 21 [Plf.'s Rule 7.1 Response, not specifically controverting either that Defendant Woods
did not receive the notes until after July 23, 2003, or that Defendant Woods believed the notes to be “crypic”];
Dkt. No. 37, Part 8, Ex. D [Woods Aff., attaching Defendant Woods' 8/6/02 memorandum to Plaintiff stating
that Plaintiff's two notes were “brief and very vague” and lacked “specifics”].)
35 (Dkt. No. 37, Part 3, ¶ 6 [Woods Aff.]; Dkt. No. 37, Part 7, Ex. C [Woods Aff., attaching note]; Dkt. No. 37,
Part 2, ¶ 22 [Defs.' Rule 7.1 Statement, asserting that Plaintiff wrote and sent note]; Dkt. No. 42, Part 1, ¶ 22
[Plf.'s Rule 7.1 Response, not specifically controverting that Plaintiff wrote and sent note].)
36 (Dkt. No. 37, Part 7 [Ex. C to Woods Aff.].)
37 (Dkt. No. 37, Part 3, ¶ 6 [Woods Aff., asserting that he sent this memorandum]; Dkt. No. 42, Part 1, ¶ 6 [Plf.'s
Response to Woods Aff., admitting that Defendant Woods sent Plaintiff this memorandum]; Dkt. No. 37, Part
8, Ex. D [Woods Aff., attaching the memorandum].)
38 (Dkt. No. 37, Part 7, Ex. D [Woods Aff., attaching the 8/6/02 memorandum].)
39 (Dkt. No. 5, “Facts of the Incident,” ¶ 11 [Plf.'s Am. Compl.].)
40 (Dkt. No. 37, Part 2, ¶ 24 [Defs.' Rule 7.1 Statement, asserting fact]; Dkt. No. 42, Part 1, ¶ 24 [Plf.'s Rule
7.1 Response, not specifically controverting fact]; Dkt. No. 37, Part 29, ¶ 7 [Holt Aff.]; Dkt. No. 5, “Facts of
the Incident,” ¶ 10 [Plf.'s Am. Compl.].)
41 (Dkt. No. 37, Part 2, ¶ 24 [Defs.' Rule 7.1 Statement, asserting fact]; Dkt. No. 42, Part 1, ¶ 24 [Plf.'s Rule
7.1 Response, not specifically controverting that Plaintiff denied to Defendant Holt having Inmate Alcivar's
legal documents, only citing to Paragraph 12 of Plaintiff's Rule 7.1 Response, which is not material to the
asserted fact]; Dkt. No. 37, Part 29, ¶ 7 [Holt Aff.].)
42 (Dkt. No. 37, Part 3, ¶¶ 8, 9 [Woods Aff.]; Dkt. No. 37, Part 8, ¶ 3 [Belarge Aff.]; Dkt. No. 37, Part 2, ¶ 25
[Defs.' Rule 7.1 Statement, asserting that Defendant Woods directed Defendant Belarge to have Plaintiff's
cell searched]; Dkt. No. 42, Part 1, ¶ 24 [Plf.'s Rule 7.1 Response, admitting that Defendant Woods directed
Defendant Belarge to have Plaintiff's “cube” searched].)
43 (Dkt. No. 37, Part 8, ¶ 4 [Belarge Aff.]; Dkt. No. 37, Part 2, ¶¶ 25-26 [Defs.' Rule 7.1 Statement]; Dkt. No. 42,
Part 1, ¶¶ 25-26 [Plf.'s Rule 7.1 Response]; Dkt. No. 37, Part 17, Ex. A [Antonelli Aff., attaching misbehavior
report which suggests that Defendants Belarge and O'Donnell had in their possession Inmate Alcivar's legal
documents as well as various correspondence between Plaintiff and Inmate Alcivar's two daughters, before
those Defendants interviewed Plaintiff at 11:00 a.m. on August 31, 2002]; Dkt. No. 5, “Facts of the Incident,”
¶¶ 13-14 [Plf.'s Am. Compl., stating that Defendant Belarge had in his possession a letter that Plaintiff had
written to Raisa Alcivar by the time he interviewed Plaintiff at 10:57 a.m. on August 31, 2002].)
44 (Dkt. No. 37, Part 2, ¶ 26 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 26 [Plf.'s Rule
7.1 Response, not citing any admissible evidence in support of his denial of this fact]; Dkt. No. 37, Part 8,
¶ 4 [Belarge Aff.]; Dkt. No. 37, Part 3, ¶ 10 [Woods Aff.]; Dkt. No. 37, Part 16, ¶ 5 [Antonelli Aff.]; Dkt. No.
37, Part 18, Ex. B [Antonelli Aff., attaching documents discovered in Plaintiff's cell, and “Chain of Custody”
Record indicating that Defendant O'Donnell was the one who found the documents]; Dkt. No. 38, Part 4 at
90 [exhibit to Plaintiff's motion for summary judgment, attaching Contraband Receipt issued by Defendant
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O'Donnell]; Dkt. No. 37, Part 22, Ex. A at 31-33 [Munkowitz Decl., attaching transcript of Plaintiff's deposition,
in which he admits numerous times that, after Defendant Holt failed to take “control” of Inmate Alcivar's legal
documents, Plaintiff, along with two other inmates, retained possession of those documents, out of a fear
that those documents would be stolen by another inmate, and out of a sense of duty to Inmate Alcivar]; Dkt.
No. 37, Part 18, Ex. B at 10-12, 14 [Antonelli Aff., attaching 7/16/02 letter from Plaintiff, in which he states,
“I am going to hold a copy of the complaint” in Inmate Alcivar's federal civil rights action]; Dkt. No. 37, Part
7 [Ex. C to Woods Aff., attaching Plaintiff's 8/5/02 letter, in which he states, “in the future if anything should
come of a matter of said documents being in my possession ... you and the administration cannot take any
action against the inmate's family nor myself”]; see also Dkt. No. 37, Part 19, ¶ 3 [Holden Aff., testifying that
at some point in the summer of 2002 Plaintiff told Holden that he was helping an inmate who had been taken
to the hospital due to an illness]; Dkt. No. 45, Part 6, ¶¶ 4-5 [Belarge Reply Aff., swearing that evidence in
question did not come from any interception of Plaintiff's mail, but from Plaintiff's personal belongings].)
45 (Dkt. No. 37, Part 2, ¶ 28 [Defs.' Rule 7.1 Statement, asserting that interview took place]; Dkt. No. 42, Part 1,
¶ 28 [Plf.'s Rule 7.1 Response, admitting that interview took place despite his blanket statement “Deny”]; Dkt.
No. 37, Part 8, ¶ 5 [Belarge Aff.]; Dkt. No. 5, “Facts of the Incident,” ¶¶ 13-15 [Plf.'s Am. Compl., stating that
interview took place at 10:57 a.m. on 8/31/02]; Dkt. No. 37, Part 17, Ex. A [Antonelli Aff., attaching 8/31/02
misbehavior report, stating that the interview took place at 11:00 a.m. on 8/31/02].)
46 (Dkt. No. 37, Part 18, Ex. B [Antonelli Aff., attaching documents discovered in Plaintiff's cell, and “Chain of
Custody” Record indicating that Defendant O'Donnell stored the documents in an evidence locker at 2:50
p.m. on 8/31/02]; Dkt. No. 37, Part 17, Ex. A at 2 [Antonelli Aff., attaching 8/31/02 misbehavior report, stating
that Defendant O'Donnell stored the documents in an evidence locker on 8/31/02].)
47 (Dkt. No. 37, Part 8, ¶ 6 [Belarge Aff.]; Dkt. No. 37, Part 17, Ex. A [Antonelli Aff., attaching 8/31/02 misbehavior
report].)
48 (Dkt. No. 37, Part 17, Ex. A [Antonelli Aff., attaching 8/31/02 misbehavior report]; Dkt. No. 37, Part 2, ¶ 29
[Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 29 [Plf.'s Response, admitting receipt
of the misbehavior report, and not specifically denying that he was charged with the three offenses stated
in Defendants' assertion of fact].)
49 (Dkt. No. 37, Part 16, ¶ 7 [Antonelli Aff.]; Dkt. No. 37, Part 2, ¶ 14 [Defs.' Rule 7.1 Statement, asserting
this fact]; Dkt. No. 42, Part 1, ¶ 14 [Plf.'s Response, not denying this fact, only asserting that he received
permission to assist Inmate Alicvar from Defendant Holt].) See also 7 N.Y.C.R.R. § 270.02[B][26][vii].
50 (Dkt. No. 37, Part 3, ¶ 7 [Woods Aff.]; Dkt. No. 37, Part 16, ¶ 8 [Antonelli Aff.]; Dkt. No. 37, Part 2, ¶ 10 [Defs.'
Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 10 [Plf.'s Response, admitting this fact].) See
also 7 N.Y.C.R.R. § 270.02[B][14] [v].
51 (Dkt. No. 37, Part 16, ¶ 9 [Antonelli Aff.]; Dkt. No. 37, Part 2, ¶ 19 [Defs.' Rule 7.1 Statement, asserting
this fact]; Dkt. No. 42, Part 1, ¶ 19 [Plf.'s Response, not specifically denying this fact, only denying that he
indeed requested or solicited “goods or services” from Inmate Alcivar's daughters].) See also 7 N.Y.C.R.R.
§ 270.02[B][4][ii].
52 (Dkt. No. 37, Part 2, ¶ 30 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 30 [Plf.'s
Response, admitting this fact].)
53 (Dkt. No. 37, Part 2, ¶ 31 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 31 [Plf.'s
Response, admitting this fact].)
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54 (Dkt. No. 37, Part 16, ¶¶ 4-6, 11 [Antonelli Aff., asserting this fact]; Dkt. No. 42, Part 1, ¶¶ 4-6, 11 [Plf.'s
Response to Antonelli Aff., admitting part of this fact, not specifically controverting the rest of this fact, and, in
any event not citing any admissible evidence in support of any denial of this fact]; Dkt. No. 38, Part 4 at 43-44
[exhibit to Plaintiff's motion for summary judgment, attaching Defendant Antonelli's written hearing decision];
Dkt. No. 5, ¶ 17 [Am. Compl., acknowledging that Defendant Antonelli had, in reaching his decision, relied on,
among other things, Plaintiff's misbehavior report and various letters between Plaintiff and Inmate Alcivar's
daughters].)
55 (Dkt. No. 37, Part 2, ¶ 32 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 32 [Plf.'s
Response, admitting this fact]; Dkt. No. 42, Part 23 at 46-48 [Munkowitz Decl., attaching transcript of Plaintiff's
deposition, in which he discusses the appeal]; Dkt. No. 38, Part 3 at 46, 68 [exhibits to Plaintiff's motion for
summary judgment, attaching his appeal and Mr. Selsky's affirmance].)
56 (Dkt. No. 42, Part 23 at 46-48 [Munkowitz Decl., attaching transcript of Plaintiff's deposition, in which he
discusses his one-page appeal and acknowledges that it did not complain about any lack or denial of
witnesses]; Dkt. No. 38, Part 3 at 46, 68 [exhibits to Plaintiff's motion for summary judgment, attaching his
appeal and Mr. Selsky's affirmance].)
57 (Dkt. No. 37, Part 2, ¶ 31 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 3 1 [Plf.'s
Response, admitting part of this fact, not specifically controverting the rest of this fact, and, in any event not
citing any admissible evidence in support of any denial of this fact]; Dkt. No. 37, Part 8, ¶ 8 [Belarge Aff.].)
58 (Id.)
59 (Id.)
60 (Dkt. No. 37, Part 2, ¶ 37 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 37 [Plf.'s
Response, not specifically controverting this fact, and, in any event not citing any admissible evidence in
support of any denial of this fact]; Dkt. No. 37, Part 3, ¶¶ 9, 13 [Wood Aff.]; Dkt. No. 37, Part 8, ¶¶ 3, 9 [Belarge
Aff.]; Dkt. No. 42, Part 23 at 35-37 [Munkowitz Decl., attaching transcript of Plaintiff's deposition, asserting
that such a meeting took place between Defendants Woods and Belarge at some point].)
61 (Dkt. No. 37, Part 2, ¶ 3 8 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 3 8
[Plf.'s Response, admitting this fact]; Dkt. No. 37, Part 8, ¶ 9 [Belarge Aff.]; Dkt. No. 42, Part 22 at 35-37
[Munkowitz Decl., attaching transcript of Plaintiff's deposition, asserting that such a meeting took place
between Defendants Belarge and O'Donnell at some point].)
62 (Dkt. No. 37, Part 2, ¶ 39 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 39 [Plf.'s
Response, not specifically controverting that the pre-misbehavior report meeting between Defendants Woods
and Belarge, and the pre-misbehavior report meeting between Defendants Belarge and O'Donnell, were held
according to standard procedure at Greene C.F., and, in any event not citing any admissible evidence in
support of any denial of this fact]; Dkt. No. 37, Part 3, ¶ 13 [Wood Aff.]; Dkt. No. 37, Part 8, ¶ 9 [Belarge Aff.];
Dkt. No. 37, Part 19, ¶ 2 [Holden Aff., disclaiming any knowledge about an alleged unlawful meeting between
Defendants Woods, Belarge, and O'Donnell concerning Plaintiff].)
63 (Dkt. No. 37, Part 2, ¶¶ 37-39 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶¶ 37-39
[Plf.'s Response, not specifically controverting this fact, and, in any event not citing any admissible evidence
in support of any denial of this fact]; Dkt. No. 37, Part 3, ¶ 13 [Wood Aff.]; Dkt. No. 37, Part 8, ¶¶ 3, 9 [Belarge
Aff.]; Dkt. No. 37, Part 19, ¶ 2 [Holden Aff., disclaiming any knowledge about an alleged unlawful meeting
between Defendants Woods, Belarge, and O'Donnell concerning Plaintiff].)
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64 (Dkt. No. 5, ¶¶ 26, 37 [Am. Comp.]; Dkt. No. 37, Part 23, Ex. A at 57-58 [Munkwitz Decl., attaching transcript
of Plaintiff's deposition]; Dkt. No. 42, Part 1, ¶ 43 [Plf.'s Rule 7.1 Response, stating, “Plaintiff left S-Block
November 21, 2002....”].)
65 (Dkt. No. 37, Part 2, ¶ 41 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 41 [Plf.'s
Response, not specifically controverting this fact]; Dkt. No. 37, Part 23, Ex. A at 58-62 [Munkwitz Decl.,
attaching transcript of Plaintiff's deposition, in which he acknowledged this fact]; Dkt. No. 48, Part 6 [Belin
Aff.].)
66 (Dkt. No. 37, Part 2, ¶ 42 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 42 [Plf.'s Rule
7.1 Response, not specifically controverting this fact, and in any event not citing any admissible evidence
in support of any denial of this fact]; Dkt. No. 37, Part 8, ¶¶ 11-12 [Belarge Aff.]; Dkt. No. 37, Parts 9-12
[Ex. A to Belarge Aff., attaching photographs]; Dkt. No. 48, Parts 4, 8-17 [Defs.' reply affidavits and exhibits,
attaching photographs].)
67 (Dkt. No. 37, Part 8, ¶¶ 11-12 [Belarge Aff.]; Dkt. No. 37, Parts 9-12 [Ex. A to Belarge Aff., attaching
photographs]; Dkt. No. 48, Parts 4, 8-17 [Defs.' reply affidavits and exhibits, attaching photographs].)
68 (Dkt. No. 37, Part 2, ¶ 43 [Defs.' Rule 7.1 Statement, asserting this fact]; Dkt. No. 42, Part 1, ¶ 43 [Plf.'s Rule
7.1 Response, not specifically controverting this fact, and in any event not citing any admissible evidence in
support of any denial of this fact]; Dkt. No. 37, Part 8, ¶¶ 13-14 [Belarge Aff.]; Dkt. No. 37, Parts 13-15, Ex.
B [Belarge Aff., attaching work orders]; Dkt. No. 48, Parts 4-5 [Defs.' reply affidavit and exhibits, attaching
work orders].)
69 See Malik'El v. N.Y. State DOCS, 96-CV-0669, 1998 U.S. Dist. LEXIS 5471, at *7 & n. 1 (N.D.N.Y. March 4,
1998) (Sharpe, M.J .) (under circumstances, plaintiff's oral complaint to corrections officer might state a First
Amendment claim), adopted by 1998 U.S. Dist. 5465 (N.D.N.Y. Apr. 8, 1998) (Pooler, D.J.); but see Rodriguez
v. Phillips, 66 F.3d 470, 479 (2d Cir.1995) (“In the context of the confrontation described in [the plaintiff's]
own words, there was no clearly established First Amendment right to approach and speak to Officer Rubin.”)
(emphasis added); Garrido v. Coughlin, 716 F.Supp. 98, 101 (S.D.N.Y.1989) (plaintiff's “verbal confrontation”
with corrections officer was not protected speech or conduct under the First Amendment).
70 (Dkt. No. 48, Parts 6-7, ¶ 6 [Berlin Aff., testifying that the only grievance on file from Plaintiff, from between
August 2002 to December 2002 was a grievance dated 8/8/02 about the legal mail limit at Greene C.F.,
attaching that grievance at Exhibit A]; Dkt. No. 37, Part 24 [Munkowitz Decl., attaching Plaintiff's 8/16/02 letter
of complaint to Deputy Superintendent Eldred regarding the “Mess Hall Dishwashing Machines”]; Dkt. No.
37, Part 23, Ex. A at 86-90 [Munkwitz Decl., attaching transcript of Plaintiff's deposition].)
71 (Dkt. No. 37, Part 24 [Munkowitz Decl., attaching Plaintiff's 8/16/02 letter of complaint to Deputy
Superintendent Eldred regarding the mess hall dishwashing machines, not mentioning any specifics, much
less the name or position of Defendant Antonelli]; Dkt. No. 37, Part 23, Ex. A at 86-90 [Munkwitz Decl.,
attaching transcript of Plaintiff's deposition, in which Plaintiff admits this fact].)
72 (Dkt. No. 37, Part 17, ¶ 13 [Antonelli Aff., testifying that “I ... understand that plaintiff alleges that I retaliated
against him based upon a grievance that plaintiff made against me. I am not aware of any grievances
filed by plaintiff against me”]; Dkt. No. 42, Part 1, ¶ 12 [Plf.'s Response to Antonelli Aff., containing no
response to Paragraph 13 of Antonelli's affidavit, and asserting conclusorily that “[the tier office] had chosen
Antonelli to preside over plaintiff's tier hearing on September 6, 2002 ... and that was due to Antonelli's
encounter with plaintiff one week prior to holding said hearing,” without providing any specifics about the
alleged “encounter,” without providing any assertion that it was Antonelli who was motivated by the alleged
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“encounter,” and without providing reason to believe Plaintiff had personal knowledge of the Tier Office's
motivation in assigning Antonelli as the hearing officer].)
73 (Dkt. No. 42, Part 1¶ 12 [Plf.'s Response to Antonelli Aff., asserting that, one week before the disciplinary
hearing, Plaintiff had an “encounter” with Defendant Antonelli]; Dkt. No. 37, Part 23, Ex. A at 89 [Munkwitz
Decl., attaching transcript of Plaintiff's deposition, in which Plaintiff states that, days before the disciplinary
hearing, he “met” with Defendant Antonelli about the condition of the “utensils, dish washing machines, et
cetera” in the mess hall].)
74 (See, supra, Statement of Fact Nos. 22-23 [stating evidence upon which Defendant Antonelli based his
hearing decision, and fact that the decision was affirmed on appeal].)
75 (Dkt. No. 37, Part 25 at 8-9 [Defs.' Mem. of Law, addressing the conclusory nature of Plaintiff's claims about
a “conspiracy” against him, the subject of which included the search of his property]; Dkt. No. 37, Part 22,
Ex. A at 14 [Munkwitz Decl., attaching transcript of Plaintiff's deposition, in which defense counsel stated, “I
don't see how the [F]ourth [A]mendment gives you a right to be free from harmful situations. So I would like
you to explain that to me,” and Plaintiff stated, “[T]he [F]ourth [A]mendment does not apply to the specific
paragraph that you are referring to,” i.e., Paragraph 43 of the Amended Complaint], 22 [in which defense
counsel asked, “Is there anything else in your second cause of action ...” other than a due process claim, and
Plaintiff answered, “Not at this point, ma‘am” even though that cause of action cites the Fourth Amendment],
26 [in which defense counsel asked, “You have a constitutional right to be free from search and seizure as
an inmate?” and Plaintiff answered, “As an inmate, no, ma‘am”].) See Clissuras v. CUNY, 359 F.3d 79, 81
n. 3 (2d Cir.2004) (treating a “suggestion” to the court, in the form of a letter, that subject matter jurisdiction
was lacking as a request for a dismissal order under Rule 12[h][3] ).
76 (See Dkt. No. 5, ¶ 44 [Plf.'s Am. Compl., alleging that Defendants Woods and Holt “violat[ed] plaintiff's 4th ...
Amendment [ ] rights”], ¶ 15 [alleging that Defendant Belarge “had plaintiff's personal property searched by
three officers, one of whom was Holt”]; Dkt. No. 37, Part 23, Ex. A at 14-22, 26-28 [Munkowitz Decl., attaching
transcript of deposition of Plaintiff, in which he explains his claim under the Fourth Amendment based on the
alleged unjustified search and seizure of his property].)
77 (Dkt. No. 37, Part 22, Ex. A at 14 [Munkwitz Decl., attaching transcript of Plaintiff's deposition, in which
Plaintiff stated, “[T]he [F]ourth [A]mendment does not apply to” Plaintiff's first cause of action], 22 [in which
defense counsel asked, “Is there anything else in your second cause of action ...” other than a due process
claim, and Plaintiff answered, “Not at this point, ma‘am” even though the cause of action cites the Fourth
Amendment], 28 [in which defense counsel asked, “Are you alleging that the facts in paragraph 15 give rise
to a constitutional claim for search and seizure?” and Plaintiff answered, “Yes, ma‘am”].)
78 (Dkt. No. 5, ¶ 14 [Am. Compl.].)
79 See also Tinsley v. Greene, 95-CV-1765, 1997 WL 160124, at *7 (N.D.N.Y. March 31, 1997) (“Plaintiff thus
may assert no cause of action here based on an alleged violation of his Fourth Amendment rights.”); Demaio
v. Mann, 877 F.Supp. 89, 95 (N.D.N.Y.) (“Searches of prison cells, even arbitrary searches, implicate no
protected constitutional rights.”), aff'd, 122 F.3d 1055 (2d Cir.1995).
80 See Freeman v. Goord, 02-CV-9033, 2005 U.S. Dist. LEXIS 32019, at *5 & n. 4 (S.D.N.Y. Dec. 7, 1995)
(granting defendants' motion for summary judgment, in part because plaintiff had no reasonable expectation
of privacy, under the Fourth Amendment, in his cell, which plaintiff referred to as his “cube”); Rodriguez v.
Coughlin, 795 F.Supp. 609, 611, 613 (W.D.N.Y.1992) (granting defendants' motion for summary judgment,
in part because prison officials have same need, and right, to search prisoner's “cell” as his “cubicle”).
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81 (Dkt. No. 37, Part 22, Ex. A at 26 [Munkwitz Decl., attaching transcript of Plaintiff's deposition, in which
defense counsel asked, “You have a constitutional right to be free from search and seizure as an inmate?”
and Plaintiff answered, “As an inmate, no, ma‘am”].)
82 (Dkt. No. 5, ¶ 12 [Am. Compl.].)
83 I note that the alleged “interception” by Defendant Woods of these packages was preceded by a letter from
Plaintiff to Woods referring to “documents [belonging to Inmate Alcivar] being in [Plaintiff's] possession” and
referring to Inmate Alcivar's family members. Furthermore, I note that the alleged contents of these packages
would have reasonably appeared (at the very least) to consist of contraband (i.e., allegedly being the same
documents that later gave rise to three disciplinary charges against Plaintiff, which charges resulted in a
conviction that was affirmed on appeal).
84 See, e.g., DOCS Directive No. 4422, § III.B.17. (“Inmates shall not be permitted to use their correspondence
privileges to solicit ... services, or goods.”), § III.G.1. (“All incoming general correspondence will be opened
and inspected for ... photocopied materials, or contraband.”) (5/18/02).
85 “Spondylolisthesis” is defined as “forward movement of the body of one of the lower lumbar vertebrae on the
vertebra below it, or upon the sacrum.” Rowland v. Hildreth, 92-CV-6140, 1993 U.S. Dist. LEXIS 10233, at
*35, n. 6 (S.D.N.Y. July 27, 1993) (citing Stedman's Medical Dictionary at 1456 [25th ed.1990] ).
86 (Dkt. No. 5, ¶ 27 [Am. Compl.]; Dkt. No. 38, Part 4 at 58-62 [Plf.'s Motion for Summary Judgment, attaching
medical records repeatedly stating “spondylolisthesis”]; Dkt. No. 37, Part 23 at 54-58 [Munkowitz Decl.,
attaching transcript of Plaintiff's deposition testimony, in which Plaintiff describes his injury generally].)
87 See Villante v. N.Y. State DOCS, 96-CV-1484, 2002 U.S. Dist. LEXIS 26279, at *4, 8-9 (N.D.N.Y. March 28,
2002) (Mordue, J.), adopting report-recommendation, 2002 U.S. Dist. LEXIS, at *11-12 (N.D.N.Y. Oct. 26,
2001) (Homer, M.J.); Rowland, 1993 U.S. Dist. LEXIS 10233, at *13-16, 30; Smith v. Umar, 89-CV-6988,
1989 U.S. Dist. LEXIS 14170, at *4-6, 8-10 (E.D.Pa. Nov. 28, 1989).
88 (Dkt. No. 5, ¶¶ 35, 37, 38, 43 [Am. Compl., alleging that Defendants-who are non-medical personnel-violated
Plaintiff's Eighth Amendment rights by placing him in, and keeping him in, SHU, despite knowing of the
allegedly substandard conditions there, which included his allegedly defective bunk].)
89 (Dkt. No. 37, Part 23 at 42-43, 53, 58 [Munkowitz Decl., attaching transcript of Plaintiff's deposition testimony,
in which Plaintiff testifies that he was not asserting any claim regarding the medical treatment that he received,
or that the medical staff was deliberately indifferent to a serious medical need].)
90 (Dkt. No. 37, Part 25 at 14 [Defs.' Mem. of Law, arguing that “plaintiff cannot demonstrate that his bunk was
‘damaged’ in any manner,” citing record evidence in an attempt to support that argument].)
91 (See, supra, Statement of Fact No. 29.)
92 (Dkt. No. 37, Part 25 at 11, 13-14 [Defs.' Mem. of Law].)
93 (Compare Dkt. No. 42, Part 1, ¶¶ 10(a), 11 [Plf.'s Response to Belarge Aff., swearing that he was assigned
to the allegedly “dilapidated” bunk in question-Bunk Number “OS-A1-20(b)”-on 9/23/02, after having been
assigned to two different SHU cells, i.e., first in Cell “SH-0013” and then in Cell “B1-18”] with Dkt. No. 5, ¶¶
26-27 [Plf.'s Am. Compl., containing a sworn allegation that the onset of his back injury was on or before
9/13/02, and that the date of diagnosis was 9/20/02] and Dkt. No. 42, Part 1, ¶ 15 [Plf.'s Response to Belarge
Aff., swearing that he orally complained to Belarge about the bunk on 9/18/02] and Dkt. No. 37, Part 23 at
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58 [Munkowitz Decl., attaching transcript of Plaintiff's deposition testimony, in which Plaintiff testifies that he
first requested sick call on 9/9/02, or three days after his admission to SHU].)
94 (Dkt. No. 38, Part 4 at 58-62 [Plf.'s Motion for Summary Judgment, attaching medical record printed on 9/9/02
containing a typed notation, apparently entered on 8/23/02 stating, “Reason for Consultation: H/O sciatica
type pain which has responded to PT in the past. I request a repeat treatment series for 6 weeks” and
noting that Plaintiff was 51 years old at the time] [emphasis added].)
95 See Faunce v. Gomez, No. 97-16943, 1998 U.S.App. LEXIS. 22703, at *3 (9th Cir. Sept. 14, 1998) (affirming
district court's grant of summary judgment to defendants in part because the plaintiff's Eighth Amendment
claim was premised on his complaint that his mattress was uncomfortable and his bedding was insufficient);
Page v. Kirby, 314 F.Supp.2d 619, 620 (N.D.W.Va.) (dismissing prisoner's Eighth Amendment claim premised
on complaint that his mattress was uncomfortable); Levi v. District of Columbia, 92-CV-2653, 1993 U.S.
Dist. LEXIS 1948, at *5 (D.D.C. Feb. 24, 1993) dismissing prisoner's Eighth Amendment claim premised on
complaint that his mattress was uncomfortable).
96 (Dkt. No. 5, ¶ 38 [Am. Compl.].)
97 (See, e.g., Dkt. No. 42, Part 1, ¶ 15 [Plf.'s Response to Belarge Aff., swearing that he orally complained
to Belarge about the bunk on September 18, 2002]; compare Dkt. No. 42, Part 1, ¶ 14 [Plf.'s Response to
Woods Aff., swearing that his oral complaint to Woods was made on September 27, 2002] with Dkt. No. 42,
Part 2 at 13 [Mem. of Law, arguing that his oral complaint to Woods was made on September 12, 2002].)
98 (Dkt. No. 37, Part 8, ¶ 11 [Belarge Aff., identifying second bunk Plaintiff was assigned while in “S-Block” as
Bunk Number “OS-A1-20(b)”]; Dkt. No. 42, Part 1, ¶ 11 [Plf.'s Response to Belarge Aff., admitting that fact],
¶ 10(a) [swearing that he was assigned to the allegedly “dilapidated” bunk in question on 9/23/02], ¶ 10(b)
[swearing that, at 9:45 p.m. on or about 10/7/02-fourteen days after 9/23/02-he was purposely moved to a
cell “with a better bunk,” i.e., Cell “B2-40”].) Any assertions by Plaintiff to the contrary are purely conclusory,
self-contradictory, and frankly too incredible to be believed by reasonable minds. (Dkt. No. 5, ¶ 28 [Am.
Compl., alleging conclusorily that his verbal complaints about his bunk bed “went unsolved”]; compare Dkt.
No. 37, Part 23 at 58 [Munkowitz Decl., attaching transcript of Plaintiff's deposition testimony, in which Plaintiff
testifies that he was assigned to the same bunk bed during his entire stay in SHU] with Dkt. No. 42, Part 1,
¶ 11 [Plf.'s Response to Belarge Aff., admitting that he served his time in SHU in four different cells], ¶ 10(a)
[swearing that he was not assigned to the allegedly “dilapidated” bunk in question until 9/23/02, despite his
admission to SHU on 9/6/02, and that it was the third such bunk to which he had been assigned in SHU], ¶
10(b) [swearing that, at 9:45 p.m. on or about 10/7/02-fourteen days after 9/23/02-he was purposely moved
to a cell “with a better bunk,” i.e., Cell “B2-40”].)
99 (Compare Dkt. No. 42, Part 1, ¶ 14 [Plf.'s Response to Woods Aff.] and Dkt. No. 42, Part 1, ¶ 15 [Plf.'s
Response to Belarge Aff.] with Dkt. No. 42, Part 1, ¶ 10(c) [Plf.'s Response to Belarge Aff.].)
100 (Dkt. No. 5, ¶¶ 26-33 [Am. Compl.].)
101 (See, supra, Statement of Fact No. 24.)
102 (Dkt. No. 37, Part 23 at 58, 61, 63, 65 [Munkowitz Decl., attaching transcript of Plaintiff's deposition].)
103 (See, e.g., Dkt. No. 42, Part 2 at 13-15 [Plf.'s Response Mem. of Law, in which Plaintiff appears to argue-
without any citation to evidence-that he orally complained about his bunk bed to an unidentified IGRC
Supervisor, whom Plaintiff alleges orally informed him that a defective bunk bed is not a grievable matter];
Dkt. No. 37, Part 23 at 60, 63, 65 [Munkowitz Decl., attaching transcript of Plaintiff's deposition, apparently
alluding to the same hearsay remark by the IGRC Superintendent]; Dkt. No. 38, Part 4 at 50, 52, 54, 66 [Plf.'s
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Motion for Summary Judgment, attaching, as exhibits, documents regarding Plaintiff's grievance about the
grounds for his disciplinary conviction and not his allegedly defective bunk bed].)
104 (See, e.g., Dkt. No. 42, Part 2 at 13-15 [Plf.'s Response Mem. of Law]; Dkt. No. 37, Part 23 at 60, 63, 65
[Munkowitz Decl., attaching transcript of Plaintiff's deposition]; Dkt. No. 38, Part 4 at 50, 52, 54, 66 [Plf.'s
Motion for Summary Judgment, attaching exhibits regarding a grievance about a different matter].)
105 (Dkt. No. 48, Part 6, ¶¶ 4-5, 8-11 [Berlin Aff.].)
106 (Dkt. No. 37, Part 23 at 6-11 [Munkowitz Decl., attaching transcript of Plaintiff's deposition]; Dkt. No. 38, Part
4 at 58 [Plf.'s Motion for Summary Judgment, attaching medical record showing his date of birth].)
107 (Dkt. No. 37, Part 23 at 59 [Munkowitz Decl., attaching transcript of Plaintiff's deposition].)
108 (Dkt. No. 38, Part 4 at 50 [Plf.'s Motion for Summary Judgment, attaching Plaintiff's grievance dated 9/18/02,
about the grounds for his disciplinary conviction]; Dkt. No. 48, Part 7 [Defs. Reply, attaching grievance dated
8/7/02, about mail room, and appeal from decision regarding that grievance].)
109 See Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986); Ciaprazi v. Goord, 02-CV-0915, 2005 WL
3531464, at *8 (N .D.N.Y. Dec. 22, 2005) (Sharpe, J.) (adopting Report-Recommendation by Peebles, M.J.)
(“[D]efendants' decision to rely ... upon the lack of evidentiary support for plaintiff's retaliation claims ... is
sufficient to cast the burden upon the plaintiff to come forward with evidence demonstrating the existence of
genuinely disputed material issues of fact at trial with regard to those claims.”) [citations omitted].
110 See Griffin v. Selsky, 326 F.Supp.2d 429, 430 (W.D.N.Y.2004); McNair v. Jones, 01-CV03253, 2003 U.S.
Dist. LEXIS 15825, at *7-8 (S.D.N.Y.2003); Dawes v. Dibiase, 91-CV-0479, 1997 WL 376043, at *7-8
(N.D.N.Y. July 3, 1997) (McAvoy, J.).
111 (See, e.g., Dkt. No. 5, ¶ 18 [Am. Compl., containing sworn allegation that Plaintiff was sentenced to three
months loss of good-time credits]; Dkt. No. 42, Part 1 [Plf.'s Response to Belarge Aff., admitting Defendants'
assertion that the discretionary review of Plaintiff's disciplinary sentence did not affect Plaintiff's loss of good-
time credits]; Dkt. No. 38, Part 4 at 32 [Plf.'s Motion for Summary judgment, attaching disciplinary hearing
decision, showing sentence imposed]; Dkt. No. 42, Part 2 at 13 [Plf.'s Response, arguing that “even though
plaintiff's good time was not reversed, expunged, or declared invalid, that by itself does not make plaintiff's
claims ‘not cognizable’....”].)
112 See also Calhoun v. N.Y.S. Div. of Parole, 999 F.2d 647, 654 (2d Cir.1993); Prue v. City of Syracuse, 26
F.3d 14, 17-18 (2d Cir.1994).
113 See Anderson v. Creighton, 107 S.Ct. 3034, 3038 (1987) ( “[W]hether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective
reasonableness of the action.’ ”) (quoting Harlow, 457 U.S. at 819); Benitez v. Wolff, 985 F.2d 662, 666 (2d
Cir.1993) (qualified immunity protects defendants “even where the rights were clearly established, if it was
objectively reasonable for defendants to believe that their acts did not violate those rights”).
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Stinson v. City of New York, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 3438284
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Avion STINSON, Plaintiff,
v.
The CITY OF NEW YORK, et al., Defendants.
18-CV-0027 (LAK)(BCM)
|
Signed 07/06/2021
Attorneys and Law Firms
Avion Stinson, Brooklyn, NY, Pro Se.
Adria Jasmine Bonillas, New York City Law Depart. Office
of the Corporation Counsel, New York, NY, for Defendants.
REPORT AND RECOMMENDATION
TO THE HON. LEWIS A. KAPLAN
BARBARA MOSES, United States Magistrate Judge
*1 Plaintiff Avion Stinson filed this action on January
2, 2018, asserting claims against the City of New York
(City); three high-ranking officials of the City's Department
of Corrections (DOC) – former Commissioner Joseph Ponte,
former Chief of Department Martin Murphy, and former
Deputy Commissioner Michael Blake (the Supervisory
Defendants); and various DOC Correction Officers, including
three who were served and appeared in this action – Stanley
Ambrose, Reginald Rothwell, and Gregory Lopez (the CO
Defendants). Plaintiff's claims arise from a series of incidents
on July 17, 2015, while she was detained at the Rikers Island
jail complex. In her Amended Complaint (Am. Compl.) (Dkt.
No. 33), plaintiff alleges that the Supervisory Defendants
and the CO Defendants violated her constitutional rights
under the First, Fourth, and Fourteenth Amendments by using
excessive force, retaliating against her for complaining about
unconstitutional practices, and denying her medical attention;
and that the CO Defendants violated her constitutional rights
under the Equal Protection Clause, as well as the New York
State and City Human Rights Laws, because their conduct
was motivated by animus on the basis of her sex, gender, and
sexual orientation. Am. Compl. ¶¶ 61-77. 1 Plaintiff further
alleges that the City is liable to her because it “permitted,
tolerated, and was deliberately indifferent to” a pattern and
practice of unconstitutional abuse at Rikers Island. Id. ¶ 79.
On March 6, 2020, defendants moved for summary judgment
on all claims. (Dkt. No. 121.) For the reasons that follow, I
recommend that the motion be granted as to CO Ambrose, the
Supervisory Defendants, and the City. As to COs Rothwell
and Lopez, I recommend that the motion be granted in part
and denied in part.
I. BACKGROUND
A. Facts
The following facts, which unless otherwise noted are
undisputed, are taken from (i) Defendants’ Statement of
Undisputed Facts Pursuant to Local Civil Rule 56.1 (Def. 56.1
St.) (Dkt. No. 123); (ii) the underlying evidentiary materials,
which are attached to the Declaration of Daniel Saavedra
(Saavedra Decl.) (Dkt. No. 125), including plaintiff's
complete deposition transcript (Pl. Dep. Tr.) (Saavedra Decl.
Ex. A), portions of plaintiff's medical records from Rikers
Island (id. Ex. B), and video footage from Rikers Island
security cameras (id. Ex. C; Dkt. No. 150); (iii) plaintiff's
declaration, dated May 13, 2020 (Pl. Decl.) (Dkt. 137),
submitted in opposition to defendants’ motion; (iv) additional
video footage showing one of the alleged assaults on plaintiff,
which neither side formally submitted in connection with the
present motion but which plaintiff refers to and relies on in
her deposition testimony and elsewhere (Dkt. No. 150); and
(v) certain records and photographs submitted by plaintiff as
exhibits to a document entitled “Evidence in Support of this
Case in Support of Local Rule 56.2” (Pl. Evid. in Supp.) (Dkt.
Nos. 106, 107.)
*2 On July 17, 2015, plaintiff was a pre-trial detainee housed
at GMDC. Def. Rule 56.1 St. ¶ 1. During morning recreation,
plaintiff experienced chest pains and was taken to the GMDC
medical clinic. Id. ¶¶ 2-3; Pl. Dep. Tr. at 57:2-8. The clinic
took her vitals, and finding nothing wrong, released her. Pl.
Dep. Tr. at 57: 9-12. Officer Rothwell then escorted plaintiff
from the clinic to the intake unit, where plaintiff believed she
was going to be beaten by other inmates in retaliation for
complaints she had recently made to “Prisoner's Rights” about
CO Ambrose and others. Def. Rule 56.1 St. ¶¶ 4-5; Pl. Dep.
Tr. at 57:14-58:2; Pl. Decl. at ECF page 3. 2
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1. The Intake Unit - Morning Incident
Upon arriving at the intake unit, shortly before 9:00 a.m.,
plaintiff overheard other inmates in the “pen” talking about
assaulting someone and – fearing for her personal safety –
refused to enter the intake holding cell. Def. Rule 56.1 St.
¶¶ 6-7; Pl. Dep. Tr. at 61:7-12. Officer Rothwell, joined by a
female DOC captain, explained to plaintiff that she had to go
through intake because she had been removed from “mental
health housing,” did not qualify for protective custody, and
had to go to “GP” (general population). Def. Rule 56.1 St.
¶¶ 8-9; Pl. Dep. Tr. at 67:10-14. Plaintiff resisted being taken
into the holding cell, compelling the officers, now numbering
four or five (including Rothwell and Lopez), to carry her. Def.
Rule 56.1 St. ¶¶ 10-11; Pl. Dep. Tr. at 68:4-7, 11-15. As the
officers approached the holding cell, plaintiff grabbed the leg
of a nearby table and refused to let go. Def. Rule 56.1 St. ¶
12; Pl. Dep. Tr. at 68:8-10, 71:14-21. After gentler attempts
to dislodge her failed, Officer Lopez twice deployed pepper
spray on plaintiff, each time for about two seconds. Def. Rule
56.1 St. ¶ 13; Saavedra Decl. Ex. C; Pl. Dep. Tr. at 69:24-70:1,
72:2-5. Plaintiff continued to hold on, letting go of the table
only after the officers flipped it over and “slid me off the leg.”
Def. Rule 56.1 St. ¶¶ 14-15; Saavedra Decl. Ex. C; Pl. Dep.
Tr. at 72:21-24. 3
Once removed from the leg of the table, plaintiff was placed
on a stretcher. Def. Rule 56.1 St. ¶ 16; Pl. Dep. Tr. at 73:2-4,
22-23. At that point – while still in the intake unit – plaintiff
states that she was assaulted by three to five officers who
punched her in her face and chest with closed fists for about
two minutes, which “knocked out my teeth.” Def. Rule 56.1
St. ¶ 17; Pl. Dep. Tr. at 73:9-21, 75:2-5. However, plaintiff
could not see which officers were punching her because of
the pepper spray in her eyes. Def. Rule 56.1 St. ¶ 18; Pl. Dep.
Tr. at 74:16-21. 4
2. The GMDC Clinic
*3 Following this alleged assault, several officers escorted
plaintiff back to the GMDC clinic. Def. Rule 56.1 St. ¶ 20;
Pl. Dep. Tr. at 75:7-10, 16-17, 77:5-11. According to plaintiff,
the nurses at the clinic refused to treat her because she had too
much pepper spray on her body. Def. Rule 56.1 St. ¶ 21; Pl.
Dep. Tr. at 77:23-78:1. Instead of taking her to wash off the
pepper spray, the officers left her on the stretcher in a clinic
hallway. Def. Rule 56.1 St. ¶ 22; Pl. Dep. Tr. at 78:2-14.
While she was lying on the stretcher in the hallway, plaintiff
states that she was again assaulted by unidentified correction
officers, who punched her in the chest with closed fists for
three or four minutes. Def. Rule 56.1 St. ¶¶ 22-23; Pl. Dep. Tr.
at 75:24-76:3, 79:2-13. Plaintiff kept her eyes closed during
this attack because she still had pepper spray in her eyes.
Def. Rule 56.1 St. ¶ 24; Pl. Dep. Tr. at 79:3-4. According to
plaintiff, the officers kept punching and hitting her until she
acted like she was dead, at which point they left. Pl. Dep. Tr.
at 79:3-13.
Plaintiff then noticed an open bathroom door. Def. Rule 56.1
St. ¶ 25; Pl. Dep. Tr. at 76:8-10, 79:14-16. Although her
hands were cuffed behind her back and her feet were attached
to the stretcher, plaintiff made her way to the bathroom to
wash the pepper spray out of her eyes. Def. Rule 56.1 St.
¶ 26; Pl. Dep. Tr. at 76:12-15, 79:18-19. Because she was
dragging the stretcher with her as she moved, her approach
to the bathroom attracted the attention of COs Rothwell and
Lopez, who entered the bathroom and, according to plaintiff,
started hitting and kicking her. Def. Rule 56.1 St. ¶ 26-27; Pl.
Dep. Tr. at 76:10-13, 18-22; 80:4-6, 82:7-12.
Following this second alleged assault inside the clinic,
plaintiff waited for “a whole shift” before anyone gave
her medical attention. Def. Rule 56.1 St. ¶ 28; Pl. Dep.
Tr. at 80:7-14, 21-24, 82:14-19; see also Pl. Decl. at ECF
page 3 (“I was denied any proper medical evaluation or
attention.”). According to plaintiff, her arms, hands, and face
were bleeding; her right eyebrow was “gashed open”; and
she had broken teeth, a black eye, and a “boot print on the
side of my face which didn't go away for a week.” Pl. Dep.
Tr. at 80:25-81:16. The clinic doctor “recorded everything”
but the medical staff “didn't do anything” other than take her
vitals. Id. at 80:24, 81:11, 82:18-19. Plaintiff's testimony is
at odds with the clinic's records, which reflect that she was
treated at 11:53 a.m. by physician's assistant (PA) Esperance
Ndayishimiye, who, in addition to taking her vitals, noted
“NO VISIBLE SIGN OF INJURY.” Def. Rule 56.1 St. ¶¶
29-30; Saavedra Decl. Ex B, at ECF pages 23-24. 5
3. The Intake Unit – Afternoon Cell Extraction
After being seen at the clinic, plaintiff was taken back to
intake and placed in a cell, in handcuffs. Def. Rule 56.1 St. ¶
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31; Pl. Dep. Tr. at 83:23-24. Plaintiff called out for medical
treatment and continued to complain about the pepper spray
on her body, Pl. Dep. Tr. at 84:23-85:3, until the (unidentified)
captain on duty threatened to beat her if she kept yelling and
screaming. Id. at 84:4-12. When the new shift started in the
afternoon, a group of officers came into the cell, wearing
“combat vests,” to perform a cell “extraction.” See Pl. Dep.
Tr. at 86:7-21, 110:1-9; Saavedra Decl. Ex. B, at ECF page
19. According to plaintiff, these officers “were beating me
up,” “punching me with closed fists in my face, choking me,”
with “their hands over my face so I couldn't scream,” “pulling
my hair,” and “kicking me in the head. Def. Rule 56.1 St. ¶¶
32-33; Pl. Dep. Tr. at 85: 6-10, 87:8-13. During this episode,
plaintiff states, the officers “cracked [her] jaw,” broke her
teeth, and left a boot print across her face. Pl. Dep. Tr. at
87:20-88:3.
*4 None of the CO Defendants was physically present
during the extraction, which began at approximately 4:15
p.m. on July 17. Def. Rule 56.1 St. ¶¶ 34-36; Pl. Dep.
Tr. at 101:19-21, 110:1-9. Moreover, plaintiff's testimony is
markedly at odds with the video record of the extraction,
which begins with Captain Edwin Skepple stating that the
“anticipated use of force” was authorized because plaintiff
had refused to leave the main intake unit to be transported
to “C-71” for a mental health evaluation. 6 The video then
shows plaintiff repeatedly refusing to leave the cell or follow
other CO directions. Told to “get up” from the bench she
was on for transport to C-71, plaintiff repeatedly stated, “I'm
not going,” while remaining seated, accusing the officers of
knocking her teeth out, and demanding the return of her “gold
tooth” and (unspecified) property. Told again to “stand up,”
plaintiff instead sat on the floor of the cell, locking her legs
under the bench. After plaintiff refused several additional
orders to stand up, the officers entered the cell, removed her
from the bench, dressed her (she had no pants on), put a spit
hood on her head, placed her on a wheeled stretcher, and
transported her back to the GMHC clinic. 7
At the clinic, plaintiff was examined by PA Scott Parks, who
took her vitals at 4:55 p.m. Def. Rule 56.1 St. ¶ 37; Pl. Dep.
Tr. at 88:20-89:3; Saavedra Decl. Ex. B, at ECF pages 19-20.
Plaintiff told Parks that her front tooth “was knocked out
during the extraction.” Saavedra Decl. Ex. B, at ECF page 19.
Parks observed that plaintiff had a bruise on her right eyelid,
for which she was given ice; irrigated her eyes, because she
complained of burning; and noted that plaintiff was missing
an upper central incisor (front tooth) and that another incisor
was broken, but that there was no active bleeding and the
mandible (jaw) was “nontender.” Id. at ECF pages 19-20.
According to plaintiff, Parks recommended X-rays, but the
officers refused to take her because they had orders to transfer
her to another facility. Pl. Dep. Tr. at 90:8-20, 91:8-13. The
clinic's records do not reflect this alleged exchange.
4. Post-July 17 Medical Treatment
Following her afternoon visit to the clinic, plaintiff was taken
to another housing unit, the Anna M. Kross Center (AMKC),
where she alleges that a “Captain Thompson” (not named as
a defendant herein) placed her in a holding cell and left her
there for two days. Def. Rule 56.1 St. ¶ 41; Pl. Dep. Tr. at
93:1-3, 16-19. From there, plaintiff was moved to the C-71
mental health unit, also known as Hart Island, where she says
she was left in an intake cell for five additional days with no
medical attention. Def. Rule 56.1 St. ¶¶ 42, 44; Pl. Dep. Tr. at
94:23-25, 96:21-25. Plaintiff asserts that she waited a total of
eight days before she received any treatment for the injuries
suffered on July 17, 2015. Def. Rule 56.1 St. ¶ 44; Pl. Dep.
Tr. at 83:3-5, 87:5-7. However, her medical records show that
she was seen by medical staff at the AMKC clinic on July 19,
July 21, and July 23, 2015. Def. Rule 56.1 St. ¶ 45; Saavedra
Decl. Ex. B, at ECF pages 5-15. 8
*5 The July 19, July 21, and July 23 records do not reflect
any complaint by plaintiff about the events of July 17, 2015.
However, on July 30, 2015, plaintiff “made an allegation
that [she] was assaulted by DOC staff on July 17, 2015,
causing injury.” Pl. Evid. in Supp. Ex. C, at ECF page 12.
The resulting “Injury to Inmate” report, signed by correctional
staff, medical staff, and plaintiff, recites that no injury was
noted “visually on head, neck, chest [or] abdomen,” and that
plaintiff refused treatment. Id. 9 Photographs of plaintiff's
head and face dated July 30, 2015, show no visible injuries.
Id. Ex. A, at ECF pages 25, 34-35, 37. 10 Photographs of her
mouth, also dated July 30, 2015, show multiple teeth missing,
broken, and/or decayed, including a missing upper front tooth.
Id., at ECF pages 26-28, 30-33. On October 1, 2015, a
Rikers Island dentist, with plaintiff's consent, extracted three
“painful, abscessed, and grossly carious” teeth. Id. Ex. B, at
ECF page 20. The extracted teeth (#3, #13, and #14) are all
still visible in the July 30 photographs. Pl. Evid. in Supp. Ex.
A, at ECF pages 26-28, 30-33.
B. Procedural History
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Plaintiff filed this action, through counsel, on January 2,
2018. Her original Complaint named the City, the Supervisory
Defendants, and COs Ambrose, Rothwell, and Lopez as
defendants, and alleged that she was subjected to “a relentless
campaign of harassment and violence at the hands of
correction officers and fellow inmates” that “reached a
crescendo on July 17, 2015, when throughout the day multiple
correction officers beat [her] multiple times, in multiple
locations within Riker's Island.” Compl. (Dkt. No. 6) ¶¶
57-59. In her first claim, asserted pursuant to 42 U.S.C. §
1983, plaintiff alleged that all of the individual defendants
violated her constitutional rights under the First, Fourth, and
Fourteenth Amendments by using excessive force, retaliating
against her for complaining about unconstitutional practices,
and denying her medical attention. Compl. ¶¶ 63-67. In her
second claim, plaintiff alleged that the City was also liable
to her, pursuant to § 1983, because it “permitted, tolerated,
and was deliberately indifferent to” a pattern and practice of
unconstitutional abuse, including “brutality,” retaliation, and
denial of medical care, at Rikers Island. Id. ¶¶ 68-71.
On January 19, 2018, the Honorable Lewis Kaplan, United
States District Judge, referred this matter to me for general
pretrial management and report and recommendation on
dispositive motions. (Dkt. No. 8.) The defendants named
in the original Complaint answered it on April 23, 2018.
(Dkt. No. 23.) On July 10, 2018, following several months
of written discovery, plaintiff filed her Amended Complaint,
which added eleven additional individual defendants 11 and
three new claims, alleging that the CO Defendants violated
her constitutional rights under the Equal Protection Clause,
as well as her rights under the New York State and New
York City Human Rights Laws, because their conduct was
motived by animus based on plaintiff's sex, gender, and sexual
orientation. Am. Compl. ¶¶ 66-77. Additionally, plaintiff
expanded her municipal liability claim to allege that the City
“permitted, tolerated, and was deliberately indifferent to” a
pattern and practice of discrimination on the basis of sex,
gender, and sexual orientation. Id. ¶¶ 79-80.
*6 On July 12, 2018, electronic summonses were issued as
to the newly-named individual defendants. (Dkt. No. 37.) On
September 11, 2018, I extended the deadline for service of
process on those defendants to October 10, 2018. (Dkt. No.
40.)
On September 22, 2018, following the September 11, 2018
settlement conference, plaintiff's counsel moved to withdraw
(Dkt. No. 43); in response, plaintiff requested that her counsel
“be relieved from this case” for “trying to squeeze me into
taking a settlement I don't want.” (Dkt. No. 48.) In connection
with the withdrawal proceedings, I stayed discovery (Dkt. No.
42), as well as the time for service of the Amended Complaint
on the newly-named defendants. (Dkt. No. 47.) On October
15, 2018, I granted counsel's motion to withdraw (Dkt. No.
52), and on October 25, 2018, plaintiff filed a Notice of Pro Se
Appearance. (Dkt. No. 57.) On November 26, 2018, I lifted
the stay on discovery and service and reminded plaintiff of
her responsibility to comply with all of her discovery and
other pretrial obligations, including service of process. 12
After several extensions, discovery closed on May 1, 2019.
(Dkt. Nos. 87, 90, 91.) However, insofar as the record reflects,
plaintiff made no effort to serve the Amended Complaint on
any of the defendants first named therein, and none of them
has appeared.
1. Defendants’ First Summary Judgment Motion
On July 1, 2019, defendants filed a summary judgment
motion, accompanied by a Rule 56.1 statement, a brief, a
declaration of counsel, and a Notice to Pro Se Litigant, in
accordance with Local Civil Rule 56.2, advising plaintiff
of her obligation to “submit evidence” in opposition to
the motion. (Dkt. Nos. 94-98.) Instead, after obtaining an
extension of time to respond to the motion (Dkt. No. 101),
plaintiff filed a 21-page document on August 13, 2019,
entitled “As to Violation of Constitutional and Human Rights
and of Any and All Law in Support of Plaintiff's Motion
for Opposing Summary Judgment,” in which she, inter
alia, complained about her former attorneys, questioned
the integrity of defendants’ counsel, accused defendants of
tampering with evidence, and listed in conclusory terms the
various ways she contends her rights were violated, without
identifying any record evidence to support her claims. (Dkt.
No. 102.) Along with this document, plaintiff submitted a 4-
page, unsigned declaration, recounting some of the events of
July 17, 2015 and asserting that the evidence supporting her
claims was “corrupted.” (Dkt. No. 103.) On August 28, 2019,
defendants submitted a reply brief in further support of their
initial summary judgment motion. (Dkt. No. 105.)
On September 16, 2019, plaintiff submitted her unsigned
“Evidence in Support,” naming six witnesses who, she
asserted, would support her claims. Pl. Evid. in Supp. at ECF
page 6. No witness affidavits were attached. Plaintiff did
attach, as Exhibits A-C, various Injury to Inmate reports (id. at
ECF pages 9-15) 13 ; the dental records reflecting her October
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1, 2015 tooth extraction (id. at ECF pages 19-23); and the July
30, 2015 photographs of her face, head and mouth. Id. at ECF
pages 25-37). The following day, she submitted an additional
Exhibit D (apparently omitted inadvertently the day before),
consisting of eight emails and one letter sent by the Legal
Aid Society, on her behalf, to various DOC personnel from
June through September 2015. (Dkt. No. 107.) 14 On October
7, 2019, I denied defendants’ letter-application requesting
that I “decline to consider” plaintiff's September 16 and 17
submissions. (Dkt. No. 110.)
*7 On January 28, 2020, I issued an order noting that
defendants’ pending motion was addressed to plaintiff's
original Complaint, rather than the operative Amended
Complaint. (Dkt. No. 111.) I directed the moving defendants
to advise the Court in writing by January 31 whether they
wished to stand on their pending motion or withdraw it
without prejudice to refiling “a motion addressed to the claims
framed by the Amended Complaint.” Id. On January 31, 2020,
defendants advised that they would withdraw their pending
motion and proposed a briefing schedule for the motion they
intended to refile, which I adopted. (Dkt. Nos. 112-13.)
2. Defendants’ Second Summary Judgment Motion
On March 6, 2020, defendants filed an answer to the
Amended Complaint (Dkt. No. 128) and the summary
judgment motion which is now before the Court,
accompanied by their Rule 56.1 statement; a brief (Def.
Mem.) (Dkt. No. 124); the Saavedra Declaration; and a
Notice to Pro Se Litigant once again advising plaintiff of her
obligation to “submit evidence” in opposition to the motion.
(Dkt. No. 122.) Defendants argue that they are entitled to
summary judgment because (1) the Supervisory Defendants
“were not personally involved in any alleged constitutional
violations,” Def. Mem. at 5-8; (2) plaintiff's excessive force
claims fail as a matter of law, id. at 8-14, because (a) the
use of force during the pepper spray incident was reasonable;
(b) no rational juror could believe plaintiff's allegations as
to the incident in the clinic bathroom, which is contradicted
by clinic records showing that she had no visible injuries
thereafter; and (c) plaintiff did not identify any of the three CO
Defendants as her assailant in any of the remaining incidents
alleged, concedes that Officer Ambrose was not present for
any of them, and further concedes that Officers Rothwell and
Lopez were not present for the cell extraction; (3) plaintiff's
deliberate indifference claim fails as a matter of law, id.
at 14-18, because (a) plaintiff did not suffer a “sufficiently
serious injury” to implicate the Constitution; (b) plaintiff
concedes that she was given medical treatment on July 17
and her testimony about the lack of treatment thereafter is
“directly contradicted by the medical records”; and (c) there
is no evidence that any of the individual defendants had any
responsibility for plaintiff's medical treatment after July 17;
(4) plaintiff's municipal liability claim fails for lack of any
underlying constitutional violation and for lack of evidence,
id. at 18-27; (5) plaintiff's Equal Protection claim fails for
lack of evidence of discriminatory intent on the part of any
individual defendant, id. at 27-29; and (6) her state law claims
fail with it. Id. at 30-31. In the alternative, defendants request
that the Court “decline supplemental jurisdiction” over the
state law claims. Id. at 31.
During a telephonic status conference on March 17, 2020, I
explained to plaintiff her obligations to respond to the motion
on time and with evidence, and directed her to do so by May
8, 2020, “in accordance with Rule 56 of the Federal Rules of
Civil Procedure and Local Civil Rule 56.1.” (Dkt. No. 132.)
Thereafter, plaintiff requested, and I granted, two extensions
of her time to respond, ultimately giving her a deadline of July
24, 2020. (Dkt. Nos. 135, 140.)
On various dates in May and June, 2020, plaintiff filed what
appears to be an opposing brief (Pl. Mem.) (Dkt. No. 136);
two versions of her opposing declaration (Dkt. Nos. 137,
148) 15 ; three copies of the “Evidence in Support” document
first filed on September 16, 2019, without exhibits (Dkt. Nos.
138, 143, 144); and a two-page document entitled Plaintiff's
Response [to] Defendants Local Rule 56.2 Notice (Dkt.
No. 147), which states that plaintiff had already “submitted
evidence in this case sufficient and overwhelming,” but does
not otherwise respond to defendants’ moving papers. On July
24, 2020, defendants submitted a reply brief (Dkt. No. 149),
urging the Court to deem their factual assertions and admitted
and declare many of plaintiff's claims abandoned.
II. LEGAL STANDARDS
A. Summary Judgment
*8 A court may grant a motion for summary judgment “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); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Holt v. KMI-Cont'l, Inc., 95 F.3d
123, 128-29 (2d Cir. 1996). The moving party bears the initial
burden of informing the court of the basis for the motion and
identifying those portions of the record that demonstrate the
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absence of a genuine dispute as to any material fact. Fed.
R. Civ. P. 56(c); Celotex, 477 U.S. at 322; Koch v. Town of
Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002). In evaluating
the record, the court must construe the evidence in the light
most favorable to the non-moving party and must draw all
reasonable inferences in the non-moving party's favor. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
In re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 87 (2d
Cir. 2008). “In applying this standard, the court should not
weigh evidence or assess the credibility of witnesses. These
determinations are within the sole province of the jury.” Frost
v. New York City Police Dep't, 980 F.3d 231, 242 (2d Cir.
2020) (quoting Hayes v. New York City Dep't of Corr., 84 F.3d
614, 619 (2d Cir. 1996)).
If the moving party meets its initial burden, the burden then
shifts to the non-moving party to establish a genuine dispute
of material fact. Celotex, 477 U.S. at 322; Beard v. Banks, 548
U.S. 521, 529 (2006); Santos v. Murdock, 243 F.3d 681, 683
(2d Cir. 2001). The non-moving party must present specific,
admissible evidence in support of her contention that there
is a genuine dispute as to the material facts. Celotex, 477
U.S. at 324; see also Jeffreys v. City of New York, 426 F.3d
549, 553-54 (2d Cir. 2005); D'Amico v. City of New York, 132
F.3d 145, 149 (2d Cir. 1998) (nonmoving party must offer
“some hard evidence showing that its version of the events
is not wholly fanciful”). Furthermore, the evidence must be
sufficient to permit a reasonable jury to return a verdict in the
non-moving party's favor. Anderson, 477 U.S. at 242, 248;
Nick's Garage, Inc. v. Progressive Casualty Ins. Co., 875 F.3d
107, 113 (2d Cir. 2017) (“A genuine issue of material fact
exists if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”) (internal quotation
marks omitted). Thus, “conclusory statements, conjecture, or
speculation by the party resisting the motion will not defeat
summary judgment.” Kulak v. City of New York, 88 F.3d 63,
71 (2d Cir. 1996).
B. Local Civil Rule 56.1
In Southern District of New York, the moving party
must submit a “short and concise statement, in numbered
paragraphs,” of the material facts that the moving party
contends to be undisputed, with citations to the underlying
evidence. Local Civil Rule 56.1(a). The non-moving party
must then respond in kind, with numbered paragraphs that
correspond “to each numbered paragraph in the statement
of the moving party.” Local Civ. R. 56.1(b). To the extent
not “specifically controverted” by the non-moving party, the
statement of material facts submitted by the moving party
may be “deemed to be admitted for purposes of the motion.”
Local Civ. R. 56.1(c); see also Giannullo v. City of New York,
322 F.3d 139, 140 (2d Cir. 2003) (“If the opposing party then
fails to controvert a fact so set forth in the moving party's Rule
56.1 statement, that fact will be deemed admitted.”).
C. Pro Se Parties
Where, as here, the party opposing summary judgment
is proceeding pro se, the court should read her papers
“liberally,” and “interpret them to raise the strongest
arguments that they suggest.” Burgos, 14 F.3d at 790 (2d Cir.
1994); see also Mikinberg v. Baltic S.S. Co., 988 F.2d 327,
330 (2d Cir. 1993); Haines v. Kerner, 404 U.S. 519, 520-21
(1972). While “pro se litigants are ‘not excused from meeting
the requirements of Local Rule 56.1,’ ” Diggs v. Volpe, 2013
WL 4015758, at *1 n.1 (S.D.N.Y. Aug. 7, 2013) (quoting Wali
v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009)),
the court has “broad discretion” to “overlook a [pro se] party's
failure to comply with local court rules,” and may exercise
that discretion to “conduct an assiduous review of the record”
even where – as here – the pro se party has failed entirely
to file a statement complying with Local Civil Rule 56.1(b).
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001)
(quoting Monahan v. New York City Dep't of Corrections, 214
F.3d 275, 292 (2d Cir. 2000)); accord Feelings v. Stukes, 2017
WL 3601241, at *5 n.1 (S.D.N.Y. Aug. 21, 2017); Cain v.
Esthetique, 182 F. Supp. 3d 54, 63 (S.D.N.Y. 2016), aff'd sub
nom. Cain v. Atelier Esthetique Inst. of Esthetics Inc., 733 F.
App'x 8 (2d Cir. 2018); Vann v. Fischer, 2014 WL 4188077,
at *6 (S.D.N.Y. Aug. 25, 2014). 16
*9 The court is not obligated, however, to accept a pro
se litigant's factual assertions where they contradict her
own previous statements or are otherwise “beyond belief.”
Shabazz v. Pico, 994 F. Supp. 460, 470 (S.D.N.Y. 1998)
(Sotomayor, D.J.) (quoting Dawes v. Coughlin, 964 F. Supp.
652, 657 (N.D.N.Y.1997)), vacated on other grounds by 205
F.3d 1324 (2d Cir. 2000). Nor need the court accept testimony
which is so “blatantly contradicted” by the video evidence
“that no reasonable jury could believe it.” Scott v. Harris, 550
U.S. 372, 380 (2007).
D. Section 1983
Section 1983 permits civil suits against those who, acting
“under color” of state law, have deprived the plaintiff
of “any rights, privileges, or immunities secured by the
Constitution” or laws of the United States. 42 U.S.C. §
1983. “Section 1983 does not create any federal rights;
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rather, it provides a mechanism to enforce rights established
elsewhere.” Soberanis v. City of New York, 244 F. Supp.
3d 395, 400 (S.D.N.Y. 2017) (citing Gonzaga Univ. v.
Doe, 536 U.S. 273, 285 (2002)). To state a claim under §
1983, “a plaintiff must allege that (1) the defendant was
a state actor, i.e., acting under color of state law, when
he committed the violation and (2) the defendant deprived
the plaintiff of ‘rights, privileges or immunities secured by
the Constitution or laws of the United States.’ ” Milan
v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citation
omitted). Plaintiff Stinson seeks damages pursuant to § 1983
on four distinct theories: (1) that defendants violated the
Fourth and Fourteenth Amendments by using excessive force
against her on July 17, 2015; (2) that they violated the Due
Process Clause of the Fourteenth Amendment by denying
her adequate medical care on that date and for eight days
thereafter; (3) that they violated the First and Fourteenth
Amendments by mistreating her in retaliation for complaints
she previously made about her treatment at Rikers Island;
and (4) that the CO Defendants violated the Equal Protection
Clause, because their misconduct was motivated by animus
on the basis of her sex, gender, and sexual orientation. Am.
Compl. ¶¶ 61-77.
1. Excessive Force
To prevail on an excessive force claim against jail officials,
a pretrial detainee must show that the use of force was
deliberate and that the degree of force used was “objectively
unreasonable” under the circumstances, taking into account
the “facts and circumstances of each particular case,” and
viewing the issue “from the perspective of a reasonable officer
on the scene, including what the officer knew at the time, not
with the 20/20 vision of hindsight.” Kingsley v. Hendrickson,
576 U.S. 389, 395-97 (2015) (quoting Graham v. Connor,
490 U.S. 386, 396 (1989)). Factors bearing on whether the
use of force was reasonable or unreasonable include “the
relationship between the need for the use of force and the
amount of force used; the extent of the plaintiff's injury; any
effort made by the officer to temper or to limit the amount
of force; the severity of the security problem at issue; the
threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting.” Kingsley, 576 U.S. at 397.
“The factfinder must also “take account of the legitimate
interests in managing a jail, acknowledging as part of the
objective reasonableness analysis that deference to policies
and practices needed to maintain order and institutional
security is appropriate.” Frost, 980 F.3d at 252 (quoting
Kingsley, 576 U.S. at 2474). “Additionally, an officer enjoys
qualified immunity and is not liable for excessive force unless
he has violated a ‘clearly established’ right, such that ‘it would
[have been] clear to a reasonable officer that his conduct was
unlawful in the situation he confronted.’ ” Kingsley, 576 U.S.
at 400 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
2. Deliberate Indifference
*10 Claims by pretrial detainees for inadequate medical
care are analyzed under the Due Process Clause using a
“two-pronged standard,” Lloyd v. City of New York, 246 F.
Supp. 3d 704, 717 (S.D.N.Y. 2017), to determine whether
the defendant officials were “deliberately indifferent” to the
detainee's “serious medical needs.” Id. at 718. First, the
plaintiff must show that the alleged deprivation of medical
care was “sufficiently serious in the sense that a condition
of urgency, one that may produce death, degeneration, or
extreme pain exists.” Yancey v. Robertson, 828 F. App'x 801,
803 (2d Cir. 2020) (summary order) (quoting Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation
marks omitted). Second, the plaintiff must show that the
defendant official “ ‘knew, or should have known’ that his
or her conduct ‘posed an excessive risk to health or safety.’
” Lloyd, 246 F. Supp. 3d at 719 (quoting Darnell v. Pineiro,
849 F.3d 17, 35 (2d Cir. 2017)). See also Charles v. Orange
Cty., 925 F.3d 73, 86 (2d Cir. 2019) (“in Darnell, we clarified
that deliberate indifference, in the context of a Fourteenth
Amendment due process claim, can be shown by something
akin to recklessness, and does not require proof of a malicious
or callous state of mind.”).
3. Retaliation
To prevail on 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.” Dolan
v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015) (quoting
Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)); see
also Gomez v. Cty. of Westchester, 649 F. App'x 93, 96 (2d
Cir. 2016) (summary order) (applying Espinal test to pretrial
detainees). The causal connection must be clear, because
“virtually any adverse action taken against a prisoner by
a prison official – even those otherwise not rising to the
level of a constitutional violation – can be characterized as a
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constitutionally proscribed retaliatory act.” Dolan, 794 F.3d
at 295. Thus, “courts in the Second Circuit ‘approach prisoner
retaliation claims with skepticism and particular care.’ ”
Williams v. King, 2018 WL 565719, at *3 (S.D.N.Y. Jan. 24,
2018) (quoting Dolan, 794 F.3d at 295), aff'd, 763 F. App'x 36
(2d Cir. 2019). Even where there is evidence of a retaliatory
motive, “a defendant may be entitled to summary judgment
if he can show ... that even without the improper motivation
the alleged retaliatory action would have occurred.” Scott v.
Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003); accord West
v. Goord, 2017 WL 3251253, at *7 (W.D.N.Y. July 31, 2017).
4. Equal Protection
“To prove an equal protection violation, [a plaintiff] must
prove purposeful discrimination, directed at an identifiable
or suspect class.” Giano v. Senkowski, 54 F.3d 1050, 1057
(2d Cir.1995) (citations omitted). “In other words, ‘[t]o prove
a violation of the Equal Protection Clause ... a plaintiff
must demonstrate that he was treated differently than others
similarly situated as a result of intentional or purposeful
discrimination.’ ” Randle v. Alexander, 960 F. Supp. 2d 457,
476 (S.D.N.Y. 2013) (quoting Phillips v. Girdich, 408 F.3d
124, 129 (2d Cir. 2005) (citation omitted)); see B. Braxton/
Obed-Edom v. City of New York, 368 F. Supp. 3d 729, 740
(S.D.N.Y. 2019) (the plaintiff must show “ ‘that similarly
situated persons have been treated differently’ ” (quoting
Gagliardi v. Vill. of Pawling, 18 F.3d 188, 193 (2d Cir.
1994)). Additionally, in a prison setting, the plaintiff must
demonstrate “that his treatment was not “reasonably related to
[any] legitimate penological interests.” Phillips, 408 F.3d at
129 (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)). 17
5. Supervisory Liability
*11 Regardless of the constitutional right involved, prison
officials, like others acting under color of state law,
can only be held liable for their own conduct. As the
Supreme Court explained in Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009), “vicarious liability is inapplicable” to
§ 1983 suits. Consequently, a § 1983 plaintiff must
both plead and prove “that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution.” Id.; see also Boley v.
Durets, 687 F. App'x 40, 41 (2d Cir. 2017) (summary
order) (“[t]o establish a § 1983 claim, a plaintiff must
show the defendants’ personal involvement in the alleged
constitutional violation”); Colon v. Coughlin, 58 F.3d 865,
873 (2d Cir. 1995) (“personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983” (internal quotation marks
and citations omitted)), abrogated on other grounds, Tangreti
v. Bachmann, 983 F.3d 609 (2d Cir. 2020).
Personal involvement must be demonstrated both for line
officers, see, e.g., McGrier v. City of New York, 849 F.
App'x 268, 272 (2d Cir. 2021) (summary order) (upholding
grant of summary judgment to Rikers Island correction
officer involved in cell extraction where there was “some
evidence” that excessive force was used in the extraction but
“no reasonable jury could find [the named officer] directly
responsible for applying [the] unconstitutionally excessive
force”), and for supervisory officials. See Ayers v. Coughlin,
780 F.2d 205, 210 (2d Cir. 1985) (supervisory liability
requires “a showing of more than the linkage in the prison
chain of command [because] the doctrine of respondeat
superior does not apply”). Moreover, after Iqbal, there is
no “special test for supervisory liability.” Tangreti, 983 F.3d
at 616. In evaluating whether a supervisory official can be
liable for injuries inflicted by others, the court must analyze
the same elements that define the constitutional tort for
direct actors. Id.; see also Dumel v. Westchester Cty., 2021
WL 738365, at *7 (S.D.N.Y. Feb. 25, 2021) (“whatever
the alleged constitutional violation may be, ‘[t]he violation
must be established against the supervisory official directly’
” (quoting Tangreti, 983 F.3d at 618)). Thus, for example, “for
deliberate-indifference claims under the Eighth Amendment
against a prison supervisor, the plaintiff must plead and prove
that the supervisor had subjective knowledge of a substantial
risk of serious harm to an inmate and disregarded it.” Tangreti,
983 F.3d at 618.
6. Municipal Liability
Under the Supreme Court's decision in Monell v. Dep't of
Soc. Servs. of City of New York, 436 U.S. 658 (1978), a
municipality may be held liable under § 1983 only if the
plaintiff shows the existence of a constitutional violation “
‘that was caused by an official municipal policy or custom.’
” Frost, 980 F.3d at 257 (quoting Bellamy v. City of New
York, 914 F.3d 727, 756 (2d Cir. 2019)). “There are three
elements to a Monell claim: ‘(1) an official policy or custom
that (2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right.’ ” McGrier, 849 F. App'x at 272 (quoting
Lucente v. Cnty. of Suffolk, 980 F.3d 284, 297 (2d Cir. 2020));
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accord Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007).
III. DISCUSSION
A. CO Ambrose
It is undisputed that CO Ambrose was not present for any
of the events of July 17, 2015. He therefore cannot be liable
for any excessive force used against her that day by other
officers. See Arminio v. Holder, 2019 WL 176804, at *3
(S.D.N.Y. Jan. 11, 2019) (quoting Russo v. DeMilia, 894 F.
Supp. 2d 391, 414 (S.D.N.Y. 2012)) (a correction officer “is
personally involved in the use of excessive force if he either:
(1) directly participates in an assault; or (2) was present during
the assault, yet failed to intercede on behalf of the victim
even though he had a reasonable opportunity to do so”); Univ.
Calvary Church v. City of New York, 2000 WL 1538019, at
*4 (S.D.N.Y. Oct. 17, 2000) (granting summary judgment to
defendant Parrish because “[t]here is no showing that he was
involved in or even present at the time the arrest or use of
force occurred.”).
*12 Similarly, plaintiff does not claim that Ambrose played
any role in denying her medical care (or, for that matter, that
he had any awareness of her alleged injuries). He therefore
cannot be liable to her on a deliberate indifference theory. See
Simpson v. Town of Warwick Police Dep't, 159 F. Supp. 3d
419, 444 (S.D.N.Y. 2016) (“Maslanka and Sisco are entitled
to summary judgment on Simpson's deliberate indifference
claim because, as stated above, the record shows that neither
officer participated in Simpson's arrest or detention at the
Warwick police station or Orange County jail. As such, there
is no reason to believe that either officer was personally
involved in, or even aware of, any alleged deprivation of
medical care.”); Lara-Grimaldi v. Cty. of Putnam, 2018
WL 1626348, at *11 (S.D.N.Y. Mar. 29, 2018) (dismissing
deliberate indifference claim against Smith where there was
no allegation that Smith “was involved in, aware of, or
somehow permitted” the alleged deprivation of adequate
care, nor even that he “interacted with Grimaldi or any of
the PCCF employees responsible for making the screening
recommendation for Grimaldi during the two days Grimaldi
was ... incarcerated [at] PCCF”).
Plaintiff's retaliation, equal protection, and discrimination
claims should also be dismissed as against Ambrose.
According to plaintiff, Ambrose threatened her on July
16, 2015, because she “got [him] suspended.” Pl. Dep.
Tr. at 59:7-24. “[T]he filing of prison grievances is a
constitutionally protected activity,” Davis v. Goord, 320 F.3d
346, 352-53 (2d Cir. 2003), and I see no reason why a
complaint made to an outside agency (like the Legal Aid
Society) and relayed to prison authorities by email should be
treated any differently. However, the retaliatory threat that
Ambrose allegedly made – and that plaintiff says she believed
– was that other inmates were going to beat her in the holding
cell of the intake unit, Pl. Dep. Tr. at 63:9-11, where there
were “no cameras.” Id. at 68:9-10. That never happened.
Instead, due to her fear of inmate-on-inmate violence, plaintiff
refused to enter the cell at all, id. at 63:18-66:24, obliging
the officers escorting her to carry her. She then “snatched
loose from their grip,” “grabbed a table,” id. at 68:6-10,
and refused to let go, requiring the officers, in turn, to use
force to dislodge her. On this record, no reasonable jury
could conclude that Ambrose was responsible for that use of
force, much less that there was a “causal connection,” see
Dolan, 794 F.3d at 294, between plaintiff's allegedly protected
speech and the “adverse action” she experienced at the hands
of other officers, after repeatedly refusing to follow their
orders, on July 17, 2015. See Williams, 2018 WL 565719, at
*3-4 (granting summary judgment to defendant King where
plaintiff had previously filed a grievance against King but
produced no evidence suggesting that King assigned Mead to
conduct plaintiff's disciplinary hearing in retaliation for that
grievance, nor that King “had any reason to believe that Mead
would conduct the disciplinary hearing in a biased manner”).
Moreover, while plaintiff has testified to her belief that
Ambrose's threat was retaliatory, she presents no evidence
that it was discriminatory; that is, that it arose from any
animus relating to her sex, gender, or sexual orientation. The
fact that plaintiff presented as a gay man when the threat
was made does not, standing alone, support an inference
of animus on that basis. See White v. City of New York,
206 F. Supp. 3d 920, 931 (S.D.N.Y. 2016) (dismissing equal
protection claim brought by transgender man against officers
who, according to plaintiff, were insufficiently responsive
to his request for police assistance, but did not otherwise
display any “discriminatory animus”). 18 Nor does she point
to any evidence that otherwise “similarly situated persons”
of a different sex, gender, or sexual orientation were “treated
differently” by Ambrose. B. Braxton/Obed-Edom, 368 F.
Supp. 3d at 740. I therefore recommend, respectfully, that
summary judgment be granted to CO Ambrose on all of
plaintiff's claims.
B. COs Lopez and Rothwell
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1. Excessive Force
a) The Intake Unit – Morning Incident
*13 The use of pepper spray “constitutes a significant degree
of force” and can, in certain cases, form the basis of a
constitutional violation. Tracy v. Freshwater, 623 F.3d 90,
98 (2d Cir. 2010); Berry v. City of New York Dep't of Corr.,
2014 WL 2158518, at *5 (S.D.N.Y. May 22, 2014), aff'd
sub nom. Berry v. New York City Dep't of Correction, 622 F.
App'x 10 (2d Cir. 2015). However, if the force was “applied
in a good-faith effort to maintain or restore discipline,” it
“will not amount to excessive force under Second Circuit
law.” Adilovic v. Cnty. of Westchester, 2011 WL 2893101, at
*6 n. 12 (S.D.N.Y. July 14, 2011) (internal citation omitted)
(quoting Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000)); accord
Berry, 2014 WL 2158518, at *5; see also Walton v. Lee,
2019 WL 1437912, at *6 (S.D.N.Y. Mar. 29, 2019) (“The use
of pepper spray is not an actionable constitutional violation
where there is no lasting injury, and where the subject was not
cooperating with law enforcement.”)
In this case, the facts surrounding Officer Lopez's use of
pepper spray on plaintiff are undisputed, and the incident
is clearly depicted on the video footage submitted by
defendants, Saavedra Decl. Ex. C, which shows that: (1)
plaintiff actively resisted efforts to deliver her to the intake
holding cell, first by struggling as she was half-carried, half-
dragged towards the door of the cell, 19 and then by twisting
out of the officers’ grip and anchoring herself to the leg
of a large metal table; (2) plaintiff continued to disobey
as the officers made efforts to obtain compliance without
force 20 ; and (3) after giving plaintiff what appeared to be
a last warning, Officer Lopez delivered two short bursts of
chemical spray towards plaintiff from at least six feet away.
Even after being sprayed, plaintiff did not move. Several
minutes later, it took a group of five officers to hold onto
plaintiff while lifting the entire table up and out of her grip.
Under these circumstances, the use of pepper spray was both
justified – because “the subject was not cooperating with
law enforcement,” Walton, 2019 WL 1437912, at *6 – and
proportional. See Kopy v. Howard, 2010 WL 3808677, at *3
(N.D.N.Y. Aug. 11, 2010) (correction officer was entitled to
use pepper spray on detainee to “forcibly move[ ]” him after
he “refused several direct orders to return to his cell”), report
and recommendation adopted, 2010 WL 3807166 (N.D.N.Y.
Sept. 21, 2010). 21 Moreover, although plaintiff complained
of burning eyes – treated later that day – she suffered no “long
lasting injury” from the spray. Walton, 2019 WL 1437912, at
*6.
*14 Since no reasonable jury could find Officer Lopez's
conduct “objectively unreasonable,” Kingsley, 576 U.S. at
397, plaintiff's excessive force claim, to the extent arising
from the use of pepper spray on her, must fail. See Kopy,
2010 WL 3807166, at *1 (granting summary judgment to
officer who used pepper spray to force detainee to return to
his cell); Casiano v. Ashley, WL 281460, at *4 (W.D.N.Y.
Jan. 28, 2021) (granting summary judgment to deputies who
used physical force, including pepper spray to the face, after
plaintiff disobeyed orders to remove her clothing for a strip
search and then refused to place both hands behind her back);
Quinones v. Rollison, 2020 WL 6420181, at *4 (S.D.N.Y.
Nov. 1, 2020) (granting summary judgment to Rikers Island
CO who used pepper spray to break up a fight between two
prisoners after they disregarded his orders to stop); Walton,
2019 WL 1437912, at *5-6 (granting summary judgment
to Rikers Island CO who used pepper spray to “subdue” a
detainee who “rushed past officers” when they opened his cell
door and “continued to advance away from them”).
Even assuming that Lopez used excessive force when he
sprayed plaintiff, he would be entitled to qualified immunity
as to this incident, because “there is no clearly established law
forbidding [the] use [of pepper spray] against individuals who
refuse to comply with officer instructions after a warning.”
Taylor v. Nieves, 2020 WL 7028907, at *3 (S.D.N.Y. Nov. 30,
2020) (granting summary judgment, on qualified immunity
grounds, to COs who sprayed plaintiff twice after he left
his cell against instructions and after the COs’ initial efforts
“to cajole Taylor to return to his cell were ineffective”). See
also Brown v. City of New York, 862 F.3d 182, 190 (2d Cir.
2017) (affirming grant of summary judgment, on qualified
immunity grounds, to police officer who used pepper spray to
subdue a suspect who “refused to comply with the instructions
to place her hands behind her back for handcuffing”).
Plaintiff alleges that, after she was pepper-sprayed, separated
from the table leg, and placed on the stretcher, she was
assaulted again, this time by three or four officers who
gratuitously punched her in her face and chest. Pl. Dep. Tr.
at 73:9-21, 75:2-5. It is possible that Officers Lopez and
Rothwell were among the group that remained with plaintiff
after she was placed on the stretcher and restrained. 22
That possibility, however, is insufficient to defeat summary
judgment as to this alleged incident. As noted above, plaintiff
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could not be sure of any of the officers who remained with
her for this episode, much less identify those who punched
her. Def. Rule 56.1 St. ¶ 18; Pl. Dep. Tr. at 74:16-21. Thus,
even assuming that her assertions are truthful, she has offered
no evidence that COs Rothwell and Lopez, “as opposed to
one of the other officers,” punched her or otherwise used
excessive force on her once she was on the stretcher. McGrier
v. City of New York, 2019 WL 1115053, at *10 (S.D.N.Y. Mar.
11, 2019) (granting summary judgment to Officer Robles,
who was part of a six-officer team that allegedly punched
and kicked plaintiff while he was handcuffed during a cell
extraction, because plaintiff “failed to offer any facts tending
to show that it was Robles who punched or kicked him
while he was handcuffed, other than Robles's presence at the
scene”) (emphasis in the original), aff'd, 849 F. App'x 268
(2d Cir. 2021); Gutierrez v. New York, 2021 WL 681238, at
*6 (E.D.N.Y. Feb. 22, 2021) (granting summary judgment
to three of the defendant police officers because, although
it was “likely” they were involved in the arrest of a group
of alleged robbers or the ensuring investigation, “there is
no evidence that they participated in, and were therefore
personally involved with, Plaintiff's arrest”). In the absence
of any admissible evidence showing that Rothwell and Lopez
were present for and personally participated in this alleged
assault, plaintiff cannot maintain an excessive force claim
against either of them with respect to any of the morning
incidents in the intake unit.
b) The GMDC Clinic
*15 For the same reason, plaintiff cannot maintain an
excessive force claim against Rothwell and Lopez for beating
her in the hallway of the GMDC clinic. By her own admission,
plaintiff kept her eyes closed during this alleged attack, Pl.
Dep. Tr. at 79:3-13, and there is no video footage of any
such incident. Absent some admissible evidence showing that
Rothwell and Lopez personally participated in this alleged
assault, they are entitled to summary judgment. McGrier,
2019 WL 1115053, at *10.
Summary judgment would be inappropriate, however, with
respect to the alleged assault in the clinic bathroom. As to
this incident, plaintiff clearly identified Rothwell and Lopez
as the officers who – in her telling – came inside the bathroom
when she was washing her face and started hitting and kicking
her. Pl. Dep. Tr. at 76:18-22 (“they both started kicking me
real hard”), 80:4-6 (Rothwell “started kicking me and him and
Lopez ... drug me to the mental health part [where] there [are]
no cameras”), 82:8-9 (“Lopez and Rothwell came and beat
me up in the bathroom”).
Defendants urge the Court to grant summary judgment as
to this alleged incident because plaintiff's allegations are
“fanciful” and “directly contradicted by the medical records”
of her next clinic visit, “which show that plaintiff did not
have any visible injuries.” Def. Mem. at 13. Defendants
primarily rely on Jeffreys v. City of New York, 426 F.3d 549,
554 (2d Cir. 2005), an excessive force case in which the
Court of Appeals affirmed the grant of summary judgment
against a plaintiff who “relie[d] almost exclusively on his
own testimony, much of which [was] contradictory and
incomplete,” and Shabazz, 994 F. Supp. at 468-71, another
excessive force case, in which then-District Judge Sotomayor
granted summary judgment after noting the absence of any
corroborating evidence in the record and highlighting the
many inconsistencies and contradictions within the plaintiff's
deposition testimony and affidavits. In both of those cases,
however, the plaintiffs repeatedly contradicted themselves
as to the basic facts of their claims, including both the
way in which they were injured and the nature of their
injuries. 23 Here, although plaintiff's allegations are both
uncorroborated and inconsistent with the clinic's medical
records (to the extent those records report that she had “no
visible injuries” later that same morning, Saavedra Decl.
Ex. B, at ECF pages 23-24, and only minor injuries that
evening, after the cell extraction, id. at ECF pages 19-20),
her own account has largely been consistent, beginning when
she told PA Ndayishimiye that she was injured in an “attack
by staff,” id., and she has clearly identified Rothwell and
Lopez as her alleged assailants, explaining that she opened
her eyes before she made her way to the bathroom. Pl.
Dep. Tr. at 79:14-17. Moreover, there is no evidence directly
contradicting her account of the assault itself. There was no
video, and defendants did not submit any testimony from
Rothwell, Lopez, or clinic personnel. Cf. Jeffries, 426 F.2d
at 551-53 (summarizing contrary testimony of police officer
defendants and medical expert).
*16 On this record, I cannot recommend that plaintiff's
claims as to the alleged assault in the clinic bathroom be
dismissed on summary judgment. In Nielsen v. Rabin, 746
F.3d 58 (2d Cir. 2014), the Court of Appeals held that the
District Judge erred in relying on the contents of medical
records (the accuracy of which was disputed) to deny leave
to amend to a pro se plaintiff who sued two emergency room
doctors for failing to properly diagnose and treat serious
injuries that he claimed to have sustained during his arrest.
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“In doing so,” the appellate court explained, the trial court
“inappropriately resolved questions of fact.” id. at 63, because
“[t]he medical records’ description of his complaints is only
the defendants’ version of the events.” Id. at 63 n.4. “By
assuming that the records are true where they contradict the
allegations in the complaint, the dissent turns the Rule 12(b)
(6) standard on its head.” Id.
Here, of course, the standard is supplied by Rule 56, which
also prohibits the court – except in the “rare circumstances”
presented in Jeffries, 426 F.3d at 554 – from weighing the
evidence or assessing the credibility of witnesses. In an
ordinary case, such as this one, those determinations “are
within the sole province of the jury.” Frost, 980 F.3d at 245-46
(characterizing Jeffries as a “narrow exception” to the rule
against weighing the evidence on summary judgment and
holding that although there were many reasons to be skeptical
of a bare-bones declaration from a recanting witness, the
district court “erred both in discrediting Vega's declaration at
the summary judgment stage and in dismissing Frost's due
process claim as a result”); see also Gutierrez, 2021 WL
681238, at *4 (although “[p]laintiff's version of events” was
implausible, in that it conflicted with the records submitted
by defendants, court declined to “discredit” that version on
summary judgment, because plaintiff did not “sufficiently
contradict[ ] himself to render [his] testimony incredible”);
Jeanty v. City of Utica, 2021 WL 149051, at *22 (N.D.N.Y.
Jan. 14, 2021) (denying summary judgment to police officer
who allegedly fabricated evidence where plaintiff's account
was “not ‘so replete with inconsistencies and improbabilities
that no reasonable juror would undertake the suspension of
disbelief necessary to credit’ his testimony” (quoting Jeffreys,
426 F.3d at 551)), adhered to on reconsideration, 2021 WL
2525061 (N.D.N.Y. Apr. 15, 2021).
Construing the evidence in the light most favorable to
plaintiff, as I must, I conclude that although her account of
the alleged assault in the clinic bathroom and her resulting
injuries is materially inconsistent with the Rikers Island
medical records submitted by defendants, her testimony –
which is not otherwise contradicted by any of defendants’
evidence – is neither internally self-contradictory nor
inherently so far-fetched as to be “beyond belief,” Shabazz,
994 F. Supp. at 470, as a matter of law. Moreover, if the
attack occurred as plaintiff claims, and produced some or all
of the injuries she describes, a rational juror could find that
COs Rothwell and Lopez deliberately used a degree of force
that was “objectively unreasonable” under the circumstances.
Kingsley, 576 U.S. at 395-97. In my view, therefore, summary
judgment should not be granted to these defendants as to the
incident in the clinic bathroom.
c) The Intake Unit – Afternoon Cell Extraction
Because plaintiff admits that Rothwell and Lopez were not
present during the cell extraction after plaintiff was returned
to the intake unit, her excessive force claims against them
arising from this incident should be dismissed. Univ. Calvary
Church, 2000 WL 1538019, at *4.
2. Deliberate Indifference
Officers Rothwell and Lopez cannot be liable to plaintiff
for denying her adequate medical care during the morning
of July 17, 2015, because they delivered her to the GMDC
clinic after the morning incident in the intake unit (and then
again, according to plaintiff, after the alleged assault in the
clinic bathroom). See Pl. Dep. Tr. at 82:14-19. To be sure,
plaintiff complains that the clinic staff “gave me half ass
medical attention where they only did my vitals,” and failed
to record her injuries accurately, id. at 80: 13-24. However,
since she does not allege (much less submit any evidence
demonstrating) that Rothwell or Lopez had any personal
involvement in directing her medical care or influencing the
preparation of her medical records, they cannot be liable in
damages for any substandard medical care by the clinic staff.
*17 Plaintiff was taken to the clinic again a few hours later,
after the afternoon cell extraction. Even if she were not given
prompt treatment, however, Rothwell and Lopez could not be
liable on a deliberate indifference theory in relation to that
incident, because it is undisputed that they were not present
for the extraction, and thus could not have known that she
needed additional medical attention. Darnell, 849 F.3d at 33.
The same is true with respect to plaintiff's claims that she was
denied adequate medical attention after she was transferred
to AMKC. Since there is no evidence that Rothwell and
Lopez ever “interacted” with plaintiff at AMKC, much less
that they played some role in denying her medical attention,
plaintiff's deliberate indifference claim should be dismissed
against these defendants in its entirety. Lara-Grimaldi, 2018
WL 1626348, at *11; see also Simpson, 159 F. Supp. 3d at
444.
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3. Retaliation
Plaintiff's retaliation claims should also be dismissed as
against Rothwell and Lopez. There is no suggestion in the
evidentiary record that plaintiff filed any grievances against
these two officers (or complained about them to Prisoner's
Rights), nor that they were aware of her complaints about
Officer Ambrose. As to COs Rothwell and Lopez, therefore,
plaintiff has presented no evidence as to two of the three
necessary elements of a retaliation claim: (relevant) protected
speech or conduct and a causal connection between the
protected speech or conduct and the adverse action of which
she complains. Dolan, 794 F.3d at 294; Espinal, 558 F.3d at
129.
4. Equal Protection, NYSHRL, and NYCHRL
Finally, COs Rothwell and Lopez are entitled to summary
judgment on plaintiff's equal protection and state law
discrimination claims, because there is no evidence in
the record that either of these defendants harbored a
discriminatory motive relating to plaintiff's sex, gender, or
sexual orientation, nor that they treated plaintiff “differently
than others similarly situated” on that basis. Phillips, 408
F.3d at 129; see also Bradshaw v. Hernandez, 788 F. App'x
756, 759 (2d Cir. 2019) (summary order) (affirming that
“conclusory allegations ... do not support an Equal Protection
claim” where the plaintiff has no “competent evidence that
any of the individual defendants were motivated by ...
discrimination”).
C. The Supervisory Defendants
Plaintiff does not so much as mention the Supervisory
Defendants in her deposition, nor in any of the papers she
submitted in opposition to summary judgment. Her claims
against them may therefore be deemed abandoned. See Hayes
v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 418 (S.D.N.Y. 2012)
(claim deemed abandoned where plaintiff failed to address it
“in either of his affidavits in response to Defendants’ motions
for summary judgment”).
Even if plaintiff did not intend to abandon her claims
against the Supervisory Defendants, those claims would be
subject to dismissal because there is no evidence, anywhere
in the record, showing that former Commissioner Ponte,
former Chief of Department Murphy, or former Deputy
Commission Blake was personally involved in the alleged
use of excessive force by COs Rothwell and Lopez in the
clinic bathroom on July 17, 2015. See Blyden v. Mancusi,
186 F.3d 252 (2d Cir. 1999) (“[F]or a supervisor to be liable
under Section 1983, there must have been an underlying
constitutional deprivation.”). Nor, for that matter, is there
any evidence showing that they were personally involved in
any of the other constitutional violations alleged against the
CO Defendants. The lack of such evidence is fatal, because
every constitutional violation “must be established against the
supervisory official directly,” based on “what the supervisor
did or caused to be done, ‘the resulting injury attributable to
his conduct, and the mens rea required of him to be held liable,
which can be no less than the mens rea required of anyone
else.’ ” Tangreti, 983 F.3d at 618 (quoting Porro v. Barnes,
624 F.3d 1322, 1328 (10th Cir. 2010)). The Supervisory
Defendants are therefore entitled to summary judgment on all
of plaintiff's claims.
D. Municipal Liability
*18 Monell liability, like supervisory liability, requires an
underlying constitutional or statutory violation by a human
officer. Wray v. City of New York, 490 F.3d 189, 195 (2d Cir.
2007). It also requires proof that the underlying violation “was
caused by an official municipal policy or custom.” Frost, 980
F.3d at 257. “Where a plaintiff can show only ‘misbehaving
officers,’ ... but has not offered proof of an official policy that
led to the constitutional or statutory violation, his claim must
fail.” Adilovic v. Cty. of Westchester, 2011 WL 2893101, at
*8 (S.D.N.Y. July 14, 2011) (Turpin v. Mailet, 619 F.2d 196,
203 (2d Cir. 1980)).
Here, as in Adilovic, “the record contains no evidence of
an official policy authorizing, sanctioning, encouraging, or
promoting the use of excessive force against inmates.” Id. Nor
has plaintiff made any effort (beyond the allegations in her
Amended Complaint) to posit the existence of such a policy.
The City is therefore entitled to summary judgment on all
of plaintiff's claims. Id. (in the absence of any evidence of a
municipal policy or custom, “even if Adilovic's claims rose
to the level of a constitutional violation, they indicate only
‘a single incident of unconstitutional activity [which] is not
sufficient to impose liability under Monell.’ ” (quoting City of
Oklahoma City v. Tuttle, 471 U.S. 808, 841 (1985))).
IV. CONCLUSION
After an assiduous review of the record, which I have
construed in the light most favorable to the plaintiff, I have
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been unable to identify any triable issue of material fact that
could defeat defendants’ motion for summary judgment, with
the exception of plaintiff's excessive force claim against COs
Lopez and Rothwell arising out of the alleged incident in the
bathroom of the GMDC medical clinic on the morning of
July 17, 2015. Accordingly, I respectfully recommend that
defendants’ summary judgment motion be GRANTED in
favor of individual defendants Ambrose, Ponte, Murphy, and
Blake, and the City of New York, on all of plaintiff's claims.
As to defendants Lopez and Rothwell, I recommend that the
motion be GRANTED IN PART, and that all claims against
them be dismissed except for the portion of plaintiff's First
Claim seeking damages pursuant to § 1983 for the force that
they allegedly used on her in the bathroom of the GMDC
clinic.
I further recommend that plaintiff's claims against unserved
defendants Black, Cardoza, Debianchi, Hall, Haynie,
Kirkland, Lawrence, Monteforte, Saldana, Skepple, and
Stevenson be dismissed without prejudice pursuant to Fed. R.
Civ. P. 4(m). See Zapata v. City of New York, 502 F.3d 192,
199 (2d Cir. 2007).
The Clerk of Court is respectfully directed to mail a copy of
this Report and Recommendation to the plaintiff.
NOTICE OF PROCEDURE FOR
FILING OF OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
The parties shall have fourteen days from this date to
file written objections to this Report and Recommendation
pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b).
See also Fed. R. Civ. P. 6(a) and (d). Any such objections
shall be filed with the Clerk of the Court, with courtesy
copies delivered to the Hon. Lewis A. Kaplan at 500 Pearl
Street, New York, New York 10007, and to the chambers
of the undersigned magistrate judge. Any request for an
extension of time to file objections must be directed to Judge
Kaplan. Failure to file timely objections will result in a
waiver of such objections and will preclude appellate
review. See Thomas v. Arn, 474 U.S. 140 (1985); Frydman
v. Experian Info. Sols., Inc., 743 F. App'x 486, 487 (2d Cir.
2018) (summary order); Wagner & Wagner, LLP v. Atkinson,
Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596
F.3d 84, 92 (2d Cir. 2010).
All Citations
Not Reported in Fed. Supp., 2021 WL 3438284
Footnotes
1 Plaintiff identifies as transgender, Am. Compl. ¶ 54, and has referred to herself throughout this litigation as
Ms. Stinson. The Court follows suit. However, while at Rikers Island, plaintiff was housed in units designated
for males, including the George Motchan Detention Center (GMDC). On June 22, 2015, the Prisoner's Rights
Project of the Legal Aid Society sent an email to the DOC asserting that “Mr. Stinson is a homosexual inmate
who reports being subjected to continuous harassment from both inmates and officers” and requesting that
plaintiff, who was then housed at GMDC, “be transferred to protective custody in another facility where other
gay inmates are housed.” (Dkt. No. 107.) The underlying records from Rikers Island consistently refer to
plaintiff as “Mr. Stinson.”
2 At deposition, plaintiff explained that her complaints had resulted in CO Ambrose being suspended for making
“racial comments towards me.” Pl. Dep. Tr. at 59:6-24. Plaintiff further testified that on July 16, 2015 (by
which time Ambrose had “come off suspension”), he told her that “these things were going to happen on the
17th.” Id. at 59:9; 65:2-10; see also Pl. Decl. at ECF page 3 (plaintiff was “threatened that it would happen by
Officer Ambrose” on July 16, 2015). Defendants have neither confirmed nor denied the alleged disciplinary
action against CO Ambrose. However, it is undisputed that Ambrose was not present for any of the incidents
that took place on July 17, 2015. Def. Rule 56.1 St. ¶ 36; Pl. Dep. Tr. at 99:23-25, 101:19-21.
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3 The summary judgment record includes video footage (lodged with the Clerk of Court under seal) which
clearly captures this incident from two angles.
4 The video footage shows plaintiff being placed on a wheeled stretcher in the intake unit. It also shows plaintiff
heaving herself off the stretcher, landing on the floor, being placed back on the stretcher, and then attempting
to bite one of the correction officers as they restrain her. The video does not show any officers punching
plaintiff in the face (or elsewhere). At deposition, plaintiff testified that defendants “didn't turn in that part of
the video.” Pl. Dep. Tr. at 77:16-17.
5 There is no video footage of the alleged assaults inside the clinic. Plaintiff explained at deposition that there
are “no cameras” in that location, enabling Rothwell and Lopez to “have fun with me.” Pl. Dep. Tr. at 78:19-20.
6 The video footage of the cell extraction, which was taken by a member of the extraction team using a
handheld video camera, was produced in discovery and initially submitted to the Court in connection with a
judicially supervised settlement conference that took place on September 11, 2018. Plaintiff never formally
re-submitted the extraction footage in opposition to defendants’ summary judgment motion. However, she
repeatedly refers to that video in her deposition testimony, stating that the beating she received during the
extraction was “on camera,” Pl. Dep. Tr. at 85:13, and that “if you look at the video I cooperated with everything
they said to do respectfully and you all still beat the shit out of me.” Id. at 86:9-11; see also id. at 108:17-109:8
(“If you look at the video its clear as [to] what they said ... I followed [their] direct orders.”). I conclude from this
that plaintiff believes that the extraction video is in the record for summary judgment purposes and intends to
rely on it in opposition to defendants’ motion. Mindful of the “special solicitude” that “should be afforded pro
se litigants generally, when confronted with motions for summary judgment,” Graham v. Lewinski, 848 F.2d
342, 344 (2d Cir. 1988), I have lodged the extraction video with the Clerk of Court under seal and treated it,
in accordance with plaintiff's intent, as part of the summary judgment record.
7 The video footage does not show the officers punching or kicking plaintiff's face, choking her, or pulling her
hair during the extraction. However, the camera operator did not always have a clear view of plaintiff's head.
At deposition, plaintiff stated that “they turned the camera towards my feet while they were beating up my
head.” Pl. Dep. Tr. at 86:12-13.
8 The July 19 visit was in connection with plaintiff's referral to “MO” (mental health observation) housing. Nurse
Practitioner Stephanie English assessed plaintiff with schizoaffective disorder, bipolar type, and antisocial
personality disorder, and continued plaintiff's prescriptions for Zoloft and Risperdal. Saavedra Decl. Ex. B, at
ECF pages 12-14. At the July 21 visit, plaintiff complained that hot water was splashed on her body as a result
of an “inmate-on-inmate fight,” but denied that she was injured. Id., at ECF page 8. No blisters were noted.
Id., at ECF page 9. The reason for the July 23 visit was another “injury report” resulting from an inmate-on-
inmate fight, but plaintiff once again denied that she was injured, “nor assaulted by anyone,” and no visible
injuries were noted. Id. at ECF page 5.
9 This document, like others filed by plaintiff on September 16 and 17, 2019, as exhibits to her “Evidence in
Support” submission, is unauthenticated. See Pl. Evid. in Supp. at ECF pages 3-7. However, in light of the
“special solicitude” due to pro se litigants, Graham, 848 F.2d at 344, I have reviewed all of those exhibits and
treated them as documentary evidence proffered in opposition to the present summary judgment motion.
10 Plaintiff states that this is because the photographs were “falsified,” having actually been taken on October
1, 2015, after the injuries healed. Pl. Evid. in Supp at ECF pages 4-5.
11 The newly named defendants were Amanda Black, Akeem Cardoza, Derek Debianchi, Lawrence Hall, David
Haynie, Hope Kirkland, Anthony Lawrence, Trudie Monteforte, Jacob Saldana, Edwin Skepple, and Edwin
Stevenson. Am. Compl. ¶ 16.
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12 The Order Lifting Stay (Dkt. No. 63) stated, on page 1: “Plaintiff Stinson is reminded that even though she is
proceeding pro se, she must still comply with all of her discovery and other pretrial obligations, including ... her
obligation to effect service of process on the individual defendants first named in the Amended Complaint.”
13 As relevant here, there are two such reports dated July 17, 2015, corresponding to plaintiff's visits to the
GMHC clinic after the morning incident in the main intake unit and the afternoon cell extraction, and consistent
with the medical records generated by the clinic and placed into evidence by defendants. Pl. Evid. in Supp.
Ex. C, at ECF pages 14, 15. Another report, dated July 21, 2015, corresponds to plaintiff's visit to the AMKC
clinic on that date and is consistent with the medical record of that visit placed into evidence by defendants.
Id. at ECF page 13. The last relevant Injury to Inmate report is dated July 30, 2015, and – as noted above –
documents plaintiff's allegation that she “was assaulted by DOC staff on July 17, 2015, causing injury,” id. at
ECF page 12, but also states that she “refused medical services” and that the PA who examined her could
detect “no injury” to her head, neck, chest, or abdomen. Id.
14 None of the Legal Aid Society communications submitted by plaintiff makes any reference to the events of
July 17, 2015.
15 Although the signature line on the fourth page of plaintiff's declaration is missing (Dkt. No. 137) or blank (Dkt.
No. 148), plaintiff appears to have signed the first page of each version of the document before a notary
public. Mindful of the Court's obligation to read the papers submitted by a pro se litigant “liberally,” Burgos v.
Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), I have treated this document as I would a signed and sworn affidavit.
16 I have done so here, carefully reviewing plaintiff's entire deposition transcript, all the pleadings, letters,
declarations, and other submissions (sworn and unsworn) that she filed in response to defendants’ summary
judgment motions, and a series of (unsworn) letters and other submissions that she filed prior to the first
summary judgment motion (Dkt. Nos. 58, 59, 92, 93), to determine if there are genuinely contested issues
of material fact that defendants have overlooked. I have also looked behind defendants’ assertions of
uncontested fact, accepting them only if they are supported by citations to admissible evidence. See Holtz,
258 F. 3d at 73 (the moving party's “allegations of uncontested fact cannot be deemed true simply by virtue
of their assertion in a Local Rule 56.1 statement”); Giannullo, 322 F.3d at 140 (reversing grant of summary
judgment to defendants where “the record does not support certain critical assertions in the defendant's Rule
56.1 statement on which the district court relied”); Cain, 182 F. Supp. 3d. at 63 (the court “must be satisfied
that the citation to evidence in the record supports the moving party's assertions”).
17 Similarly, under the New York State Human Rights Law (NYSHRL) and the New York City Human Rights
Law (NYCHRL), a plaintiff must show that the defendant engaged in “discriminatory acts,” Jong-Fwu Lee v
Overseas Shipholding Group, Inc., 2002 WL 1929490, at *21 (S.D.N.Y. Aug. 21, 2002) (citations omitted), with
a “discriminatory motive.” See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 110 (2d Cir.
2013) (“The plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive.”);
Tchatat v. City of New York, 2015 WL 5091197 (S.D.N.Y. Aug. 28, 2015) (“As was the case for Plaintiff's
[federal] claim, discriminatory motive is critical to state a claim under the NYCHRL.”). The discriminatory
motive may be established through evidence that the defendant treated the plaintiff “less well” than others
“similarly situated.” Gorman v. Covidien, LLC, 146 F. Supp. 3d 509, 530 (S.D.N.Y. 2015) (citations omitted).
18 According to plaintiff, the misconduct for which she got Ambrose suspended was “making comments, racial
comments towards me while I was on the phone with Prisoner's Rights.” Pl. Dep. Tr. at 59:10-12. Plaintiff
has not offered any other details about this incident.
19 Although plaintiff's feet were on the ground, she was being pulled toward the holding cell – with difficulty –
by two correction officers who held her by the upper arms and, at times, by her shirt.
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20 Although the video footage is silent, it shows that after Officer Lopez (wearing a mask and holding a cannister)
got into position to administer the pepper spray, a senior officer gestured to Lopez to hold off, then walked
over to plaintiff, touched her shoulder, and spoke with her for a few moments before walking away and
permitting Lopez to proceed.
21 It could be argued – with the benefit of hindsight – that the officers should have attempted to lift up the table
before using the pepper spray. However, that approach also involved considerable physical force, as well
as considerable risk to the five officers it took to separate plaintiff (whose legs were not shackled) from the
metal table. Moreover, the Court is required to view a claim of excessive force based on “what the officer[s]
knew at the time, not with the 20/20 vision of hindsight.” Kingsley, 576 U.S. at 395-97.
22 As plaintiff correctly notes, the video footage submitted by defendants ends shortly after she was secured on
the stretcher. No punching, gratuitous or otherwise, is visible on the footage that was supplied.
23 In Jeffries, the plaintiff told multiple interviewers that he jumped out of a third-story classroom window, while
burglarizing a school, in order to evade police officers who were at the door of the classroom. 426 F.3d at
552. Nine months later, he alleged for the first time that he surrendered to the police but was then beaten
and thrown out the window by officers he could not identify or describe. Id. at 551. He also alleged, for
litigation purposes, that he lost consciousness, although he told the EMTs who responded to the scene, as
well as the physician who examined him hours later, that he had not. Id. at 553. Similarly, in Shabazz, the
plaintiff's version of the events in question underwent “at least one significant revision,” when he abandoned
his allegations that he was beaten “outside the transfer van” and manhandled from that location into the
Greenhaven Prison, where he was further abused, and asserted instead “that the beating occurred only
inside the van.” 994 F. Supp. at 470 (emphasis in the original). Moreover, Shabazz “changed his allegations
regarding his injuries a number of times during the course of this litigation,” several times alleging that he
suffered serious physical injuries (uncorroborated by the relevant medical records, which he claimed to be
inaccurate), but then testifying, at deposition, that “he suffer[ed] only from ‘emotional and psychological scars.’
” Id. at 469.
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Washington v. City of New York, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 1585947
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Craig WASHINGTON and Norka Washington, Plaintiffs,
v.
The CITY OF NEW YORK, Sgt, Thomas Kehrli,
Lt. Orsky, Deputy Insp. Salvatore Comodo, Sgt.
Donald McMaster, Deputy Chief Joellen Kunkel,
Capt. Edward Edwards, Lt. James Scully, Sgt. Robert
Dowd, Capt. Pablo Martinez, Lt. Sean Jordan, Sgt.
Thomas Rice, Det. Denis O'Sullivan, Chief Charles
Campisi, Capt. Kenneth Donovan, Capt. Edward
Thompson, And P.O.s John and Jane the N.Y.P.D.
individually and in their Official capacities (the names
of John and Jane the N.Y .P.D. being Fictitious, as
the true names are Presently unknown), Defendants.
No. 05 Civ. 8884(LAP).
|
June 5, 2009.
Opinion
LORETTA A. PRESKA, District Judge.
*1 Plaintiffs Craig and Norka Washington bring this action
pursuant to 42 U.S.C. § 1983 (“Section 1983”) and 42
U.S.C. § 1981 (“Section 1981”) alleging discrimination,
false arrest, malicious prosecution, and malicious abuse
of process in connection with criminal and disciplinary
proceedings initiated against Mr. Washington in the summer
of 2004. Mr. Washington further alleges illegal employment
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., the New York Human Rights Law (“NYHRL”),
Executive law § 296 et seq., and the Administrative Code of
New York. Defendants now move for summary judgment on
all claims. For the reasons below, the motion is granted with
respect to all claims other than Mrs. Washington's claim of
false arrest.
I. BACKGROUND
A. The July 10, 2004 Incident
Mr. Washington began working as a detective for the New
York Police Department (“NYPD”) in 1985. (Plaintiffs' 56.1
Statement of Material Facts in Dispute, (“Pl. 56.1 Stmt.”), ¶
2.) On July 10, 2004, non-party Iris Suarez telephoned the
NYPD Internal Affairs Bureau (“IAB”) and reported that Mr.
Washington, who Suarez described as her “boyfriend”, had
assaulted her. (See id. at ¶ 6; Declaration of Isaac Klepfish in
Support of Mo tion of Defendants for Summary Judgment,
sworn to July 11, 2008 (“Klepfish Decl.”) Ex. L ¶¶ 2, 4.).
Because the alleged misconduct involved a police officer,
Defendant Captain Edward Edwards, along with members of
the Bronx Investigations Unit, interviewed Suarez. (Pl. 56.1
Stmt. at ¶¶ 10-11; Klepfish Decl. Ex. L ¶ 4.) Suarez said
that two days earlier, a verbal dispute with Mr. Washington
culminated in a physical altercation in which he threw her
on the ground and stomped on her left calf, causing bruising.
(Klepfish Decl. Ex. L ¶ 4.) 1 Mr. Washington admits that he
met with Suarez on the day of the alleged assault, but denies
her other allegations. (Pl. 56.1 Stmt ¶¶ 12-14.)
After Suarez's interview, Deputy Chief Joellen Kunkel
suspended Mr. Washington from active duty. (Pl. 56.1 Stmt.
¶ 15.) At the time of his suspension, Mr. Washington
surrendered his firearms, one of which he was later found to
have kept in an unsecure location within a cardboard box in
his automobile. (Id. at ¶ 17; Klepfish Decl. Exs. L ¶ 6, Z at
3). 2
B. The July 20, 2004 Incident
On July 17, 2004, Mr. Washington filed a complaint with the
NYPD alleging that Suarez was harassing him. (Affirmation
of Counsel Walker G. Harman, Jr. in Opposition to Summary
Judgment, sworn to August 22, 2008 (“Harman Aff.”), Ex.
A, Deposition of Craig Washington, taken February 7, 2008,
(“C. Washington Dep.”), 44:4-46:12.) Three days later, on
July 20, 2004, Mr. and Mrs. Washington returned home
to find Suarez waiting for them. (Klepfish Decl. Ex. O.)
The Washingtons called 911, and two police officers soon
arrived on the scene, followed by Defendant Sergeant Thomas
McMaster. (Id.) Defendants contend, and Plaintiffs deny, that
McMaster ordered Mr. Washington to accompany him to the
police station to be interviewed but Mr. Washington angrily
refused to comply. 3 (Pl. 56.1 Stmt. ¶ 20.)
i. Mrs. Washington's Alleged Detention
*2 Mr. Washington subsequently drove Mrs. Washington
and their two-year-old son to the police station, where they
remained for approximately eight hours. (Klepfish Decl.
Ex. B., Deposition of Norka Washington, taken February 7,
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2008, (“N. Washington Dep.”), 6:13-7-8, 23:5-6; 26:18-27:1.)
Mrs. Washington testified that she and her son were held
in a separate room and although she repeatedly asked to
leave, Sergeant McMaster and other officers yelled at her
and refused to let her go. (N. Washington Dep., 4:21-5:19,
26:15-27:7.) Several officers interviewed Mrs. Washington
for approximately one hour about the afternoon incident with
Suarez. (Id. 6:1-7:24; 20:15-16.) Mrs. Washington and her son
left when Mr. Washington's interview had been completed.
(Id. 23:9-13.)
ii. Suarez's Allegations and Washington's Arrest
Defendant Captain Pablo Martinez and members of the Bronx
Investigations Unit also questioned Suarez at the station
house on July 20, 2004. (Pl. 56.1 Stmt., ¶ 21.) Suarez said she
had been romantically involved with Mr. Washington and that
he had lived with her family in June of 2004. (See Id. ¶ 25;
Klepfish Decl. Ex. O, ¶ 4.) Suarez stated that her nine-year-
old daughter, Alexis Wray, told Suarez that morning that Mr.
Washington had sexually molested her when he stayed with
them. (Pl. 56.1 Stmt. ¶ 22.) Specifically, Suarez said Alexis
told her that Mr. Washington had touched her vagina while
she slept. (Id. ¶ 23.)
Because of the serious nature of Suarez's allegations of sexual
abuse, further investigation of the matter was referred to IAB
and the Bronx Special Victims Squad (“SVU”). (Id. ¶ 24.)
When interviewed by IAB and SVU, Suarez again asserted
that Mr. Washington had sexually assaulted her daughter. (Id.
¶ 26.) IAB, SVU, and the Bronx County Assistant District
Attorney's (“DA's”) Office then scheduled a joint interview
of Suarez and her daughter Alexis at the Montefiore Hospital
on July 21, 2004. (Id. ¶¶ 27-31.) They also arranged for
Alexis to be medically examined by Dr. Olga Jimenez. (Id. SI
29.) Both During the joint interview and when questioned by
Dr. Jimenez, Alexis said Mr. Washington had lived with her
mother and that during that time he had entered her bedroom
and pretended to tuck her in while instead inserting his finger
in her vagina. (Kerhli Dep. 57:14-22; Pl. 56.1 Stmt. ¶ 31.)
After the joint interview and medical examination, the Bronx
District Attorney and the Head of IAB authorized Mr.
Washington's arrest. (Pl. 56.1 Stmt. ¶ 32.)
C. Procedural Background
i. Criminal Proceedings
Mr. Washington was arrested on July 21, 2004 and charged
with Sexual Abuse in the First Degree and Endangering the
Welfare of a Child. (Id. ¶ 34.) He was also charged with
Assault in the Third Degree and Harassment in the Second
Degree in connection with the July 10, 2004 incident. (Id. ¶
35.)
On August 19, 2004, Bronx Assistant District Attorney
Michael O'Sullivan sought a grand jury indictment on the
sexual misconduct charges. (Id. ¶ 40.) At the hearing, Mr.
Washington's attorney introduced numerous taped messages
Suarez had left on Mr. Washington's cell phone. (Id. ¶ 41.) In
these recordings, Suarez variously asked for money, insulted
and said she would contact Mrs. Washington, and threatened
to fabricate charges against Mr. Washington. (See Klepfish
Decl. Ex. Z at 4-5; Pl. 56.1 Stmt. ¶ 40.) Plaintiffs admit
that neither IAB investigator Kehrli nor the DA knew about
these tapes before Washington's attorney presented them to
the grand jury. (Pl. 56.1 Stmt. ¶ 41.)
*3 On August 20, 2004, the grand jury voted no true bill on
the sexual misconduct charges, which the DA's Office then
dropped. (Id. ¶ 42.) The DA's Office dropped the remaining
assault charges relating to the July 10, 2004 incident shortly
thereafter. (Id. ¶ 43.)
ii. NYPD Disciplinary Proceedings
Mr. Washington was resuspended on or about the time
he was arrested on the sexual misconduct and assault
charges described above. 4 (Id. ¶ 37.) Two days after his
arrest, the NYPD issued a set of Departmental Charges and
Specifications charging him with (1) sexual assault on a nine-
year old girl and (2) being discourteous to a superior officer
in connection with the July 20, 2004 incident. (Id. ¶ 38.)
In mid-November of 2004, two months after the DA's Office
dropped all criminal charges, the NYPD issued a second
set of Departmental Charges and Specifications against Mr.
Washington alleging that: (1) in June of 2004, he tried to
give his firearm to Suarez, and said “you are ruining my life
anyway, so kill me”, (2) on July 8 of 2004, he had pushed or
thrown Suarez down the stairs, (3) he pushed or threw Suarez
in front of her young children, and (4) on July 10, 2004, he
failed properly to safeguard his firearm. (Pl. 56.1 Stmt. ¶ 49;
Klepfish Decl. Ex. Z at 2.)
On February 4, 2005, non-party David Green, the NYPD
advocate, determined that he would not prosecute the sexual
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misconduct and assault charges because IAB investigators,
the DA's Office, and the advocate's office found them to be
“unsubstantiated.” (See Klepfish Decl. Ex. Z at 2, 8; Pl. 56.1
Stmt. ¶ 50, Harman Aff. Ex. C, Deposition of Thomas Kehrli,
taken March 4, 2008, (“Kehrli Dep.”), 94:17-95:6.) At a May
24, 2005 hearing on all Charges and Specifications against
Mr. Washington before non-party John Grappone, Assistant
Deputy Commissioner of Trials, Green formally moved to
dismiss the assault and sexual misconduct charges. (See Pl.
56.1 Stmt. ¶ 52; Klepfish Decl. Ex. Z at 2-3.) Mr. Washington
then pleaded guilty to the charge of improperly safeguarding
his firearm, (See Pl. 56.1 Stmt. ¶ 53; Klepfish Decl. Ex. Z at
3), and the parties proceeded to trial on the remaining charge
of discourteous conduct to a superior officer (asserted in the
first set of Charges and Specifications issued in July).
Grappone issued a decision on August 23, 2005 dismissing
the sexual misconduct and assault charges and finding Mr.
Washington guilty of the firearm charge and of discourteous
conduct. (Pl. 56.1 Stmt. ¶ 55; Klepfish Decl. Ex. Z at 1,
3.) Grappone recommended that Mr. Washington forfeit the
forty-four days he previously served on suspension. (Pl. 56.1
Stmt. ¶ 56; Klepfish Decl. Ex. Z at 19.) NYPD Commissioner
Raymond Kelley adopted Grappone's recommendation on
September 23, 2005. (Pl. 56.1 Stmt. ¶ 57; Klepfish Decl. Ex.
Z at 19.)
Mr. Washington remained on modified assignment until he
filed for retirement on November 30, 2005. (C. Washington
Dep. 72:16-19.) He alleges that because he retired while
on modified assignment, his pension was reduced. (Second
Amended Complaint (“Compl.”) ¶ 40.)
iii. Mr. Washington's EEOC Charges
*4 On January 20, 2004, nearly six months prior to
the July 10, 2004 incident, Mr. Washington filed a
Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”) alleging that Sergeant
Kevin O'Konnor the NYPD discriminated against him
because he is African American by refusing to allow Mr.
Washington to be promoted to a different unit. (Pl. 56.1 Stmt.
¶¶ 63-64.) Mr. Washington named none of the Defendants in
the instant action in his 2004 EEOC filing. (Id. ¶ 65.)
More than a year later on April 25, 2005, Mr. Washington filed
another charge of discrimination with the EEOC alleging that
several of the Defendants unlawfully retaliated against him
by filing criminal and departmental charges against him. 5
(Klepfish Decl. Ex. DD; see also Plaintiff's Memorandum
of Law in Opposition to Defendants' Motion for Summary
Judgment (“Opp.Mem.”) at 5.)
iv. The Instant Suit
Plaintiffs initiated this action on October 19, 2005, and now
bring nine claims against the City of New York and individual
officers who were allegedly involved in Mr. Washington's
arrest and the attendant disciplinary proceedings. In Counts
I, II, and IV, both Plaintiffs assert claims under Section
1983 for general deprivation of federal rights, false arrest,
and malicious abuse of process. Count V alleges that the
City of New York's “customs, policies, usages, practices, and
procedures” violated their constitutional rights. (Compl.¶ 75.)
Mr. Washington alone asserts Count III alleging malicious
prosecution in violation of Section 1983, Counts VI, VIII, and
IX alleging retaliation in violation of Title VII, the NYHRL
and the Administrative Code, and Count VII alleging racially
motivated deprivation of his rights in violation of Section
1981.
II. DISCUSSION
A. Summary Judgment Standard
Defendants are entitled to summary judgment only “if the
pleadings, depositions, answers to interrogatories, and the
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
[they are] entitled to judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986) (quoting Fed. R. Civ. Proc. 56(c)). A fact
is material if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute
is genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.; see also
Overton v. New York. State Div. of Military and Naval Affairs,
373 F.3d 83, 89 (2d Cir.2004).
In assessing whether summary judgment is proper, the Court
construes the evidence in the light most favorable to the
non-moving party. Lucente v. IBM Corp., 310 F.3d 243,
253 (2d Cir.2002). As movants, Defendants bear the initial
burden of providing the basis for the motion and identifying
the evidentiary materials, if any, supporting their position.
See Grady v. Affiliated Central, Inc., 130 F.3d 553, 559
(2d Cir.1997.) Plaintiffs must then “come forward with
specific facts showing that there is a genuine issue for trial.”
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Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)
(quoting Fed.R.Civ.P. 56(e). Mere speculation and conjecture
will not suffice. See Niagara Mohawk Power Corp. v. Jones
Chemical Inc., 315 F.3d 171, 175 (2d Cir.2002).
B. Analysis
i. Mr. Washington's Claims
*5 Mr. Washington makes virtually no effort to preserve
any of his claims other than his retaliation claim. 6 Therefore,
Defendants' motion will be granted with respect to his
false arrest, malicious prosecution, abuse of process, and
discrimination claims so long as they have met their threshold
burden of production. See Vermont Teddy Bear Co., Inc. v.
1-800 Beargram Co., 373 F.3d 241, 241 (2d Cir.2004) (“Even
when a motion for summary judgment is unopposed, the
district court is not relieved of its duty to decide whether the
movant is entitled to judgment as a matter of law.”)
a. False Arrest
Mr. Washington cannot prevail on his false arrest claim if
Defendants show they had probable cause to arrest him. See
DevenPeck v. Alford, 543 U.S. 146, 152, 125 S.Ct. 588,
160 L.Ed.2d 537 (2004); Jaegly v. Couch, 439 F.3d 149,
151-54 (2d Cir.2004) (probable cause is an absolute defense
to a false arrest claim under Section 1983); see also Boyd
v. City of New York, 336 F.3d 72, 75 (2d Cir.2003) (same).
An officer has probable cause to arrest when “he or she has
‘knowledge or reasonably trustworthy information of facts
and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that the person to be arrested
has committed or is committing a crime.’ ” Jaegly, 439 F.3d at
152 (quoting Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.1996).
Here, Defendants have produced ample undisputed evidence
demonstrating probable cause for Mr. Washington's arrest on
charges of assault and sexual misconduct based not only on
IAB and DA interviews with Suarez but also on an interview
and medical examination of her daughter, who said that Mr.
Washington had molested her. (See Kehrli Dep. 51:7-22,
52:10-53:11, 56:5-58:16; Klepfish Decl. Ex. O). The fact that
these charges were later dropped does not negate the existence
of probable cause at the time of the arrest, particularly given
that, as Mr. Washington concedes, neither the DA nor IAB
knew about the exculpatory cell phone tapes before they
were played to the grand jury. See Smith v. Ortiz, 2006 U.S.
Dist. LEXIS 34153, *12, 2006 WL 1458404 (S.D.N.Y.2006)
(subsequent acquittal does not negate validity of arrest); (Pl.
56.1 Stmt. ¶ 41).
Furthermore, even if the Defendant Officers lacked probable
cause to arrest Mr. Washington, they are entitled to qualified
immunity if they had “arguable probable cause to arrest”
him. Guerrero v. Scarazzini, No. 06-5016-cv, 2008 U.S.App.
LEXIS 8785, at *4, 2008 WL 1817245 (2d Cir. Feb. 23,
2008). Defendants had arguable probable cause if (i) it
was objectively reasonable to believe there was probable
cause to arrest Mr. Washington or (ii) officers of reasonable
competence could disagree as to whether the probable cause
test was met. Id. Here, Plaintiff does not contest that the IAB
and DA interviews gave probable cause, much less arguable
probable cause, to arrest Mr. Washington. Accordingly,
Defendants' motion for summary judgment is granted with
respect to Mr. Washington's false arrest claim.
b. Malicious Prosecution
*6 Mr. Washington's malicious prosecution claim must also
fail. It is well-settled that the existence of probable cause
supporting an arrest “precludes plaintiffs from establishing
a malicious prosecution claim unless they can point to facts
uncovered after the arrest that negated that probable cause
by making apparent the ‘groundless nature of the charges.’
” Rodriguez v. City of New York, 535 F.Supp.2d 436, 443
(S.D.N.Y.2008) (quoting Lowth v. Town of Cheektowaga, 82
F.3d 563, 571 (2d Cir.1996). As discussed above, Defendants
have supplied uncontested evidence of probable cause
supporting Mr. Washington's arrest. Furthermore, Plaintiff
does not deny that the DA dropped the sexual misconduct
charges upon hearing the tapes calling Suarez's credibility into
question and the assault charges stemming from Suarez's July
10 allegations shortly thereafter. (Pl. 56.1 Stmt. ¶¶ 42-43.)
Defendant's motion for summary judgment with respect to
Mr. Washington's malicious prosecution claim is therefore
granted.
c. Malicious Abuse of Process
Mr. Washington asserts that his arrest and abortive
prosecution constitute malicious abuse of process in violation
of Section 1983. To establish such a claim, he must show
that the Defendants “(1) employ[ed] regularly issued legal
process to compel performance or forbearance of some act
(2) with intent to do harm without excuse or justification, and
(3) in order to obtain a collateral objective that is outside the
legitimate ends of the process.” Cook v. Sheldon, 41 F.3d 73,
80 (2d Cir.1994). Here, Defendants have introduced evidence
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that Mr. Washington was arrested and charged pursuant to an
investigation into serious allegations against him by civilian
non-parties. Mr. Washington has provided neither facts nor
argument beyond the general and conclusory allegations in his
Complaint to support his claim that Defendants arrested him
without justification to achieve an illegitimate objective. (See
Compl. ¶¶ 67-70.) Accordingly, this claim fails as a matter
of law. See Mohawk Power, 315 F.3d 171, 175 (2d Cir.2002)
(conclusory assertions do not create an issue of fact for trial).
d. Discrimination
Defendants are also entitled to summary judgment on Mr.
Washington's direct race discrimination claims under Section
1981 and Title VII because he has not established a prima
facie case of discrimination and, even if he had, they
have introduced non-discriminatory reasons for the allegedly
discriminatory behavior which Mr. Washington has not
shown to be pretextual. To establish a prima facie case of
employment discrimination, Mr. Washington must show that
(i) he is a member of a protected class, (ii) he was qualified
for his position, (iii) he suffered an adverse employment
action, and (iv) the circumstances of the adverse action
“give rise to an inference of discrimination.” Weinstock v.
Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000). Should he
succeed, the burden shifts to the Defendants to “to articulate a
legitimate, non-discriminatory reason for the adverse action.”
Id. If Defendants meet this burden, they are entitled to
summary judgment unless Mr. Washington can show that
the Defendants' non-discriminatory explanation is merely a
pretext for discrimination. Mario v. P & C Food Mkts., 313
F.3d 758, 767 (2d Cir.2002); Cedeno v. N.Y. City Transit Auth.,
No. 01-9049, 2002 U.S.App. LEXIS 23106, at *3 (2d Cir.
November 5, 2002); see also Bickerstaff v. Vassar College,
354 F.Supp.2d 276, 280n.2 (2d Cir.2004) (noting that Title
VII and Section 1981 claims “are analyzed under the same
framework”).
*7 Here, Mr. Washington has not shown circumstances
giving rise to an inference of discrimination. To the contrary,
he flatly concedes that “none of the defendants in this action
ever said something to [him] which evidenced animus against
[his] race.” (Pl. 56.1 Stmt. ¶ 67.) Mr. Washington has offered
nothing other than speculation that Defendants' actions were
motivated by race-based animus and he has made no serious
response to Defendants extensive argument in favor of
summary judgment on this point. (See Memorandum of
Law of City Defendants in Support of Their Motion for
Summary Judgment, (“Def.Mem.”), at 13-18.); see also
Sharif v. Buck, No. 04-5789-cv, 2005 U.S.App. LEXIS
22363, *3, 2005 WL 2650070 (2d Cir. Oct. 17, 2005)
(no inference of discrimination where plaintiff offered only
conclusory allegations to support claim); Brown v. City of
Oneonta, 221 F.3d 329, 339 (2d Cir.2000) (dismissing Section
1983 and Section 1981 claims for inadequate allegations of
discriminatory intent).
Furthermore, Mr. Washington has made no attempt to show
that the Defendants' non-discriminatory reasons for taking
disciplinary action, namely the serious allegations Suarez,
a non-party, leveled against him, his admitted failure to
properly safeguard his firearm on July 10, 2004, and the
finding that he was disrespectful to a superior officer on
July 20, 2004, were pretextual. (See Def. Mem. at 16-18.)
Accordingly, Mr. Washington's direct discrimination claims
under Title VII and Section 1981 fail as a matter of law.
e. Retaliation
Mr. Washington actively opposes the instant motion only
with respect to his retaliation claim under Title VII and the
NYHRL. To establish a prima facie case of retaliation, he
must show that (1) he was engaged in a protected activity, (2)
Defendants knew of the activity, (3) he suffered an adverse
employment action, and (4) there was a causal connection
between the protected activity and the adverse employment
action. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178
(2d Cir.1996) (citing Manoharan v. Columbia Univ. Coll. of
Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir.1988). 7 As
with the direct discrimination claims, should Mr. Washington
establish a prima facie case of retaliation, the burden shifts to
Defendants to provide a legitimate, nondiscriminatory reason
for their actions, which he must then show to be pretextual.
Thomas v. S.E.A.L. Security, Inc., NO. 04 Civ. 10248, 2007
U.S. Dist. LEXIS 63841, *38, 2007 WL 2446264 (S.D.N.Y.
August 30, 2007).
Mr. Washington has not established a prima facie case
because he has proffered no evidence showing a causal
connection between his protected activity and the allegedly
retaliatory conduct. He contends that Defendants effectuated
his arrest and initiated disciplinary proceedings against him
in retaliation for his January 20, 2004 and April 25, 2005
EEOC filings. He argues that the temporal proximity between
these filings and his arrest and suspension, standing alone,
constitutes sufficient circumstantial evidence to support an
inference of causation. (Opp.Mem.7.)
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*8 This contention is untenable. While courts may infer a
causal link in the absence of direct evidence of discrimination
where the alleged retaliation occurred shortly after a plaintiff
engaged in protected activity, too much time elapsed between
Mr. Washington's January 20, 2004 filing and his suspension
following Suarez's initial assault complaint in mid-July
to warrant such an inference here. See Hollander v. Am.
Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir.1990) (dismissing
retaliation claim on summary judgment where there was a
three-month lapse between the protected activity and the
alleged retaliation); Lewis v. Snow, No. 01 Civ. 7785, 2003
WL 22077457, at *8 (S.D.N.Y. Sept.8, 2003) (same). Indeed,
Mr. Washington cites only cases in which the adverse action
occurred within two to three months of participation in a
protected activity. See Cifra v. Gen. Elec. Co., 252 F.3d
205, 217 (2d Cir.2001) (twenty-day time lapse); Quinn v.
Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998)
(less than two-month time lapse); Parrish v. Sollecito, 258
F.Supp.2d 264, 269 (S.D.N.Y.2003) (one to three month
lapse); Santos v. Costco Wholesale, Inc., 271 F.Supp.2d
565, 575 (S.D.N.Y.2003) (three-month lapse). Here, however,
there is an almost six-month gap between Mr. Washington's
initial EEOC filing and his suspension and subsequent arrest.
Mr. Washington's temporal proximity argument with respect
to his April 25, 2005 EEOC Charge is even more tenuous.
He contends that a causal link may be inferred between
the April filing and the decision to keep him on modified
assignment until he retired. (Opp. Mem. at 7-8.) However,
mere continuation of an adverse employment condition
initiated long before the protected activity in question does
not, without more, logically support an inference that the
protected activity prompted retaliation. See Chamberlain v.
Principi, No. 06-1291-cv, 2007 U.S.App. LEXIS 21829, at
*6, 2007 WL 2692339 (2d Cir. Sept. 12, 2007) (“Where
timing is the only basis for a claim of retaliation, and gradual
adverse job actions began well before the plaintiff had ever
engaged in any protected activity, an inference of retaliation
does not arise.”) (quoting Slattery v. Swiss Reinsurance Am.,
248 F.3d 87, 95 (2d Cir.2001)). Here, Mr. Washington was
placed on modified assignment more than six months before
he filed the April 25,2005 EEOC charge, and there is simply
no support for Mr. Washington's conclusion that he continued
to be on modified assignment after that time due to retaliation
for that filing. 8 Nor, as Defendants observe, is there any
evidence that Mr. Washington ever asked to be removed from
modified assignment before he retired. (Reply Memorandum
of Law of City Defendants in Support of Their Motion for
Summary Judgment (“Reply Mem.”), at 6.)
Finally, even if Mr. Washington had established a prima
facie case of retaliation, he has not shown that Defendants'
proffered non-discriminatory reasons for his arrest and the
disciplinary actions taken against him, already discussed
in connection with his direct discrimination claims, are
pretextual. (See Part II(B) (i)(d).) In this regard, Mr.
Washington simply asserts that the IAB did an inadequate
investigation of Suarez's allegations before disciplining
him. 9 (Opp. Mem. at 9.) However, he does not provide even
a conclusory argument as to how the supposedly inadequate
investigation was prompted by either of Mr. Washington's
EEOC charges, the first of which, as he concedes, named
none of the Defendants in this action. (See Pl. 56.1 Stmt. ¶
65.) Accordingly, Mr. Washington's retaliation claim fails as
a matter of law.
ii. Mrs. Washington's claims
*9 Mrs. Washington asserts claims under Section 1983 for
false arrest and malicious abuse of process stemming from her
alleged detention at the police station immediately following
the Washingtons' July 20, 2004 encounter with Suarez. The
parties agree that the fundamental question with respect to
the false arrest claim is whether Mrs. Washington was taken
into custody in violation of her Fourth Amendment right to be
free from unreasonable seizure. (Def. Mem. at 23; Opp. Mem.
at 11-12.) Resolution of this issue requires determination
of “whether a reasonable person in [Mrs. Washington's]
position would have understood [her]self to be subjected to
the restraints comparable to those associated with a formal
arrest.” Hicks v. City of Buffalo, No. 03-6119, 2004 WL
2616750, at *2 (2d Cir. Nov.18, 2004) (quoting United States
v. Newton, 369 F.3d 659, 671 (2d Cir.2004)).
Defendants argue that Mrs. Washington was never taken into
custody because she voluntarily accompanied her husband to
the station. (Def. Mem. 23; N. Washington Dep., 6:13-7:11).
They also rely on Defendant Dowd's deposition testimony
that “Mrs. Washington was not under arrest” and “could
leave at any time.” (Def. Mem. 23; Klepfish Decl. Ex. F,
Deposition of Robert Dowd, taken March 8, 2008 (“Dowd
Dep.”), 43:19-22.) Defendants posit that Mrs. Washington
chose to remain at the station until her husband's interview
had been completed because she is legally blind and did not
want to drive herself home. (Def. Mem. at 23.)
Mrs. Washington does not dispute that she came to the station
house with her husband rather than in a police car. However,
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she asserts that she was then inexplicably placed in a room
alone with her two-year-old son and told not to leave. (N.
Washington Dep. 5:10-13). She repeatedly asked to go home,
but Defendant McMaster yelled at her and told her to “stay
there until I come get you.” (Id. 5:12-13.) All told, she
remained at the station house for more than eight hours. (Id.
6:13-7:8, 23:5-6; 26:18-27:7; Opp. Mem. at 3.)
Viewing the evidence in the light most favorable to Mrs.
Washington, there is a material factual dispute as to whether a
reasonable person in her position would have felt compelled
by the authorities to remain in the station house under the
circumstances as she describes them. Although Defendants
present a compelling argument that she voluntarily awaited
her husband's release, her testimony indicates otherwise.
Should a jury find her account credible, it might conclude
that a reasonable person in Mrs. Washington's position would
have felt herself to be restrained in a fashion similar to a
formal arrest. Accordingly, Defendants' motion for summary
judgment on Mrs. Washington's false arrest claim is denied.
Mrs. Washington also asserts a malicious abuse of process
claim. (Compl.¶¶ 67-70.) This claim fails because she has
identified no “regularly issued legal process” used against her
to obtain any sort of illegitimate collateral objective. Cook,
41 F.3d at 80.
iii. Joint Municipal Liability Claim
*10 Both Plaintiffs assert that under Monell v. Dep't of Soc.
Servs. ., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978),
the City of New York is vicariously liable for the alleged
civil rights violations because of the City's unconstitutional
“customs, policies, usages, practices, procedures, and
rules.” (Compl.¶ 73.) However, as Defendants correctly
observe, Plaintiffs have not identified any improper action
taken against them as a result of an unlawful municipal policy
or practice. Accordingly, Defendants' motion is granted with
respect to this claim and the City of New York is therefore
dismissed from the action. See Hicks, 2004 WL 2616750 at
*1 (affirming summary judgment dismissal of Monell claim
“[b]ecause the record is here bereft of any unconstitutional
custom or practice on the part of the City.”)
iv. Joint “Deprivation of Federal Civil Rights”
Although Defendants seek dismissal of all claims,
neither party provides substantive argument regarding the
“Deprivation of Federal Civil Rights” claim asserted in
Count I of the Complaint. (Compl.¶¶ 43-48.) This ill-defined
claim alleges generally that Defendants violated Plaintiffs'
rights under the “First, Fourth, Fifth, Eighth, and Fourteenth
Amendments to the Constitution” in violation of Section
1983. (Id. ¶ 49.) Such general allegations, without supporting
facts other than a clause incorporating an entire complaint
by reference, are insufficient to withstand even a motion to
dismiss because they do not give “fair notice of what the
cl aim is and the grounds upon which it rests.” Sforza v.
City of New York, No. 07cv6122(DLC), 2009 WL 857496, at
*12 (S.D.N.Y. March 31, 2009) (quoting Liebowitz v. Cornell
University, 445 F.3d 586, 591 (2d Cir.2006). Accordingly, this
claim is dismissed. See Diodati v. City of Little Falls, No.
6:04-cv-446 (FJS/DEP), 2007 WL 189130 (N.D.N.Y. Jan.
22, 2007) (granting summary judgment dismissing general
deprivation of federal rights claim where parties provided no
substantive argument regarding the cause of action.)
III. CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment [dkt. No. 31] is GRANTED with respect to all
claims asserted by Mr. Washington and Mrs. Washington's
malicious abuse of process and municipal liability claims. The
motion is DENIED with respect to Mrs. Washington's claim
of false arrest in violation of Section 1983.
Counsel shall confer and inform the Court by letter no later
than June 20 how they propose to proceed.
All Citations
Not Reported in F.Supp.2d, 2009 WL 1585947
Footnotes
1 In their Rule 56.1 statement, Plaintiffs admit that Suarez called IAB to complain about Mr. Washington, (16),
but deny that Suarez made an assault allegation on the grounds that “Defendants cite no admissible evidence
to support this claim”, (¶ 12). However, while Plaintiffs object to the Court's consideration of some police
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reports detailing the incident, (Klepfish Decl. Exs. G, H), and to consideration of photographs of Suarez's
injured leg, (Klepfish Decl. Ex. K), on the grounds that these materials have not been authenticated, they do
not object to Captain Edwards' report, dated July 10, 2004, (Klepfish Decl. Ex. L), which includes a summary
of Suarez's statements to IAB investigators and her allegations of assault. (See Plaintiff's Memorandum of
Law in Opposition to Defendants' Motion for Summary Judgment, (“Opp.Mem.”) at 13-14.) Furthermore, the
police reports are adequately authenticated by the deposition testimony of Defendant Thomas Kehrli, an
IAB investigator, who said they were among materials he compiled in his case folder. (See Supplemental
Declaration of Isaac Klepfish in Support of City Defendants' Motion for Summary Judgment, sworn to Sept. 16,
2008, (“Klepfish Reply Decl.”), Ex. HH., Deposition of Thomas Kehrli, taken March 4, 2008, 12:14-13:20.) To
the extent that Plaintiffs raise a hearsay objection, the purportedly objectionable material would undoubtedly
be admitted at trial as public or business records, and in any event need not be considered for the truth
of Suarez's statements but rather to show that she made them. See Spanierman Gallery v. Merrit, No. 00-
cv5712 (LTS)(THK), 2003 U.S. Dist. LEXIS 22141, at *18-19, 2003 WL 22909160 (S.D.N.Y. Dec. 9, 2003).
2 Here, and in multiple instances throughout their Rule 56.1 Statement, Plaintiffs respond to Defendant's
summation of the relevant facts by saying “Admit, but deny to the extent the statement cites to inadmissible
evidence.” See, e.g., ¶¶ 15, 17, 28-30, 32, 38-39, 49-53, 55-56. The Court declines Plaintiffs' invitation to
identify for them the factual statements to which they object. Where this occurs, the statement provided
by Defendants is taken as true because Plaintiffs initial response in each instance is “Admit.” Furthermore,
the documents proffered by Defendant to each statement challenged in this fashion would undoubtedly be
admissible at trial as public records or business records.
Here, for example, Plaintiffs apparently object to consideration of Klepfish Decl. Exhibit Z, a Disciplinary
Decision by Assistant Deputy Commissioner of Trials John Grappone dated August 23, 2005, for lack
of authentication. (Pl. 56.1 Stmt. ¶ 17; Affirmation of Counsel Walker G. Harman, Jr. in Opposition to
Summary Judgment, sworn to August 22, 2008, (“Harman Aff.”), ¶ 5.) This document would be admissible
at trial under Fed.R.Evid. 803(8)(C) as a public record, for which “the proponent is usually not required
to establish ... admissibility through foundation testimony.” Jack B. Weinstein & Margaret A Berger,
Weinstein's Federal Evidence, § 803.10[2] (2d ed.2009). Furthermore, the document is self-authenticating
under Fed.R.Evid. 902(1) as it bears the official seal of the NYPD and the signatures of both Grappone and
Police Commissioner Raymond Kelly. See CA, Inc. v. Simple, Inc., No. 02 Civ. 2748(DRH)(MLO), 2009
U.S. Dist. LEXIS 25241, at *263 (E.D.N.Y. March 5, 2009).
3 As discussed in Part I(C)(ii) below, Mr. Washington was subsequently found guilty of being discourteous to
Sergeant McMaster in connection with this incident. (Klepfish Decl. Ex. Z, at 17-18.)
4 In all, Mr. Washington was suspended for forty-four days in connection with the July 10 and 20, 2004 incidents,
after which he was placed on modified assignment (making him ineligible for overtime work and pay). (See
C. Washington Dep., 71:1-72:10.)
5 The Second Amended Complaint incorrectly alleges that Washington filed this charge on July 22, 2005.
(Compare Second Amended Complaint ¶ 41 with Opp. Mem. at 5.)
Oddly, Mr. Washington objects to the Court's consideration of his April 25 EEOC complaint while at the
same time, as discussed below, his assertion of unlawful retaliation claim hinges on it. (See Harman Decl.
¶ 5.) In any event, Mr. Washington's April 2005 EEOC charge would be admissible at trial as a party
admission. Fed.R.Evid. 801(d)(2).
6 Indeed, as Defendants observe, the Conclusion of Plaintiffs' brief in opposition to the instant motion asserts
only that:
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“there is sufficient evidence raising triable issues as to whether the disciplinary
charges brought against Plaintiff Craig Washington in November 2004 were brought
in retaliation for his January 2004 EEOC Charge, whether the refusal to restore
Plaintiff Craig Washington to full-duty was carried out in retaliation for Plaintiff Craig
Washington's April 2005 EEOC Charge, and whether Plaintiff Norka Washington was
detained without the requisite probable cause or reasonable suspicion, pursuant to
the Fourth Amendment.”
(Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment, (“Opp.Mem.”)
at 14-15.
7 The same standard applies to Mr. Washington's NYHRL claims “because New York courts rely on federal
law when determining claims under the New York Human Rights law.” Reed, 95 F.3d 1170, 1177 (citations
omitted)
8 In this regard, I note that Mr. Washington has not even alleged that any Defendants knew about either of his
EEOC Complaints or even that he ever sought to be taken off of modified assignment.
9 Notably Mr. Washington does not address Defendants' observation that Mr. Washington pleaded guilty
to having failed properly to secure his firearm and was found guilty after an evidentiary hearing of being
discourteous to Sergeant McMaster. (Def.Mem.22.)
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Zhao-Royo v. New York State Educ. Dep't, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 149981
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Xiaohui ZHAO-ROYO, Plaintiff,
v.
NEW YORK STATE EDUC. DEP'T, Defendant.
1:14-CV-0935(GTS/CFH)
|
Signed 01/13/2017
Attorneys and Law Firms
SOLOMON LAW FIRM, PLLC, 300 Great Oaks Blvd., Suite
313, OF COUNSEL: ARIEL E. SOLOMON, ESQ., Albany,
New York 12203, Counsel for Plaintiff.
ERIC T. SCHNEIDERMAN, Attorney General for the State
of New York, The Capitol, OF COUNSEL: JUSTIN L.
ENGEL, ESQ., Assistant Attorney General, Albany, New
York 12224, Counsel for Defendant.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this employment
discrimination action filed by Xiaohui Zhao-Royo
(“Plaintiff”) against the New York State Education
Department (“Defendant” or “NYSED”), is Defendant's
motion for summary judgment pursuant to Fed. R. Civ. P. 56.
(Dkt. No. 21.) For the reasons set forth below, Defendant's
motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Verified Complaint
Generally, in her Verified Complaint, Plaintiff alleges that,
between approximately March 2013 and July 2013, she
was subjected to discrimination, retaliation, and a hostile
work environment during her employment with NYSED in
numerous ways, including, but not limited to, the following:
(1) abusive and berating language on a near-daily basis; (2)
physical contact (specifically, ripping papers from her hands
for no apparent reason); (3) knowingly false accusations
of work-related mistakes and reprimands based on those
false accusations; (4) attempts to destroy her work by the
intentional deletion of computer files containing information
gathered in the course of her duties; (5) rules imposed against
her only, including rules limiting her contact with a supervisor
to e-mail, due to Plaintiff's accent, national origin, and her
efforts to report other instances of discriminatory behavior
toward her; (6) a failure by Defendant to take effective
action to stop such harassment; and (7) termination of her
probationary employment based on a false accusation that
she acted in an inappropriate, intimidating, and insubordinate
manner toward a male manager on an occasion when she
sought to discuss falsehoods contained in her performance
evaluation. (See generally Dkt. No. 1 [Plf.'s Verified
Compl.].)
Based on these allegations, Plaintiff asserts three claims
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., set forth in a single “Cause of Action”:
(1) a claim that Defendant 1 discriminated against her on the
basis of her race (Asian), national origin (Chinese), and sex;
(2) a claim that Defendant subjected her to a hostile work
environment on the basis of her race, national origin, and sex;
and (3) a claim that Defendant retaliated against her for raising
complaints about this discrimination. (Id. at ¶¶ 12-101.)
B. Undisputed Material Facts
*2 Unless otherwise noted, the following facts were asserted
and supported by Defendant in its statement of material facts
and expressly admitted by Plaintiff in her response thereto. 2
(Compare Dkt. No. 21, Attach. 2 [Def.'s Rule 7.1 Statement]
with Dkt. No. 29, Attach. 1 [Plf.'s Rule 7.1 Response].)
Commencement of Plaintiff's Employment
1. Plaintiff was appointed as a Program Research Specialist 2
at salary grade 18 for NYSED, effective August 9, 2012.
2. Plaintiff's appointment was subject to a probationary period
of 26 to 52 weeks. As a probationary employee, Plaintiff's
services could be terminated at any time after the eighth week
of her appointment and during the remainder of the maximum
probationary period of 52 weeks.
3. The majority of probationary periods at NYSED last for 52
weeks (one year). Employees who are grade 13 or below and
employees who are transferred or promoted are subject to a
reduced probationary period of 26 weeks. 3
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*3 4. The probationary period is considered to be the
final step in NYSED's recruitment process, and provides
an opportunity for both the employer and the employee to
determine if the employee is a good fit.
5. Plaintiff was assigned to work in NYSED's Office of
Information and Reporting Services (“OIRS”). 4
6. OIRS is generally responsible for the collection and
reporting of educational data for school districts, public
schools, charter schools, and nonpublic schools in New York
State. OIRS maintains educational data on NYSED's website
and responds to data requests made by other departments
within NYSED, other government agencies, the public, the
legislature, and the media.
7. As a Program Research Specialist 2 in OIRS, Plaintiff
was responsible for, among other things, assisting in the
conducting of NYSED's data collection, reporting, and
analysis activities.
8. Plaintiff's primary job duties were to produce reports on
educational data and to respond to requests for educational
information.
9. Work within OIRS was generally assigned to staff
members (such as Plaintiff) in one of two ways. First,
supervisors directly assigned certain requests for information
to particular staff members to complete. Second, OIRS
maintained a generic e-mail inbox, called Dataquest, which
was used to transmit, and respond to, requests for information.
Occasionally, staff members also received direct phone
calls or e-mails from others within NYSED requesting
information.
10. Generally, assignments that came through Dataquest were
less comprehensive and complex than those assigned directly
by supervisors. 5
Plaintiff's Work Under Her First Supervisor, Ellen Martin
*4 11. From the date of her appointment on August 9,
2012, until mid-April 2013, Plaintiff was supervised by Ellen
Martin (“Martin”), an assistant data director for NYSED. 6
12. Martin worked closely with Plaintiff during the first six
months of Plaintiff's employment; as Martin testified in her
deposition, she “mentor[ed]” Plaintiff and gave her work
assignments that “were probably much more simple[.]” 7
13. After the first six months of Plaintiff's employment,
Martin began giving Plaintiff “more complex” projects that
were to be completed independently. 8
14. When Martin began assigning Plaintiff more complex
projects, she observed deficiencies in Plaintiff's work
performance. 9
*5 15. For example, Plaintiff failed to complete an
assignment for the New York State Statistical Yearbook
(“Yearbook”) that was given to her in March 2013. More
specifically, Martin became aware that the work was not being
completed when she was contacted by the Yearbook editor
and advised that the editor had not received any of the tables
that were expected. 10
16. When Martin questioned Plaintiff about her failure to
complete the Yearbook assignment, Plaintiff responded that
the deadline had passed and that she made the decision not to
complete the work. However, the initial deadline was only a
guideline, and the work had to be reassigned to several staff
members in order to make up the time lost. 11
17. In February 2013, Plaintiff was assigned a project related
to a request from the National Assessment for Educational
Progress (“NAEP”). Plaintiff did not make sufficient progress
in completing the project tasks, but rather approached Martin
about making changes to the methodology that was being
used to handle the project. Ultimately, due to the lack of
progress, Martin had to reassign the work to other employees
to complete. 12
18. On several occasions, Plaintiff complained that she was
the only employee to be assigned work through Dataquest.
However, Dataquest was used to assign work to all staff
members. 13
19. Moreover, Plaintiff increasingly made unreasonable
demands on Martin's time. Plaintiff would not be able to
disengage even after lengthy conversations, and Martin would
tell Plaintiff that she had other tasks to attend to. On several
occasions, Martin had to ask Plaintiff to leave her office. 14
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*6 20. Plaintiff also made insulting remarks about Martin
and at least one other coworker in Martin's presence. 15
21. On one occasion, Martin asked Plaintiff to produce e-
mail responses to work assignments that were in Plaintiff's
Dataquest mailbox in order to show that Plaintiff had
acknowledged receipt of those assignments that she was
unable to complete right away. In response, Plaintiff told
Martin that her reading skills were poor or inadequate (or
something of that nature). 16
22. On another occasion, Plaintiff insulted the intelligence of
a coworker in the presence of other staff members. 17
23. In short, based upon Martin's supervision of Plaintiff, she
found that Plaintiff had difficulty accepting directions, did not
have a positive working relationship with her co-workers, and
was not a team player. 18
February-March 2013—Conflicts
Between Plaintiff and Her Coworkers
24. Generally, for the first several months of Plaintiff's
employment, her interactions with her coworkers were
friendly.
25. Around February or March 2013, Plaintiff began having
conflicts with certain coworkers. 19
*7 26. For example, in February 2013, Plaintiff asked
Suzanne Holliday (“Holliday”), a calculations clerk, to put
Plaintiff on the office calendar for a vacation of several weeks
to China. When Holliday informed Plaintiff that Plaintiff
needed to speak with her supervisor, Plaintiff stated that
she had already been told that she did not have enough
vacation time, but that she could, perhaps, take vacation time
without pay. Plaintiff stated that she was being treated unfairly
because another employee, Adeline Jebaraj, was allowed to
take time to go to India, was not as qualified as Plaintiff, and
held a “degree [that] was not worth as much.” 20
27. Plaintiff testified that Holliday yelled at her during their
interaction and accused her of “digging [for] information.”
28. On one occasion in March 2013, Plaintiff had an
altercation with Cheryl Mitchell (“Mitchell”), an Education
Program Aid for NYSED. More specifically, Plaintiff testified
in her deposition that she approached Mitchell and attempted
to ask her clarifying questions about an assignment, and
Mitchell became angry and yelled, “You are [a] statistician. I
cannot do statistics. Why [do] you ask me?” 21
29. At some other point in March 2013, Plaintiff and Mitchell
had an extended conversation regarding Plaintiff's ideas and
how OIRS “didn't do things in the most productive way.”
During that conversation, Mitchell stated several times that
Plaintiff's ideas may be good but that Plaintiff should discuss
them with management. 22
April 2013—Continuing Conflicts and
Plaintiff's Contact With Human Resources Staff
30. On April 1, 2013, Mitchell sent Plaintiff an e-mail
message stating that, while she felt that Plaintiff may
have some good ideas, Plaintiff needed to address them
with her supervisors. Mitchell also indicated that she
was not comfortable with Plaintiff stating in any written
documentation that she agreed with Plaintiff's ideas. 23
*8 31. Plaintiff testified in her deposition that she believed
that Mitchell's e-mail was intended “to abuse [and] harass [her
and] to make trouble.”
32. In early April 2013, Plaintiff entered Mitchell's office area
and “yelled at” Mitchell “for stealing her ideas and trying to
take credit for her work.” Mitchell asked Plaintiff to leave her
office area, but Plaintiff initially refused. Plaintiff eventually
left the third time that Mitchell asked her to leave. 24
33. Plaintiff testified in her deposition that, during this
incident, Mitchell yelled at her, changed subjects by accusing
her of giving the wrong information to a customer, and told
her to get out of Mitchell's office.
34. Martin was apparently on vacation during this incident.
Upon returning from vacation, she was “made aware” by
“multiple employees” that Plaintiff and Mitchell had a
discussion in Mitchell's office, that the discussion “escalated”
and “loud voices” were used, and that Mitchell asked Plaintiff
“several” times to leave Mitchell's office. 25
35. Martin met with Plaintiff and Mitchell separately and
counseled them both about her expectations for professional
behavior in the office and respect for coworkers. 26
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36. Despite this counseling, Plaintiff visited several other
coworkers at their work stations and attempted to persuade
them to take “her side” with respect to this incident during
working hours, resulting in disruption to office dynamics and
distraction in the workplace. 27
*9 37. Moreover, after Martin counseled Plaintiff, she sent
an e-mail to Martin and visited her office several times in an
effort to further discuss her confrontation with Mitchell. 28
38. For example, on April 2, 2013, Plaintiff sent Martin an e-
mail asserting that she did not raise her voice or speak to any
colleague “with an unreasonable, unprofessional manner.” 29
39. Martin responded that the point of the counseling “was to
share with [Plaintiff], and with others, [Martin's] expectations
for the office” and “to ensure a professional and collegial
work environment for us all.” Plaintiff replied to Martin's e-
mail on the same day, and thanked Martin “for taking time to
read [her] email and understand [her] better.”
40. Plaintiff testified in her deposition that she believed
that Martin treated her unfairly and “differently than the
Caucasians employees” with regard to this incident. However,
Plaintiff further testified that she did not know what Martin
discussed with Mitchell in connection with this incident. 30
41. According to Plaintiff, she was also subjected to
harassment by Martin between April 2 and April 4, 2013.
More specifically, Plaintiff testified in her deposition that,
on these dates, Martin harassed her by repeatedly telling
her that she had given incorrect information to a customer,
and instructing her to send data to the customer. However,
Plaintiff testified that she had not given incorrect information
to the customer, and that she called the customer and verified
that he or she had not actually requested any specific data. 31
42. Plaintiff testified that there were “many” other instances
between February 2013 and April 2013 during which she
felt that she was being treated unfairly “because [she was]
a Chinese,” including (1) being “yelled at” for “ask[ing]
a simple question,” and (2) being “ignore[d]” by other
employees who came to her office to speak with her
officemate. However, Plaintiff was unable to identify any
other incident with greater particularity. 32
43. Plaintiff did not complain to Martin that she was being
discriminated against or treated unfairly because of her race
or national origin. 33
*10 44. On April 4, 2013, Plaintiff called Defendant's
human resources “general” number to express her concerns.
Plaintiff was directed to David Mahoney (“Mahoney”), then
an associate personnel administrator for NYSED. 34
45. Mahoney referred Plaintiff to his supervisor, Steven Earle
(“Earle”), Director of NYSED's Office for Diversity, Ethics
and Access. On the same day, Plaintiff called Earle and made
an appointment to meet with him. 35
46. On April 4, 2013, following her initial conversation with
Mahoney, Plaintiff sent him a follow-up e-mail complaining
about the fact that Martin asked her to be professional in the
office and made “unreasonable” demands of her after Martin
spoke with Mitchell. In the e-mail, Plaintiff did not make an
allegation of discrimination. 36
47. Before her appointment with Earle, Plaintiff sent Earle a
note reporting alleged “office harassment and power abuses
behavior [sic]” by Mitchell and Martin. The note referred
to the incident that had occurred on April 4, 2013, during
which Martin had allegedly directed Plaintiff to send data to a
customer who had not requested it. In the letter, Plaintiff did
not allege that she had been subjected to discrimination. 37
48. NYSED has a written nondiscrimination policy
prohibiting it from discriminating on the basis of, inter alia,
national origin, race, or gender. 38
*11 49. Mr. Earle's responsibilities as Director of NYSED's
Office for Diversity, Ethics and Access include, but are not
limited to, addressing complaints of discrimination made by
employees. Mr. Earle also serves as the “point person” for
mediating issues between NYSED management and staff
members, among other things. 39
50. NYSED's Employee Handbook provides that, if an
employee has a complaint that cannot be resolved through
informal discussion with his or her supervisor or manager, the
employee has the right to file a formal grievance. 40
51. On April 8, 2013, Plaintiff met with Earle. During the
meeting, Plaintiff discussed her complete professional history
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before joining NYSED, as well as her current work situation
at NYSED. The meeting, which Earle had scheduled for one
hour, lasted for more than three hours. 41
52. During the meeting, Plaintiff conveyed to Earle her
perception that she was being harassed. Plaintiff stated that
she got along well with Martin during the first six months
of Plaintiff's employment, but that the relationship became
strained after Plaintiff persisted in presenting suggestions for
changes in the processing functions of the office, with which
Martin (at least partially) disagreed. Plaintiff also stated to
Earle that she had difficulties getting along with Mitchell
during the same time period, and that Plaintiff's tension
with Martin worsened after she began to complain about her
interactions with Mitchell. 42
*12 53. Plaintiff testified in her deposition that she reported
to Earle that she “was subjected to abuses, harassment, and
many use[s of] their power to oppress me,” that she was not
listened to, and that “they” treated her differently than other
employees. 43
54. Plaintiff indicated to Earle that she felt that she could
no longer trust or be supervised by Martin, and asked for a
reassignment. Earle explained the reassignment process and
to whom Plaintiff should direct her request. 44
55. After the meeting with Earle, Plaintiff contacted the
Deputy Commissioner's Office and requested a meeting to
discuss her request to be assigned to a different supervisor and
different office.
56. Ken Wagner, Ph.D. (“Wagner”), served as Deputy
Commissioner for NYSED's Office of Curriculum,
Assessment and Educational Technology at the time. Wagner
asked Kathleen Moorhead (“Moorhead”), then the Data
Systems Project Manager for NYSED and also a liaison to
Wagner's Office, to address the issues raised by Plaintiff.
57. On April 9, 2013, Plaintiff met with Moorhead for more
than two hours. During the meeting, Plaintiff complained that
she was unhappy with her work environment and that Martin
and Mitchell were confrontational and bully-like. She also
indicated that she did not like the office or her current work
assignments, and requested a transfer.
58. Moorhead then met with Martin and Mitchell. Martin
and Mitchell provided an overview of their interactions with
Plaintiff and stated that Plaintiff was “very hostile and angry
toward them.” Moreover, Moorhead spoke with a number of
other staff members who indicated that Plaintiff's description
of an incident with Mitchell, in which Plaintiff alleged that
Mitchell did not act professionally toward her, was “not
accurate.” 45
*13 59. During the meeting, Moorhead advised both Martin
and Mitchell that they needed to maintain a professional
work environment and that they should contact Moorhead
immediately with any concerns.
The Decision to Assign Plaintiff to a New Supervisor
60. On April 10, 2013, Moorhead met with Martin and
Kristen DeSalvatore (“DeSalvatore”), then a Coordinator of
Education Plans & Reports for NYSED, to discuss Plaintiff's
concerns. They agreed DeSalvatore, rather than Martin,
would be Plaintiff's supervisor going forward.
61. On the same date, Moorhead told Plaintiff that, from
that date forward, Plaintiff would be reporting to DeSalvatore
rather than Martin.
62. Moorhead decided to assign Plaintiff to a new supervisor
because, among other factors, there appeared to be a
“personality conflict” between Plaintiff and Martin. 46
63. Wagner testified in his deposition that it was “extremely
unusual” for NYSED to assign an employee to a different
supervisor “based on something other than the workload
changing.” Moreover, Wagner testified that the decision to
transfer Plaintiff to a new supervisor was made in order to
provide her with “an abundance of support” and “a fresh
start.” 47
64. On April 10, 2013, Moorhead met with Plaintiff on
two separate occasions to discuss the change in supervision.
Initially, Plaintiff was not receptive and again requested a
transfer. 48
65. On April 11, 2013, Plaintiff sent an e-mail to Moorhead
(and by copy to Wagner), in which she (1) stated that she
felt that she could not continue to work in the office with
Mitchell and Martin, and (2) asked that Moorhead consider
moving Plaintiff to another office. Plaintiff also asserted
that Mitchell and Martin had “repeatedly mistreated [her]
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through harassing language, bullying, and power-abuse.”
Plaintiff identified the incident from April 4, 2013 as her
reason for complaining to management. In her e-mail, did not
expressly allege that she had been subjected to discrimination
or retaliation. 49
*14 66. Dr. Wagner responded to Plaintiff's e-mail, advising
Plaintiff that transferring her was “not an option at this time”
and directing Moorhead to address Plaintiff's concerns. As a
matter of general practice, NYSED does not “transfer people”
to other jobs. 50
67. In a responding e-mail, Plaintiff thanked both Wagner
and Moorhead for their time and consideration, and, more
particularly, thanked Moorhead for her “great and continuing
efforts” and “the highly professional” and “caring and
responsible” manner in which she attempted to “resolv[e] the
matter[.]” 51
68. Over the next several days, Moorhead met with Plaintiff
several times to listen to, and discuss, Plaintiff's concerns.
During these meetings, Plaintiff continued to raise issues
regarding her past interactions with Martin and Mitchell.
Moorhead advised Plaintiff that she should contact human
resources personnel if she wanted to file a formal complaint
or grievance. 52
69. Plaintiff also contacted Dina Haggerty (“Haggerty”),
a personnel administrator for P-12 Education at NYSED,
regarding her reservations about being assigned to a new
supervisor. Shortly thereafter, Haggerty met with Plaintiff for
nearly two hours, during which Plaintiff related the entire
history of her career. 53
*15 70. After her meeting with Plaintiff, Haggerty spoke
with Earle about Plaintiff's concerns. Haggerty testified in her
deposition that, based on their conversation, Haggerty and
Earle determined that Earle should be the person to address
Plaintiff's concerns that she was being harassed by her former
supervisor (i.e., Martin) because he handled such allegations
in his role as Diversity, Ethics and Access Officer for NYSED,
and he had previously had contact with Plaintiff. 54
71. During a phone call between Haggerty and Plaintiff on the
day after they met in person, Plaintiff expressed concern about
her probationary period being extended if she was assigned
to a new supervisor. Haggerty referred Plaintiff to Earle with
respect to her allegation that she was being harassed by
Martin.
72. On April 15, 2013, Plaintiff indicated to Moorhead that
she felt better and was willing to move forward under a new
supervisor. At that point, Moorhead allowed DeSalvatore to
handle things moving forward. 55
73. However, Plaintiff continued to request to meet with
her. Plaintiff asked to meet with her “sometimes up to 5
times a day,” even after Plaintiff had discussed the topics
she wished to raise with DeSalvatore. Moreover, Plaintiff
attempted to discuss “issues that did not pertain to the current
work environment or situation.” 56
74. Based on her interactions with Plaintiff, Moorhead
concluded that Plaintiff was unable to respect other people's
professional time. 57
*16 75. Plaintiff also contacted her union representative,
Michael Tracy-Ireland (“Tracy-Ireland”), to discuss the fact
that she was not allowed to transfer to another office. On April
16, 2016, Tracy-Ireland advised Plaintiff that she should make
the best of her current situation until her probationary period
ended.
76. In a subsequent e-mail to Tracey-Ireland, dated May
1, 2013, Plaintiff explained she had been transferred to the
supervision of DeSalvatore, and that she “saw this as a
positive change of prompt effort/action made ... Ken Wagner's
office, to help [her].” 58
Plaintiff's Work Under Her New Supervisor
77. DeSalvatore began supervising Plaintiff on April 12,
2013.
78. Under DeSalvatore's supervision, Plaintiff's
“interpersonal relationships with [DeSalvatore] and fellow
colleagues were typically difficult[.]” 59
79. Plaintiff had a hard time finding closure on the events
that led to the change in supervision, despite the fact that
DeSalvatore and Moorhead explained several times that she
needed to stop discussing it and move on. 60
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80. Plaintiff had continual difficulties having succinct
conversations and bringing closure to conversations and
would reiterate her points and repeat information she had
already shared. 61
81. Plaintiff also had difficulties with respect to engaging
other colleagues. More specifically, if Plaintiff went to
a colleague's desk and found that person away, on the
telephone, or engaged in conversation, she would repeatedly
return every five to ten minutes until she found the person
available to speak. 62
*17 82. Plaintiff complained to DeSalvatore about office
operations and what Plaintiff perceived as inefficiencies.
Plaintiff also complained that she was being belittled and
harassed by Mitchell.
83. DeSalvatore advised Plaintiff on several occasions to
consult with human resources personnel if she felt that she
was being bullied and harassed, as well as how to pursue filing
a formal complaint. 63
84. Based on her interactions with Plaintiff, DeSalvatore
found that Plaintiff failed to understand “her role in OIRS as
a data analyst and not as a manager of change and improved
efficiency.” DeSalvatore opined that Plaintiff “has good data
analysis skills,” but “lacks the interpersonal skills to work in
a busy office with many different personalities, and ... was not
respectful of other peoples' time or of management decisions
that she did not agree with.” 64
Preparation of Plaintiff's Evaluation
85. In April 2013, after DeSalvatore became Plaintiff's
supervisor, DeSalvatore began the probationary evaluation
process.
86. DeSalvatore advised Martin that Plaintiff needed to be
evaluated, and provided Martin with the evaluation form.
DeSalvatore asked Martin to complete the evaluation form
because Martin had been Plaintiff's supervisor up until that
point.
87. The form applicable to probationary employees
(including Plaintiff) required ratings in seven categories:
(A) “Quality of Work”; (B) “Quantity of Work”; (C)
“Work Habits”; (D) “Work Interest”; (E) “Relationship with
Others”; (F) “Supervisory Skills (if applicable)”; and (G)
“Attendance.” The form provided further explanation of
each of these categories, and there were four possible
ratings for each category: “above average,” “average,”
“below average,” or “unsatisfactory.” Space was provided
for written comments with respect to each category. The
form also included a section for an ultimate recommendation
regarding the employee's services, with four possible
choices: “permanently retained,” “continued on probation,”
“continued on probation under the terms of the traineeship,”
or “terminated.” 65
88. Martin prepared a draft probationary evaluation report
(“draft evaluation”) covering the period that she had
supervised Plaintiff (apparently either July 19 or August 19,
2012, through April 11, 2013) and shared it with DeSalvatore,
Moorhead and Haggerty. The report was shared with others
because it was unusual for a probationary employee to
be assigned to a new supervisor during the course of the
probationary period. 66
*18 89. Haggerty reviewed Plaintiff's draft evaluation and
expressed concern that Martin's evaluation of Plaintiff's
attendance (which Martin rated as “unsatisfactory”) was “not
fair” because Plaintiff's attendance was actually acceptable.
Ultimately, the final evaluation report rated Plaintiff's
attendance as average. 67
90. DeSalvatore also provided comments on the draft
evaluation. Specifically, after consulting with human
resources staff, DeSalvatore advised that Martin's
recommendation to terminate Plaintiff's employment should
be changed, and she also provided “feedback on [the] time
and attendance rating.” 68
91. DeSalvatore and human resources staff agreed that the
time remaining in Plaintiff's probationary term (i.e., about
four months) was sufficient for DeSalvatore to evaluate
Plaintiff.
92. Wagner (who, as Martin's direct supervisor, was
responsible for reviewing employee evaluations prepared by
Martin) reviewed the draft evaluation as well, and requested
that Plaintiff's rating in some of the categories be raised
to a higher rating and that the ultimate recommendation be
changed. Martin made the changes requested by Wagner.
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93. The final probationary evaluation report recommended
that Plaintiff be continued on probation. Although Wagner
was in absolutely no way prepared to grant permanent status
to Plaintiff, it seemed to him appropriate to “give her more
time and to let these issues kind of settle down.” 69
94. It was the usual practice for a supervisor to discuss
a performance evaluation with the subject employee and
make recommendations for improvement if performance
is less than satisfactory. However, Martin did not follow
this practice with respect to Plaintiff because Martin was
instructed by Moorhead that she should no longer have any
personal interaction with Plaintiff once Plaintiff was assigned
to DeSalvatore's supervision. 70
*19 95. Plaintiff's probationary term was scheduled to expire
on August 8, 2013.
May 1, 2013—Altercation Between Plaintiff and Mitchell
96. On May 1, 2013, Haggerty advised Martin, via e-mail, that
Martin should sign Plaintiff's probationary evaluation as her
supervisor. Moreover, Haggerty explained that, as Plaintiff's
former supervisor, Martin should evaluate Plaintiff up until
the time that Plaintiff was reassigned, and that DeSalvatore, as
Plaintiff's new supervisor, “would take over from that point.”
This was consistent with NYSED's standard practice when an
employee was assigned to a new supervisor. 71
97. Plaintiff saw this e-mail when she picked up materials that
Mitchell had printed to a shared printer. Pursuant to her duties
as Martin's assistant, Mitchell printed the e-mail for Martin,
who was not in the office at the time, and planned to put it
into a folder with a note for a response the next morning. 72
98. Mitchell asserted in an affidavit that, after she discovered
that her printed documents (including the e-mail at issue)
were not at the printer, she (1) went to Plaintiff's office,
(2) stated that she “believed [Plaintiff] may have picked
up [Mitchell's] printing,” (3) observed the e-mail sitting
on Plaintiff's desk, (4) pointed out the e-mail to Plaintiff,
and (5) “took it back to” her (Mitchell's) desk. Moreover,
Mitchell asserted that, thereafter, Plaintiff entered Mitchell's
office and “demanded to go through everything” that Mitchell
printed. 73
99. Plaintiff testified in her deposition that she inadvertently
retrieved the e-mail with other documents from the printer
outside of her office and that Mitchell screamed at her and
snatched the documents out of her hands. 74
100. Plaintiff reported the incident to DeSalvatore.
DeSalvatore asserted in an affidavit that she “immediately
spoke to [Mitchell] and instructed her to print her documents
using a printer that [Plaintiff] did not use” and “instructed
both [Mitchell] and [Plaintiff] that, should anything similar
happen in the future, to not interact and to immediately seek
assistance from a manager.” 75
*20 101. Plaintiff testified in her deposition that, shortly
after the printer incident, DeSalvatore called her into her
office and “blame[d]” her by asking her why she had taken
Mitchell's printed documents and refused to give them to
Mitchell. Moreover, Plaintiff testified that she “felt” that
DeSalvatore treated her differently than Caucasian employees
in connection with this incident. However, Plaintiff also
testified that she did know whether DeSalvatore spoke with
Mitchell about the incident.
102. On May 3, 2013, Plaintiff sent a lengthy e-mail
to Haggerty about the printer incident that had occurred
with Mitchell, as well as her related discovery that Martin
was preparing Plaintiff's probationary evaluation report.
Plaintiff complained that the conduct of Mitchell and Martin
constituted “continued harass[ment] and power-abuse” and
that Martin intended to evaluate her as a “means of revenge
and deliberate framing up.” Plaintiff's e-mail did not expressly
allege that she had been subjected to discrimination.
103. Haggerty responded to Plaintiff's e-mail on May 29,
2013, and advised Plaintiff that she had spoken with Earle
and that they concurred that the incident with Mitchell did not
constitute harassment. Haggerty also stated that nothing had
been added to Plaintiff's personnel history file to date, and
that Plaintiff could contact her with any questions when she
received a formal evaluation.
May-June 2013—Plaintiff's Complaint Regarding
Mitchell's Deletion of Plaintiff's E-Mails
104. Thereafter, Plaintiff requested and received a meeting
with Moorhead, which was scheduled for May 31, 2013.
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105. On that date, Plaintiff sent Moorhead an e-mail
“preview[ing]” the issues that she planned to discuss during
their upcoming meeting. Plaintiff wrote that a few things were
working better, namely, that she had less contact with Mitchell
and Martin, and that DeSalvatore was “more open to ideas
regarding” the Dataquest system.
106. Plaintiff also wrote, however, that there were still
“many troubling issues.” More specifically, Plaintiff cited the
fact that Mitchell deleted e-mails from Plaintiff's Dataquest
mailbox, DeSalvatore's failure to view this issue as a problem
when it was reported to her, and the incident that had
occurred with Mitchell's printouts. Plaintiff further indicated
that she felt that her work environment was “toxic,” and that
there was insufficient attention given to “abusive behavior
and misconduct[ ] such as bullying, yelling at people,
creating troubling problems, power abuses, plotting frame-
ups, and lying[.]” Plaintiff did not expressly use the word
“discrimination” in her e-mail to Moorhead. 76
107. During her meeting with Moorhead, Plaintiff reported
that Mitchell was deleting her e-mails from her Dataquest
mailbox. Plaintiff testified, however, that the work she had
completed remained in her work folder on her computer.
108. Mitchell's job responsibilities included overseeing the
Dataquest mailbox, which is the office's official mailbox. The
office receives approximately 50-60 e-mails per day in the
Dataquest mailbox. 77
*21 109. Mitchell's responsibilities with respect to
Dataquest required her to read each email, assign it to the
appropriate staff member, and send the staff member an e-
mail advising him or her that she had placed an assignment
in his or her folder. If a staff member did not respond in
a timely manner, Mitchell would send that staff member a
reminder e-mail that an assignment was overdue. After a staff
member had responded to an assigned item, the e-mail was
deleted from the staff member's folder and the response was
archived. 78
110. It was office policy for Mitchell to delete completed
Dataquest items from all staff members' Dataquest mailboxes.
However, in response to Plaintiff's concerns, the office policy
was reviewed and Mitchell was instructed that she should no
longer delete or move anything out of Plaintiff's Dataquest
mailbox. Instead, Plaintiff's co-worker, Jeff Schaffer, was
given the responsibility of deleting Plaintiff's e-mails.
111. In an e-mail dated June 3, 2013, DeSalvatore informed
Plaintiff that Mitchell had been notified that she should not
delete or move anything out of Plaintiff's Dataquest folder.
112. Moorhead also advised Plaintiff by e-mail that changes
to the Dataquest protocol were implemented to address
her concerns about the deletions. Moorhead indicated that
Plaintiff could contact Earle to discuss the possibility of
filing an official grievance with respect to the other concerns
she expressed in her May 31, 2013, e-mail and during their
meeting on the same date.
113. Plaintiff responded to Moorhead and thanked her for
organizing a meeting to review the Dataquest protocol and
for attempting “to try to improve the situation and stop the
problems.”
June 2013—Plaintiff's Meetings
With DeSalvatore and Earle
114. DeSalvatore held a 30-minute “check-in” meeting every
other week with all employees who report to her, the purpose
of which was to discuss current work assignments, address
any deficiencies with employees' work, and allow employees
to bring up any issues or highlight any accomplishments.
115. On June 7, 2013, DeSalvatore had a regularly scheduled
check-in meeting with Plaintiff at 1:00 p.m. During the
meeting, Plaintiff informed DeSalvatore that Mitchell was
“playing tricks” on her and that coworkers had been
“improper” with her in conversation. When DeSalvatore
attempted to address Plaintiff's constant “checking” behavior
with her colleagues (i.e., repeatedly returning to a colleague's
desk to see if they were present and available to talk), Plaintiff
became upset and complained about people not respecting
her. 79
*22 116. DeSalvatore pointed out to Plaintiff that the
meeting was 20 minutes over their scheduled time and
that Plaintiff was not respecting her time. Plaintiff became
more upset and stated that she was being treated unfairly.
DeSalvatore ended the meeting at that point and advised that
she would set up a meeting with Earle for the following
week. 80
117. On June 7, 2013, Plaintiff sent a lengthy e-mail to Earle,
complaining about “abusive” incidents. Plaintiff asserted
that Mitchell and Martin continued to “play tricks” and
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“plot destroying” her, and that DeSalvatore defended their
misconduct.
118. In her June 7, 2013, e-mail, Plaintiff did not make an
allegation of racial, national origin, or gender discrimination,
but rather stated, “I'm not bringing these issues to you
as illegal issues at this stage. I'm bringing them to you
as workplace abusive issues, toxic workplace environment
issues as a Healthy Workplace Bill [sic].” 81
119. DeSalvatore and Earle met with Plaintiff on June
11, 2013. During the meeting, they discussed the issues
raised in the June 7, 2013, check-in meeting, Plaintiff
acknowledged that she had some deficiencies with
interpersonal relationships and she agreed to improve, and a
plan was made for moving forward. 82
Plaintiff's Receipt of Her Evaluation
and Altercation with Wagner
*23 120. On June 21, 2013, Plaintiff's probationary
performance evaluation was finalized and signed by Martin
as Plaintiff's former supervisor and by Wagner as “reviewer.”
121. Wagner's assistant, Carol Donnelly (“Donnelly”),
provided the performance evaluation to Plaintiff on the
same date. Donnelly asked Plaintiff if she would like an
appointment with Wagner to discuss the evaluation. Plaintiff
requested an appointment, and one was scheduled for
Monday, June 24, 2013.
122. The signed probationary evaluation report (“final
evaluation”) provided to Plaintiff on June 21, 2013, contained
ratings in each of the evaluation categories noted above,
accompanied by comments. Plaintiff received an “average”
rating in both the “Quality of Work” and “Attendance”
categories. Plaintiff received a “below average” rating in
the “Quantity of Work” category, with two comments: (1)
“Employee has refused Supervisor's request to produce
dated responses to work that has remained unanswered in
employee's Dataquest inbox”; and (2) “NAEP statewide
demographic data project was not completed in a timely
manner and was re-assigned to another staff member.”
Plaintiff received a “below average” rating in the “Work
Habits” category, with the following comments: “NYS
Statistical Yearbook: employee presumed that since initial
project deadline had passed that work was not required to be
completed. Employee did not contact supervisor to confirm
but made unilateral decision not to do the work. Supervisor
became aware that work was not being completed as assigned
when the Yearbook publisher indicated that none of the work
had been received. Tasks of other staff had to be realigned in
order to complete this unfinished project.” Plaintiff received
a “below average” rating in the “Work Interest” category,
with the following comment: “Employee complained that
she believed that she had been singled out as the only staff
member to be assigned work through Dataquest.” Plaintiff
received an “unsatisfactory” rating in the “Relationship
with Others” category, with the following comments: “The
employee has insulted a co-worker by making demeaning
comments about the employee's intelligence. On a different
occasion, the employee has insulted the supervisor. Both of
these situations have taken place in the office within view and
hearing of co-workers. The employee had to be assigned to
another supervisor.” The report ultimately recommended that
Plaintiff's employment be “continued on probation” (i.e., not
permanently retained, but also not terminated). 83
123. Plaintiff visited Wagner's office suite several times at
the end of the day on June 21, 2013, with the intention
of speaking to Wagner about the final evaluation. Wagner's
assistant, MaryAnn VanBlarcom (“VanBlarcom”), informed
Plaintiff that he was in a meeting. 84
124. Wagner's office was located in a separate suite on the
same floor as the suite in which Plaintiff's office was located.
*24 125. Wagner returned to his office from his meeting
at around 6:00 p.m. VanBlarcom explained that Plaintiff
had stopped by several times. VanBlarcom then left for the
evening, and Wagner closed the external door to the office
suite and began working at his desk in his internal office. 85
126. At about 7:00 p.m., Plaintiff returned to Wagner's office
and the two exchanged words. The parties dispute the nature
of the exchange. Wagner testified in his deposition that, while
he was working that evening, Plaintiff loudly “burst into
[his] office and demanded to talk in a very kind of agitated
and intimidating way”; in a “conversational voice,” Wagner
asked Plaintiff to leave and told her that they would speak at
their scheduled meeting the following week; when Plaintiff
continued to block his office doorway and demand to speak
to him, Wagner repeated himself “in a very loud and firm
voice that she needed to leave.” 86 However, Plaintiff testified
in her deposition that she returned to Wagner's office suite
and “gently” knocked on his door, and Wagner “[i]nstantly ...
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bl[e]w up,” repeatedly “scream[ing] at [her]” to leave his
office. 87
127. Wagner testified in his deposition that Plaintiff refused
to leave and remained positioned near the door, demanding
to discuss her final evaluation immediately, while Wagner
remained in the chair at his desk. 88 However, Plaintiff
testified in her deposition that Wagner continuously “yell[ed]
and scream[ed] at her, that she was “shocked,” and that she
could “hardly get a word [out],” until she turned to leave and
stated that she would retain a lawyer to attend the meeting
with her the following week. 89
128. Wagner testified in his deposition that he felt threatened
by Plaintiff's behavior and called out to Amrit Singh
(“Singh”), who was working in another office within the same
suite; Singh came to Dr. Wagner's office and remained there
until Plaintiff eventually left. 90 However, Plaintiff testified
that she was “completely scared” by Wagner, who kept yelling
at her and “didn't give [her] ... a chance to respond” until,
finally, she “left immediately.” 91
129. At some point during the altercation, Wagner told
Plaintiff that her behavior was consistent with some of the
areas of concern noted in her final evaluation, based on
behavior that she had reportedly demonstrated with other
people in the office. 92
*25 130. Shortly after Plaintiff left Wagner's office, Wagner
e-mailed and called NYSED's Director of Human Resources,
Annette Franchini, to report his version of the incident. 93
131. After the incident on the evening of June 21, 2013,
Plaintiff's probationary employment with NYSED was
terminated.
132. Plaintiff called in sick on June 24, 2013, and indicated
that she would be out for an extended period of time. Plaintiff
thereafter provided a note from her doctor, and was granted
sick leave up until the date of her termination.
133. Plaintiff was informed by letter dated June 28, 2013,
that her probationary employment with NYSED would be
terminated effective July 12, 2013. The reason for Plaintiff's
termination, as set forth in the letter, was her “inappropriate,
intimidating and insubordinate behavior on June 21, 2013[,]
in an interaction with a manager in the Office of P-12
Education.” More particularly, the letter explained that
Plaintiff “barged into the manager's office in a loud and
aggressive manner and[,] despite repeated directives to leave,
refused to do so.” 94
134. Wagner testified in his deposition that, to his knowledge
and based on his understanding of Plaintiff's e-mails and other
communications, Plaintiff felt that her coworkers“hated her”
and were “mistreating her,” but “she never mentioned that she
felt [that] she was [subjected to] discriminat[ion]” based on
her race or national origin. 95
135. During her employment with NYSED, Plaintiff never
filed a formal complaint or grievance. 96
Post-Termination Administrative Proceedings
*26 136. On September 13, 2013, Plaintiff filed a complaint
with the New York State Division of Human Rights
(“NYSDHR”), alleging that (1) she had been discriminated
against because of her national origin, gender, and disability,
and (2) that she had been subjected to retaliation for opposing
the discrimination.
137. On February 19, 2014, Plaintiff filed an amended
complaint with the NYSDHR, adding a claim that she had
been subjected to racial discrimination.
138. NYSED opposed Plaintiff's complaint and amended
complaint.
139. On March 12, 2014, the NYSDHR issued a
determination dismissing Plaintiff's complaint. 97 The
NYSDHR found that there was “insufficient evidence to
support [Plaintiff's] claims of unlawful discriminatory actions
due to her race, national origin, sex, temporary disability, or
in retaliation for opposing discrimination.”
140. On April 24, 2014, the Equal Employment Opportunity
Commission (“EEOC”) adopted the findings of the NYSDHR
and issued Plaintiff a right-to-sue letter.
December 2014—Plaintiff's Receipt of a Job Offer
141. In December 2014, Plaintiff received a job offer for
a Program Research Specialist 2 position with the New
York State Office of Primary Care and Health Systems
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Management Center for Health Care Facility Licensure,
Planning and Finance. This position was for the same job title,
and at the same salary grade, as Plaintiff's previous job with
NYSED, and involved very similar responsibilities related to
the collection and analysis of data.
142. On December 4, 2014, Plaintiff declined the job offer
because she was “looking for a higher grade level position at
this point in [her] career.”
The Court notes that Plaintiff's Rule 7.1 Response also
includes numerous separately numbered material facts that
Plaintiff asserts are genuinely in dispute. (Dkt. No. 29, Attach.
1, at 1-8.) Some of the record evidence cited in support
of Plaintiff's factual assertions also appear in Plaintiff's
responses to Defendant's Rule 7.1 Statement, as set forth
above. Familiarity with these purportedly disputed material
facts is assumed in this Decision and Order, which is intended
primarily for the review of the parties.
C. Summary of Parties' Arguments
1. Defendant's Memorandum of Law
Generally, in its memorandum of law, Defendant advances
four arguments. (Dkt. No. 21, Attach. 1 [Def.'s Memo. of
Law].)
First, Defendant argues that Plaintiff's Title VII
discrimination claim must be dismissed for the following
reasons: (a) because her probationary evaluation report,
denial of her requests to be transferred, and the fact that
she was allegedly yelled at and blamed for mistakes that
she did not commit do not constitute adverse employment
actions, the only adverse employment action that she
experienced was her termination in July 2013 (id. at 17-18);
(b) she has not identified circumstances giving rise to an
inference of discrimination because (i) there is no direct
evidence that any employee of Defendant discriminated
against her based on her race, national origin, or gender,
(ii) she has not shown that she was treated differently than
any similarly situated employees outside of her protected
class, and (iii) the record evidence reflects that, when
she complained of confrontations with her coworkers,
her superiors listened to her concerns, addressed those
confrontations by stating their expectations to everyone
involved in the confrontations, and transferred Plaintiff
to a new supervisor (i.e., from Martin to DeSalvatore)
(id. at 18-21); (c) the NYSDHR's decision dismissing her
administrative complaint is persuasive evidence that she
was not subjected to discrimination; and (d) Defendant
has demonstrated that she was terminated for legitimate,
nondiscriminatory reasons (particularly, her insubordinate
conduct on June 21, 2013, when she accosted Wagner in
his office after working hours and repeatedly demanded to
discuss her evaluation), and Plaintiff has failed to rebut this
showing (id. at 22-23).
*27 Second, Defendant argues that Plaintiff's Title VII
hostile work environment claim must be dismissed for the
following reasons: (a) the alleged incidents of hostility
that form the basis of Plaintiff's claim (i) were not
sufficiently severe to support such a claim, (ii) were not
sufficiently pervasive to support such a claim, and (iii)
constituted sparse, innocuous personality conflicts that were
unrelated to her membership in any protected class (id. at
24-25); and (b) the alleged incidents cannot be imputed to
Defendant because the record reflects that management (i)
adequately addressed her complaints, based on the available
information, by transferring her to another supervisor when
she complained about Martin and Mitchell in early April 2013
and changing office procedures for deleting old e-mails when
she complained about Mitchell allegedly destroying her work,
and (ii) repeatedly advised her that she could file a formal
complaint or grievance pursuant to NYSED policies, but she
failed to do so (id. at 25-26).
Third, Defendant argues that Plaintiff's Title VII retaliation
claim must be dismissed for the following reasons: (a)
the record evidence demonstrates that she has not engaged
in any protected activity of which Defendant was made
aware because (i) she did not file a formal complaint or
grievance at any point during her employment, (ii) her
informal complaints to management and human resources
personnel were generalized complaints of harassment and
unfair treatment, but did not allege that this treatment was
based on her race, national origin, or gender, and (iii) in
one such informal complaint, directed to Earle, she expressly
disclaimed that she was asserting any illegal conduct (id.
at 27-29); (b) under the circumstances, her performance
evaluation (which was “mixed,” rather than “negative,” and
extended her probationary employment) did not constitute an
adverse employment action for purposes of her retaliation
claim (id. at 29-30); (c) the other alleged incidents, including
the denial of her request for a transfer to another office and
the occasions on which coworkers “yelled at her,” constituted
mere “trivial” harms rather than adverse employment actions
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(id. at 30); (d) the record evidence does not support the
conclusion that a causal connection existed between her
first complaint on April 4, 2013, and the issuance of her
final evaluation because (i) these two events occurred more
than two-and-a-half months apart and (ii) in the interim,
other attenuating events related to her complaints occurred,
including her transfer to a new supervisor, changing the
protocol for the deletion of Dataquest e-mails, significant time
spent listening to and discussing her concerns, and elevating
the ratings given to her on her probationary evaluation report
to allow her to continue her employment (id. at 31-32); and (e)
as argued with respect to her discrimination claim, Defendant
has demonstrated that she was terminated for legitimate,
nondiscriminatory reasons (id. at 32-34).
Fourth, and finally, Defendant argues that, to the extent that
the Court denies its motion for summary judgment on the
merits, the Court should hold that Plaintiff failed to mitigate
her damages and, as a result, any recovery must be limited
to the time period from July 12, 2013 (the date of her
termination) until December 4, 2014 (the date on which she
rejected an offer of comparable employment because she was
seeking a “higher grade level position”). (Id. at 33-34.)
2. Plaintiff's Opposition Memorandum of Law
Generally, in her opposition memorandum of law, Plaintiff
advances four arguments. (Dkt. No. 29 [Plf.'s Opp'n Memo.
of Law].)
First, Plaintiff “withdraws” her claim that Defendant
subjected her to a hostile work environment. (Id. at 3.)
Second, Plaintiff argues that her Title VII retaliation claim
should not be dismissed for the following reasons: (a)
she engaged in protected activity by (i) discussing her
complaints of discrimination and retaliation with Earle and
Moorhead in April 2013, and requesting that Moorhead
transfer her to another office, (ii) discussing, with Haggerty,
her belief that she was being treated differently than her
Caucasian colleagues and subjected to a negative evaluation
in retaliation for her complaints against Martin, to Haggerty,
(iii) discussing her concerns “directly and indirectly” with
Wagner, (iv) discussing, with DeSalvatore, her concerns
about a sexual harassment incident and the fact that
DeSalvatore was imposing “rules” upon her that did not apply
to “Caucasian employees,” and (v) discussing her concerns
about Mitchell's discriminatory behavior toward her with
Martin (id. at 11-16); (b) Defendant's submissions to the
NYSDHR (in response to Plaintiff's administrative complaint
of discrimination) reflect that management understood
Plaintiff's complaints to regard discrimination based on her
national origin (id. at 13); (c) she was subjected to adverse
employment actions when (i) she received her final evaluation
and her term of probationary employment was extended
(rather than being offered permanent employment) and (ii)
she was terminated (id. at 16-17); and (d) an inference of
retaliatory intent may reasonably be drawn from the record
evidence based upon “the timing of conflicts involving her
[c]omplaints of discrimination” (id. at 17-18).
*28 Third, Plaintiff argues that her Title VII discrimination
claim should not be dismissed for the following reasons:
(a) it is undisputed that (i) she is a member of a
protected class and (ii) her termination constituted an adverse
employment action (id. at 20); (b) the circumstances of
her termination (specifically, that it followed her numerous
informal complaints to multiple members of management
and human resources personnel) give rise to an inference of
discriminatory animus on the part of decision-makers (id. at
20-21); and (c) Defendant's argument that it had legitimate,
nondiscriminatory reasons for terminating her employment
(i.e., the fact that she was insubordinate and Wagner felt
intimidated by her behavior) could reasonably be disbelieved
by a jury and, in any event, she carried her burden in opposing
Defendant's argument by relying on the evidence establishing
her claim of discrimination (id. at 21-23).
Fourth, and finally, Plaintiff argues that the issue of whether
she failed to properly mitigate her damages cannot be
appropriately resolved on Defendant's motion for summary
judgment and, in any event, the record evidence reflects that
she was unable to accept the offer of comparable employment
because it was available for only 40 minutes. (Id. at 23-24.)
3. Defendant's Reply Memorandum of Law
Generally, in its reply, Defendant reiterates the arguments set
forth in its memorandum of law and, moreover, argues as
follows: (1) to the extent that Plaintiff has denied the facts
set forth in Defendant's statement of material facts without a
supporting citation to the record, the Court should deem those
facts admitted (Dkt. No. 30 at 1-2 [Def.'s Reply Memo. of
Law] ); 98 (2) in arguing that her discrimination claim should
not be dismissed because decision-makers at NYSED had
“knowledge” of her “allegations of discrimination,” Plaintiff
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conflates the elements that comprise a discrimination claim
with the elements that comprise a retaliation claim (id. at 3);
(3) with respect to Plaintiff's discrimination claim, she has
failed (and has not even attempted) to identify any similarly
situated comparators that were treated more favorably than
she was (id. at 3-4); (4) with respect to Plaintiff's retaliation
claim, the record evidence establishes that she did not
complain about discrimination while employed by NYSED,
but rather complained generally about “harassment” and
“bullying” (id. at 6-7); (5) Plaintiff's final evaluation report
did not materially affect the terms and conditions of her
employment and this is not a “tenure denial” case (id. at 7-8);
and (6) Plaintiff has cited no record evidence supporting her
arguments that (a) her protected activity was a “but-for” cause
for her termination and (b) her termination was pretextual,
and temporal proximity between the protected activity and
adverse employment action, by itself, is insufficient to
establish pretext (id. at 8-9).
II. RELEVANT LEGAL STANDARDS
A. Standard Governing a Motion for Summary
Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 99 As for
the materiality requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the governing
law.... Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248.
*29 In determining whether a genuine issue of material
fact exists, the Court must resolve all ambiguities and draw
all reasonable inferences against the movant. Anderson, 477
U.S. at 255. In addition, “[the movant] bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of the ... [record]
which it believes demonstrate[s] the absence of any genuine
issue of material fact.” Celotex v. Catrett, 477 U.S. 317,
323-24 (1986). However, when the movant has met its initial
burden, the non-movant must come forward with specific
facts showing a genuine issue of material fact for trial. Fed.
R. Civ. P. 56(a),(c),(e).
Implied in the above-stated burden-shifting standard is the
fact that, where a non-movant willfully fails to respond to a
motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of
a factual dispute. 100
Of course, when a non-movant willfully fails to respond to a
motion for summary judgment, “[t]he fact that there has been
no [such] response ... does not ... [by itself] mean that the
motion is to be granted automatically.” Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above,
the Court must assure itself that, based on the undisputed
material facts, the law indeed warrants judgment for the
movant. Champion, 76 F.3d at 486; Allen v. Comprehensive
Analytical Group, Inc., 140 F. Supp.2d 229, 232 (N.D.N.Y.
2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-
movant's failure to respond to the motion does is lighten the
movant's burden.
For these reasons, this Court has often enforced Local Rule
7.1(a)(3) by deeming facts set forth in a movant's statement
of material facts to be admitted, where (1) those facts are
supported by evidence in the record, and (2) the non-movant
has willfully failed to properly respond to that statement. 101
Similarly, in this District, where a non-movant has willfully
failed to respond to a movant's properly filed and facially
meritorious memorandum of law, the non-movant is deemed
to have “consented” to the legal arguments contained in that
memorandum of law under Local Rule 7.1(b)(3). 102 Stated
another way, when a non-movant fails to oppose a legal
argument asserted by a movant, the movant may succeed
on the argument by showing that the argument possess
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a
properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein....”); Rusyniak
v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases);
Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2
& n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting
cases).
B. Legal Standard Governing Plaintiff's Claims
*30 Because the parties have (in their memoranda of law)
demonstrated an adequate familiarity with the legal standards
governing Plaintiff's claims, the Court will not recite in detail
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those legal standards in this Decision and Order, which is
intended primarily for the review of the parties. Rather, the
Court will discuss those legal standards only where necessary
below, in Part III of this Decision and Order.
III. ANALYSIS
A. Whether Plaintiff's Title VII Discrimination Claim
Must Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative for the reasons set forth in
Defendant's memoranda of law. (Dkt. No. 21, Attach. 1, at
16-23 [Def.'s Memo. of Law]; Dkt. No. 30 at 2-6 [Def.'s
Reply Memo. of Law].) To those reasons, the Court adds the
following analysis, which is intended to supplement, and not
to supplant, those reasons.
As an initial matter, Defendant does not dispute that Plaintiff
has established her membership in a protected class based
on her gender, race, and national origin. Moreover, as
Plaintiff correctly notes, Defendant also does not dispute
that Plaintiff's termination constituted an adverse employment
action for purposes of her discrimination claim. (Dkt. No. 29
at 20 [Plf.'s Opp'n Memo. of Law].) See also Beyer v. Cty.
of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (“Employment
actions that [the Second Circuit] ha[s] deemed sufficiently
disadvantageous to constitute an adverse employment action
include a termination of employment, a demotion evidenced
by a decrease in wage or salary, a less distinguished title,
a material loss of benefits, significantly diminished material
responsibilities, or other indices ... unique to a particular
situation.”) (internal quotation marks omitted). Based upon
a review of the record, the Court concludes that admissible
record evidence exists establishing each of these two elements
of Plaintiff's discrimination claim. 103
The Court must next consider whether Plaintiff has adduced
evidence from which a jury could reasonably draw an
inference of discriminatory animus. “An inference of
discrimination can arise from circumstances including, but
not limited to, ‘the employer's criticism of the plaintiff's
performance in ethnically degrading terms; or its invidious
comments about others in the employee's protected group;
or the more favorable treatment of employees not in the
protected group; or the sequence of events leading to the
plaintiff's discharge.’ ” Littlejohn v. City of New York, 795 F.3d
297, 312 (2d Cir. 2015) (quoting Leibowitz v. Cornell Univ.,
584 F.3d 487, 502 [2d Cir. 2009]).
Liberally construing Plaintiff's Rule 7.1 Response and
opposition memorandum of law (as well as her Complaint and
deposition testimony), Plaintiff has identified the following
incidents that, in her view, give rise to an inference of
discrimination on the basis of her race, gender, and/or national
origin: (1) she was the only employee to be assigned work
assignments through Dataquest; 104 (2) in February 2013,
Holliday, a clerk, “yelled” at her, and asked if she was
“digging [for] information,” when she asked if Holliday knew
whether she could take vacation time before she had accrued
it; 105 (3) in March 2013, she asked Mitchell clarifying
questions about an assignment and Mitchell shouted at her
and asked her, “Why [do] you ask me?”; 106 (4) in April
2013, Mitchell sent her an e-mail stating that she did not want
Plaintiff to suggest to anyone else that Mitchell agreed with
any of Plaintiff's ideas for improving the office's productivity
or changing how the work was handled; 107 (5) in April
2013, Mitchell screamed at her, wrongly accused her of giving
incorrect information to a customer, and demanded that she
leave Mitchell's office; 108 (6) Martin treated her unfairly–
and “differently than the Caucasian employees”–with respect
to the incident in which Mitchell accused her of sending
incorrect information to a customer by believing Mitchell's
account of the incident, although Plaintiff admittedly did not
know what Martin discussed with Mitchell with respect to the
incident 109 ; (7) from April 2 to 4, 2013, Martin repeatedly
told her that Plaintiff gave incorrect information to a customer
and demanded that Plaintiff send the customer data, despite
the fact that Plaintiff had answered the customer's inquiry and
the customer did not actually request data; 110 (8) between
February 2013 and April 2013, she felt that, “because [she
was] a Chinese,” she was “yelled at” for “ask[ing] a simple
question” and “ignore[d]” by other employees who came
to her office to speak with her officemate; 111 (9) Plaintiff
was directed to contact a supervisor by e-mail only; 112 (10)
on May 1, 2013, when Mitchell discovered that Plaintiff
had inadvertently retrieved an email printed by Mitchell
to a shared printer, she screamed at Plaintiff and snatched
the document out of her hands; 113 (11) in relation to the
same printer incident, DeSalvatore “blame[d]” Plaintiff for
the altercation with Mitchell by asking Plaintiff why she
had taken the printed document and refused to give it to
Mitchell, and thereby (she “felt”) treated her differently than
Caucasian employees; 114 (12) Martin elected to complete
a performance evaluation of Plaintiff nine months after
Plaintiff's starting date merely as a “means of revenge
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and deliberate framing up [sic]”; 115 (13) Mitchell deleted
Plaintiff's e-mails from the Dataquest mailbox in an effort
to undermine her and/or destroy her work; 116 (14) after
DeSalvatore became her supervisor, Plaintiff reported to
DeSalvatore that Mitchell continued “playing [unspecified]
tricks” on Plaintiff, and other unidentified coworkers had
been “improper” with her in conversation; 117 and (15) on
June 21, 2013, when she attempted to discuss her final
evaluation, Wagner “bl[e]w up” and repeatedly “scream[ed]
at [her]” to leave his office. 118
*31 Even fully crediting Plaintiff's account of each of
these incidents (many of which Defendant disputes with
supporting citations to record evidence), the Court concludes
that Plaintiff has failed to identify circumstances justifying
an inference that those incidents were actually related to
Plaintiff's protected characteristics. The Court reaches this
conclusion for four reasons. First, Plaintiff has identified no
record evidence (and the Court has come across no evidence)
that any employee of Defendant criticized Plaintiff, or her
performance, in degrading terms related to her race, national
origin, or gender. See, e.g., Chan v. NYU Downtown Hosp.,
03-CV-3003, 2006 WL 345853, at *5 (S.D.N.Y. Feb. 14,
2006) (“Plaintiff does not point to a single degrading remark
made during her employment based on gender, race, or
national origin.”).
Second, Plaintiff has identified no record evidence (and,
again, the Court has come across no evidence) that any
employee of Defendant made invidious comments about
Plaintiff or anyone else in Plaintiff's protected groups.
The Court notes that, even if Plaintiff's assertions that
Holliday, Mitchell, Martin, DeSalvatore, and/or Wagner
unfairly yelled at her or blamed her for work-related mistakes
that she did not commit are credited as true, no juror
could reasonably infer that the abuse that Plaintiff suffered
was the result of discriminatory animus. See, e.g., Daniel
v. T & M Protection Resources, LLC, 87 F. Supp. 3d
621, 635 (S.D.N.Y. 2015) (concluding that while certain
“statements ... may well be viewed as obnoxious ... they
have no apparent link to Daniel's membership in a protected
class[, and] Daniel has not provided any evidence to support
an inference that these statements were made because of
his race, national origin, or sex, or that employees with
different demographic characteristics were not subjected to
similarly obnoxious treatment”); Gibbs v. New York State
Dep't of Taxation and Fin., 04-CV-0905, 2009 WL 754307,
at *7 (E.D.N.Y. Mar. 20, 2009) (granting defendant's motion
for summary judgment where plaintiff “has alleged no
such [invidious] comments [and, c]onsequently, there is no
evidence whatsoever to suggest that [he] was suspended from
work on account of his race”).
Third, the Court finds that the sequence of events that
culminated in Plaintiff's discharge also does not provide a
basis from which a discriminatory motive may be reasonably
inferred. Indeed, despite performance issues on certain work-
related projects (the factual accuracy of which Plaintiff failed
to properly controvert in opposition to Defendant's motion),
Plaintiff's final evaluation provided that her probationary
term was going to be extended: that is, until her altercation
with Wagner hours after she received the final evaluation.
This undisputed fact undermines any inference, based on the
timing of these events, that Plaintiff was terminated due to her
membership in a protected class.
Fourth, although Plaintiff's discrimination claim is cast as
one arising from disparate treatment (see, e.g., Dkt. No. 1 at
¶¶ 73, 75, 94, 99 [Plf.'s Verified Compl.]; Dkt. No. 29 at 4
[Plf.'s Opp'n Memo. of Law, noting that Plaintiff “disclosed
to” Haggerty that she was being “harassed and treated in
a disparate manner than [sic] her Caucasian colleagues”],
18-19 [setting forth the framework for “disparate treatment
claims”] ), Plaintiff has not identified any similarly situated
employees outside of her protected groups who were
treated differently. “A plaintiff relying on disparate treatment
evidence ‘must show she was similarly situated in all material
respects to the individuals with whom she seeks to compare
herself.’ ” Mandell v. Cty. of Suffolk, 316 F.3d 368, 379 (2d
Cir. 2003) (quoting Graham v. Long Island R.R., 230 F.3d
34, 39 [2d Cir. 2000]); accord, Shumway v. United Parcel
Serv., 118 F.3d 60, 64 (2d Cir. 1997). Here, Plaintiff, has not
even attempted to identify any similarly situated coworkers,
probationary status or otherwise, much less established that
any such coworker was subject to the same workplace
standards, performed similar job functions, engaged in
comparably serious conduct, or shared any other “objectively
identifiable basis for comparability.” Graham, 23 F.3d at 40
(internal quotation marks omitted); accord, e.g., Hongyan Lu
v. Chase Inv. Servs. Corp., 412 Fed.Appx. 413, 417-18 (2d
Cir. 2011) (summary order) (noting that plaintiff “offer[ed]
‘little more than conclusory statements’ and ‘sweeping
allegations unsupported by admissible evidence’ ” that
similarly situated male coworkers were treated differently).
As a result, Plaintiff's repeated assertions in her deposition
that she perceived that she was treated differently than
Caucasian employees are conclusory and speculative. (Dkt.
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No. 21, Attach. 4, at 45, 47, 57, 74, 82, 84-85, 89-90, 108,
115-16 [Plf.'s Depo. Tr.].) See also Bickerstaff v. Vassar Coll.,
196 F.3d 435, 456 (2d Cir. 1999) (noting that Plaintiff's
reliance on her own deposition testimony, “in which she stated
that she had experienced feelings of isolation, hostility, and
disinterest in her work in Africana Studies,” was unpersuasive
because “feelings and perceptions of being discriminated
against are not evidence of discrimination”) (brackets and
internal quotation marks omitted).
*32 In sum, while Plaintiff has recited numerous events
that, if fully credited, certainly suggest that her coworkers and
supervisors were sometimes brusque, rude, and unfriendly,
the Court concludes that she has failed to establish the
existence of circumstances from which a reasonable juror
could infer that these occasional actions were related to her
protected status. Accordingly, for the reasons enumerated
above (in addition to those set forth in Defendant's
memoranda of law), Plaintiff's Title VII discrimination claim
is dismissed.
B. Whether Plaintiff's Title VII Retaliation Claim
Must Be Dismissed
After carefully considering the matter, the Court answers this
question in the affirmative substantially for the reasons set
forth in Defendant's memoranda of law. (Dkt. No. 21, Attach.
1, at 26-36 [Def.'s Memo. of Law]; Dkt. No. 30 at 6-9 [Def.'s
Reply Memo. of Law].) To those reasons, the Court adds the
following three points.
First, the Court finds it difficult to reasonably conclude
that Plaintiff engaged in a protected activity of which
Defendant was aware. Defendant correctly notes that, during
her employment, Plaintiff never filed a formal complaint
or grievance with NYSED regarding any discrimination to
which she had allegedly been subjected. Moreover, as detailed
above, Plaintiff sent numerous e-mails to Haggerty, Martin,
Earle, and Wagner, informally complaining of her frustrations
with her coworkers. However, the lack of any explicit
reference in these e-mails to activities prohibited by Title VII
(for example, by use of phrases such as “race,” “national
origin,” “gender,” “discrimination,” or “retaliation”) is so
conspicuous as to appear intentional. (See, e.g., Dkt. No. 21,
Attach. 5, at 16-17 [Def.'s Depo. Ex. 10, Plf.'s e-mail to
Haggerty related to the printer incident, dated 5/3/2013, in
which Plaintiff stated that Martin continued “using her power
in an abusing way,” and to try to seek “revenge” against, and
“frame,” Plaintiff, and Mitchell committed acts of “abuse,
bullying, and harassing behavior”]; id. at 9 [Def.'s Depo. Ex.
6, Plf.'s letter to Earle, dated 4/8/2013, in which Plaintiff
explained that she was writing “about some office harassment
and power abuses behavior [sic]” and the “extreme[ly]
heinous behavior” exhibited by Mitchell and Martin on April
4, 2016]; id. at 11 [Def.'s Depo. Ex. 8, Plf.'s e-mail to
Moorhead, dated 4/11/2013, in which Plaintiff requested a
transfer to another office based on the “harassing language,
bullying, and power-abuse [sic]” purportedly exhibited by
Martin and Mitchell]; id. at 18 [Def.'s Depo. Ex. 11, Plf.'s e-
mail to Moorhead, dated 5/31/2013, in which Plaintiff noted
that the work environment was “toxic” and that insufficient
attention was being given to “bullying, yelling at people, ...
power abuses, plotting frame-ups, and lying”].) Indeed, in her
e-mail to Earle on June 7, 2013, Plaintiff explicitly stated
that she was “not bringing these issues to you a[s] illegal
issues at this stage.” (Id. at 21 [Def.'s Depo. Ex. 13, e-mail
from Plaintiff to Earle, dated 6/7/2013].) Rather, Plaintiff
made extensive reference to the “Healthy Workplace Bill”
and explained that the office was a “toxic environment.” (Id.)
The distinction that Plaintiff drew in her June 2013 e-mail to
Earle strongly suggests that (1) she had a basic understanding
that workplace discrimination and retaliation on the basis
of certain characteristics is prohibited, and (2) her other e-
mails concerning her workplace difficulties were drafted with
equal care. Plaintiff's e-mails predating June 2013, while
unequivocally characterizing certain of her coworkers as
having “brusque manner[s] and volatile temperament[s],”
“would not have placed a reasonable employer on notice that
[Plaintiff] thought the alleged mistreatment was motivated by
[national origin,] race[,] or gender.” Douglass v. Rochester
City Sch. Dist., 522 Fed.Appx. 5, 8 (2d Cir. 2013) (summary
order); see also Galdieri-Ambrosini v. Nat'l Realty & Dev.
Corp., 136 F.3d 276, 292 (2d Cir. 1998) (“[I]mplicit in
the requirement that the employer have been aware of the
protected activity is the requirement that it understood,
or could reasonably have understood, that the plaintiff's
opposition was directed at conduct prohibited by Title VII.”);
Hua Lin v. New York State Dep't of Labor, 11-CV-1186, 2013
WL 5755386, at *6 (N.D.N.Y. Oct. 23, 2013) (Sharpe, C.J.)
(“The speaker must make clear to the employer that she is
complaining of unfair treatment due to her membership in
a protected class and that she is not complaining merely of
unfair treatment generally.”).
*33 Despite its doubts, however, the Court is mindful that
Plaintiff is not an attorney and was not represented by counsel
at the time of the events at issue. Moreover, Plaintiff testified
in her deposition that English is her second language and
that she “learned [the word] ‘retaliation’ later” (i.e., at some
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point after her e-mail to Haggerty, dated May 3, 2013). (Dkt.
No. 21, Attach. 4, at 126 [Plf.'s Depo. Tr.].) Plaintiff also
testified that, “in every conversation [she] had with” human
resources personnel, she “expressed” that she felt that she was
being subjected to discrimination on the basis of her race and
national origin. (Id. at 127.) In light of these considerations,
and under the circumstances of this case, the Court concludes
that Plaintiff has established (albeit barely) a genuine dispute
of material fact as to whether her informal complaints in April
and May 2013 constituted protected activities.
Second, for the reasons set forth in Defendant's memoranda
of law, the Court concludes that Plaintiff's termination
constituted an adverse employment action, but that her
probationary evaluation report and her related continued
employment on probationary status did not constitute adverse
employment actions. (Dkt. No. 21, Attach. 1, at 29-30 [Def.'s
Memo. of Law]; Dkt. No. 30 at 7-8 [Def.'s Reply Memo. of
Law].) See also, e.g., Smalls v. New York Hosp. Med. Ctr.
of Queens, 13-CV-1257, 2015 WL 5437575, at *7 (E.D.N.Y.
Sept. 15, 2015) (“[T]he 2009 evaluation and ensuing three-
month extension of a probationary period did not materially
affect the terms and conditions of plaintiff's employment.
Every new Assistant Supervisor is placed on probation, and
though his probationary period was extended, plaintiff was
still paid the same amount, retained the same title, worked
the same hours, and held generally the same amount of
responsibility while on probation. Moreover, there were no
negative consequences because of this extension–it merely
preserved the existing terms of [plaintiff's] employment.”)
(internal quotation marks omitted); Hockeson v. New York
State Office of Gen. Servs., 188 F. Supp. 2d 215, 221
(N.D.N.Y. 2002) (Kahn, J.) (concluding that, because there
was “no firing, demotion, reassignment or change in
[p]laintiff's responsibilities,” plaintiff's allegations that “she
received a poor evaluation from her supervisor that resulted
in an extended probationary period” did not constitute an
adverse employment action).
Third, the Court concludes that Plaintiff has failed to adduce
admissible record evidence from which a rational fact-
finder could conclude that Plaintiff's termination was causally
connected to her informal complaints about her coworkers.
“[A] plaintiff alleging retaliation in violation of Title VII must
show that retaliation was a ‘but-for’ cause of the adverse
action, and not simply a ‘substantial’ or ‘motivating’ factor in
the employer's decision.” Zann Kwan v. Andalex Grp. LLC,
737 F.3d 834, 845 (2d Cir. 2013) (quoting Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2526, 2533 [2013]).
“ ‘[P]roof of causation can be shown either: (1) indirectly,
by showing that the protected activity was followed closely
by discriminatory treatment, or through other circumstantial
evidence such as disparate treatment of fellow employees
who engaged in similar conduct; or (2) directly, through
evidence of retaliatory animus directed against the plaintiff
by the defendant.’ ” Hicks v. Baines, 593 F.3d 159, 170 (2d
Cir. 2010) (quoting Gordon v. New York City Bd. of Educ.,
232 F.3d 111, 117 [2d Cir. 2000]). In this case, Plaintiff first
complained about Martin and Mitchell on or around April
4, 2013, and was advised that her employment was being
terminated by letter dated June 28, 2013. See, supra, Fact.
Nos. 44-47, 133 in Part I.B. of this Decision and Order. In
arguing that her complaints were causally connected to her
termination, Plaintiff relies upon the temporal proximity of
these events. (Dkt. No. 29 at 18 [Plf.'s Opp'n Memo. of Law].)
Although these events occurred somewhat close in time, there
were “substantial intervening events” between Plaintiff's first
complaint and her termination which dispel any inference
of a causal connection. Yarde v. Good Samaritan Hosp.,
360 F. Supp. 2d 552, 562 (S.D.N.Y. 2005) (“In this Circuit,
an inference of causation is defeated (1) if the allegedly
retaliatory discharge took place at a temporal remove from
the protected activity; or (2) if there was an intervening
causal event that occurred between the protected activity
and the allegedly retaliatory discharge.”); accord, e.g. Li-Wei
Kato v. Erie Cmty. Coll., 11-CV-0415, 2015 WL 3823719,
at *12 (W.D.N.Y. June 19, 2015); Joseph v. Marco Polo
Network, Inc., 09-CV-1597, 2010 WL 4513298, at *18
(S.D.N.Y. Nov. 10, 2010) (“An intervening event between
the protected activity and the adverse employment action
may defeat the inference of causation where temporal
proximity might otherwise suffice to raise the inference.”)
First, Defendant took the remedial step of assigning Plaintiff
to a new supervisor (DeSalvatore). See, supra, Fact. Nos.
60-64 in Part I.B. of this Decision and Order. Second, with
respect to Plaintiff's complaint that Mitchell was deleting her
Dataquest e-mails, Defendant altered its usual practices with
respect to Dataquest by giving another coworker (Schaffer)
responsibility for handling Plaintiff's Dataquest e-mails. See,
supra, Fact. Nos. 106-111 in Part I.B. of this Decision and
Order. Third, on June 21, 2013, Plaintiff was given her
probationary evaluation report, which would have continued
her probationary status. See, supra, Fact. Nos. 120-22 in
Part I.B. of this Decision and Order. Only after Plaintiff's
altercation with Wagner on the same date that she received her
final evaluation was her employment terminated (rather than
continued). The timing and sequence of these events does not
reasonably support the conclusion that, despite taking steps to
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attempt to address Plaintiff's complaints about her coworkers
(and deciding to continue her probationary employment), her
employment was suddenly terminated as a “but-for” cause of
her earlier complaints. 119 Zann-Kwan, 737 F.3d at 845.
*34 For each of these reasons, as well as those set forth
in Defendant's memoranda of law, the Court concludes that
Plaintiff has not presented sufficient evidence to satisfy the
causation element of a claim for retaliation under Title VII.
Plaintiff's Title VII retaliation claim is therefore dismissed.
C. Whether Plaintiff's Title VII Hostile Work
Environment Claim Must Be Dismissed
After carefully considering the matter, the Court answers
this question in the affirmative. Plaintiff has unambiguously
withdrawn her claim that she was subjected to a hostile work
environment, and the Court finds such withdrawal appropriate
under Fed. R. Civ. P. 41(a)(2). (Dkt. No. 29 at 3 [Plf.'s Opp'n
Memo. of Law].) As an alternative basis for dismissal, the
Court concludes that this claim must also be dismissed for the
reasons set forth in Defendant's memorandum of law, each
of which are unopposed by Plaintiff and possess facial merit.
(Dkt. No. 21, Attach. 1, at 23-26 [Def.'s Memo. of Law].) See,
supra, Part II.A. of this Decision and Order. 120
ACCORDINGLY, it is
ORDERED that Defendant's motion for summary judgment
(Dkt. No. 21) is GRANTED; and it is further
ORDERED that Plaintiff's Verified Complaint (Dkt. No. 1)
is DISMISSED; and it is further
ORDERED that the Clerk of the Court shall issue a Judgment
for Defendant and close this action.
All Citations
Not Reported in Fed. Supp., 2017 WL 149981
Footnotes
1 The caption of Plaintiff's Verified Complaint lists only NYSED as a defendant, but the “Parties” section of the
Verified Complaint alleges that “Defendant ANTHONY LOFRUMENTO ... [w]as Secretary of [NYSED], and
is being sued herein, in his official capacity as the agency head of [NYSED]....” (Dkt. No. 1 at ¶ 11.) Even
if Lofrumento was named as a defendant in this case and received adequate notice of that fact, however,
Plaintiff's claims against him must be dismissed because “Title VII does not impose liability on individuals[.]”
Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012); accord, Sassaman v. Gamache, 566 F.3d 307,
315-16 (2d Cir. 2009); Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004).
2 With respect to many of Defendant's factual assertions, Plaintiff “[d]en[ies] that the statement[s are] relevant or
material[.]” (See, e.g., Dkt. No. 29, Attach. 1, at ¶¶ 2-10, 12-22 [Plf.'s Rule 7.1 Response].) It is axiomatic that a
party may not be awarded summary judgment on the basis of undisputed immaterial facts. As a result, a party
opposing a motion for summary judgment may certainly object that particular facts (disputed or undisputed)
are immaterial to the motion. However, a non-movant denying a movant's factual assertion in a statement
of facts is required to support that denial by “set[ting] forth a specific citation to the record where the factual
issue arises.” N.D.N.Y. L.R. 7.1(a)(3) (emphasis added). Moreover, “[t]he Court shall deem admitted any
properly supported facts set forth in the [moving party's] Statement of Material Facts that the [non-moving]
party does not specifically controvert.” Id. Simply stated, regardless of whether some or all of the facts to
which Plaintiff responds as set forth above are immaterial for purposes of Defendant's motion for summary
judgment, the issue of whether those facts are properly disputed is a separate matter. As for materiality, the
materiality of an assertion of fact on a motion for summary judgment is a legal conclusion to be made by the
Court. See, e.g., Davis v. United States, 11-CV-1211, 2015 WL 11142426, at *2, n.2 (N.D. Ga. March 31,
2015) (“[M]ateriality ... [is] ... a legal conclusion to be made by the Court....”); cf. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986) (“As to materiality, the substantive law will identify which facts are material.”).
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As a result, where a non-movant has merely objected to the materiality of a fact, and the Court has concluded
that the fact is material, the fact will be deemed admitted. See, e.g., Newmark v. Lawrence Hosp. Ctr., 07-
CV-2861, 2008 WL 5054731, at *8, n.7 (S.D.N.Y. Oct. 20, 2008) (finding two material facts admitted where
the non-movant merely objected to the materiality of the facts); accord, Bourne Co. v. Hunter Country Club,
Inc., 990 F.2d 934, 938 (7th Cir. 1993); Lee v. Univ. Underwriters Ins. Co., 12-CV-3540, 2014 WL 11858159,
at *1 (N.D. Ga. June 25, 2014); Cunningham v. Enter. Rent-a-Car Co., 07-CV-1615, 2010 WL 724507, at
*2, n.3 (W.D. Pa. Mar. 1, 2010).
3 Plaintiff purports to “deny that the assertions set forth [in paragraph 3 of Defendant's statement of material
facts] are uncontroverted, material facts,” but then concludes her response by stating “otherwise, admit,” and
cites no record evidence in support of her initial (nonspecific) denial. (Dkt. No. 29, Attach. 1, at ¶ 3 [Plf.'s
Rule 7.1 Response].) The fact asserted by Defendant will be deemed admitted for each of two reasons. First,
Plaintiff's ultimate response is to “admit” the fact asserted by Defendant, notwithstanding the inclusion of
any additional legal argument in her response. Cf. Washington v. City of New York, 05-CV-8884, 2009 WL
1585947, at *1 n.2 (S.D.N.Y. June 5, 2009) (holding that “the statement provided by Defendants is taken
as true because Plaintiff[']s initial response in each instance is ‘Admit’ ”); CA, Inc. v. New Relic, Inc., 12-
CV-5468, 2015 WL 1611993, at *2 n.3 (E.D.N.Y. Apr. 8, 2015) (holding that “the Court will consider the
statement provided by [Plaintiff] as undisputed because [Defendant's] initial response in each instance is,
in fact, ‘Undisputed’ ”). Second, even if Plaintiff could be understood to deny Defendant's factual assertion,
she has failed to cite record evidence supporting her denial or controverting the fact asserted. See Aktas
v. JMC Dev. Co., Inc., 877 F. Supp. 2d 1, 5 n.3 (N.D.N.Y. 2012) (D'Agostino, J.) (accepting the third-party
defendants' statement of material facts as true because the defendant/third-party plaintiff failed to respond
to it in accordance with Local Rule 7.1[a][3] ); Archie Comic Publ'ns, Inc. v. DeCarlo, 258 F. Supp. 2d 315,
319 (S.D.N.Y. 2003) (holding that “the facts set forth in [plaintiff's] statement are deemed established” where
defendant denied assertions in plaintiff's Rule 56.1 statement but declined to provide record citations in
support).
4 Plaintiff's response to Defendant's factual assertion (1) purports to “[d]eny that [the factual assertion] is
relevant or material,” (2) refers the Court to the record evidence cited by Defendant “for the specific contents
thereof,” (3) concludes with the words “but otherwise admit,” and (4) provides additional citations to record
evidence that neither support nor controvert the fact asserted by Defendant. (Dkt. No. 29, Attach. 1, at ¶
5.) Unless otherwise noted in this Decision and Order, the Court will deem admitted any facts asserted by
Defendant (with citation to supporting record evidence) which Plaintiff's response “admit[s],” notwithstanding
its inclusion of superfluous commentary, legal argument, inaccurate record citations, or improperly asserted
additional facts.
5 Plaintiff purports to deny Defendant's factual assertion and cites “the record in its entirety” in support of
both her denial and her related assertion that “[a] searching review of the record ... establishes that these
assertions are not sufficiently supported to warrant a finding that they constitute uncontroverted material
facts.” (Dkt. No. 29, Attach. 1, at ¶ 10 [Plf.'s Rule 7.1 Response].) In light of the record evidence cited by
Defendant in support of its factual assertion (which, by its own terms, addresses only “[g]enerally” the relative
comprehensiveness and complexity of work assignments originating from Dataquest), including Plaintiff's
own deposition testimony, the Court finds that Defendant has sufficiently supported its factual assertion. (Dkt.
No. 21, Attach. 2, at ¶ 10 [Def.'s Rule 7.1 Statement].) Mindful that Fed. R. Civ. P. 56 “does not impose an
obligation on a district court to perform an independent review of the record to find proof of a factual dispute,”
Morales v. New York State Dep't of Labor Div. of Emp't Servs., 530 Fed.Appx. 13, 14 (2d Cir. 2013) (summary
order), the Court further finds that Plaintiff's (counseled) citation to “the record in its entirety” is insufficient to
controvert Defendant's factual assertion. (Id.) See also N.D.N.Y. L.R. 7.1(a)(3) (“Each denial shall set forth
a specific citation to the record where the factual issue arises.”) (emphasis added).
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6 Plaintiff purports to deny this fact to the extent that it asserts that, “after April 2013[, Martin] did not continue
to have some supervisory responsibilities with respect to [Plaintiff's] employment,” but “otherwise admit[s]”
the fact. (Compare Dkt. No. 21, Attach. 2, at ¶ 11 [Def.'s Rule 7.1 Statement, asserting above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 11 [Plf.'s Rule 7.1
Response].) The fact asserted by Defendant will be deemed admitted for each of two reasons. First, to the
extent that Plaintiff may be understood to deny a fact merely implied by Defendant, her denial is insufficient
to create a genuine dispute with respect to the fact that Defendant actually asserts. See Yetman v. Capital
Dis. Trans. Auth., 12-CV-1670, 2015 WL 4508362, at *10 (N.D.N.Y. July 23, 2015) (Suddaby, J.) (citing
authority for the point of law that the summary judgment procedure involves the disputation of asserted facts,
not the disputation of implied facts); cf. Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (noting
that plaintiff's responses failed to comply with the court's local rules where “Plaintiff's purported denials ...
improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often
speaking past Defendants' asserted facts without specifically controverting those same facts”). Second, even
if Plaintiff had properly denied any portion of the fact asserted by Defendant, she has failed to cite any record
evidence, supporting or otherwise, as required by Local Rule 7.1(a)(3). See, supra, note 3 of this Decision
and Order.
7 (Compare Dkt. No. 21, Attach. 2, at ¶ 12 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 12 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
8 (Compare Dkt. No. 21, Attach. 2, at ¶ 13 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 13 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
9 (Compare Dkt. No. 21, Attach. 2, at ¶ 14 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 14 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
10 (Compare Dkt. No. 21, Attach. 2, at ¶ 15 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 15 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact]; accord, e.g., Dkt. No. 21, Attach. 7, at 112 [Martin Depo.
Tr.].) See also, supra, note 6 of this Decision and Order.
11 (Compare Dkt. No. 21, Attach. 2, at ¶ 16 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 16 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
12 (Compare Dkt. No. 21, Attach. 2, at ¶ 17 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 17 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
13 (Compare Dkt. No. 21, Attach. 2, at ¶ 18 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 18 [Plf.'s Rule 7.1
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Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See, supra, note 6 of this Decision and Order.
14 (Compare Dkt. No. 21, Attach. 2, at ¶ 19 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 19 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See, supra, note 6 of this Decision and Order.
15 (Compare Dkt. No. 21, Attach. 2, at ¶ 20 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 20 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See, supra, note 6 of this Decision and Order.
16 (Compare Dkt. No. 21, Attach. 2, at ¶ 21 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 21 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
17 (Compare Dkt. No. 21, Attach. 2, at ¶ 22 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 22 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
18 (Compare Dkt. No. 21, Attach. 2, at ¶ 23 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 23 [Plf.'s Rule 7.1
Response, denying above-stated fact but failing to cite record evidence actually supporting denial of above-
stated fact].)
19 (Compare Dkt. No. 21, Attach. 2, at ¶ 25 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 25 [Plf.'s Rule 7.1
Response, denying that above-stated fact is “relevant or material,” and then purporting to “admit” a fact not
asserted by Defendant (i.e., that Defendant “treated [her] in an adverse and hostile manner”) without citation
to record evidence].)
20 (Compare Dkt. No. 21, Attach. 2, at ¶ 26 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 26 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
21 (Compare Dkt. No. 21, Attach. 2, at ¶ 28 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 28 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact]; accord, Dkt. No. 21, Attach. 4, at 48 [Plf.'s Depo. Tr.].) See
also, supra, note 6 of this Decision and Order.
22 (Compare Dkt. No. 21, Attach. 2, at ¶ 29 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 29 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
23 In response to this factual assertion, Plaintiff “admit[s that] Mitchell sent [her] an email on April 1, 2013.” (Dkt.
No. 29, Attach. 1, at ¶ 30 [Plf.'s Rule 7.1 Response].) To the extent that Plaintiff may be understood to deny
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this factual assertion in part, her partial denial is ineffective for each of three alternative reasons. First, it fails
to expressly state that any part of the fact is denied as required by Local Rule 7.1(a)(3). Second, it fails to
specify which part of the fact is denied as also required by Local Rule 7.1(a)(3). Third, Plaintiff has failed to cite
any record evidence supporting her partial denial or controverting the fact asserted. Rather, Plaintiff refers
the Court to the e-mail message at issue, which is consistent with the characterization of the e-mail message
set forth in Defendant's factual assertion. (Dkt. No. 21, Attach. 2, at ¶ 30 [Def.'s Rule 7.1 Statement].)
24 (Compare Dkt. No. 21, Attach. 2, at ¶ 32 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 32 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact]; accord, Dkt. No. 21, Attach. 18, at NYSED000074 [Mitchell
Aff.].) See also, supra, note 6 of this Decision and Order.
25 (Compare Dkt. No. 21, Attach. 2, at ¶ 34 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 34 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
26 (Compare Dkt. No. 21, Attach. 2, at ¶ 35 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 35 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
27 (Compare Dkt. No. 21, Attach. 2, at ¶ 36 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 36 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
28 (Compare Dkt. No. 21, Attach. 2, at ¶ 37 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 37 [Plf.'s Rule 7.1
Response, denying above-stated fact, but failing to cite record evidence actually supporting denial of above-
stated fact].)
29 (Dkt. No. 21, Attach. 5, at 7 [pagination generated by CM/ECF] [Def.'s Depo. Ex. 5].)
30 (Compare Dkt. No. 21, Attach. 2, at ¶ 40 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 40 [Plf.'s Rule 7.1
Response, purporting to “admit only” a fact not asserted by Defendant (i.e., that Plaintiff also testified that she
believed that Martin credited Mitchell's allegedly false account of the incident, in which Mitchell purportedly
blamed Plaintiff for the “noise” of their confrontation) ]; accord, Dkt. No. 21, Attach. 4, at 75 [Plf.'s Depo. Tr.].)
31 (Dkt. No. 21, Attach. 4, at 76-80 [Plf.'s Depo. Tr.].)
32 (Dkt. No. 21, Attach. 4, at 84-87 [Plf.'s Depo. Tr.].)
33 (Compare Dkt. No. 21, Attach. 2, at ¶ 43 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 43 [Plf.'s Rule 7.1
Response, purporting to deny a fact not asserted by Defendant (i.e., the implication that Martin “was not aware
of” Plaintiff's allegations of discrimination against Martin) ].) See also Yetman, 2015 WL 4508362, at *10 (citing
authority for the point of law that the summary judgment procedure involves the disputation of asserted facts,
not the disputation of implied facts); cf. Baity, 51 F. Supp. 3d at 418 (noting that plaintiff's responses failed to
comply with the court's local rules where “Plaintiff's purported denials ... improperly interject arguments and/
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or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants' asserted
facts without specifically controverting those same facts”).
34 (Compare Dkt. No. 21, Attach. 2, at ¶ 44 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 44 [Plf.'s Rule 7.1
Response, purporting to deny a fact not asserted by Defendant (i.e., the implication that Plaintiff's allegations
“amount only to ‘concerns about her interactions with coworkers and her supervisor’ ”) ].) See also Yetman,
2015 WL 4508362, at *10; Baity, 51 F. Supp. 3d at 418.
35 (Compare Dkt. No. 21, Attach. 2, at ¶ 45 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 45 [Plf.'s Rule
7.1 Response, purporting to admit that Plaintiff “contacted Mr. Earle in his capacity as the individual who
handled complaints of discrimination”].) To the extent that Plaintiff may be understood to deny any portion of
the fact asserted by Defendant, her partial denial is ineffective for each of three alternative reasons. First, it
fails to expressly state that any part of the fact is denied as required by Local Rule 7.1(a)(3). Second, it fails
to specify which part of the fact is denied as also required by Local Rule 7.1(a)(3). Third, Plaintiff has failed
to cite any record evidence supporting her partial denial or controverting the fact that Defendant actually
asserts. Moreover, to the extent that Plaintiff may be understood to deny a fact merely implied by Defendant
(i.e., that Plaintiff contacted Earle for a purpose exclusive of any complaints of discrimination), her denial is
insufficient to create a genuine dispute with respect to the fact that Defendant actually asserts. See Yetman,
2015 WL 4508362, at *10; Baity, 51 F. Supp. 3d at 418.
36 (Dkt. No. 21, Attach. 22, at 1 [Plf.'s E-mail to Mahoney, dated 4/4/2013].)
37 (Dkt. No. 21, Attach. 5, at 9 [Def.'s Depo. Ex. 6].)
38 (Compare Dkt. No. 21, Attach. 2, at ¶ 48 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 48 [Plf.'s Rule 7.1
Response, purporting to deny a fact not asserted by Defendant (i.e., the implication that “Defendants” were
trained in how to follow, and followed, the policy) ].) See also Yetman, 2015 WL 4508362, at *10; Baity, 51
F. Supp. 3d at 418.
39 (Compare Dkt. No. 21, Attach. 2, at ¶ 49 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 49 [Plf.'s Rule 7.1
Response, purporting to deny a fact not asserted by Defendant (i.e., the implication that Plaintiff “contacted
[Earle] in any capacity other than [as] the person ‘specializing’ in complaints of discrimination”) ].) See also
Yetman, 2015 WL 4508362, at *10; Baity, 51 F. Supp. 3d at 418.
40 (Compare Dkt. No. 21, Attach. 2, at ¶ 50 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 50 [Plf.'s Rule 7.1
Response, purporting to “admit that there is a NYSED Employee Handbook regarding formal grievances”];
accord, Dkt. No. 21, Attach. 19, at NYSED000131].) To the extent that Plaintiff may be understood to deny
any portion of the fact asserted by Defendant, her partial denial is ineffective for each of three alternative
reasons. First, it fails to expressly state that any part of the fact is denied as required by Local Rule 7.1(a)
(3). Second, it fails to specify which part of the fact is denied as also required by Local Rule 7.1(a)(3). Third,
Plaintiff has failed to cite any record evidence supporting her partial denial or controverting the fact that
Defendant actually asserts.
41 (Compare Dkt. No. 21, Attach. 2, at ¶ 51 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 51 [Plf.'s Rule 7.1
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Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact].) See also, supra, note 6 of this Decision and Order.
42 (Compare Dkt. No. 21, Attach. 2, at ¶ 52 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 52 [Plf.'s Rule
7.1 Response, purporting to “admit only” that she contacted Earle “regarding her perception that she was
being harassed by Martin and Mitchell [due to] her [n]ational [o]rigin”].) To the extent that Plaintiff may be
understood to deny the fact asserted by Defendant, that denial is ineffective because (1) it does not specify
what part of the fact is denied as required by Local Rule 7.1(a)(3), and (2) it is not supported by a record
citation that actually supports the denial.
43 (Compare Dkt. No. 21, Attach. 2, at ¶ 53 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 53 [Plf.'s Rule 7.1
Response, purporting to “admit” a fact not asserted by Defendant (i.e., that “among [Plaintiff's] allegations
[to Earle] were complaints of discrimination because of her national origin”) and failing to deny above-stated
fact].)
44 (Compare Dkt. No. 21, Attach. 2, at ¶ 54 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 54 [Plf.'s Rule 7.1
Response, purporting to “[a]dmit [that] Plaintiff requested a reassignment only”].) To the extent that Plaintiff
may be understood to deny this factual assertion in part, her partial denial is ineffective for each of three
alternative reasons. First, it fails to expressly state that any part of the fact is denied a required by Local Rule
7.1(a)(3). Second, it fails to specify which part of the fact is denied as also required by Local Rule 7.1(a)
(3). Third, Plaintiff has failed to cite any record evidence supporting her partial denial or controverting the
fact asserted.
45 (Compare Dkt. No. 21, Attach. 2, at ¶ 58 [Def.'s Rule 7.1 Statement, asserting variation of above-stated
fact and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 58 [Plf.'s
Rule 7.1 Response, “[d]eny[ing]” above-stated fact but failing to provide a specific citation to record evidence
supporting the denial or controverting the fact asserted; citing, instead, Plaintiff's 216-page deposition
transcript in its entirety]; accord, Dkt. No. 21, Attach. 18, at NYSED000036 ¶ 2 [Moorhead Aff.].)
46 (Compare Dkt. No. 21, Attach. 2, at ¶ 62 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 62 [Plf.'s Rule
7.1 Response, denying that “the conflict was limited to a ‘personality conflict’ ”].) See also Yetman, 2015 WL
4508362, at *10; Baity, 51 F. Supp. 3d at 418.
47 (Compare Dkt. No. 21, Attach. 2, at ¶ 63 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 63 [Plf.'s Rule 7.1
Response, denying above-stated fact and citing “the record in its entirety,” but failing to cite record evidence
actually supporting denial of above-stated fact]; accord, Dkt. No. 21, Attach. 14, at 67-68, 84-85 [Wagner
Depo. Tr.].) See also, supra, note 6 of this Decision and Order.
48 (Compare Dkt. No. 21, Attach. 2, at ¶ 64 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 64 [Plf.'s Rule 7.1
Response, failing to respond in any manner to the fact asserted].)
49 (Dkt. No. 21, Attach. 5, at 11-12 [pagination generated by CM/ECF] [Def.'s Depo. Ex. 8].)
50 (Compare Dkt. No. 21, Attach. 2, at ¶ 66 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 66 [Plf.'s Rule
7.1 Response, purporting to “admit [that] Moorhead was asked to address [P]laintiff's concerns”].) To the
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extent that Plaintiff may be understood to deny this factual assertion in part, her partial denial is ineffective
for each of three alternative reasons. First, it fails to expressly state that any part of the fact is denied as
required by Local Rule 7.1(a)(3). Second, it fails to specify which part of the fact is denied as also required
by Local Rule 7.1(a)(3). Third, Plaintiff has failed to cite any record evidence supporting her partial denial
or controverting the fact asserted.
51 (Dkt. No. 21, Attach. 5, at 11-12 [pagination generated by CM/ECF] [Def.'s Depo. Ex. 8].)
52 (Compare Dkt. No. 21, Attach. 2, at ¶ 68 [Def.'s Rule 7.1 Statement, asserting variation of above-stated
fact and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 68 [Plf.'s
Rule 7.1 Response, purporting to deny a fact not asserted by Defendant (i.e., the implication that Plaintiff
“met repeatedly with Moorhead after she was reassigned to DeSalvatore”), but failing to cite record evidence
actually supporting denial, and in any event “otherwise admit[ting]” the fact asserted].) See also Yetman,
2015 WL 4508362, at *10; Baity, 51 F. Supp. 3d at 418.
53 (Compare Dkt. No. 21, Attach. 2, at ¶ 69 [Def.'s Rule 7.1 Statement, asserting above-stated fact and citing
record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 69 [Plf.'s Rule 7.1 Response,
purporting to “deny that the assertions ... are uncontroverted, material facts,” but to “[a]dmit [that P]laintiff
contacted Dina Haggerty”].) To the extent that Plaintiff may be understood to deny this factual assertion in
part, her partial denial is ineffective for each of two alternative reasons. First, it fails to specify which part of
the fact is denied as required by Local Rule 7.1(a)(3). Second, Plaintiff has failed to cite any record evidence
supporting her partial denial or controverting the fact asserted, as also required by Local Rule 7.1(a)(3).
54 (Dkt. No. 21, Attach. 2, at ¶ 70 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact and citing
record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 70 [Plf.'s Rule 7.1 Response,
purporting to “admit only” a fact not asserted by Defendant (i.e., that “Haggerty spoke with Earle concerning
Plaintiff's allegations of discrimination and harassment”) ]; accord, Dkt. No. 28, Attach. 2, at 26-28 [Haggerty
Depo. Tr.].)
55 (Compare Dkt. No. 21, Attach. 2, at ¶ 72 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 72 [Plf.'s Rule 7.1
Response, purporting to “deny that the assertions ... are uncontroverted, material facts,” but to “[a]dmit only
that [Plaintiff] was willing to attempt to move forward under a new supervisor and that she expressed her
willingness to do so on April 15, 2013”].) To the extent that Plaintiff may be understood to deny this factual
assertion in part, her partial denial is ineffective for each of two alternative reasons. First, it fails to specify
which part of the fact is denied as required by Local Rule 7.1(a)(3). Second, Plaintiff has failed to cite any
record evidence supporting her partial denial or controverting the fact asserted, as also required by Local
Rule 7.1(a)(3).
56 (Compare Dkt. No. 21, Attach. 2, at ¶ 73 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 73 [Plf.'s Rule 7.1
Response, denying above-stated fact, but failing to cite record evidence actually supporting denial of above-
stated fact]; accord, Dkt. No. 21, Attach. 18, at NYSED000037 ¶ 5 [Moorhead Aff].)
57 (Compare Dkt. No. 21, Attach. 2, at ¶ 73 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 73 [Plf.'s Rule 7.1
Response, denying above-stated fact, but failing to cite record evidence actually supporting denial of above-
stated fact].)
58 (Dkt. No. 21, Attach. 5, at NYSED001268 [Def.'s Depo. Ex. 9].)
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59 (Compare Dkt. No. 21, Attach. 2, at ¶ 78 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 78 [Plf.'s Rule 7.1
Response, denying above-stated fact, but failing to cite record evidence actually supporting denial of above-
stated fact]; accord, Dkt. No. 21, Attach. 18, at NYSED000049 [DeSalvatore Aff.].)
60 (Compare Dkt. No. 21, Attach. 2, at ¶ 79 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 79 [Plf.'s Rule 7.1
Response, purporting to “[a]dmit only” an additional fact not asserted by Defendant (i.e., that Plaintiff “made
additional allegations of discrimination after DeSalvatore was assigned as [her] supervisor) and failing to cite
record evidence actually supporting any denial].)
61 (Compare Dkt. No. 21, Attach. 2, at ¶ 80 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 80 [denying above-
stated fact and citing “the record in its entirety,” but failing to cite record evidence actually supporting denial
of above-stated fact]; accord, Dkt. No. 21, Attach. 18, at NYSED000049 [DeSalvatore Aff.].) See also, supra,
note 6 of this Decision and Order.
62 (Compare Dkt. No. 21, Attach. 2, at ¶ 81 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 81 [denying above-
stated fact and citing “the record in its entirety,” but failing to cite record evidence actually supporting denial
of above-stated fact]; accord, Dkt. No. 21, Attach. 18, at NYSED000050 [DeSalvatore Aff.].) See also, supra,
note 6 of this Decision and Order.
63 (Compare Dkt. No. 21, Attach. 2, at ¶ 79 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 79 [Plf.'s Rule 7.1
Response, purporting to admit an additional fact not asserted by Defendant (i.e., that Plaintiff contacted Earle
regarding her “allegations of discrimination”) and “otherwise deny[ing]” the fact asserted, but failing to cite
record evidence actually supporting denial of above-stated fact].)
64 (Compare Dkt. No. 21, Attach. 2, at ¶ 84 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 84 [Plf.'s Rule 7.1
Response, denying above-stated fact, but failing to cite record evidence actually supporting denial of above-
stated fact]; accord, Dkt. No. 21, Attach. 18, at NYSED000050 [DeSalvatore Aff.].)
65 (Dkt. No. 21, Attach. 5, at 25 [pagination generated by CM/ECF] [Def.'s Depo. Ex. 14].)
66 (Compare Dkt. No. 21, Attach. 2, at ¶ 88 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 88 [Plf.'s Rule 7.1
Response, denying above-stated fact, but failing to cite record evidence actually supporting denial of above-
stated fact].) The Court notes that Defendant asserts that Martin prepared a draft evaluation for the period
beginning August 19, 2012; but Martin's e-mail attaching the draft evaluation states that the draft evaluation
covers the period “7/19 – 4/11,” and the draft evaluation itself reflects that Plaintiff's “Date Appointed” was
July 19, 2012. (Dkt. No. 21, Attach. 9 [Plf.'s Ex. 10].) This factual assertion is in conflict with Defendant's Fact
Number 1, above, which asserts that Plaintiff was appointed on August 9, 2012.
67 (Dkt. No. 28, Attach. 2, at 31-32 [Haggerty Depo. Tr.]; Dkt. No. 21, Attach. 18, at NYSED000077 [Haggerty
Aff.].)
68 (Compare Dkt. No. 21, Attach. 2, at ¶ 90 [Def.'s Rule 7.1 Statement, asserting variation of above-stated
fact and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 90 [Plf.'s
Rule 7.1 Response, purporting to “Admit” facts not asserted by Defendant and failing to deny above-stated
fact]; accord, Dkt. No. 21, Attach. 11, at 54 [DeSalvatore Depo. Tr.].) The Court notes that the copy of the
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draft evaluation cited by Defendant contains no recommendation as to whether Plaintiff's services should
be retained, terminated, or continued on probation (in other words, that question is left blank). (Dkt. No.
21, Attach. 9, at NYSED000393].) However, the parties agree (and the record suggests) that Martin initially
recommended terminating Plaintiff's employment. (See, e.g., Dkt. No. 21, Attach. 7, at 35-36, 46 [Martin
Depo. Tr.].)
69 (Dkt. No. 21, Attach. 14, at 105-06 [Wagner Depo. Tr.].)
70 (Compare Dkt. No. 21, Attach. 2, at ¶ 94 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 94 [Plf.'s Rule
7.1 Response, denying above-stated fact in part (i.e., that Martin did not discuss the evaluation based on
Moorhead's direction), but failing to provide specific record citation actually supporting partial denial of above-
stated fact]; citing, instead, Moorhead's 35-page deposition transcript in its entirety].) Although Defendant
asserts that “[i]t was usual practice for a supervisor to dismiss a performance evaluation ...” (Dkt. No. 21,
Attach. 2, at ¶ 94 [emphasis added] ), Defendant's record citation makes clear that it intended to state
“discuss,” and Plaintiff's response reflects her understanding of that intention.
71 (Compare Dkt. No. 21, Attach. 2, at ¶ 96 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 96 [denying above-
stated fact but failing to cite record evidence actually supporting denial of above-stated fact].)
72 (Compare Dkt. No. 21, Attach. 2, at ¶ 97 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 97 [purporting to
admit a fact not asserted by Defendant (i.e., the implication that Mitchell “has access to [Plaintiff's] confidential
probationary evaluation and that Plaintiff discovered this” when she picked up Mitchell's e-mail from the
printer), but “otherwise den[ying]” above-stated fact without citation to record evidence actually supporting
denial of above-stated fact].)
73 (Dkt. No. 21, Attach. 18, at NYSED000074 [Mitchell Aff.].)
74 (Dkt. No. 21, Attach. 4, at 112-14 [Plf.'s Depo. Tr.].)
75 (Compare Dkt. No. 21, Attach. 2, at ¶ 100 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 100 [admitting only
that “Plaintiff disclosed the incident to DeSalvatore” and otherwise denying above-stated fact, but failing to
cite record evidence actually supporting partial denial of above-stated fact].)
76 (Dkt. No. 21, Attach. 2, at ¶ 106 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact and
citing record evidence establishing above stated-fact]; with Dkt. No. 29, Attach. 1, at ¶ 106 [Plf.'s Rule 7.1
Response, “[d]enying [that] Plaintiff did not make an allegation of discrimination” but failing to cite record
evidence actually supporting partial denial and “otherwise admit[ting]” fact asserted].)
77 (Compare Dkt. No. 21, Attach. 2, at ¶ 108 [Def.'s Rule 7.1 Statement, asserting above-stated fact and citing
record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 108 [purporting to admit a
fact not asserted by Defendant (i.e., the implication that Mitchell's responsibility “was not to access Plaintiff's
Dataquest mailbox”) but failing to cite record evidence supporting a denial].)
78 (Compare Dkt. No. 21, Attach. 2, at ¶ 109 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 109 [admitting that
Mitchell was generally responsible for “overseeing Dataquest,” but asserting that Mitchell's responsibility “was
not to access Plaintiff's Dataquest mailbox”]; accord, Dkt. No. 21, Attach. 4, at 135 [Plf.'s Depo. Tr., in which
Plaintiff stated that Mitchell's duties with respect to Dataquest included Plaintiff's Dataquest mailbox “before
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the supervisor change,” but that, thereafter, Mitchell “was specifically instructed not to touch [Plaintiff's] work
and ... not to access anything”].)
79 (Compare Dkt. No. 21, Attach. 2, at ¶ 115 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 115 [admitting “only
that Plaintiff raised concerns about her working environment to DeSalvatore during the scheduled check-in
meetings” and otherwise denying above-stated fact, but failing to cite record evidence actually supporting
partial denial of above-stated fact].)
80 (Compare Dkt. No. 21, Attach. 2, at ¶ 116 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 116 [denying above-
stated fact but failing to cite record evidence actually supporting denial of above-stated fact].) According to
DeSalvatore, at the check-in meeting on June 7, 2013, Plaintiff “mentioned sexual harassment” but, when
DeSalvatore “told her point blank that she was in no way encountering any sexual harassment here,” Plaintiff
“agreed.” (Dkt. No. 21, Attach. 18, at NYSED000050 [DeSalvatore Aff.]; accord, Dkt. No. 21, Attach. 11, at 102
[DeSalvatore Depo. Tr.].) Because Plaintiff made reference to “sexual harassment,” however, DeSalvatore
“immediately” scheduled a meeting with Plaintiff and Earle. (Dkt. No. 21, Attach. 11, at 101-03 [DeSalvatore
Depo. Tr.].) Although it is unclear to what Plaintiff was referring which she mentioned “sexual harassment”
to DeSalvatore, Plaintiff testified in her deposition that she is not asserting a claim of sexual harassment in
this action. (Dkt. No. 21, Attach. 4, at 202 [Plf.'s Depo. Tr.].)
81 (Compare Dkt. No. 21, Attach. 2, at ¶ 118 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 118 [purporting to
“[a]dmit” an additional fact not asserted by Defendant (i.e., that Plaintiff “specifically complained verbally about
discrimination”) and otherwise denying fact asserted, but failing to cite record evidence actually supporting
denial of above-stated fact].) Plaintiff was apparently referencing a proposed bill that would create a state law
civil cause of action for employees who were subjected to an “abusive work environment.” N.Y. Assembly
Bill No. A3250 (Jan. 22, 2015).
82 (Compare Dkt. No. 21, Attach. 2, at ¶ 119 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 119 [purporting
to “[a]dmit” an additional fact not asserted by Defendant (i.e., that DeSalvatore, Earle, and Plaintiff met to
discuss “allegations of ‘sexual harassment’ ”) and otherwise denying fact asserted, but failing to cite record
evidence actually supporting denial of above-stated fact].)
83 (Dkt. No. 21, Attach. 5, at 25 [pagination generated by CM/ECF] [Def.'s Depo. Ex. 14].)
84 (Dkt. No. 21, Attach. 18, at NYSED000059 [Wagner Aff.]; Dkt. No. 21, Attach. 14, at 111-12 [Wagner Depo.
Tr.]; Dkt. No. 21, Attach. 4, at 180-82 [Plf.'s Depo. Tr.].)
85 (Compare Dkt. No. 21, Attach. 2, at ¶ 125 [Def.'s Rule 7.1 Statement, asserting variation of above-stated
fact and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 125 [denying
above-stated fact but failing to cite record evidence actually supporting denial of above-stated fact].)
86 (Dkt. No. 21, Attach. 14, at 111-16 [Wagner Depo. Tr.].)
87 (Dkt. No. 21, Attach. 4, at 184-85 [Plf.'s Depo. Tr.].)
88 (Dkt. No. 21, Attach. 14, at 116 [Wagner Depo. Tr.].)
89 (Dkt. No. 21, Attach. 4, at 187 [Plf.'s Depo. Tr.].)
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90 (Dkt. No. 21, Attach. 14, at 118 [Wagner Depo. Tr.].)
91 (Dkt. No. 21, Attach. 4, at 188 [Plf.'s Depo. Tr.].)
92 (Compare Dkt. No. 21, Attach. 2, at ¶ 129 [Def.'s Rule 7.1 Statement, asserting variation of above-stated fact
and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 129 [Plf.'s Rule 7.1
Response, purporting to “[a]dmit only that Wagner alleged Plaintiff was acting in a manner consistent with
the allegations in the probationary report” and “otherwise deny[ing]” fact asserted, but failing to cite record
evidence actually supporting denial of above-stated fact].)
93 (Compare Dkt. No. 21, Attach. 2, at ¶ 130 [Def.'s Rule 7.1 Statement, asserting variation of above-stated
fact and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 130 [denying
above-stated fact to the extent that Defendant asserts that Wagner e-mailed Franchini “immediately” after
Plaintiff left his office, but failing to cite record evidence actually supporting denial of above-stated fact, given
that the e-mail was sent at 7:11 p.m.].)
94 (Dkt. No. 21, Attach. 5, at 30 [pagination generated by CM/ECF] [Def.'s Depo. Ex. 17].)
95 (Dkt. No. 21, Attach. 14, at 138-140 [Wagner Depo. Tr.].)
96 (Compare Dkt. No. 21, Attach. 2, at ¶ 135 [Def.'s Rule 7.1 Statement, asserting variation of above-stated
fact and citing record evidence establishing above-stated fact] with Dkt. No. 29, Attach. 1, at ¶ 135 [Plf.'s
Rule 7.1 Response, admitting that Plaintiff “never filed a ‘formal’ complaint or grievance, and purporting to
deny a fact not expressly asserted by Defendant (i.e., that “such a process was available for allegations
of discrimination based on national origin ...”) ].) The Court notes that, to the extent that Plaintiff asserts
that Defendant's employee handbook does not specifically state that an employee may file a complaint or
grievance regarding national origin discrimination, she appears to be correct. (Dkt. No. 21, Attach. 19, at
NYSED128-30.) However, the employee handbook states that it is New York State policy to “provide for
and promote equal opportunity employment, compensation, and other terms and conditions of employment
without discrimination on the basis of age, race, color, religion, disability, national origin ...” (Id. at NYSED128
[emphasis added].) A separate section of the employee handbook, titled “Complaints and Grievances,”
discusses employees' right to file a complaint and/or grievance about “working conditions, perceived out-of-
title duties or other things related to your job” that cannot be resolved by a discussion with the employee's
manager or supervisor. (Id. at NYSED000131.)
97 Although the NYSDHR's determination states that Plaintiff's “complaint” was ordered dismissed, the
determination's discussion reflects that the NYSDHR also considered, and rejected, the claim in her amended
complaint (i.e., racial discrimination). (See Dkt. No. 21, Attach. 18, at NYSED000109 [noting that Plaintiff's
complaint “was amended to include race as a basis [of discrimination] and allegations of disparate pay”].)
98 Specifically, Defendant argues that Plaintiff has denied (in whole or in part) the following numbered material
facts set forth in its statement of material facts, without citation to supporting record evidence: 10-23, 26,
28-29, 32, 34-38, 51, 63, 69, 72-74, 76, 80-81, 84, 95-96, and 100. (Dkt. No. 30 at 2 n.1.)
99 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]. As the Supreme Court has
explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
100 Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.) (citing cases).
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101 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to the movant's
Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching
numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue
arises. N.D.N.Y. L. R. 7.1(a)(3).
102 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999)
(McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants
in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for
defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3]; Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.)
(deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
103 With respect to her Title VII retaliation claim, Plaintiff argues that the extension of her probationary period of
employment (as opposed to permanent retention) also constituted an adverse employment action. (Dkt. No.
29 at 17 [Plf.'s Opp'n Memo. of Law].) However, the only adverse employment action that she identifies with
respect to her Title VII discrimination claim is the termination of her employment. (Id. at 20.)
104 Fact No. 18 in Part I.B. of this Decision and Order.
105 Fact No. 27 in Part I.B. of this Decision and Order. (See also Dkt. No. 21, Attach. 4, at 48 [Plf.'s Depo. Tr.].)
106 Fact No. 28 in Part I.B. of this Decision and Order.
107 Fact Nos. 29-31 in Part I.B. of this Decision and Order. (See also Dkt. No. 21, Attach. 4, at 67-68 [Plf.'s
Depo. Tr.].)
108 Fact No. 33 in Part I.B. of this Decision and Order. (See also Dkt. No. 21, Attach. 4, at 63-65 [Plf.'s Depo. Tr.].)
109 Fact No. 40 in Part I.B. of this Decision and Order. (See also Dkt. No. 21, Attach. 4, at 75 [Plf.'s Depo. Tr.].)
110 Fact No. 41 in Part I.B. of this Decision and Order.
111 Fact No. 42 in Part I.B. of this Decision and Order.
112 (Dkt. No. 1 at ¶¶ 71-72 [Plf.'s Verified Compl.].)
113 Fact No. 99 in Part I.B. of this Decision and Order.
114 Fact No. 101 in Part I.B. of this Decision and Order. (See also Dkt. No. 21, Attach. 4, at 111-15 [Plf.'s Depo.
Tr.].)
115 (Dkt. No. 21, Attach. 5, at 17 [pagination generated by CM/ECF] [Def.'s Depo. Ex. 10].)
116 Fact Nos. 106-07 in Part I.B. of this Decision and Order.
117 Fact No. 115 in Part I.B. of this Decision and Order. (See also Dkt. No. 21, Attach. 11, at 139-140 [DeSalvatore
Depo. Tr.].)
118 Fact Nos. 126-28 in Part I.B. of this Decision and Order.
119 Although Plaintiff disputes Wagner's account of their altercation in Wagner's office suite on the evening of
June 21, 2013, Plaintiff's version of the altercation does not suggest that she engaged in any additional
protected activity which might have served as a basis for the termination of her employment shortly thereafter.
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According to Plaintiff, she could “hardly get a word [out],” and she left Wagner's office upon his repeated
demands that she do so. (Dkt. No. 21, Attach. 4, at 187-88 [Plf.'s Depo. Tr.].)
120 As noted above, Defendant also argues that, if Plaintiff's claims are not dismissed, the Court should hold
that Plaintiff has failed to mitigate damages for at least a portion of the period of time for which she seeks to
recover. (Dkt. No. 21, Attach. 1, at 34-35.) Although Defendant's argument appears to have merit, the Court
has no occasion to reach it.
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Zimmerman v. Racette, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 3038275
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Nicholas ZIMMERMAN, Plaintiff,
v.
Steven RACETTE, et al., Defendants.
No. 9:17-CV-375 (TJM/CFH)
|
Signed 01/24/2020
Attorneys and Law Firms
Nicholas Zimmerman, 02-A-1663, Wende Correctional
Facility, P.O. Box 1187, Alden, New York 14004, Plaintiff pro
se
Attorney General for the State of New York, The Capitol,
Albany, New York 12224, Attorney for Defendants, OF
COUNSEL: BRIAN W. MATULA, ESQ., Assistant Attorney
General
REPORT-RECOMMENDATION AND ORDER 1
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Nicholas Zimmerman (“plaintiff”),
an inmate who was, at all relevant times, in the
custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”), brings this
action pursuant to 42 U.S.C. § 1983, alleging that
defendants former Superintendent of Clinton Correctional
Facility (“Clinton”) Steven Racette (“Supt. Racette”); former
Deputy of Security at Clinton Brown (“Brown”); current
Superintendent of Clinton Michael Kirkpatrick (“Supt.
Kirkpatrick”); Current Deputy of Programs at Clinton
Macintosh (“Mcintosh”); Clinton Special Housing Unit
(“SHU”) Director Donald Venettozzi (“Venettozzi”); Clinton
Deputy Zerniak (“Deputy Zerniak”); Lieutenant (“Lt.”)
Rief (“Lt. Rief”); Sergeant (“Sgt.”) Mark Orzech (“Sgt.
Orzech”); Sgt. Kevin Randall (“Sgt. Randall); Sgt. Justin
Delisle (“Sgt. Delisle”); Correction Officer (C.O.) Jimmy
Mailloux (“C.O. Mailloux”); 2 C.O. Christopher Gadway
(“C.O. Gadway”); C.O. Chad Stickney (“C.O. Stickney”);
C.O. Richard Lee (“C.O. Lee”); C.O. Stephen Beaudette
(“C.O. Beaudette”); C.O. P. Devlin (“C.O. Devlin”); J.
Miller (“Miller”); Deputy Supt. Keysor (“Keysor”); former
Clinton doctor Richard Adams (“Dr. Adams”); New York
State Office of Mental Health (OMH) doctor Sohail Gillani
(“Dr. Gillani”); 3 Clinton Senior Librarian Kristen Delisle
(“Librarian Delisle”); and DOCCS investigator Lisa J.
Clemons (“Clemons”), violated his constitutional rights under
the First and Eighth Amendments. See Dkt. No. 14 (“Amen.
Compl.”). 4
*2 Presently pending before the Court is defendants’ motion
for partial summary judgment pursuant to Federal Rule of
Civil Procedure (“Fed. R. Civ. P.”) 56. See Dkt. No. 68.
Plaintiff opposed the motion. See Dkt. No. 75. 5 Defendants
filed a reply. See Dkt. No. 80. For the reasons that follow, it
is recommended that defendants’ motion for partial summary
judgment be granted.
I. Background
The facts are reviewed in the light most favorable to plaintiff
as the non-moving party. See subsection II.A., infra. At all
relevant times, plaintiff was an inmate incarcerated at Clinton.
A. Plaintiff's Recitation of the Facts 6
1. Plaintiff's Property
On April 14, 2014, plaintiff was transferred from Attica
Correctional Facility (“Attica”) to Clinton. See Dkt. No. 14-1
at 2 ¶ 2. On April 25, 2014, C.O. Mailloux escorted plaintiff
from his cell to the “property area” to allow plaintiff to take
inventory of his property that had been mailed from Attica to
Clinton. Id. at 7 ¶ 11. At the direction of Sgt. Orzech, when
C.O. Mailloux let plaintiff out of his cell, he informed plaintiff
that allowing him to inventory his property was a “privilege
and if [plaintiff] g[a]ve [him] a hard time, [he would] put
[plaintiff] back in [his] cell.” Id. Once they arrived at the
property area, plaintiff was given only some of his property
bags, which had been transferred from Attica to Clinton. See
id. at 2 ¶ 3. Sgt. Orzech informed plaintiff that the Inspector
General's (“IG”) Office was holding his additional property
bags. See id. At plaintiff's request, see id., Sgt. Orzech noted,
in writing, on plaintiff's property transfer form that the IG
was holding plaintiff's remaining property bags and indicated,
“not all property received by Attica C.F. (late bags held by
IG per phone message from Attica).” Dkt. No. 14-4 at 1. The
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property transfer form also contains a checked box which
states “I am not leaving active legal case materials behind and
have been instructed to include all active legal materials in
my 4-bag limit.” Id. (capitalization omitted).
*3 At some point while plaintiff was in the property area,
C.O. Mailloux and plaintiff had a verbal disagreement and
plaintiff told C.O. Mailloux that he “always like[d] to work
with staff before filing a grievance about an issue.” Id. at 7.
In response to plaintiff's statement, C.O. Mailloux escorted
plaintiff back to his cell “without being able to inspect
[or] inventory” his property. Id. at 7 ¶ 12. “Hours later,
[C.O. Mailloux] came to [plaintiff's] cell and gave [him]
portions of [his] property ..., which did not include [his]
legal, political, business[,] and personal documents/book.
All of these materials were kept in storage for [plaintiff's]
entire three[-]year stay at Clinton.” Id. at 7. Plaintiff filed
a grievance against Sgt. Orzech and C.O. Mailloux on
April 25, 2014, concerning the foregoing events and his
missing property. See Dkt. No. 14-4 at 5. He filed two
additional grievances on May 16 and May 20, 2014, regarding
his missing property. See id. at 6-8. In addition, plaintiff
requested, pursuant to the Freedom of Information Law
(“FOIL”), video and audio recordings of his conversations
with Clinton correctional staff regarding his property. See
Dkt. No. 14-1 at 4 at 10-18. Plaintiff paid for the recordings,
which were copied onto a compact disk, but before the disk
was “mailed to [plaintiff's] paralegal assistant,” Sgt. Orzech
“destroyed” the disk by “put[ting] a stable in the bottom of
[it].” Dkt. No. 14-1 at 5.
2. Transfer to 13 Cell
On April 27, 2014, plaintiff spoke to Sgt. Randall about his
missing property. See Dkt. No. 14-1 at 8 ¶ 14. Sgt. Randall
stated, “[o]h now you wanna [sic] talk to me[?] You have
stopped every [c]aptain, [d]eputy[,] and [s]uperintendent
about your property, but you have not said anything to me
about it. This is my ... unit and you must come to me first.”
Id. at 9 ¶ 14 (parenthesis omitted). Plaintiff replied that he
“had not come to [Sgt. Randall] because he told [plaintiff]
that [plaintiff] was a ‘needy inmate’ and that [plaintiff] should
not ‘stop him every[ ]day.’ ” Id. Approximately one hour
after speaking to Sgt. Randall, plaintiff was taken to the
property area and given “two more bags of [his] property.” Id.
After plaintiff obtained his property bags, he was “transferred
to the infamous 13 Cell.” Id. (internal quotation marks and
parenthesis omitted). Plaintiff describes 13 Cell as “a dirty,
filthy cell that is never cleaned by porters, feces stuck to the
base of the toilet, urine soaked mattress, thick sheets of dust
on the floor, no broom or cleaning supplies, no desk, no light,
no music-tv outlet, etc.....” Id. at ¶ 15 (parenthesis omitted).
Plaintiff states that 13 Cell is only used for inmates who
“file litigation or utilize mental health services.” Id. at ¶ 15.
Plaintiff filed a grievance against Sgt. Randall alleging that
his transfer to 13 Cell was done “in retaliation for [plaintiff]
exercising [his] rights.” See Dkt. No. 14-4 at 21.
The Inmate Grievance Program (“IGP”) denied plaintiff's
grievance against Sgt. Randall and clarified that plaintiff had
“received a total of six bags of property. Four bags were
received on 4/23/14 and two bags were received on 4/26/14.
During the processing of the property [plaintiff] became
agitated with an aggressive demeanor and it was determined
that [plaintiff] was to be removed and returned back to his
cell.” Id. at 22. Further, the IGP noted that plaintiff
“was housed in accordance with facility and DOCCS
policy and directives, as well as space availability. [13
C]ell was and is in normal use in unit #14. Plaintiff is
afforded the opportunity for cleaning and supplies [ ]on
Tuesdays, Thursdays[,] and Saturdays weekly. The cell
is equipped with an ear jack and [plaintiff] did sign for
and has an ear headphone.” Id.
The Central Office Review Committee (“CORC”)
unanimously denied plaintiff's appeal of the IGP
determination, as without merit. See id. at 23. CORC
explained that “four bags of [plaintiff's] property were
received on 4/23/14 and two additional bags were received on
4/26/14. It appears that one bag was inadvertently misplaced.”
Id. at 23. CORC further noted that C.O. Mailloux stated that
plaintiff “became uncooperative while viewing his property
on 4/25/14, and that he was escorted back to the housing
unit” and that he issued plaintiff “all legal materials and 20
letters[ ] in accordance with [DOCCS] Directive #4933.” Id.
Moreover, CORC observed that plaintiff was “moved [to 13
Cell] due to his behavior,” which “was in normal use, has
an ear jack, that headphones were issued to [plaintiff,]” and
that plaintiff was afforded cleaning supplies on Tuesdays,
Thursdays[,] and Saturdays.” Id.
3. Cell Searches
*4 Plaintiff states that, on April 30, 2014, C.O. Gadway
“ramsacked [sic] [his] cell, stole-confiscated-and destroyed
[his] legal-personal and business documents and wrote
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two misbehavior reports charging [plaintiff] with violating”
several DOCCS rules, including using his correspondence
to solicit funds and conduct a business while in custody.
Dkt. No. 14-1 at 12 ¶ 19. In his April 30, 2014 misbehavior
report, 7 C.O. Gadway “claimed to have searched [plaintiff's]
cell and confiscated documents that show[ed plaintiff] was
running a business.” Id. at ¶ 20. However, plaintiff states, he
“was not in possession of any business documents” on April
30, 2014, as his property “bag #7 ... which contained [his]
business documents was allegedly lost or in the possession
of the I.G.” Id. (internal quotation marks and parenthesis
omitted). Rather, to acquire plaintiff's business documents,
plaintiff states that C.O. Gadway “went into [plaintiff's]
alleged lost bags of property, grabbed a bunch of documents[,]
and issued the [misbehavior] report” for the “sole purpose”
of “rid[ding plaintiff] of [his] important business and legal
documents” and “stop [plaintiff] from exercising [his] [F]irst
[A]mendment rights.” Id. at 13 ¶ 20.
On July 18, 2014, C.O. Gadway again “ramsack[ed]”
plaintiff's cell, confiscated documents, and issued a
misbehavior report, which stated that “upon inspection of
[plaintiff's] cell and ... personal property[, C.O. Gadway]
found [plaintiff] to be in possession of several documents
[and] letters, providing evidence that [plaintiff wa]s running
Madison Ave. Entertainment Group[ ] while incarcerated”
and using his correspondence privileges to solicit funds in
violation of DOCCS rules. Id. at 14; Dkt. No. 14-4 at 24.
“This time around [plaintiff] did have business documents
in [his] cell, but Clinton's mailroom and Media Review
Committee had reviewed them and allowed [him] to possess
them.” Dkt. No. 14-1 at 14 ¶ 21. “[A]ll documents [C.O.
Gadway] confiscated and ultimately destroyed were adverse
to [DOCCS’] public image.” Id. Plaintiff states that C.O.
Gadway “threw thousands of pages of doc[uments] all around
[his] cell, ripping some pages,” “ripped up photos, threw
some documents on [plaintiff's] toilet, poured grape juice
on [plaintiff's] sheets, put dirty books on [plaintiff's] clean
clothes, and took [plaintiff's] pen so [he] couldn't write.”
Id. at 17 ¶ 23. Moreover, plaintiff states that, as “the A-
man for the SHU, [C.O. Gadway] would have access to all
complaints filed by SHU prisoners,” and that his misbehavior
reports were written in retaliation for plaintiff exercising his
constitutional rights. Id. at 17 ¶ 24. Plaintiff filed a grievance
against C.O. Gadway based on the July 18, 2014 cell search,
which Supt. Racette denied. See Dkt. No. 14-1 at 25-26, 34.
In May 2015, C.O. Lee conducted a search of plaintiff's
cell and confiscated and threw away two of three copies of
plaintiff's issue of Entrepreneur Magazine, allowing plaintiff
to retain one copy. See Dkt. No. 14-1 at 31 ¶ 42. Plaintiff
filed a grievance regarding C.O. Lee's actions, see Dkt. No.
14-4 at 36, which Supt. Kirkpatrick denied. See id. at 40.
On June 19 and July 12, 2015, C.O. Lee searched plaintiff's
cell and “threw away a neatly stacked folder of magazine
articles that [plaintiff had] been collecting to use as exhibits
in [his] civil action to support [his] argument that prisoners
have a First Amendment [r]ight to run a business.” Dkt.
No. 14-1 at 32 ¶ 42. C.O. Lee issued plaintiff contraband
receipts for the documents he threw away, which he labeled
as “excess garbage” and characterized as a “fire hazard” and
“possibl[y] gang related.” Dkt. No. 14-4 at 41, 42; see Dkt.
No. 14-1 at 32 ¶ 43. With respect to the July 12, 2015 cell
search, C.O. Lee confiscated 49 magazines and 11 books,
and advised plaintiff that he “had to send them home because
[he] was over the property limits.” Dkt. No. 14-1 at 35 ¶
47. Accordingly, plaintiff “filled out form 2068 and chose
to send [the magazines] home through [a] visitor.” Id. When
plaintiff next went to the visiting room, he was informed that
no bags were available for pickup. See id. Plaintiff “became
extremely irate” and “decid[ed] that it was time to harass[,]
bully[,and] mental[ly] tortur[e]” C.O. Lee. Dkt. No. 14-1 at
33 ¶ 45. In October 2015, plaintiff filed a grievance and letter
concerning his “missing magazines.” See id. at ¶ 48; Dkt.
No. 14-5 at 14. Supt. Kirkpatrick denied plaintiff's grievance
and informed him that the magazines were destroyed pursuant
to DOCCS Directive # 4911 when the visitor plaintiff listed
“never showed up for the visit.” Dkt. No. 14-5 at 16. CORC
upheld Supt. Kirkpatrick's determination. See id. at 17.
*5 With respect to the July 12, 2015 cell search, C.O. Lee
issued plaintiff three misbehavior reports. See id. at 43, 44,
45. One misbehavior report stated that, during the July 12,
2015 cell search, plaintiff began screaming at C.O. Lee that
he was “gonna [sic] violate [C.O. Lee] every chance [he]
got.” Id. at 43. C.O. Lee's misbehavior report states that he
informed his area supervisor of plaintiff's threat, and that
plaintiff was removed from his cell and placed in a cell with
a plexiglass shield on the door. See id. The “shield order”
was reevaluated three times, once upon review by Sgt. Delisle
and twice upon review by Sgt. Orzech, and authorized by a
higher ranking DOCCS official. See Dkt. No. 14-4 at 46, 47,
48. Another misbehavior report stated that, during the July
12, 2015 cell search, C.O. Lee discovered typed documents
demonstrating that plaintiff was attempting to solicit money
through a pen pal program in violation of DOCCS Rules
103.20 (soliciting) and 180.11 (facility correspondence). See
id. at 45. In a third misbehavior report, C.O. Lee stated that
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plaintiff harassed him by calling him a “cracker ass bitch
whenever he would make a round” and that plaintiff sounded
a false alarm. Id. at 44 (internal quotation marks omitted).
Plaintiff states that C.O. Lee “requested that a cell plexi-glass
shield be placed on [plaintiff's] cell door (which prevents
all air circulation) because of the ‘I'm gonna violate you’
statement.” Dkt. No. 14-1 at 33 ¶ 45. He contends, however,
that his statement was mischaracterized because he told C.O.
Lee only that he was going to “verbally violate him.” Dkt. No.
14-1 at 34 ¶ 46. Following a disciplinary hearing, plaintiff was
found guilty of creating a disturbance, harassment, and threats
in violation of DOCCS Rules 104.13, 107.11, and 102.10,
respectively. See Dkt. No. 14-4 at 53. However, plaintiff
was found not guilty of solicitation, violating correspondence
policies, possessing flammable materials, interference with an
employee, or sounding a false alarm. See id. at 53, 54.
In October 2015, plaintiff “started a non-violent, progressive,
litigious, writing campaign labeled ‘The Clean Up The
Clinton SHU Campaign.’ ” Dkt. No. 14-1 at 50 ¶ 68. “The
actions of the campaign was [sic] to file grievances, write
to reporters-legislators-legal organizations, etc., post petitions
on line, pass out flyers in the streets and ultimately, if all else
failed, file a massive Class-Action lawsuit.” Id. In November
2015, Clinton SHU inmates “started filing grievances.” Id.
In retaliation for the Clean Up The Clinton SHU Campaign,
“Sgt. Delisle and his SHU staff started to retaliate against
[SHU inmates] by performing an increase in the destructive
cell searches, denying [them] hot showers, hot food, mail,
etc.” Id. at 50-51 ¶ 70.
On November 24, 2015, C.O. Beaudette instructed nonparty
C.O. Myers to deny plaintiff a shower in retaliation for
plaintiff's grievances. See Dkt. No. 14-1 at 45 ¶ 63; Dkt. No.
14-6 at 39. Plaintiff knew C.O. Beaudette was responsible
for the denial of his shower when he found out that C.O.
Beaudette was operating the mechanism that opens inmates’
cell doors and, two or three days after the incident, C.O.
Beaudette told plaintiff “I hear you was [sic] whining and
bitching about your shower the other day. More grievances
equal less showers.” Dkt. No. 14-1 at 45 ¶ 63. On March 5,
2016, C.O. Beaudette took all of the food out of plaintiff's
cell and placed dirty books on plaintiff's bed in retaliation
for plaintiff's “Clean Up The Clinton SHU Campaign.” Dkt.
No. 14-6 at 38. On April 13, 2016, C.O. Beaudette searched
plaintiff's cell, confiscated plaintiff's stamps, and issued
plaintiff a misbehavior report for possessing “excessive
stamps” in retaliation for plaintiff's filing of grievances. Dkt.
No. 14-1 at 46 ¶ 65. C.O. Beaudette's misbehavior report
charged plaintiff with violating DOCCS Directive #4422
and DOCCS Rule 113.16, which allow an inmate to have a
maximum of $22.50 worth of stamps in his cell. Dkt. No. 14-6
at 48. C.O. Beaudette specified that, upon searching plaintiff's
cell, he discovered an “envelope with 132 stamps in it,” left
plaintiff with 50 stamps, and confiscated the additional 82
stamps. See id. Plaintiff states that C.O. Beaudette “did[not]
realize at the time” that plaintiff was allowed to have $24.50
worth of stamps, “not the $22.50 as stated in the ticket,”
and that because the stamps C.O. Beaudette confiscated
“were .20¢ and .01¢ stamps,” the amount of stamps in
plaintiff's possession was “well below the $24.50 limit.” Dkt.
No. 14-1 at 46 ¶ 65 (parenthesis omitted). Plaintiff states
that C.O. Beaudette engaged in the foregoing conduct in
“retaliation for [plaintiff] exercising [his] [First] Amendment
rights.” Id.
“On April 25, 2016[,] Sgt. Delisle and C.O. Stickney searched
[plaintiff's] cell and confiscated all of [his] personal, business
and legal documents.” Id. at 51 ¶ 71. Sgt. Delisle and C.O.
Stickney each issued plaintiff two misbehavior reports. See
Dkt. No. 14-6 at 21-24. C.O. Stickney's first misbehavior
report cited plaintiff for solicitation and correspondence
violations based on the discovery of documents indicating
that plaintiff was attempting to solicit “individuals/businesses
for funds to assist him in the operation of multiple
businesses,” including “Black Entrepreneur Media Group,
Brand Ambassador for Madison Avenue Entertainment
Group (“MAEG”), Families Oppressed [b]y [t]he Criminal
Justice System (“FOCIS”), and The FOCIS Movement
Paralegal Services.” Id. at 21 (internal quotation marks
omitted). C.O. Stickney noted that plaintiff “represented [that
he was] running these businesses and requesting funds for
the services he is stating he will provide once paid.” Id.
C.O. Stickney also issued plaintiff a misbehavior report for
possessing a list of names and identification numbers for
inmates who were known gang members, which plaintiff had
“concealed in [his] legal paperwork.” Id. at 22. Sgt. Delisle
issued plaintiff two misbehavior reports, which explained
that plaintiff had composed duplicative grievances which
he was “distributing to other [SHU] inmates” “that he had
solicited or offered his services to[ ] sign” in violation of
DOCCS Directive Nos. 4040 and 701.7, which require that
inmate grievances be personal and prohibit SHU inmates
as serving as advisors with respect to grievances. Id. at
23, 24. In particular, Sgt. Delisle noted that one document
recovered from plaintiff's cell on April 25, 2016, stated that
plaintiff was “the executive director of ... FOCIS Paralegal &
Advocacy Group” and that he was “collecting an initial fee
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of $20.00 that is applied to [a] $350.00 filing fee” and that
plaintiff “offered these services to file the ... grievances he
manufactured for several other inmates.” Id. Plaintiff filed a
grievance concerning the April 25, 2016 cell search, which
Supt. Kirkpatrick denied. See Dkt. No. 14-6 at 26.
4. Library Services
*6 In March 2015, plaintiff “submitted requests for internet
research [directly] to the Clinton-Essex-Franklin County
Library.” Dkt. No. 14-1 at 50 ¶ 58. His request was forwarded
to Clinton Librarian Delisle. See id. On March 27, 2015,
Librarian Delisle informed plaintiff that his requests “must be
sent to the Facility General Library” and that “[f]rom there,
the request will be forwarded to the correct location.” Dkt. No.
14-5 at 23. In April 2015, plaintiff sent Librarian Delisle two
letters inquiring about certain e-books. See id. at 24, 25. In
response, Librarian Delisle informed plaintiff that, “[o]n the
book cart in SHU, there is a list of available books. E[-]books
are not permitted in a correctional facility.” Id. at 27. Plaintiff
filed a grievance claiming that he was being denied library
services by Librarian Delisle, including, among other things,
denying him access to books and research. See id. at 31. Supt.
Racette denied plaintiff's grievance. See id. at 30. Plaintiff
then sent a letter to Deputy Commissioner for Program
Services at Clinton, Jeff McKoy (“McKoy”), who directed
plaintiff that his “complaints [we]re being address through
the [IGP],” that his grievance was “currently in process,” and
“recommended that [plaintiff] allow the grievance procedure
to continue to await the decision.” Id. at 32.
5. Mail Watch Order
In February 2017, Clinton engaged Clemons to perform an
investigation into plaintiff's business activities. See Dkt. No.
14-1 at 60 ¶ 86. On February 16, 2017, plaintiff received
a misbehavior report authored by Clemons charging him
with 10 counts of solicitation in violation of DOCCS Rule
103.20. See id.; Dkt. No. 14-7 at 40. The charges were
based on a series of 10 pieces of outgoing mail plaintiff
sent between December 22 and December 29, 2016, for the
purpose of, among other things, promoting plaintiff's website
and businesses, including MAEG; advertising salaries to
prospective employees of MAEG; creating a blog, crowd-
funding website, and social media pages; and obtaining
promotional material for his businesses. See Dkt. No. 14-7
at 40-41. Plaintiff states that Clemons read his outgoing mail
without first obtaining a “mail[ ]watch order.” Dkt. No. 14-1
at 61 ¶ 86.
6. Medical Care
a. Dr. Adams
“Within a few weeks of arriving at Clinton,” plaintiff met
Dr. Adams for “an initial medical interview.” Dkt. No. 14-1
at 22 ¶ 32. When plaintiff requested medical boots, lotion,
and a permit for clippers, Dr. Adams told plaintiff that his
“time [wa]s up” and led him out of the room. Id. After his
initial visit to Dr. Adams, plaintiff wrote a letter to Deputy
Supt. Keysor requesting Magic Shave Cream because he gets
“terrible razor bumps.” Dkt. No. 14-4 at 60. Plaintiff also
sent a letter addressed to Supt. Racette and Simpson on July
21, 2014 requesting medical boots. See id. at 24 ¶ 33; Dkt.
No. 14-4 at 61. In a July 24, 2014 letter, Simpson informed
plaintiff that his “concerns regarding foot[ ]ware may be
addressed at [his] next provider callout which ha[d] been
scheduled.” Id. at 62. On July 29, 2014, plaintiff “was called
to the hospital to see [Dr.] Adams, apparently for the medical
boots.” Dkt. No. 14-1 at 24 ¶ 33. When Dr. Adams asked
plaintiff what he could do for him, plaintiff responded “I don't
know[, d]id someone place me on a callout?” Dkt. No. 14-4
at 63. In response, Dr. Adams “started yelling and screaming
[at plaintiff]” and “kicked [him] out of the office because
[plaintiff] did[n't] know why [he] was there.” Dkt. No. 14-1
at 24 ¶ 33. Following his July 29, 2014 visit, plaintiff filed
a grievance against Dr. Adams alleging medical malpractice.
See Dkt. No. 14-4 at 63-64. On August 8, 2014, plaintiff
received a letter from Dr. Adams that stated, “[d]ue to the fact
that I do not and did not know of your alleged foot problem,
we will arrange for you to come to the hospital for the same.
Should you require any special foot[wear] we will do our
best to accommodate you.” Id. at 65. Plaintiff then filed a
grievance concerning the availability of Magic Shave Cream
to SHU inmates. See id. at 69.
In September 2014, Supt. Racette denied plaintiff's
grievance concerning medical footwear, stating that “[t]he
investigation ... revealed that[plaintiff] was reviewed by his
provider for medical foot ware and provider determined that
the medical boot requested was not justified at this time
and that he will be glad to discuss this issue with [plaintiff]
on the next callout to provider.” Id. at 67. CORC upheld
Supt. Racette's determination. See id. at 68. Supt. Racette
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also denied plaintiff's grievance concerning the availability of
Magic Shave Cream to SHU inmates. See id. at 71-72.
*7 In October 2014, Dr. Adams prescribed plaintiff
Fluocinonide for plaintiff's skin and determined that there
was no medical need for a facial clipper permit. See Dkt.
No. 14-1 at 24, 29; Dkt. No. 14-4 at 68. In March 2016,
plaintiff again visited Dr. Adams and requested that Dr.
Adams take photos of his skin and x-rays of his feet,
which Dr. Adams declined to do. See Dkt. No. 14-1 at 26
¶ 35. Plaintiff then filed a grievance against Dr. Adams
alleging “harassment, retaliation, bias, discrimination, cruel
and unusual punishment[,] and unfair treatment.” Dkt. No.
14-5 at 4 (emphasis added). Plaintiff also complained that
Dr. Adams would not “issue [him] a medical permit to
purchase a pair of facial electronic clippers or Magic Shave
Shaving Cr[eam].” Id. at 5. Plaintiff stated that Dr. Adams
refused his requests “based largely (or probably solely) on
[his] refusal to discuss [his case concerning Sing Sing] with
him.” Dkt. No. 14-1 at 26 ¶ 36. Supt. Kirkpatrick denied
plaintiff's grievance. See Dkt. No. 14-5 at 8. CORC upheld
Supt. Kirkpatrick's determination, explaining that, following
his March 2016 visit, plaintiff saw Dr. Adams in June 2016 for
his skin and that plaintiff had been “issued Hydrocortisone,
Fluocinonide[,] and Clindamyacin since early 2015.” Id. at
9. Moreover, CORC observed that Dr. Adams “determined
that an electric shaver and Magic Shave [we]re not medically
indicated.” Id. CORC also noted that Dr. Adams “denie[d]
making inappropriate comments[ ] and state[d] that [plaintiff]
did not raise concerns regarding razor bumps during [his
March 2016 visit].” Id.
b. Dr. Gillani
In April 2014, due to “everything that was happening to
[his] property, [plaintiff] became suicidal and was transferred
[from 13 Cell] to the mental health unit [“MHU”] under Dr.
Gillani's care” from April 27, 2014, until May 1, 2014. Dkt.
No. 14-1 at 10 ¶ 17. Plaintiff told Dr. Gillani “[e]very[ ]day ...
throughout [his] stay” in the MHU that he “would commit
suicide if [he] was forced to go back to 13 Cell.” Id. On
May 1, 2014, Dr. Gillani released plaintiff from the MHU
and plaintiff was sent back to 13 Cell. See id. “On [May 5,
2014,] an officer found [plaintiff] fixing a noose around [his]
neck and sent [him] back to the [MHU].” Id. at 10-11 ¶ 17.
Plaintiff was again discharged from the MHU and sent back
to 13 Cell on May 7, 2014. See id. Plaintiff states that Dr.
Gillani “purposely ignored [his] plans for suicide and twice
sent [him] back to 13 Cell to kill [him]self.” Id. at 11 ¶ 17.
At deposition, plaintiff testified that he attempted suicide on
two separate occasions after being examined by Dr. Gillani,
but could not recall the dates of those alleged incidents. See
Dkt. No. 68-13 at 30, 37-42.
B. Plaintiff's Arguments
Liberally construing the Amended Complaint, plaintiff
asserts numerous First Amendment claims. Plaintiff alleges
that C.O. Mailloux violated his First Amendment rights by
denying him his property in retaliation for threatening to file
grievances against him. See Dkt. No. 14-1 at 7 ¶ 12, 65 ¶
93. Plaintiff also alleges that Sgt. Randall violated his First
Amendment rights by transferring him to 13 Cell in retaliation
for plaintiff filing grievances concerning his missing property.
See id. at 8 ¶ 14 (“Sgt. Randall retaliate[ed] against [plaintiff]
for exercising his right to inform the Clinton administration
about [his] missing property.”); id. at 65 ¶ 94. Plaintiff
contends that Sgt. Orzech is liable for C.O. Mailloux's and
Sgt. Randall's allegedly retaliatory actions because he “failed
to remedy,” “allowed,” “directed[,] and encouraged” C.O.
Mailloux to deny plaintiff his property and Sgt. Randall to
transfer plaintiff to 13 Cell. Id. at 64 ¶ 92, 65 ¶ 93, 66 ¶ 94.
Further, plaintiff alleges that C.O. Gadway violated his First
Amendment rights by filing a false misbehavior report,
ransacking his cell, and confiscating and destroying his
property in retaliation for plaintiff filing grievances. Dkt. No.
14-1 at 17 ¶ 24, 66-67 ¶ 96. Plaintiff also alleges that C.O.
Lee violated his First Amendment rights by destroying his
property, issuing him a false misbehavior report, and placing a
shield order on plaintiff's cell in retaliation for plaintiff stating
that he was going to “violate” C.O. Lee and filing grievances
against him. Id. at 33 ¶ 45; see id. 68-69 ¶ 100. He contends
that Sgt. Orzech is liable for Lee's conduct because he “failed
to remedy the problem when learning about it.” Id. at 69 ¶ 100.
*8 Plaintiff argues that C.O. Beaudette denied him a shower,
took food from plaintiff's cell, placed dirty books on plaintiff's
bed sheets, and confiscated his stamps in retaliation for
plaintiff filing grievances and the Clean Up The Clinton
SHU Campaign. See id. at 45 ¶ 63, 46 ¶ 65, 70 ¶ 103;
Dkt. No. 14-6 at 38-39. Plaintiff also contends that Sgt.
Delisle and C.O. Stickney retaliated against him for his Clean
Up The Clinton SHU Campaign by conducting destructive
cell searches, confiscating his property, and issuing him
misbehavior reports. See Dkt. No. 14-1 at 51 ¶ 71, 71 ¶
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105; Dkt. No. 14-6 at 21-24. Moreover, plaintiff avers that
Librarian Delisle violated his rights “to access information
[and] freedom of speech ... by denying [him] the research and
books [he] requested.” Dkt. No. 14-1 at 69 ¶ 101. Finally,
plaintiff alleges that Dr. Adams violated his First Amendment
rights by denying him adequate medical care in retaliation for
filing grievances against him and for refusing to discuss his
prior lawsuit concerning Sing Sing. See Dkt. No. 14-1 at 23
¶ 32, 67-68 ¶ 98.
Plaintiff also asserts a First Amendment mail tampering claim
against Clemons, alleging that she viewed 10 pieces of his
outgoing mail without first obtaining a valid mail watch
order. See Dkt. No. 14-1 at 61 ¶ 86. Moreover, plaintiff
argues that Dr. Gillani violated his Eighth Amendment rights
by exhibiting deliberate indifference to his serious medical
needs when he twice released plaintiff back to 13 Cell from
the MHU, despite plaintiff informing him of his “plans for
suicide.” Id. at 11 ¶ 17, 66 ¶ 95.
C. Defendants’ Motion for Partial Summary Judgment 8
1. Plaintiff's First Amendment Claims
a. Sgt. Orzech and C.O. Mailloux
Defendants first argue that plaintiff's First Amendment
retaliation claims against Sgt. Orzech and C.O. Mailloux
fail because “the withholding of plaintiff's property
was an administrative error, rather than based on any
improper motive.” Dkt. No. 68-3 at 10. Defendants support
their argument with Sgt. Orzech's declaration and two
interdepartmental communications between Sgt. Orzech and
Lt. Reif, dated May 12, 2014, and May 19, 2014. See Dkt.
No. 68-31 at 1, 2. In his declaration, Sgt. Orzech denies
withholding plaintiff's property or destroying the C.D. in
retaliation for plaintiff's grievances. See Dkt. No. 68-30 at 2
¶ 3, 4 ¶¶ 15-16. Sgt. Orzech explains that, on April 17, 2014,
four of plaintiff's property bags were received from Attica and
that the bags were “tagged with two inconsistent sets of tags,
one set indicating that [p]laintiff had a total of seven bags,
the other set indicating that he had a total of five bags.” Id.
at 2 ¶ 5; see Dkt. No. 68-31 at 1 (“The tags were numbered
as I recall[:] 1 of 7, 2 of 7, and 5 of 7 [and] also tagged with
a second set of plain tags that were numbered 1, 2, 3, and 4
of 5. No additional paperwork was delivered with these four
bags.”). Plaintiff informed Sgt. Orzech that “he believed [he
had] about seven bags.” Dkt. No. 68-31 at 1; see Dkt. No.
68-30 at 2 ¶ 5; Dkt. No. 14-4 at 5.
*9 Sgt. Orzech declares that, after another Clinton staff
member contacted “Attica ... by telephone, [he] was informed
that the [I.G.]’s staff at Attica had detained some of
[p]laintiff's property.” Dkt. No. 68-30 at 2 ¶ 6; see Dkt. No.
68-31 at 1. He states that, on April 25, 2014, while plaintiff
was present in the property processing area, he instructed
C.O. “Mailloux to advise [p]laintiff that watching his property
being processed was a privilege and subject to revocation.”
Id. at 3 ¶ 7; see Dkt. No. 68-31 at 1. When Sgt. Orzech
informed plaintiff that Clinton had received only four bags of
his property and that the remainder were being detained by
the IG at Attica, plaintiff “became agitated and aggressive.”
Id. at ¶ 9; see Dkt. No. 68-31 at 1. Sgt. Orzech determined
that plaintiff's “continued presence could pose a threat to the
safety and security of the facility,” so he “had him removed to
his cell in accordance with [DOCCS] Directive # 4933.” Id.
at ¶ 9; see Dkt. No. 68-31 at 1.
Sgt. Orzech declares that, on April 26, 2014, Clinton received
two more of plaintiff's property bags, which were “processed
and returned to [p]laintiff on April 27, 2014.” Id. at ¶ 10; see
Dkt. No. 68-31 at 1. Thereafter, Clinton staff emailed Attica
to inquire about any remaining property, in response to which
“Attica ... reported that [it] had sent seven bags to Clinton.”
Id. at ¶ 11; see Dkt. No. 68-31 at 2. Sgt. Orzech informed Lt.
Reif that he was unable “to make further progress locating
the seventh bag during [his] investigation.” Dkt. No. 68-31
at 2; see Dkt. No. 68-30 at 3 ¶ 11. Sgt. Orzech states that
Brown made “another phone call to Attica ... on [his] behalf,”
and that Brown “informed [Sgt. Orzech] that no investigation
by IG was ongoing at [that] time.” Dkt. No. 68-31 at 2; see
Dkt. No. 68-30 at 3 ¶ 12. Sgt. Orzech informed Lt. Reif that
he was “unaware as to why the original information received
indicated IG involvement.” Id.; see Dkt. No. 68-30 at 3 ¶ 12.
Defendants also offer C.O. Mailloux's declaration in support
of their motion for summary judgment. See Dkt. No. 68-29.
C.O. Mailloux declares that, on April 25, 2014, “at the
direction of Sgt. Orzech, [he] escorted [p]laintiff from his
cell to the holding area where [plaintiff's] property was to be
processed [and] advised [p]laintiff that watching his property
being processed was a privilege ... subject to revocation.” Id.
at 2 ¶ 4. C.O. Mailloux states that he “did not confiscate any
letters or any other documents from [p]laintiff's property.”
Id. at ¶ 6. Further, he states that Sgt. Orzech “directed [him]
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to escort [plaintiff] back to his cell” after plaintiff “became
aggressive during the processing of his property.” Id. at ¶ 7.
b. Sgt. Randall
Defendants next contend that “plaintiff has failed to
establish ... that any of his complaints had any bearing upon
[Sgt.] Randall's actions[ ] and, as such, has failed to make out
a claim against him.” Dkt. No. 68-3 at 10. In his declaration in
support of defendants’ motion for partial summary judgment,
Sgt. Randall denies retaliating against plaintiff by placing him
in 13 Cell on April 27, 2014, and states that his “actions in
dealing with [p]laintiff ... were not motivated by [plaintiff's]
informing Clinton administration about his missing property.”
Dkt. No. 68-32 at 2 ¶ 8. He states that “[p]laintiff was housed
in ... 13-[C]ell in accordance with DOCCS and facility policy
and directives and ... availab[ility].” Dkt. No. 68-32 at 2 ¶ 4.
He states that “[p]laintiff was ... placed in ... SHU based upon
his behavior, and was held in that location until his behavior
dictated a change and another cell became available.” Id.
at ¶ 5. Sgt. Randall declares that, “[c]ontrary to [p]laintiff's
allegations concerning the cleanliness of [13 C]ell, it is a cell
in normal use in Unit-14 SHU and is regularly maintained.”
Id. at ¶ 6. He explains that “[i]f a[SHU] inmate is not satisfied
with the condition of his cell, he is afforded the opportunity
for additional cleaning supplies Tuesdays, Thursdays, and
Saturdays weekly.” Id. at ¶ 6.
c. Sgt. Delisle, C.O. Stickney, C.O. Gadway,
C.O. Lee, C.O. Beaudette, and Clemons
*10 Defendants argue that plaintiff's admission to running
a business and possessing business documents in knowing
violation of DOCCS policy—the subject of the misbehavior
reports issued by C.O. Gadway, C.O. Stickney, Sgt.
Delisle, and Clemons—entitles those defendants to summary
judgment as to plaintiff's First Amendment retaliation
claims insofar as asserted against them. See Dkt. No. 68-3
at 9. Similarly, defendants contend that plaintiff's First
Amendment retaliation claims against C.O. Beaudette should
be dismissed, as he “confiscated plaintiff's stamps, which
were over the limit allowed to plaintiff and, ... plaintiff
admits [that the stamps] were being used for a business
purpose.” Id. 9 Thus, defendants argue, C.O. Gadway, C.O.
Stickney, Sgt. Delisle, C.O. Beaudette, C.O. Lee, and
Clemons are entitled to summary judgment as to plaintiff's
First Amendment retaliation claims insofar as asserted against
them because plaintiff “admit[s] to engaging in the conduct
that formed the basis of the misbehavior report[s].” See Dkt.
No. 68-3 at 10 (quoting Brooks v. Rock, 9:11-CV-1171 (GLS/
ATB), 2014 WL 1292232, at *24 (N.D.N.Y. Mar. 28, 2014)
(internal quotation marks and citation omitted)).
Defendants submitted the declaration of C.O. Gadway, who
states that, on April 30, 2014, and July 18, 2014, he
conducted “authorized cell frisk[s] of plaintiff's cell.” Dkt.
No. 68-23 at 2 ¶¶ 4, 5. On both occasions, C.O. Gadway
discovered documents and letters in plaintiff's cell, which
“provid[ed] evidence that [plaintiff] was running a business
named [MAEG].” Id. at ¶ 4; see id. at ¶ 5. C.O. Gadway
explains that he confiscated these materials and placed them
in a contraband locker. See id. at ¶ 4. “Because it is
prohibited for an inmate to run a business while incarcerated,
or to use correspondence privileges to solicit money, [he]
issued [p]laintiff ... misbehavior reports charging him with
violating Rules 103.20 (Soliciting) and 180.11 (Facility
Correspondence)” on both occasions. Id. at ¶ 4; see id. at ¶ 5.
Similarly, Sgt. Delisle declares that, on April 25, 2016,
while plaintiff was confined in SHU, he and C.O. Stickney
conducted a search of plaintiff's cell to search for and
remove any contraband. See Dkt. No. 68-17 at 2 ¶¶ 4-5.
“The order to search [p]laintiff's cell came from the CIU
(Crisis Intervention Unit) in Albany, which tracks high-
profile inmates.” Id. at ¶ 6. Upon searching plaintiff's cell,
Sgt. Delisle and C.O. Stickney confiscated papers, “including
gang-related material being used by [p]laintiff in writing a
book about his life on the street[,] which was not authorized
without permission.” Id. at ¶ 7. Sgt. Delisle and C.O. Stickney
also confiscated “documents connected with the running of
several businesses.” Id. “All ... contraband material was
placed in the contraband locker[ ] and [p]laintiff was given
a contraband receipt.” Id. at ¶ 8. C.O. Stickney submitted
a declaration, which contains a materially identical account
of the April 25, 2016 search of plaintiff's cell, and specifies
that possession of gang material is a violation of DOCCS
Rule 105.13 and possession of documents related to running a
business is a violation of DOCCS Rule 103.20. See Dkt. No.
68-33 at 3. Sgt. Delisle and C.O. Stickney both deny taking
any action against plaintiff motivated by retaliation. See id.;
see Dkt. No. 68-17 at 3 ¶ 9. Moreover, C.O. Stickney submited
a contraband receipt dated April 25, 2016, which states,
“multiple pieces of paper, hand written and typed[c]ontaining
business material, legal material, gang material, and other
documentation” was confiscated and that “no property [was]
damaged during search.” Dkt. No. 68-34.
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*11 Moreover, C.O. Beaudette declares that, upon
conducting a “daily cell frisk on [p]laintiff's cell” on April 13,
2016, “as ordered by the Deputy Superintendent for Security,”
he “found an envelope with 132 stamps in it, and other excess
property and food stores in [plaintiff's] cell.” Dkt. No. 68-15
at 2 ¶ 5. C.O. Beaudette states that he “left 50 stamps in
[p]laintiff's cell[,] secured 82 stamps in a contraband locker,”
and issued plaintiff a misbehavior report for, among other
infractions, violating 7 N.Y.C.R.R § 113.16 and DOCCS
Directive No. 4422, which prohibit inmates from possessing
greater than $22.50 worth of stamps. See id. at ¶¶ 7, 8. C.O.
Lee declares that he “conducted several authorized random
searches of [p]laintiff's cell” while plaintiff was housed in
SHU, and discovered that plaintiff had magazines and books
in excess of that allowed pursuant to DOCCS Directive
4933 section 302.2(e)(2)(xvii), which “permits an inmate to
have a maximum of 5 books, magazines[,] and newspapers
in his cell.” Dkt. No. 68-27 at 2 ¶¶ 5, 6. Concerning
plaintiff's possession of multiple copies of the same magazine,
C.O. Lee states that “there is no provision for an inmate
to receive multiple copies of identical books, magazines[,]
or periodicals.” Id. at ¶ 8. Therefore, C.O. Lee states, he
“returned the duplicate magazines to the mail room and issued
[p]laintiff a contraband receipt.” Id. at 3 ¶ 9. C.O. Lee explains
that, “[o]n August 14, 2015, [he] ... recorded that [p]laintiff
had 49 magazines and 5 books beyond the prescribed limit,”
and notes that plaintiff chose to have the excess magazines
and [three] books sent out via a visitor [and] to have [two] of
the books destroyed.” Id. at ¶¶ 11, 12, 13. However, because
the visitor plaintiff listed to pick up his excess property
never arrived on the scheduled date, his excess property was
destroyed on September 3, 2015. See id. at ¶¶ 14-15. C.O. Lee
denies acting with any retaliatory motive for plaintiff filing
grievances against him or other Clinton staff. See id. at ¶ 16.
In addition, Clemons declares that, “[b]etween December 7,
2016[,] and January 17, 2017, [she] conducted an official
investigation of [p]laintiff's correspondence.” Dkt. No. 68-16
at 2 ¶ 5. She further states that “[c]ontrary to [p]laintiff's
claim, on December 7, 2016, [she] submitted to [Supt.]
Kirkpatrick a request for a 60-day MAIL WATCH of all
incoming and outgoing non-privileged correspondence be
initiated on [plaintiff's] mail[, which Supt. Kirkpatrick]
approved ... on December 9, 2016.” Id. at 2 ¶ 7 (internal
quotation marks omitted). Supt. Kirkpatrick “also approved
[her] notice to [c]orrespondence staff, dated December 8,
2016, ... that ALL mail for [plaintiff], except legal and
privileged mail, be delivered to the [s]ecurity [o]ffice for
a period of 60 days.” Id. at ¶ 8 (internal quotation marks
omitted).
d. Librarian Delisle
With respect to Librarian Delisle, defendants contend that
plaintiff's deposition testimony “effectively nullified any”
First Amendment retaliation claim asserted against her.” Dkt.
No. 68-3 at 9. Defendants point out that plaintiff made clear
at deposition that his claim against Librarian Delisle was
premised on her denial of access to library searches and
research materials “because Clinton did not want [him] to
have any more information related to running a business.” See
id. at 10 (quoting Dkt. No. 68-13 at 78). However, “[w]hen
asked whether [Librarian] Delisle retaliated against him
because he had filed grievances against her husband, [Sgt.
Delisle,] plaintiff stated ‘I can't say that because I don't know.’
” Id. (quoting Dkt. No. 68-13 at 79). Librarian Delisle declares
that she denied plaintiff's requests for internet research based
on DOCCS Directive # 4470, which explicitly provides that,
“[f]or security reasons, DOCCS prohibits offender access to
the Internet, and access for Librarians and other library staff
in the library.” Dkt. No. 68-18 at 2-3 ¶ 7 (quoting Dkt. No.
68-22 at 6).
e. Dr. Adams
Defendants argue that the record does not support plaintiff's
contention that Dr. Adams denied him medical care in
retaliation for plaintiff's filing of grievances against him;
rather, defendants posit, the record establishes that plaintiff
“was not in need of the medical treatment he alleges Dr.
Adams denied him” and, therefore, that plaintiff's claim
amounts only to a “disagreement over the proper treatment,”
which “[does] not create a constitutional claim.” Dkt. No.
68-3 at 11 (quoting Chance v. Armstrong, 143 F.3d 698, 703
(2d Cir. 1998)). Dr. Adams submitted a sworn declaration
in support of defendants’ partial motion for summary
judgment in which he states that his “denial of plaintiff's
requests for medical boots, lotion, blood pressure and other
medications was based on [his] professional evaluation of
[p]laintiff's medical needs,” that “[i]n [his] estimation, the
boots and medications requested were unnecessary,” and that
he “never ... withh[e]ld medications as a means of retaliation
for [plaintiff's] filing of grievances.” Dkt. No. 68-14 at 2 ¶¶
6, 8.
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2. Eighth Amendment Deliberate Medical
Indifference Claims Against Dr. Gillani
*12 Defendants argue that “[p]laintiff's deliberate
indifference claim against [Dr.] Gillani must be dismissed
because plaintiff cannot establish that [Dr. Gillani] acted
with deliberate indifference toward any objectively serious
medical need.” Dkt. No. 68-3 at 12. Defendants rely on Dr.
Gillani's declaration in which he explains that, “[o]n May 1,
2014, [he] examined plaintiff at the Residential Treatment
Program Center (“RCTP”) at Clinton” after “[p]laintiff was
admitted to the RCTP [for] having expressed threats of self-
harm.” Dkt. No. 68-25 at 2 ¶ 12, 2 ¶ 13. Dr. Gillani states that
he “was informed by staff that plaintiff had not engaged in
any self-harming gestures.” Id. at 3 ¶ 15. Further, Dr. Gillani
declares that plaintiff “expressed to [him] that he did not
want to return to [SHU].” Id. at ¶ 16. “[S]taff informed [Dr.
Gillani] that[,] while in the RCTP, plaintiff had been eating
and sleeping well without any problems.” Id. at ¶ 17. Dr.
Gillani notes that “[p]laintiff informed [him] that he would be
happy if he could be released into [g]eneral [p]opulation so
that he could move freely in the prison and visit the law library
whenever he wanted”; “denied [feeling] any mood, psychotic,
or anxiety symptoms”; and “denied any suicidal or homicidal
ideas.” Id. at ¶¶ 18-20.
Moreover, Dr. Gillani states that, “[u]pon review of plaintiff's
risk factors, [plaintiff] had a history of substance abuse
and engaging in self-harming gestures only; plaintiff had no
history of in-patient psychiatric treatment.” Dkt. No. 68-25 at
¶ 21. In addition, “[p]laintiff was noted as facing sanctions in
the SHU, but presented with no hopelessness, helplessness,
feelings of being trapped, or other indications of a state of
mind that would lead to suicidal behavior.” Id. at ¶ 22. “After
reviewing ... plaintiff,” Dr. Gillani concluded “that there was
no evidence that plaintiff had evidence of any psychiatric
illness”; “appeared to be presenting with environment-related
agenda[,] specifically, seeking to be released from the SHU”;
and “that plaintiff's complaints did not stem from mental
illness, but rather, were calculated toward an effort to be
released from his confinement in the SHU.” Id. at ¶¶ 23-25.
“Based on the foregoing, [Dr. Gillani] released plaintiff on
May 1, 2014.” Id. at ¶ 26. Attached to Dr. Gillani's declaration
are his psychiatric progress notes for plaintiff dated May
1, 2014, which corroborate the statements and conclusions
contained in his declaration. See Dkt. No. 68-26 at 1-2.
D. Plaintiff's Opposition
In opposition to defendants’ motion for partial summary
judgment, plaintiff “disagree[s]” with the factual recitation
and arguments set forth by defendants. See Dkt. Nos. 75-1 at
1-2, Dkt. No. 75-2 at 1-3. Concerning his Eighth Amendment
medical indifference claim, plaintiff argues that, contrary to
Dr. Gillani's assessment, his “mood was not normal” and that
he “was clearly depressed and suicidal.” Dkt. No. 75-2 at 2
¶ 10. He also contends that his “immediate problem was not
that [he] wanted to get out of the SHU, it was that [he] wanted
out of 13 Cell.” Id. Further, plaintiff “disagree[s]” that his
claims against Librarian Delisle should be dismissed on the
basis that he testified at deposition that “ ‘[he] [didn't] know’
if [Librarian] Delisle denied [him] law library resources as
retaliation for [his] litigation” because “what [he] feel[s] is
irrelevant.” Dkt. No. 75-1 at 2 ¶ 2. Plaintiff also “disagree[s]”
that his claims concerning the destructive cell searches and
withholding of property should be dismissed on the basis
that he “admitted to running a business.” Id. Moreover,
plaintiff disagrees that he “had stamps in [his] cell to run [his]
business” and states that “[his] stamps were to send out legal,
personal, [and] political mail as well.” Id. at 1 ¶ 2.
E. Defendant's Reply 10
In reply to plaintiff's opposition, defendants reassert their
argument that plaintiff's First Amendment retaliation claims
against Sgt. Orzech, C.O. Mallioux, Sgt. Randall, C.O.
Gadway, C.O. Lee, C.O. Stickney, Sgt. Delisle, C.O.
Beaudette, Librarian Delisle, and Dr. Adams should be
dismissed. See Dkt. No. 79 at 9-11. Defendants contend
that plaintiff has failed to establish that he was retaliated
against for engaging in protected activity. See id. at 9. In
particular, defendants argue that plaintiff, in fact, alleges
that all of defendants’ retaliatory acts were committed based
on plaintiff engaging in the operation of a business—which
is not protected activity—and not based on the filing of
grievances. See id. 9-10. Further, defendants posit that the
declarations of Sgt. Orzech, C.O. Mallioux, Sgt. Randall,
C.O. Gadway, C.O. Lee, C.O. Stickney, Sgt. Delisle, C.O.
Beaudette, Librarian Delisle, and Dr. Adams establish “a non-
retaliatory basis for the actions alleged against them.” Id. at
10. Moreover, defendants posit that plaintiff's opposition, in
which he “identified ... things he ‘disagreed’ with, ... fail[s]
to ... creat[e] an issue of material fact.” Id. (quoting Dkt. No.
75-1 at 1, 2).
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*13 Defendants also reassert their argument that plaintiff's
Eighth Amendment medical indifference claim against Dr.
Gillani should be dismissed because the record evidence
establishes “that Dr. Gillani's assessment (that [p]laintiff
was motivated by an ‘environmental-related agenda’) was
accurate” and that plaintiff's indications that he was suicidal
were “calculated toward an effort to be released from his
confinement in the SHU.” Id. at 7 (quoting Dkt. No. 68-25
at 3 ¶ 24, 25). Defendants note that plaintiff expressly stated
in his opposition that his “immediate problem” when he
was in the Clinton M.H.U. was that he “wanted out of
13 Cell.” Id. at 7 (quoting Dkt. No. 68-25 at 3 ¶ 24, 25;
Dkt. No. 75-2 at 2 ¶ 10). Finally, defendants contend that
plaintiff's First Amendment claim against Clemons should
be dismissed because, contrary to plaintiff's contention,
Clemons’ sworn declaration establishes that she obtained a
mail watch order from Supt. Kirkpatrick prior to investigating
his outgoing mail. See id. at 9. Defendants argue that
plaintiff's “disagree[ment]” with the foregoing is insufficient
to establish an issue of material fact. Id. at 9, 10.
II. Discussion 11
A. Legal Standard
Summary judgment may be granted only if the submissions
of the parties taken together “show[ ] 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);
see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). “The party moving for summary judgment bears
the initial burden of showing, through the production of
admissible evidence, that no genuine issue of material fact
exists.” Price v. Oropallo, No. 9:13-CV-0563 (GTS/TWD),
2014 WL 4146276, at *4 (N.D.N.Y. Aug. 19, 2014) (citing
Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006)).
Facts are material if they may affect the outcome of the case
as determined by substantive law. See Anderson, 477 U.S. at
248. A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. (internal quotation marks omitted). “In
determining whether summary judgment is appropriate, [the
Court will] resolve all ambiguities and draw all reasonable
inferences against the moving party.” Skubel v. Fuoroli, 113
F.3d 330, 334 (2d Cir. 1997).
Only after the moving party has met this burden is the
nonmoving party required to produce evidence demonstrating
that genuine issues of material fact exist. See Salahuddin, 467
F.3d at 273. The nonmoving party must do more than “simply
show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. 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).
A party opposing summary judgment is required to submit
admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72,
81 (2d Cir. 2010) (“It is well established that in determining
the appropriateness of a grant of summary judgment, [the
court] ... may rely only on admissible evidence.”) (internal
quotation marks and citation omitted); see also Schwapp v.
Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (“[A]ffidavtis
must be based upon concrete particulars, not conclusory
allegations.” (internal quotation marks and citation omitted)).
“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). “ ‘The 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) (brackets
omitted) (quoting Anderson, 477 U.S. at 252).
*14 Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit stated,
[t]here are many cases in which we
have said that a pro se litigant is
entitled to special solicitude, that a
pro se litigant's submissions must
be construed liberally, and that such
submissions must be read to raise
the strongest arguments that they
suggest. At the same time, our
cases have also indicated that we
cannot read into pro se submissions
claims that are not consistent with
the pro se litigant's allegations,
or arguments that the submissions
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themselves do not suggest, that
we should not excuse frivolous or
vexatious filings by pro se litigants,
and that pro se status does not
exempt a party from compliance
with relevant rules of procedural
and substantive law ....
Id. (internal quotation marks, citations, and footnote omitted);
see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008) (“On occasions too numerous to count, we
have reminded district courts that when [a] plaintiff proceeds
pro se, ... a court is obligated to construe his pleadings
liberally.”) (internal quotation marks and citations omitted).
B. First Amendment Retaliation
In order to establish a First Amendment retaliation claim
under Section 1983, a prisoner must show the following: that
“(1) ... the speech or conduct at issue was protected, (2) ...
the defendant took adverse action against the plaintiff, and
(3) ... there was a causal connection between the protected
speech and the adverse action.” Espinal v. Goord, 558 F.3d
119, 128 (2d Cir. 2009) (internal quotation marks and citations
omitted). “[I]n the prison context ... adverse action” is
“defined ... objectively[ ] as retaliatory conduct that would
deter a similarly situated individual of ordinary firmness from
exercising ... constitutional rights.” Gill v. Pidlypchak, 389
F.3d 379, 381 (2d Cir. 2004) (internal quotation marks and
citation omitted). “[T]his objective test applies even where
a particular plaintiff was not himself subjectively deterred;
that is, where he continued to file grievances and lawsuits.”
Id. With respect to the third element of the test, 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 v. Gillespie, 791 F. Supp. 2d
353, 370 (S.D.N.Y. 2011) (quoting Espinal, 558 F.3d at 129).
“Even 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, 2014 WL
1292232, at *18 (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.” (italics omitted)).
*15 “[P]risoner retaliation claims are easily fabricated,
and ... pose a substantial risk of unwarranted judicial
intrusion into matters of general prison administration.”
Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (internal
quotation marks and citations omitted). Accordingly, the
Second Circuit requires courts to “examine prisoners’ claims
of retaliation with skepticism and particular care.” Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995). 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) (citing Brown v. Middaugh,
41 F. Supp. 2d 172, 191 (N.D.N.Y. 1999)). Consequently, a
plaintiff must set forth non-conclusory allegations to sustain
a retaliation claim. See Green, 2006 WL 846272, at *3;
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. Sgt. Orzech and C.O. Mailloux
As an initial matter, it appears that plaintiff's April 25,
2014 grievance concerning his missing property was the first
grievance he filed at Clinton in connection with the present
lawsuit. See Dkt. No. 14-4 at 5. Consequently, it is impossible
that Clinton personnel retaliated against plaintiff for filing
grievances prior to that date. To the extent the Amended
Complaint may be read as alleging that Sgt. Orzech and
C.O. Mailloux retaliated against plaintiff for filing the April
25, 2014 grievance and subsequent grievances concerning
his property by withholding plaintiff's property bags, his
claim fails, as defendants have established through admissible
evidence that the receipt of plaintiff's property was delayed
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due to administrative error, not out of retaliation, see Dkt. No.
30 at 2 ¶¶ 3, 4, 15-16; Dkt. No. 68-31 at 1-2, and plaintiff's
conclusory allegations to the contrary fail to raise a triable
issue of fact.
“To prevail on a [First Amendment] retaliation claim [based
on lost or destroyed property, an inmate] must show both
(1) that [the defendants] intentionally or deliberately lost or
destroyed his property, and (2) that they were personally
involved in doing so.” Key v. Toussaint, 660 F. Supp. 2d 518,
526 (S.D.N.Y. 2009) (internal quotation marks and citations
omitted). For example, in Key, the court awarded summary
judgment in favor of the defendant correction officers and
dismissed the plaintiff's First Amendment retaliation claim
alleging intentional loss or destruction of his property
where “[t]here [wa]s no evidence that [the defendants]
were the exclusive custodians of the property after they
took possession of it” prior to the plaintiff's transfer to
another correctional facility and “[t]he mechanism for storing
[the plaintiff's] property and its chain of custody [wa]s
simply unknown.” Id. Further, observing that the defendants
returned three of the plaintiff's four property bags, the court
reasoned that “[t]he return of a portion of his property further
suggest[ed] that there was no intentional act on any particular
person's part to lose or destroy his property.” Id.
Here, Sgt. Orzech's sworn declaration and accompanying
interdepartmental communications with Lt. Reif establish that
Clinton received four of plaintiff's property bags on April 23,
2014, which were labeled with inconsistent sets of numbering
tags, indicating that plaintiff had either a total of five or
seven property bags. See Dkt. No. 68-30 at 2 ¶ 5; Dkt.
No. 68-31 at 1. The first four of plaintiff's bags to arrive at
Clinton were issued to him on April 25, 2014. See Dkt. No.
68-31 at 1. Further, it is undisputed that Clinton received two
more of plaintiff's property bags on April 26, 2014, which
were issued to plaintiff on April 27, 2014; thus, as of April
27, 2014, plaintiff was in possession of six of his seven
property bags. See Dkt. No. 68-31 at 2; Dkt. No. 14-4 at
2. Therefore, the fact that Clinton personnel issued plaintiff
six of his property bags as they arrived at the facility from
Attica within a two-day period, the evidence “suggests that
there was no intentional act on any particular person's part to
lose ... his property.” Key, 660 F. Supp. 2d at 526. In fact,
the evidence demonstrates the opposite, as defendants have
established that Clinton personnel, including Sgt. Mailloux,
made efforts to locate plaintiff's missing property including
making numerous phone calls and emailing Attica. See Dkt.
No. 68-30 at 2 ¶ 6, 3 ¶¶ 11-12. Moreover, there is no
evidence that either Sgt. Orzech or C.O. Mailloux were the
exclusive custodians of any of plaintiff's property bags, and
the precise chain of custody between Attica and Clinton is
simply unknown. See Dkt. No. 68-31; see also Key, 660 F.
Supp. 2d at 526. Indeed, all of plaintiff's property transfer
forms indicate that C.O. Lee or C.O. Comya—not Sgt. Orzech
or C.O. Mailloux—packed his incoming property. See Dkt.
No. 14-4 at 1-4. In addition, it is undisputed that Attica was
the entity which had custody over plaintiff's property bags
prior to his transfer to Clinton—and his conclusory assertions
that Clinton personnel received his bags but intentionally lost
or withheld them are factually unsupported by the record
evidence.
*16 Plaintiff's reliance on the fact that personnel at Attica
initially informed Clinton personnel that plaintiff's property
was being held pending an IG investigation, but later stated
that “no investigation by IG was ongoing at th[at] time,”
fails to raise any issue of material fact as to whether Sgt.
Orzech or C.O. Mailloux were ever in exclusive custody
of plaintiff's property and/or intentionally withheld it. Dkt.
No. 68-31 at 2. At most, this establishes only that Attica
personnel provided incorrect or outdated information to
Clinton personnel regarding the status of the remaining three
property bags—two of which were received at Clinton only
four days after the receipt of the initial four bags. See id. at 1.
In any event, plaintiff's own documentary evidence appears
to establish that Clinton received the seventh bag in July
2014, for which plaintiff signed the property transfer sheet.
See Dkt. No. 14-4 at 4 (personal property transfer sheet of
one property bag dated July 2014 and containing plaintiff's
signature). Finally, Sgt. Orzech has sworn that he has “never
damaged a CD by putting a staple through it,” and plaintiff
offers only speculative allegations to the contrary. Id. at 3
¶ 14. Thus, plaintiff's allegations concerning Sgt. Orzech's
and C.O. Mailloux's alleged retaliatory loss or withholding of
his property bags or damage to his property are conclusory
as they are “unsubstantiated by any other direct evidence”
in the record, and his general disagreements fail to raise
an issue of material fact. Smith, 2006 WL 1133247, at *3.
Accordingly, plaintiff's First Amendment retaliation claim,
insofar as asserted against Sgt. Orzech and C.O. Mailloux
based on the alleged intentional loss or withholding of his
property bags, must be dismissed.
Plaintiff's claim that C.O. Mailloux violated his First
Amendment rights by removing him from the property
area in retaliation for threatening to file a grievance must
also be dismissed. Courts in this Circuit have held that
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an inmate's threat to file a grievance against a correction
officer can constitute protected activity for purposes of a First
Amendment retaliation claim. See Smith, 2006 WL 1133247,
at *10 (“I acknowledge that the First Amendment protects,
not only the filing of written grievances and complaints, but,
under some circumstances, the making of oral complaints
to corrections officers.”), aff'd, 219 F. App'x 110 (2d Cir.
2007) (summary order); see also Sprau v. Coughlin, 997 F.
Supp. 390, 393 (W.D.N.Y. 1998) (finding a prisoner's threat to
file a complaint against a prison guard sufficient to establish
protected activity). However, defendants have established
that plaintiff would have been removed from the property area
regardless of any retaliatory motivation by C.O. Mailloux,
because Sgt. Orzech determined that plaintiff had become
aggressive and agitated when he was informed that only
four of his property bags had arrived at the facility, and that
plaintiff's “continued presence could pose a threat to the safety
and security of the facility.” Dkt. No. 68-30 at 3 ¶ 9; see Dkt.
No. 68-29 at 2 ¶ 7. Therefore, even assuming plaintiff could
demonstrate retaliatory motive, defendants have established
that C.O. Mailloux's action of removing plaintiff from the
property holding area at the direction of Sgt. Orzech “would
have occurred” “even without the improper motivation” and
were done for the purpose of maintaining safety and order
at the facility. Scott, 344 F.3d at 287; see Brooks, 2014 WL
1292232, at *18. Moreover, to the extent that plaintiff states
that he will controvert defendants’ assertion that he became
aggressive by “submitting a DVD to prove otherwise,” no
such evidence has been submitted to the Court as of the filing
of plaintiff's opposition on July 22, 2019; the deadline for
filing opposition papers has expired; and plaintiff's general
disagreement with defendants’ documentary evidence fails
to raise a genuine issue of material fact. Dkt. No. 75-1 at
1. Accordingly, it is recommended that defendants’ motion
for partial summary judgment be granted and plaintiff's First
Amendment retaliation claims against Sgt. Orzech and C.O.
Mailloux be dismissed insofar as they arise out of plaintiff's
alleged retaliatory removal from the property holding area on
April 25, 2014.
2. Sgt. Randall
Plaintiff's First Amendment retaliation claim against Sgt.
Randall fails. It is undisputed that plaintiff has established that
he engaged in protected activity by filing grievances against
Sgt. Orzech and C.O. Mailloux concerning his missing
property on April 25, 2014. See Dkt. No. 14-4 at 5; see,
e.g., Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003)
(“the filing of prison grievances is a constitutionally protected
activity”). However, plaintiff's transfer to 13 Cell did not
constitute adverse action. Contrary to plaintiff's allegations,
defendants have established, though admissible evidence that,
13 Cell is “a cell in normal use in Unit-14 SHU and is
regularly maintained.” Dkt. No. 68-32 at ¶ 6. In addition, the
documentary evidence establishes that plaintiff was “afforded
the opportunity for additional cleaning supplies Tuesdays,
Thursdays, and Saturdays weekly” if he was unhappy with
the cleanliness of his cell. Id. In any event, even assuming
that plaintiff established that Sgt. Randall's act of transferring
him to 13 Cell was done with a retaliatory motive and
constituted adverse action, defendants have established that
plaintiff would have been transferred to SHU regardless
of any personal animus Sgt. Randall harbored against him
“based upon his behavior,” and that plaintiff was placed in 13
Cell based on “availab[ility].” Dkt. No. 68-32 at 2 ¶ 5; see
Scott, 344 F.3d at 287-88; Brooks, 2014 WL 1292232, at *18.
*17 Alternatively, plaintiff cannot demonstrate any causal
connection between the filing of his April 25, 2014 grievance
against Sgt. Orzech and C.O. Mailloux and his cell transfer.
To plausibly allege causation, a plaintiff “must allege facts
suggesting that the protected conduct was a substantial or
motivating factor in the prison official's decision to take
action against him.” Burton v. Lynch, 664 F. Supp. 2d
349, 367 (S.D.N.Y. 2009) (internal quotations, brackets, and
citations omitted). It is well settled that “[a]llegations of
adverse actions alone ... are insufficient to establish retaliation
absent facts supporting an inference of a causal connection
between the adverse actions and the protected conduct.”
Baskerville v. Blott, 224 F. Supp. 2d 723, 732 (S.D.N.Y.
2002). Factors indicating retaliatory motive include: (1)
temporal proximity between the protected activity and the
alleged retaliatory act; (2) an inmate's prior good disciplinary
record; (3) vindication at a hearing on the matter; and
(4) statements by the defendant concerning his motivation.
See id. (citing Colon, 58 F.3d at 872-73). With regard to
temporal proximity, the Second Circuit “has not drawn a
bright line to define the outer limits beyond which a temporal
relationship is too attenuated to establish a causal relationship
between the exercise of a federal constitutional right and an
allegedly retaliatory action.” Gorman-Bakos v. Cornell Co-
op. Extension of Schenectady Cty, 252 F.3d 545, 554 (2d Cir.
2001).
However, as the Second Circuit explained:
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[P]risoner retaliation claims are
easily fabricated, and ... pose a
substantial risk of unwarranted
judicial intrusion into matters
of general prison administration.
Accordingly, while we have held
that temporal proximity between
protected conduct and an adverse
action constitutes circumstantial
evidence of retaliation, we have
consistently required some further
evidence of retaliatory animus
before permitting a prisoner to
proceed to trial on a retaliation
claim.
Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (summary
order) (internal citations and quotation marks omitted).
Here, although the alleged adverse action of plaintiff's transfer
to 13 Cell occurred within close temporal proximity to the
filing of his April 25, 2014 grievance, it is well-settled that
“temporal proximity without more is insufficient to survive
summary judgment.” Flynn v. Ward, No. 15-CV-1028 (TJM/
CFH), 2018 WL 3195095, at *11 (N.D.N.Y. June 7, 2018)
(internal quotation marks and citation omitted). Further, the
record is devoid of facts establishing that plaintiff's filing
his April 25, 2014 grievance against Sgt. Orzech and C.O.
Mailloux was “a substantial or motivating factor” in Sgt.
Randall's decision to transfer plaintiff to 13 Cell. Burton, 664
F. Supp. 2d at 367. In support of his claim, plaintiff alleges
only that Sgt. Randall stated, “[o]h now you wanna [sic] talk
to me[?] You have stopped every [c]aptain, [d]eputy[,] and
[s]uperintendent about your property, but you have not said
anything to me about it. This is my ... unit and you must come
to me first.” Id. at 9 ¶ 14 (parenthesis omitted). In response,
plaintiff allegedly informed Sgt. Randall that he “had not
come to [Sgt. Randall] because [Sgt. Randall] told [plaintiff]
that [he] was a ‘needy inmate’ and that [plaintiff] should not
‘stop him every[ ]day.’ ” Id. Even assessing these statements
in the light most favorable to plaintiff as the non-moving
party, they are insufficient to support “an inference of a causal
connection between” plaintiff's April 25, 2014 grievance and
Sgt. Randall's act of transferring plaintiff to 13 Cell, as they
do not make any mention of plaintiff filing complaints against
other Clinton correctional staff. Baskerville, 224 F. Supp. 2d
at 732.
Indeed, plaintiff does not allege—let alone provided factual
support—to suggest that Sgt. Randall was even aware of
plaintiff's April 25, 2014 grievance such that his act of
transferring plaintiff to 13 Cell on April 27, 2014, was
retaliatory. See Baskerville, 224 F. Supp. 2d at 732. Rather,
it is undisputed that plaintiff did not file a grievance against
Sgt. Randall prior to April 27, 2019, and the record is devoid
of facts that would allow the Court to draw the “legitimate
inference” that Sgt. Randall retaliated against plaintiff based
on his grievance filed against other correctional personnel.
Espinal, 558 F.3d at 130; see Wright v. Goord, 554 F.3d
255, 274 (2d Cir. 2009) (dismissing a retaliation claim
against a correction officer where the only alleged basis for
retaliation was a complaint written against another officer);
see also Burroughs v. Mitchell, 325 F. Supp. 3d 249, 282
(N.D.N.Y. 2018) (“As a general matter, it is difficult to
establish one defendant's retaliation for complaints against
another defendant.” (internal quotation marks and citation
omitted)). In fact, plaintiff's own documentary evidence
establishes that his grievance against Sgt. Orzech and C.O.
Mailloux, dated April 25, 2014, was not received by the
inmate grievance supervisor until May 6, 2014—after the
alleged adverse action of plaintiff's transfer to 13 Cell on April
27, 2014. See Dkt. No. 14-4 at 5. Thus, the alleged adverse
action of transferring plaintiff to 13 Cell preceded plaintiff's
constitutionally-protected conduct and, therefore, does not
establish the requisite causal nexus to support his retaliation
claim against Sgt. Randall. See, e.g., Gustafson v. Vill. of
Fairport, 106 F. Supp. 3d 340, 353 (W.D.N.Y. 2015) (holding
that the plaintiff failed to establish a causal link to support his
First Amendment retaliation claim where the alleged adverse
action of defendant police officers beating him preceded
his constitutionally-protected expression of requesting an
attorney). In opposition, plaintiff's general disagreement
with defendants’ arguments and documentary evidence is
conclusory and “insufficient to defeat [defendant's] properly
supported motion for summary judgment. See Bickerstaff,
196 F.3d at 452.
*18 Finally, to the extent that plaintiff contends that Sgt.
Orzech is liable for Sgt. Randall's conduct, his claim fails
because the record is bereft of facts from which the Court
could infer that Sgt. Orzech was in any way in a position
of authority over Sgt. Randall such that he could have
controlled Sgt. Randall's actions or remedied any alleged
wrongs committed with respect to the transfer. See Farrell
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v. Burke, 449 F.3d 470, 484 (2d Cir. 2006) (“It is well
settled in this Circuit that personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to
an award of damages under § 1983.”). In any event, as
defendants have established that Sgt. Randall did not violate
plaintiff's constitutional rights by transferring him to 13 Cell,
plaintiff cannot establish liability pursuant to Section 1983
against Sgt. Randall's superiors based thereon. See Hernandez
v. Keane, 341 F.3d 137, 145 (2d Cir. 2003) (holding that,
absent an underlying constitutional violation, a supervisor
cannot be held liable for the actions or omissions of a
subordinate under Section 1983). Accordingly, plaintiff's First
Amendment retaliation claim against Sgt. Randall and Sgt.
Orzech based on his transfer to 13 Cell must be dismissed.
3. C.O. Gadway
Plaintiff's claim that C.O. Gadway violated his First
Amendment rights by conducting a “destructive” cell search
and issuing a false misbehavior report on April 30, 2014,
in retaliation for plaintiff filing grievances against other
correctional staff fails because, as with his claim against
Sgt. Randall, the record lacks facts that would allow the
Court to draw the “legitimate inference” that C.O. Gadway
retaliated against plaintiff based grievances he filed against
other Clinton correctional personnel. Espinal, 558 F.3d at 130;
see Wright, 554 F.3d at 274; see Burroughs, 325 F. Supp. 3d
at 282. Aside from plaintiff's conclusory allegations that, as
“the A-man for the SHU, [Gadway] would have access to
all complaints filed by SHU prisoners,” Dkt. No. 14-1 at 17
¶ 24, there are no facts to support “an inference of a causal
connection between” plaintiff's filing of grievances and C.O.
Gadway conducting destructive cell searches and issuing
false misbehavior reports. Baskerville, 224 F. Supp. 2d at
732. Further, defendants have established, through admissible
evidence, that C.O. Gadway conducted an authorized search
of plaintiff's cell on April 30, 2014, and discovered documents
indicating that plaintiff was running MAEG from his cell
and using his prison correspondence to solicit funds—both
violations of DOCCS rules. See Dkt. No. 68-23 at 3 ¶ 4. Thus,
defendants have established that C.O. Gadway would have
taken the action complained of regardless of any personal
animus he held against plaintiff. See Scott, 344 F.3d at 287-88;
Brooks, 2014 WL 1292232, at *18.
In opposition, plaintiff offers only his conclusory and self-
serving allegations that, because he was not in possession
of his seventh property bag as of the April 30, 2014 cell
search, he was not in possession of any business documents.
See Dkt. No. 14-1 at 12 ¶ 20. Plaintiff would have the
Court believe that the only bag containing documents relating
to MAEG or his other businesses was being intentionally
withheld by Clinton staff and that, to retaliate against plaintiff
for filing grievances, C.O. Gadway went to wherever his
seventh property bag was purportedly being hidden, found
incriminating documents, and issued a misbehavior report
based thereon. See id. at 12-13 ¶ 20. Plaintiff's contentions in
this regard are “unsubstantiated by any other direct evidence
and ... so replete with inconsistencies and improbabilities
that no reasonable juror would undertake the suspension of
disbelief necessary to credit the allegations.” Smith, 2006
WL 1133247, at *3 (internal quotation marks and citation
omitted).
Moreover, concerning C.O. Gadway's July 18, 2014 cell
search and misbehavior report, which was also issued for his
possession of documents indicating that plaintiff was running
MAEG from his cell and using his prison correspondence to
solicit funds, plaintiff admits to possessing such documents
and engaging in such activities. See Dkt. No. 14-1 at 14
¶ 21. Therefore, as defendants aver, as plaintiff “admit[s]
to engaging in the conduct that formed the basis of the
misbehavior report,” defendants have established that the
July 18, 2014 misbehavior report would have been issued
regardless of any retaliatory animus on the part of C.O.
Gadway. Brooks, 2014 WL 1293343, at * 25; see Scott,
344 F.3d at 287-88. 12 Consequently, it is recommended that
plaintiff's claims against C.O. Gadway be dismissed.
4. C.O. Lee
*19 Defendants are entitled to summary judgment as to
plaintiff's First Amendment retaliation claims against C.O.
Lee. Plaintiff engaged in constitutionally-protected conduct
by filing his May 19, 2015 misbehavior report against C.O.
Lee based on C.O. Lee's May 2015 cell search. See Dkt.
No. 14-4 at 36; Davis, 320 F.3d at 352-53. Further, courts
in this Circuit have held that “[t]he retaliatory destruction
of an inmate's personal property can constitute an adverse
action.” Roseboro, 791 F. Supp. 2d at 374; see Smith v.
City of New York, 03-CV-7576 (NRB), 2005 WL 1026551
at *3 (S.D.N.Y. May 3, 2005) (stating that the “retaliatory
destruction of a prisoner's personal property has ... been
found substantial enough to qualify as an adverse action.”).
Here, however, defendants have established that the property
C.O. Lee confiscated from plaintiff's cell during the June
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and July 2015 cell searches was destroyed in September
2015 pursuant to DOCCS Directive #4911 because the visitor
plaintiff selected to receive that property never visited the
facility within the specified time-frame—not out of retaliation
for plaintiff filing his May 2015 grievance. See Dkt. No.
14-5 at 16, 17. Indeed, plaintiff signed the Authorization
for Disposal of Personal Property form on August 14, 2015,
which explicitly provided that “[t]he items [would] be held
a maximum of 14 days pending arrival of a visitor,” and
plaintiff did not select an alternative choice for disposition of
his property in the event the visitor did not accept his property.
Dkt. No. 68-28 at 1. Therefore, defendants have established
that plaintiff's excess magazines and books would have been
destroyed regardless of any retaliatory motive. See Scott, 344
F.3d at 287-88; Brooks, 2014 WL 1292232, at *18 (citation
omitted). 13
Further, insofar as plaintiff suggests that the cell shield
order violated his First Amendment rights, defendants have
established that the shield order was a direct result of plaintiff
screaming at and threatening C.O. Lee that that he would
“violate” him, and not in retaliation for plaintiff engaging in
protected conduct. See Dkt. No. 14-1 at 43. In any event,
nothing in the record indicates that C.O. Lee was responsible
for the shield order. See Farrell, 449 F.3d at 484 (“It is well
settled in this Circuit that personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to
an award of damages under § 1983.”). Rather, the record
evidence establishes only that (1) plaintiff was placed in a
cell with a shield after C.O. Lee informed his area supervisor
of plaintiff's threatening statements; (2) Sgt. Delisle and Sgt.
Orzech recommended renewing the shield order on three
separate occasions because “monitoring indicate[d] that the
threat to staff ... ha[d] not lessened” and “continuation of th[e
shield] order for staff protection [wa]s warranted at th[ose]
time[s]”; and (3) the shield order was authorized by higher
ranking Clinton personnel. Dkt. No. 14-4 at 46, 47, 48. In
addition, to the extent plaintiff attempts to argue that C.O.
Lee retaliated against him by filing a false misbehavior report
for plaintiff threatening to “violate” him, plaintiff admits to
making this threat, although now attempts, unpersuasively,
to argue that he qualified his threat by stating that he would
“verbally violate” Lee. Dkt. No. 14-1 at 34 ¶ 46. Therefore,
as defendants contend, plaintiff “admit[s] to engaging in the
conduct that formed the basis of the misbehavior report,” and
defendants have established that the July 2015 misbehavior
report concerning plaintiff's threatening statement would have
been issued regardless of any retaliatory animus on the part
of C.O. Lee. Brooks, 2014 WL 1293343, at *25; see Scott,
344 F.3d at 287-88. Moreover, plaintiff's blanket allegation
that Sgt. Orzech is liable for C.O. Lee's actions fails, as
plaintiff proffers no factual support to establish Sgt. Orzech
was in a position of authority over C.O. Lee or personally
involved in any of C.O. Lee's conduct. See Farrell, 449 F.3d
at 484. In any event, as discussed, C.O. Lee did not violate
plaintiff's constitutional rights. See Hernandez, 341 F.3d
at 145. Accordingly, plaintiff's First Amendment retaliation
claim against C.O. Lee and Sgt. Orzech based on C.O. Lee's
alleged filing of false misbehavior report based on plaintiff's
threat to “violate” him and the implementation of a shield
order, must be dismissed.
*20 To the extent plaintiff asserts that C.O. Lee retaliated
against him for filing his May 2015 grievance by issuing
a false misbehavior report in July 2015, which charged
plaintiff with possessing materials indicating that he was
soliciting funds and violating facility correspondence rules,
defendants are entitled to partial summary judgment. See Dkt.
No. 14-1 at 32. As addressed above, plaintiff's filing of the
May 2015 grievance constitutes constitutionally-protected
activity. See Davis, 320 F.3d at 352-53. Further, a sufficient
causal connection appears to exist, as C.O. Lee's alleged
retaliatory action of filing a false misbehavior report occurred
in close temporal proximity—approximately two months—
after plaintiff filed his May 2015 grievance, and plaintiff was
ultimately vindicated at the disciplinary hearing insofar as
he was found not guilty of solicitation or violating facility
correspondence rules. See Baskerville, 224 F. Supp. 2d at 732.
Notwithstanding the foregoing, the evidence does not support
a finding of adverse action; therefore, plaintiff's claim fails to
satisfy the second element of a First Amendment retaliation
claim. See Espinal, 558 F.3d at 128. To constitute adverse
action, the “retaliatory conduct” must be such that it “would
deter a similarly situated individual of ordinary firmness form
exercising ... constitutional rights.” Gill, 389 F.3d at 381
(internal quotation marks and citation omitted). “Conduct
that is de minimis does not provide this deterrent effect
and does not give rise to actionable retaliation.” Lunney v.
Brureton, No. 04-CV-2438 (LAK/GWG), 2007 WL 1544629,
at *20 (S.D.N.Y. May 29, 2007) (citation omitted). Although
it is well settled that prison inmates do not have a general
constitutional protection from being falsely accused in a
prison misbehavior report, see Boddie v. Schnieder, 105 F.3d
857, 862 (2d Cir. 1997) (citing Freeman v. Rideout, 808 F.2d
949, 951 (2d Cir. 1986)), the Second Circuit has held that
the filing of a false misbehavior report may constitute an
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adverse action for purposes of an inmate's First Amendment
retaliation claim. See Gill, 389 F.3d at 384.
However, in Freeman, the Second Circuit held that the
Constitution merely guarantees inmates “the right not to be
deprived of a protected liberty interest without due process
of law.” Freeman, 808 F.2d at 951. In Franco v. Kelly, the
Second Circuit made clear that, “[a]s long as prison officials
grant the inmate a hearing and an opportunity to be heard,
the ‘filing of unfounded charges d[oes] not give rise to a per
se constitutional violation actionable under section 1983.’ ”
Franco v. Kelly, 854 F.2d 584, 587 (2d Cir. 1988) (quoting
Freeman, 808 F.2d at 953). Furthermore, courts within this
Circuit have held that “[t]he filing of misbehavior reports
that result in a temporary loss of various privileges such as
permission to visit the commissary do not constitute adverse
action because they are de minimis.” Gantt v. Lape, No. 9:10-
CV-0083 (GTS/TWD), 2012 WL 4033729, at *8 (N.D.N.Y.
July 31, 2012) (internal quotation marks and citation omitted);
see also Bartley v. Collins, No. 95-CV-10161(RJH), 2006
WL 1289256, at *7 (S.D.N.Y. May 10, 2006) (“Bates’
misbehavior report against plaintiff and Collin's first report,
which both resulted in plaintiff's temporary loss of various
privileges such as permission to visit the commissary ... do
not constitute adverse action because they were de minimis;
they do not constitute penalties that would deter a similarly
situated prisoner of ordinary firmness from exercising his
constitutional rights.”).
Here, plaintiff was not found guilty of solicitation and
violating facility correspondence rules, as charged C.O. Lee's
July 12, 2015 misbehavior reports. See Dkt. No. 14-4 at 45,
54; Dkt. No. 14-1 at 34 ¶ 46. Consequently, no penalty was
imposed upon him based on those charges; therefore, even
if C.O. Lee issued a false misbehavior report in retaliation
for plaintiff filing grievances, the conduct was de minimis, as
plaintiff suffered no harm as a result. See Lunney, 2007 WL
1544629, at *20; cf. Gantt, 2012 WL 4033729, at *8; Bartley,
2006 WL 1289256, *7. Based on the foregoing, defendants’
motion for partial summary judgment dismissing plaintiff's
claims against C.O. Lee must be granted.
5. C.O. Beaudette
*21 Plaintiff's First Amendment retaliation claims against
C.O. Beaudette must be dismissed. Insofar as plaintiff
claims that C.O. Beaudette retaliated against him for filing
grievances and spearheading the Clean Up The Clinton SHU
Campaign by denying plaintiff a shower on one occasion
in November 2015, and taking food out of plaintiff's cell
and placing dirty books on plaintiff's sheets during a cell
search in March 2016, these isolated acts constitute de
minimis conduct and do not amount to adverse action. See
Lunney, 2007 WL 1544629, at *21 (“Case law suggests
that the isolated or sporadic denial of privileges do not
suffice to state a claim of actionable retaliation.”); Snyder v.
McGinnis, No. 03-CV-0902E (WMS), 2004 WL 1949472,
at *11 (W.D.N.Y. Sept. 2, 2004) (deprivation of meal on
two occasions is de minimis and does not state a claim
for retaliation); see also Smith, 2017 WL 2172318, at *4
(“That [the defendant correction officer] allegedly threw
out the [p]laintiff's food and bed linen is not a substantial
enough [injury] to deter legitimate grievances against prison
officers.” (internal quotation marks and citation omitted));
Phillips v. LaValley, No. 9:12-CV-609 (NAM/CFH), 2014
WL 1202693, at *9 (N.D.N.Y. Mar. 24, 2014) (“the adverse
action of removing photos off of a cell wall is so de minimis,
that it falls outside the ambit of constitutional protection”)
(internal quotation marks and citations omitted)).
Insofar as plaintiff contends that C.O. Beaudette retaliated
against him in violation of his First Amendment rights
by confiscating 82 of his 132 stamps, defendants have
established through admissible evidence that C.O. Beaudette
would have taken this action regardless of any retaliatory
animus because plaintiff was in violation of DOCCS Rule
113.16, which prohibits inmates from “be[ing] in possession
of stamps in excess of $22.50 in value.” 7 N.Y.C.R.R. §
270.2; see Dkt. No. 68-15 at ¶¶ 7, 8; see also Scott, 344
F.3d at 287-88; Brooks, 2014 WL 1292232, at *18 (citation
omitted). In any event, aside from plaintiff's conclusory
assertions, nothing suggests that leaving plaintiff with 50
stamps, as opposed to 132 stamps, deterred or prevented
him from exercising his constitutional rights. See generally
Gill, 389 F.3d 379, at 381. Thus, the conduct complained
of is “de minimis and therefore “outside the ambit of
constitutional protection.” Dawes v. Walker, 239 F.3d 489,
493 (2d Cir. 2001) (citations omitted), overruled on other
grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
Moreover, plaintiff's entire argument in this regard is based
on his erroneous belief that inmates are entitled to possess
stamps in value up to $24.50—which is clearly belied by the
plain language of 7 N.Y.C.R.R. § 113.16. See Dkt. No. 14-1
at 46 ¶ 65. Accordingly, it is recommended that plaintiff's
First Amendment retaliation claims against C.O. Beaudette
be dismissed.
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6. Sgt. Delisle and C.O. Stickney
As defendants correctly argue, plaintiff's First Amendment
retaliation claims against Sgt. Delisle and C.O. Stickley must
be dismissed because plaintiff has “admitted to engaging in
the conduct that formed the basis of the misbehavior reports.”
See Dkt. No. 68-3 at 9 (quoting Brooks, 2014 WL 1292232,
at *24). Defendants have established that Sgt. Delisle's and
C.O. Stickney's allegedly retaliatory actions would have
occurred regardless of whether they acted with an improper
retaliatory motive. See Scott, 344 F.3d at 287-88; Brooks,
2014 WL 1292232, at *18. In issuing plaintiff misbehavior
reports for possessing documents indicating that plaintiff
was operating a business from his cell, including using his
facility correspondence to solicit funds from other inmates
in order to draft grievances on their behalf, and possessing
identification numbers of inmates who were known gang
members, Sgt. Delisle and C.O. Stickney charged plaintiff
with violations of numerous DOCCS Rules, including
Rules 103.20 (solicitation), 180.11 (correspondence), 105.13
(Gangs), 103.10 (Extortion), 103.20 (Extortion/Soliciting).
See Dkt. No. 14-6 at 21-24. Indeed, as defendants
contend, plaintiff admitted at his deposition to engaging
in the unauthorized operation of several businesses while
incarcerated. See Dkt. No. 68-13 at 19-20. Moreover, to
the extent that plaintiff contends that Sgt. Delisle and C.O.
Stickney retaliated against him by denying him showers
and meals, his allegations are unsupported by any specific
facts and, therefore, do not survive summary judgment. See
generally Kerzer, 156 F.3d at 400; Smith, 2006 WL 1133247,
at *3. Accordingly, it is recommended that plaintiff's First
Amendment retaliation claims against Sgt. Delisle and C.O.
Stickney be dismissed.
7. Librarian Delisle
*22 Defendants are entitled to summary judgment
dismissing plaintiff's First Amendment claims against
Librarian Delisle. Plaintiff conceded at deposition that he
has no factual basis to allege that Librarian Delisle retaliated
against him in violation of his First Amendment rights by
denying his library requests because he filed grievances
against her husband, Sgt. Delisle. See Dkt. No. 68-3 at 9-10.
Indeed, in response to defense counsel's question whether
plaintiff was “alleging that [Librarian Delisle's] actions had
anything to do with the fact that [plaintiff] had filed grievance
against her husband,” plaintiff replied “I can't say that because
I don't know.” Dkt. No. 68-13 at 79. Further, in response
to defense counsel's inquiry as to whether it was “fair to
say that [plaintiff's] allegation against [Librarian] Delisle
is not that she retaliated against [plaintiff] because [he
had] fil[ed] grievances against her husband[, but] generally
because people at Clinton didn't want [plaintiff] to have the
information that could help [him] build a case or ... run
a business,” plaintiff stated “that is my allegation.” Id. at
80 (emphasis added). Moreover, the Amended Complaint is
devoid of any facts or allegations in support of a retaliation
claim against Librarian Delisle. See Dkt. No. 14-1 at 40-44
¶¶ 58-61. Thus, as plaintiff made clear that he did not
intend to allege a First Amendment retaliation claim against
Librarian Delisle and, in fact, stated that he had no factual
basis to do so, defendants are entitled to summary judgment
dismissing any purported First Amendment retaliation claim
against Librarian Delisle. See Salahuddin, 657 F. Supp. at
377 (“One of the prime purposes of the summary judgment
rule ‘is to isolate and dispose of factually unsupported claims
or defenses.’ ” (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986))). In opposition, plaintiff fails to raise
any genuine issue of material fact through his conclusory
statement that his claims against Librarian Delisle should not
be dismissed on the basis that he testified at deposition that
“[he] [didn't] know’ if [Librarian] Delisle denied [him] law
library resources as retaliation for [his] litigation” because
“what [he] feel[s] is irrelevant.” Dkt. No. 75-1 at 2 ¶ 2; see
Kerzer, 156 F.3d at 400.
In any event, to the extent that plaintiff contends that Librarian
Delisle wrongfully denied him access to requested internet-
based research materials, including e-books, his claim lacks
merit and is belied by the record, including Librarian
Delisle's declaration in which she makes clear that she
followed DOCCS directives in denying plaintiff's requests
for internet related materials. See Dkt. No. 68-18 at 2-3 ¶ 7.
Indeed, defendants have established that, pursuant to DOCCS
Directive No. 4470, Librarian Delisle was not authorized to
provide plaintiff with such materials. See id. Accordingly, it is
recommended that plaintiff's claims against Librarian Delisle
be dismissed.
8. Dr. Adams
Defendants are entitled to summary judgment as to plaintiff's
claim that Dr. Adams retaliated against him in violation of
his First Amendment rights for filing grievances against him
by providing plaintiff with inadequate medical treatment. See
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Dkt. No. 68-3 at 11. As an initial matter, it is unclear whether
plaintiff even bases his First Amendment retaliation claim
against Dr. Adams on his filing of grievances against Dr.
Adams, as he explicitly argues that Dr. Adams refused him
medical treatment “based largely (or probably solely) on [his]
refusal to discuss [his] case [concerning Sing Sing] with
him.” Dkt. No. 14-1 at 26 ¶ 36. However, even assuming
plaintiff does premise his retaliation claim against Dr. Adams
on his constitutionally-protected conduct of filing grievances
against him, see Davis, 320 F.3d at 352-53, defendants are
still entitled to summary judgment.
Plaintiff's own documentary evidence establishes that,
contrary to his contention, Dr. Adams did, in fact, examine
plaintiff and proscribe various medications to treat his skin
condition, including “Hydrocortisone, Fluocinonide[,] and
Clindamyacin.” Dkt. No. 14-5 at 9; Dkt. No. 14-4 at 68.
In addition, plaintiff's documentary evidence establishes that
Dr. Adams “determined that an electric shaver and Magic
Shave [we]re not medically indicated” and that there was
“no medical indication for medical boots.” Dkt. No. 14-5 at
8; Dkt. No. 14-4 at 68. Dr. Adams’ declaration, in which
he states that his “denial of plaintiff's requests for medical
boots, lotion, blood pressure and other medications was
based on [his] professional evaluation of [p]laintiff's medical
needs”; that “[i]n [his] estimation, the boots and medications
requested were unnecessary”; and that he “never ... with[e]ld
medications as a means of retaliation for [plaintiff's] filing of
grievances,” corroborates plaintiff's documentary evidence.
Dkt. No. 68-14 at 2 ¶¶ 6, 8. Plaintiff's conclusory allegations
to the contrary, including that the skin prescriptions do not
work, see Dkt. No. 14-1 at 29 ¶ 38, fail to raise a genuine
issue of material fact, are unsupported by the record, and
amount only to a personal disagreement with Dr. Adams’
treatment based on his professional medical judgment—
which fails to support a constitutional claim. See Chance, 143
F.3d at 703 (“It is well-established that mere disagreement
over the proper treatment does not create a constitutional
claim.”). Consequently, it is recommended that plaintiff's
First Amendment retaliation claim against Dr. Adams be
dismissed.
C. First Amendment Mail
Interference Claim Against Clemons
*23 Plaintiff's claim against Clemons, properly
characterized as a First Amendment mail interference claim,
should be dismissed.
“The First Amendment protects an inmate's right to send
and receive both legal and nonlegal mail, although prison
officials may regulate that right if the restrictions they employ
are ‘reasonably related to legitimate penological interests.’
” Abreu v. Travers, No. 9:15-CV-0540 (MAD/ATB), 2016
WL 6127510, at *10 (N.D.N.Y. Oct. 20, 2016) (quoting
Thornburgh v. Abbott, 490 U.S. 401, 409 (1989) (additional
quotation marks and citation omitted); see Johnson v. Goord,
445 F.3d 532, 534 (2d Cir. 2006) (per curiam). Legal mail is
entitled to greater protection from interference than nonlegal
mail. See Johnson, 445 F.3d at 534 (citing Davis, 320 F.3d
at 351). “A single instance of mail tampering that does
not result in the plaintiff suffering any damage is generally
insufficient to support a constitutional challenge.” Burroughs,
138 F. Supp. 3d at 210 (citation omitted). “Rather, the inmate
must show that prison officials ‘regularly and unjustifiably
interfered with the incoming legal mail.’ ” Davis, 320 F.3d
at 351 (quoting Cancel v. Goord, No. 00-CV-2042, 2001 WL
303713, at *6 (S.D.N.Y. Mar. 29, 2001)).
Here, plaintiff premises his claim against Clemons on his
conclusory and self-serving allegation that she issued her
misbehavior report based on a review of his outgoing mail
without first obtaining a valid mail watch order. See Dkt. No.
14-1 at 61 ¶ 86. However, as defendants establish through
admissible evidence, Clemons did obtain a 60-day mail
watch order for all of plaintiff's incoming and outgoing non-
privileged correspondence, which Supt. Kirkpatrick approved
on December 9, 2016. See Dkt. No. 68-16 at 2 ¶ 7. Moreover,
as discussed above, plaintiff does not deny that he engaged
in the unauthorized use of his correspondence to operate
business ventures while incarcerated—the very source of the
solicitation charges of Clemons misbehavior report. See Dkt.
No. 68-13 at 51-52; Dkt. No. 14-7 at 40-41. In opposition,
plaintiff asserts only that he “disagree[s] that Clemons had a
properly authorized mail watch order supported by probable
cause,” Dkt. No. 75-1 at 2, which is belied by the record and
fails to raise a genuine issue of material fact. See Kerzer, 156
F.3d at 400. Accordingly, it is recommended that plaintiff's
First Amendment mail interference claim against Clemons be
dismissed.
D. Eighth Amendment Medical
Indifference Claim Against Dr. Gillani
To state an Eighth Amendment claim for medical
indifference, a plaintiff must allege that the defendant was
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deliberately indifferent to a serious medical need. See Farmer
v. Brennan, 511 U.S. 825, 834 (1994).
The objective component of an Eighth Amendment medical
indifference claim “requires that ‘the alleged deprivation
must be sufficiently serious, in the sense that a condition
of urgency, one that may produce death, degeneration, or
extreme pain exists.’ ” Hill v. Curcione, 657 F.3d 116, 122
(2d Cir. 2011) (quoting Hathaway v. Coughlin, 99 F.3d 550,
553 (2d Cir. 1996)). “[I]n the context of suicide, jailers are
not required to safeguard every inmate; only those presenting
a strong likelihood of suicide are entitled to protection.”
Allah v. Kemp, No. 9:08-CV-1008 (NAM/GHL), 2010 WL
5860290, at *7 (N.D.N.Y. Nov. 9, 2010) (internal quotation
marks and citation omitted), report and recommendation
adopted, No. 9:08-CV-1008 (NAM/GHL), 2011 WL 705210
(N.D.N.Y. Feb. 22, 2011); see Helijas v. Corr. Med. Care,
Inc., No. 115-CV-1049 (GTS/DJS), 2016 WL 5374124, at
*13 (N.D.N.Y. Sept. 26, 2016) (“With respect to the objective
prong of an Eighth Amendment claim, courts have found
that depression with suicidal ideation, or severe anxiety
attacks are sufficiently severe conditions to meet the objective
element of the deliberate indifference standard.” (internal
quotation marks and citation omitted)). “[T]o establish a
strong likelihood of suicide, a[n inmate] must have made a
previous threat of or an earlier attempt at suicide.” Allah, 2010
WL 5860290, at *7 (internal quotation marks and citation
omitted).
*24 Under the subjective element, medical mistreatment
rises to the level of deliberate indifference only when it
“involves culpable recklessness, i.e., an act or a failure to act
... that evinces ‘a conscious disregard of a substantial risk of
serious harm.’ ” Chance, 143 F.3d at 703 (quoting Hathaway,
99 F.3d at 553). “Deliberate indifference requires more than
negligence, but less than conduct undertaken for the very
purpose of causing harm.” Hathaway v. Coughlin, 37 F.3d
63, 66 (2d Cir. 1994). “[N]egligence, even if it constitutes
medical malpractice, does not, without more, engender a
constitutional claim.” Chance, 143 F.3d at 703 (citation
omitted). A prison official acts with deliberate indifference
when he “ ‘knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.’ ” Chance, 143 F.3d at 702 (quoting Farmer,
511 U.S. at 137).
“In an inmate suicide context, there are two scenarios where
deliberate indifference may exist.” Allah, 2010 WL 5860290,
at *8. “First, officials could be deliberately indifferent to
the risk of suicide by failing to discover an individual's
suicidal tendencies.” Id. (internal quotation marks and citation
omitted). “Second, officials could have discovered and
have been aware of the suicidal tendencies, but could be
deliberately indifferent in the manner by which they respond
to the recognized risk of suicide.” Id. (internal quotation
marks and citation omitted). “The second scenario focuses on
the adequacy of preventive measures.” Id. (internal quotation
marks and citation omitted). Concerning the adequacy
of preventative measures, even if a medical defendant's
“treatment decision was erroneous, deliberate indifference
cannot be inferred [where] the decision was not such a
substantial departure from accepted professional judgment,
practice, or standards as to demonstrate that the person
responsible did not base the decision on such a judgment.”
Sims v. Gorman, No. 09-CV-6643 (MAT), 2012 WL 566875,
at *6 (W.D.N.Y. Feb. 21, 2012) (internal quotation marks and
citation omitted).
Upon careful review of the evidence, the undersigned
concludes that no reasonable juror could conclude that Dr.
Gillani acted with deliberate indifference to plaintiff's serious
medical needs. It is undisputed that plaintiff was placed in
the MHU on April 27, 2014, where he stayed until May 1,
2015, because he expressed threats of self-harm. See Dkt. No.
14-1 at 10 ¶ 17; Dkt. No. 68-25 at 3 ¶ 13. Plaintiff told Dr.
Gillani “[e]very[ ]day ... throughout [his] stay” in [MHU] that
he “would commit suicide if [he] was forced to go back to 13
Cell and live under such inhumane conditions.” Dkt. No. 14-1
at 10 ¶ 17; see Dkt. No. 68-13 at 39. Thus, plaintiff's stated
intention to commit suicide establishes the objective element
of the deliberate medical indifference test. See Allah, 2010
WL 5860290, at *8.
As defendants argue, however, the record establishes that
Dr. Gillani did not act with deliberate indifference. See
Dkt. No. 68-3 at 13-14. Dr. Gillani's sworn declaration and
treatment notes establish that he conducted an evaluation of
plaintiff on May 1, 2014, and concluded that plaintiff was not
suffering from any psychiatric illness, but rather, exhibiting
an “environment-related agenda” designed at being “released
from the SHU” and “that plaintiff's complaints did not stem
from mental illness, but rather, were calculated toward an
effort to be released from his confinement in the SHU.” Dkt.
No. 68-25 at 3 ¶¶ 23-25. Dr. Gillani based his conclusion on
numerous factors, including that he had been informed that
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plaintiff had not engaged in self-harming behavior prior to
his April 2014 transfer to MHU, his statements to Dr. Gillani
that he did not wish to return to SHU and that he would
prefer to return to general population to use the law library,
and his denial of having suicidal ideas. See id. at 3 ¶¶ 15-16,
19. Dr. Gillani also observed that plaintiff had been eating
and sleeping normally, denied having psychotic or anxiety
symptoms, and had a history of engaging in “self-harming
gestures” but no history of in-patient psychiatric treatment.
Id. at ¶ 21; see id. at ¶¶ 17, 19. Dr. Gillani's May 1, 2014
conclusions are bolstered by plaintiff's deposition testimony
in which he stated that, “[a]t one point, [he] couldn't take the
smell [of 13 Cell] so [he] attempted suicide to get out of the
cell so that they going to move [him] to [MHU] so that [he]
didn't ... have to take the smell inside of [13 C]ell.” Dkt. No.
68-13 at 23. Moreover, consistent with Dr. Gillani's analysis,
following his release back to SHU, on May 5, 2014, plaintiff
alleges only that he engaged in the self-harming gesture of
“fixing a noose around [his] neck,” but does not allege in his
Amended Complaint that he engaged in any actual suicide
attempt on that date. See Dkt. No. 14-1 at 10 ¶ 17. Based
on the foregoing, “deliberate indifference cannot be inferred”
from Dr. Gillani's decision to discharge plaintiff back to SHU
on May 1, 2015, as the evidence before the Court does not
establish that his decision “was ... such a substantial departure
from accepted professional judgment, practice, or standards
as to demonstrate that [Dr. Gillani] did not base [his] decision
on such a judgment.” Sims, 2012 WL 566875, at *6.
*25 Moreover, plaintiff's allegations, made for the first
time at deposition, that he made two suicide attempts shortly
after being examined by Dr. Gillani on two unspecified
occasions, are uncorroborated by the record and do not defeat
defendants’ properly supported motion for partial summary
judgment as to his Eighth Amendment medical indifference
claim. See Dkt. No. 68-13 at 30, 37-42. Plaintiff's deposition
testimony that he actually attempted suicide by hanging on
two occasions is wholly self-serving and directly contradicts
the allegations made in the Amended Complaint, which state
only that he “became suicidal,” expressed “suicidal plans and
ideations” prior to being admitted to MHU in April 2014;
“fix[ed] a noose to his neck” after being released on March
5, 2014; and that he “told [Dr.] Gillani of [his] suicidal plans
if [he] returned to 13 Cell.” Dkt. No. 14-1 at 10 ¶ 17, 66 ¶
95 (internal quotation marks omitted). Indeed, when asked
whether he “kn[e]w the dates” of his two suicide attempts,
plaintiff responded “I don't. They're listed in the complaint.”
Dkt. No. 68-13 at 30. However, no such dates or events
are mentioned in the Amended Complaint, and the record
is devoid of any evidence corroborating these belated and
self-serving allegations. See Dkt. No. 14-1 at 10-11 ¶ 17,
66 ¶ 95. Thus, although plaintiff's pro se submissions are to
be construed to raise the strongest arguments they suggest,
a party opposing summary judgment “may not rely merely
on allegations ... in its own pleading; rather, it[ ] must ...
set out specific facts showing a genuine issue for trial.”
Green v. Gunn, No. 06-CV-6248 (CJS), 2009 WL 1809932,
at *5 (W.D.N.Y. June 24, 2009) (internal quotation marks and
citation omitted). Plaintiff has failed to make such a specific
factual showing to raise a genuine issue for trial concerning
Dr. Gillani's conduct. Accordingly, it is recommended that
plaintiff's Eighth Amendment deliberate medical indifference
claim against Dr. Gillani be dismissed.
III. Conclusion
WHEREFORE, based on the findings set forth above, it is
hereby:
RECOMMENDED, that defendants’ Motion for Partial
Summary Judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No.
68) be GRANTED IN ITS ENTIRETY and the following
of plaintiff's claims be DISMISSED WITH PREJUDICE:
(1) First Amendment retaliation claims against Sgt.
Orzech, C.O. Mailloux, Sgt. Randall, C.O. Gadway,
C.O. Lee, C.O. Beaudette, Sgt. Delisle, C.O. Stickney,
and Dr. Adams;
(2) First Amendment claim against Librarian Delisle;
(3) First Amendment mail tampering claim against
Clemons; and
(4) Eighth Amendment medical indifference claim against
Dr. Gillani; and it is further,
RECOMMENDED, that the action be TERMINATED as
to Dr. Gillani, Dr. Adams, Librarian Delisle, C.O. Mailloux,
C.O. Beaudette, C.O. Gadway, C.O. Stickney, and Clemons;
and it is further,
ORDERED, that the Clerk of the Court revise the docket to
reflect the correct spelling of C.O. Mailloux's and Dr. Gillani's
names; and it is further,
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ORDERED, that that the Clerk of the Court serve a copy
of this Report-Recommendation and Order on all parties in
accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen 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.
Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 6(a), 6(e),
72. 14
All Citations
Not Reported in Fed. Supp., 2020 WL 3038275
Footnotes
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y.L.R. 72.3(c).
2 The Clerk of the Court is respectfully directed to modify the docket to reflect that the correct spelling of this
defendant's name is “Mailloux,” not “Mallioux.” See Dkt. No. 68-29.
3 The Clerk of the Court is respectfully directed to modify the docket to reflect that the correct spelling of this
defendant's name is “Gillani,” not “Galanie.” See Dkt. No. 68-25.
4 Following initial review of plaintiff's Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
1915A(b), Senior District Judge Thomas J. McAvoy dismissed 26 causes of action without prejudice and 23
defendants from the action. See Dkt. No. 17 at 59-60, 61. The Court held that the following claims survived
sua sponte review: plaintiff's (1) Eighth Amendment claims against Sgt. Randall, Lt. Rief, and Brown related
to his conditions of confinement in SHU Cell number 13; (2) Eighth Amendment claims against C.O. Lee, Sgt.
Orzech, and Sgt. Delisle related to a Shield Order; (3) Eighth Amendment claims against Deputy Zerniak,
Miller, and Venettozzi related to the length of plaintiff's SHU confinement at Clinton; (4) Eighth Amendment
deliberate medical indifference claim against Dr. Gillani; (5) First Amendment claims against C.O. Gadway,
C.O. Lee, and Clemons related to mail tampering; and (6) First Amendment retaliation claims against Sgt.
Orzech, C.O. Mallioux, Sgt. Randall, C.O. Gadway, C.O. Lee, C.O. Stickney, Sgt. Delisle, C.O. Beaudette,
Librarian Delisle, Dr. Adams, Supt. Racette, Brown, Keysor, Devlin, Macintosh, and Supt. Kirkpatrick. See
id. at 60-61.
5 Plaintiff styled his responsive submission as a “Summary Judgment and Preliminary Injunction Motion.”
See Dkt. No. 75 at 1. However, upon careful consideration, the Court concludes that plaintiff's “Summary
Judgment” motion is simply a typed reiteration of his hand-written Affidavit in Support of his Amended
Complaint, as the facts and arguments set forth therein are the same in both filings. See Dkt. No. 14-1; Dkt.
No. 75. In addition, as plaintiff's submission does not contain a Statement of Material Facts, it does not comply
with N.D.N.Y.L.R. 7.1(a)(3). Further, the Court concludes that plaintiff's “Preliminary Injunction Motion” is
merely a reiteration of the relief requested in the Amended Complaint. See Dkt. No. 75 at 67; Dkt. No. 14-1
at 73-74 (requesting identical relief in his Affidavit in support of his Amended Complaint to that stated in his
“Preliminary Injunction Motion.”). In fact, plaintiff's current “Preliminary Injunction Motion” is identical to the
preliminary injunction motion that the Court previously denied on its initial review of the Amended Complaint.
See Dkt. No. 16 at 1-2; Dkt. No. 17 at 62. Moreover, the only new documents contained in plaintiff's filing in
Dkt. No. 75 are his responses in opposition to defendants’ motion. See Dkt. Nos. 75-1, 75-2. Accordingly, the
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Court will treat plaintiff's submission as a response in opposition to defendants’ motion for partial summary
judgment and not as a cross motion for summary judgment or preliminary injunction motion.
6 Defendants’ partial motion for summary judgment requests dismissal of only plaintiff's: (1) First Amendment
retaliation claims against Sgt. Orzech, C.O. Mallioux, Sgt. Randall, C.O. Gadway, C.O. Lee, C.O. Stickney,
Sgt. Delisle, C.O. Beaudette, Librarian Delisle, and Dr. Adams; (2) First Amendment mail tampering claim
against Clemons; and (3) Eighth Amendment medical indifference claim against Dr. Gillani. See Dkt. No. 68-3
at 6-12. Accordingly, only the facts relevant to those claims will be recited herein. In addition, to the extent that
plaintiff's exhibits are relevant to the causes of action at issue on the present motion, the Court will consider
them as part of the Amended Complaint. See Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“A complaint is
deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference,
and documents that, although not incorporated by reference, are integral to the complaint.” (internal quotation
marks and citations omitted)).
7 Although plaintiff refers to the misbehavior report issued by Gadway on April 30, 2014 as “Exhibit E,” no such
document is contained in plaintiff's list of exhibits. See Amen. Compl. at 12 ¶ 20.
8 As stated supra at 4 n.6, defendants seek dismissal of only: plaintiff's (1) First Amendment retaliation claims
against Sgt. Orzech, C.O. Mallioux, Sgt. Randall, C.O. Gadway, C.O. Lee, C.O. Stickney, Sgt. Delisle, C.O.
Beaudette, Librarian Delisle, and Dr. Adams; (2) First Amendment mail tampering claim against Clemons;
and (3) Eighth Amendment medical indifference claim against Dr. Gillani. See Dkt. No. 68-3 at 6-12. The
Court denied defendants’ request to submit supplemental briefing—made nearly five months after expiration
of the dispositive motion deadline—in which they sought to include arguments in support of dismissal of
plaintiff's additional causes of action. See Dkt. Nos. 76-78. Notwithstanding the Court's order, defendants
filed a reply to plaintiff's opposition that includes arguments in support of dismissal of plaintiff's additional
causes of action. See Dkt. No. 79. Although the Second Circuit has clarified that a district court has discretion
to consider a belatedly-asserted argument, see Ruggiero v. Warner–Lambert Co., 424 F.3d 249, 252 (2d
Cir. 2005), the Court declines to exercise that discretion here “in light of [p]laintiff's pro se status and the fact
that [he] did not have an opportunity to respond” to the arguments advanced in defendants’ reply brief. Byrd
v. New York State Fingerlakes Developmental Disabilities Servs. O.P.W.D.D., No. 6:14-CV-06470 (MAT),
2018 WL 3305423, at *2 (W.D.N.Y. July 5, 2018).
9 Defendants’ motion for partial summary judgment states that C.O.s “Lee and Beaduette confiscated plaintiff's
stamps,” and asserts that plaintiff's admission to possessing an unauthorized amount of stamps relieves
both of these defendants from liability as to plaintiff's First Amendment retaliation claims. Dkt. No. 68-3 at 7.
However, upon review of the pleadings, plaintiff does not base his First Amendment retaliation claim against
C.O. Lee on C.O. Beaudette's confiscation of stamps. See Dkt. No. 14-1 at 31-33 ¶¶ 42-45. Therefore,
defendants appear to have erroneously included C.O. Lee in their analysis of plaintiff's claims asserted
against C.O. Beaudette. Accordingly, the Court will construe defendants’ argument insofar as it pertains to
C.O. Lee as arguing, generally, that plaintiff's First Amendment retaliation claim against him fails because
plaintiff admits to engaging in the conduct for which C.O. Lee issued him misbehavior reports. See Dkt. No.
68-3 at 7.
10 As discussed supra at 17 n.8, the Court will not address defendants’ arguments—raised for the first time in
reply to plaintiff's opposition—concerning plaintiff's additional claims.
11 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been
provided to plaintiff.
12 Plaintiff also appears to allege that C.O. Gadway violated his constitutional rights by confiscating certain
items of his property because “the mailroom and Media Review Committee allowed [him] to possess them,”
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and by failing to submit the confiscated items to the Media Review Committee. Dkt. No. 14-1 at 13 ¶ 20. His
claims in this regard are conclusory in that they are unsupported by any record evidence and, therefore, do
not defeat defendants’ motion for partial summary judgment. See Kerzer v. Kingly Mfg., 156 F.3d 396, 400
(2d Cir. 1998). To the extent plaintiff alleges that C.O. Gadway violated DOCCS media review procedures,
such claims were previously dismissed by the Court's November 2017 Order on initial review. See Dkt. No.
17 at 55-56, 60.
13 To the extent plaintiff argues that his property was destroyed as a result of C.O. Lee neglecting to follow
DOCCS “Directive [No.] 4913, Section III(D)(1)(C)” by failing to instruct him to select a second disposition
option, such claim was previously dismissed by the Court's November 2017 Order on initial review because
the alleged violation of a DOCCS Directive does not give rise to a constitutional claim actionable under
Section 1983. See Dkt. No. 17 at 55-56.
14 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 Report-Recommendation
& Order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed
period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next
day that is not a Saturday, Sunday, or legal holiday. Id. § 6(a)(1)(C).
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2020 WL 1329138
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Nicholas ZIMMERMAN, Plaintiff,
v.
Steven RACETTE, et al., Defendants.
No. 9:17-CV-375
|
Signed 03/23/2020
Attorneys and Law Firms
Nicholas Zimmerman, Auburn, NY, pro se.
Brian W. Matula, New York State Attorney General, Albany,
NY, for Defendants.
DECISION & ORDER
THOMAS J. McAVOY, Senior United States District Judge
I. INTRODUCTION
*1 This pro se action brought pursuant to 42 U.S.C. §
1983 was referred to the Hon. Christian F. Hummel, United
States Magistrate Judge, for report and recommendation.
Magistrate Judge Hummel issued a Report-Recommendation
and Order on January 24, 2020 which addresses Defendants’
motion for partial summary judgment (Dkt. No. 68). See
1/24/20 Rep.-Rec. & Ord. (Dkt. No. 83) (“Rep. Rec.”).
Magistrate Judge Hummel recommends that Defendants’
motion for partial summary judgment be granted and that
the following claims be dismissed with prejudice: (1) First
Amendment retaliation claims against Sgt. Orzech, C.O.
Mailloux, Sgt. Randall, C.O. Gadway, C.O. Lee, C.O.
Beaudette, Sgt. Delisle, C.O. Stickney, and Dr. Adams; (2)
First Amendment claim against Librarian Delisle; (3) First
Amendment mail tampering claim against Clemons; and (4)
Eighth Amendment medical indifference claim against Dr.
Gillani. Rep. Rec. at 71-72. Magistrate Judge Hummel also
recommends that the following defendants be terminated
from this action: Dr. Gillani, Dr. Adams, Librarian Delisle,
C.O. Mailloux, C.O. Beaudette, C.O. Gadway, C.O. Stickney,
and Clemons. Id. at 72. Plaintiff filed objections to these
recommendations. Pl. Obj., Dkt. No. 86.
II. STANDARD OF REVIEW
When objections to a magistrate judge's report and
recommendation are lodged, the district court makes a “de
novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” See 28 U.S.C. § 636(b)(1)(C); see also United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)(The Court
must make a de novo determination to the extent that a party
makes specific objections to a magistrate's findings.). “[E]ven
a pro se party's objections to a Report and Recommendation
must be specific and clearly aimed at particular findings
in the magistrate's proposal, such that no party be allowed
a second bite at the apple by simply relitigating a prior
argument.” Machicote v. Ercole, 2011 WL 3809920, at * 2
(S.D.N.Y., Aug. 25, 2011)(citations and interior quotation
marks omitted); DiPilato v. 7-Eleven, Inc., 662 F. Supp.2d
333, 340 (S.D.N.Y. 2009)(same).
General or conclusory objections, or objections which merely
recite the same arguments presented to the magistrate judge,
are reviewed for clear error. Farid v. Bouey, 554 F. Supp.
2d 301, 306 n. 2 (N.D.N.Y. 2008); see Fisher v. Miller, No.
916CV1175GTSATB, 2018 WL 3854000, at *3 (N.D.N.Y.
Aug. 14, 2018)(“[W]hen an objection merely reiterates the
same arguments made by the objecting party in its original
papers submitted to the magistrate judge, the Court subjects
that portion of the report-recommendation challenged by
those arguments to only a clear error review.”); Alaimo v. Bd.
of Educ., 650 F. Supp. 2d 289, 291 (S.D.N.Y. 2009)(same);
Chime v. Peak Sec. Plus, Inc., 137 F. Supp. 3d 183,
187 (E.D.N.Y. 2015)(same). After reviewing the report and
recommendation, the Court may “accept, reject, or modify,
in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1)(C).
III. DISCUSSION
*2 The Court presumes familiarity with Magistrate Judge
Hummel's Report-Recommendation and Order. To the
extent Plaintiff makes general objections to the report and
recommendation, the Court finds no clear error and therefore
these general objections are overruled. The majority of
Plaintiff's other objections appear to be re-arguments that
were presented to Magistrate Judge Hummel and rejected, and
the Court considered these arguments under plain error review
and finds none.
To the extent that Plaintiff challenges Magistrate Judge
Hummel's recommendations on the asserted grounds that
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material questions of fact exist that must be determined by a
jury, Plaintiff fails to recognize - as pointed out by Magistrate
Judge Hummel - that on a motion for summary judgment once
the moving party establishes a prima facie basis for dismissal,
the burden shifts to the nonmovant to establish by admissible
evidence that a disputed question of material fact exists. See
Rep. Rec. at 35-36. This burden may not be satisfied by
“simply show that there is some metaphysical doubt as to
the material facts,” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986), and “[c]onclusory
allegations, conjecture, and speculation ... are insufficient
to create a genuine issue of fact.” Kerzer v. Kingly Mfg.,
156 F.3d 396, 400 (2d Cir. 1998); see Rep. Rec. at 36-37. 1
Further, although a court must afford a pro se litigant special
solicitude, this special solicitude does not exempt a pro se
litigant from compliance with relevant rules of procedural and
substantive law. Rep. Rec. at 37. It is also important to note
that the Second Circuit requires courts to examine prisoners’
claims of retaliation “with skepticism and particular care”
because prisoner retaliation claims are easily fabricated. Rep.
Rec. at 39-40.
Plaintiff's argument that a question of fact exists as to whether
all seven of his bags of property were transferred from
Attica Correctional Facility to Clinton Correctional Facility
on April 17, 2014, and whether at least one of his bags
was hidden and later accessed by Clinton staff to obtain
incriminating evidence against him, is insufficient. Obj. 2-6,
9. His contention that the defendants lied that the bags were
transmitted in three parts is a broad conclusory allegation
insufficient to contest the Defendants’ properly supported
contentions to the contrary. See e.g., Dkt. 68-31. Similarly,
Plaintiff presents nothing other than a broad conclusory
allegations that C.O. Gadway went to a hidden bag to
obtain incriminating evidence against him. Obj. at 9. Further,
Plaintiff's objection to Magistrate Judge Hummel's “findings
that Gadway's violation of media review guidelines was
unsupported and previously denied by court (pg. 52)” as
being “a lie,” Obj. at 10, misunderstands Magistrate Judge
Hummel's finding. In footnote 12 on page 52, Magistrate
Judge Hummel wrote:
*3 Plaintiff also appears to allege that C.O. Gadway
violated his constitutional rights by confiscating certain
items of his property because “the mailroom and Media
Review Committee allowed [him] to possess them,” and by
failing to submit the confiscated items to the Media Review
Committee. Dkt. No. 14-1 at 13 ¶ 20. His claims in this
regard are conclusory in that they are unsupported by any
record evidence and, therefore, do not defeat defendants’
motion for partial summary judgment. See Kerzer v. Kingly
Mfg., 156 F.3d 396, 400 (2d Cir. 1998). To the extent
plaintiff alleges that C.O. Gadway violated DOCCS media
review procedures, such claims were previously dismissed
by the Court's November 2017 Order on initial review. See
Dkt. No. 17 at 55-56, 60.
Rep. Rec. at 52, n. 12.
Magistrate Judge Hummel did not find that C.O. Gadway's
violation of Media Review Guidelines was unsupported
but rather that, even if C.O. Gadway's conduct violated
the Media Review Guidelines this conduct did not arise
to a constitutional violation. Indeed, this was precisely the
determination made by the Court in the November 2017 Order
on initial review that Magistrate Judge Hummel referenced
in footnote 12. Plaintiff's objection in this regard is without
merit and is overruled.
Plaintiff's objections to Magistrate Judge Hummel's
recommendation to dismiss certain claims based upon
Plaintiff's unsupported belief as to what actually occurred
with regard to his bags and as to what material
he possessed in his cell, see Obj. at 2-6, 8-9, are
insufficient and overruled. The Court adopts Magistrate Judge
Hummel's recommendations relative to dismissal of the First
Amendment retaliation claims against Sgt. Orzech, C.O.
Mailloux, and C.O. Gadway for the reasons stated in the
Report Recommendation at pages 40-45 and 50-52.
Plaintiff's argument that he was denied due process because
he did not receive his property from his transferred bags in
a timely fashion, Obj. at 5, was not presented to Magistrate
Judge Hummel and will not be considered on these objections.
See Monroe v. Kocienski, No. 9:17-CV-1050 (GTS/DEP),
2019 WL 409412, at *2 (N.D.N.Y. Feb. 1, 2019)(“[A] district
court will ordinarily refuse to consider argument that could
have been, but was not, presented to the magistrate judge
in the first instance.”)(citing Zhao v. State Univ. of N.Y., 04-
CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011)
(“[I]t is established law that a district judge will not consider
new arguments raised in objections to a magistrate judge's
report and recommendation that could have been raised
before the magistrate but were not.”) (internal quotation
marks and citation omitted); Hubbard v. Kelley, 752 F.
Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it
is established law that a district judge will not consider
new arguments raised in objections to a magistrate judge's
report and recommendation that could have been raised
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before the magistrate but were not.”) (internal quotation
marks omitted)); Charlot v. Ecolab, Inc., 97 F. Supp. 3d
40, 51 (E.D.N.Y. 2015)(“[A] district court generally will not
consider new arguments raised for the first time in objections
to a magistrate judge's report and recommendation that could
have been raised before the magistrate but were not.”)(citing
cases); Santiago v. City of New York, No. 15-cv-517, 2016
WL 5395837, at *1 (E.D.N.Y. Sept. 27, 2016), aff'd, 697
F. App'x 36 (2d Cir. Sept. 6, 2017) (“[C]ourts ordinarily
refuse to consider arguments, case law and/or evidentiary
material which could have been, but was not, presented to
the magistrate judge in the first instance.”)(quotations and
citation omitted)).
Despite being allowed discovery in this matter, Plaintiff offers
only a broad conclusory allegation to counter Sgt. Orzech's
sworn statement that he did not damage a CD by putting a
staple thru it. See Obj. at 13 (“What do you think he gonna
[sic] say? That he did it? Yeah right! Orzech was last [sic]
person in possession of the CD and I have a letter from a
witness that says a staple was in it when they got it. So unless
the Post Office did it, it was Orzech!”). Plaintiff's objection
on this ground is overruled.
*4 Plaintiff's broad conclusory allegations, Obj. at 7, also
do not overcome Defendants’ evidence that 13 Cell is
“a cell in normal use in Unit-14 SHU and is regularly
maintained,” Dkt. No. 68-32 at ¶ 6, that Plaintiff was
“afforded the opportunity for additional cleaning supplies
Tuesdays, Thursdays, and Saturdays weekly” if he was
unhappy with the cleanliness of his cell, id., and that he
was placed in 13 Cell based upon his behavior and cell
availability. See Rep. Rec. at 45-46. 2 Furthermore, Plaintiff
does not overcome Magistrate Judge Hummel's alternative
basis to dismiss the First Amendment retaliation claim against
Sgt. Randall. See Rep. Rec. at 46-49. Accordingly, the
objections in this regard are overruled and the Court adopts
Magistrate Judge Hummel's recommendation to dismiss the
First Amendment retaliation claim against Sgt. Randall. Id.
As to Plaintiff's claims against C.O. Lee, Plaintiff's contention
that C.O. Lee had no basis for a cell shield order because
Plaintiff said that he was going to “verbally violate” C.O. Lee
as opposed to violate him in some physical sense is of no
moment because Magistrate Judge Hummel found that there
was nothing in the record to indicate C.O. Lee was responsible
for the shield order. Rep. Rec. at 54. Plaintiff's conclusory
and unsupported contention to the contrary, see Obj. at
10 (“Lee was directly responsible for the cell shield order
because he requested it and provided the false information to
obtain it.”) is insufficient to satisfy Plaintiff's burden on the
summary judgment motion. See Rep. Rec. at 54. 3 Likewise,
there is no basis to find that C. O. Lee issued a retaliatory
false misbehavior report because Plaintiff admits that he said
he was going to “violate” C.O. Lee. Whether this was a
contention that he would verbally violate C.O. Lee or violate
Lee is some other sense still provides a basis to conclude that
Plaintiff threatened C.O. Lee. Plaintiff's objection based upon
the nomenclature of his threat does not create a material issue
of fact warranting denial of the motion in this regard.
*5 Furthermore, Plaintiff does not overcome Magistrate
Judge Hummel's conclusion that C.O. Lee's conduct in issuing
July 12, 2015 misbehavior reports caused no adverse action as
required to satisfy the second element of a First Amendment
retaliation claim because Plaintiff suffered no harm as a result.
Rep. Rec. at 56-57. Accordingly, Plaintiff's objection in this
regard is overruled.
Regarding the claim that C.O. Lee retaliated against Plaintiff
by destroying his books and papers, Magistrate Judge
Hummel wrote:
[D]efendants have established that the property C.O. Lee
confiscated from plaintiff's cell during the June and July
2015 cell searches was destroyed in September 2015
pursuant to DOCCS Directive #4911 because the visitor
plaintiff selected to receive that property never visited
the facility within the specified time-frame—not out of
retaliation for plaintiff filing his May 2015 grievance.
See Dkt. No. 14-5 at 16, 17. Indeed, plaintiff signed the
Authorization for Disposal of Personal Property form on
August 14, 2015, which explicitly provided that “[t]he
items [would] be held a maximum of 14 days pending
arrival of a visitor,” and plaintiff did not select an
alternative choice for disposition of his property in the
event the visitor did not accept his property. Dkt. No. 68-28
at 1. Therefore, defendants have established that plaintiff's
excess magazines and books would have been destroyed
regardless of any retaliatory motive.
Rep. Rec. at 53 (case citations omitted). Plaintiff's conclusory
allegation that “it does not matter which visitor showed
up on his visit because the package room said they
had no packages for me to send out anyway! Lee had
already destroyed everything!” is insufficient to overcome
the evidence submitted by the Defendants and relied upon
by Magistrate Judge Hummel in rejecting this claim. The
objection in this regard is overruled.
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Plaintiff's objection to Magistrate Judge Hummel's
determination regarding the First Amendment retaliation
claim against C.O. Beaudette is overruled. See Obj. at 11.
Magistrate Judge Hummel correctly determined that C.O.
Beaudette's actions resulted in de minimus deprivations to
Plaintiff, and that 7 N.Y.C.R.R. § 113.16 prohibits an inmate
for processing stamps in excess of $22.50 in value. See
Rep. Rec. at 57-59. Plaintiff's objections in this regard are
overruled.
Plaintiff's objections to Magistrate Judge Hummel's
determination regarding the First Amendment retaliation
claims against Sgt. Delisle and C.O. Stickney are overruled.
Regardless of whether Plaintiff had a First Amendment right
to “publish and promote [his] book, [his] website, [his]
literature, [his] company, and the Clean up the Clinton SHU
Campaign,” Obj. at 11, he “admitted at his deposition to
engaging in the unauthorized operation of several businesses
while incarcerated.” Rep. Rec. at 60. (citing Dkt. No. 68-13
at 19-20). Thus, there was a legitimate basis to dismiss the
operative claims against Sgt. Delisle and C.O. Stickney.
Plaintiff's objection to the magistrate judge's recommendation
regarding the First Amendment retaliation claim against
Dr. Adams is overruled. After the Court's initial review of
Plaintiff's Amended Compliant, it found that the only claim
that survived against Dr. Adams was a First Amendment
retaliation claim. See Dkt. No. 17 at 60-61. In addressing this
claim, Magistrate Judge Hummel wrote:
*6 [I]t is unclear whether plaintiff even bases his First
Amendment retaliation claim against Dr. Adams on his
filing of grievances against Dr. Adams, as he explicitly
argues that Dr. Adams refused him medical treatment
“based largely (or probably solely) on [his] refusal to
discuss [his] case [concerning Sing Sing] with him.” Dkt.
No. 14-1 at 26 ¶ 36. However, even assuming plaintiff
does premise his retaliation claim against Dr. Adams on
his constitutionally-protected conduct of filing grievances
against him, see Davis, 320 F.3d at 352-53, defendants
are still entitled to summary judgment. Plaintiff's own
documentary evidence establishes that, contrary to his
contention, Dr. Adams did, in fact, examine plaintiff
and proscribe various medications to treat his skin
condition, including “Hydrocortisone, Fluocinonide[,] and
Clindamyacin.” Dkt. No. 14-5 at 9; Dkt. No. 14-4 at 68.
In addition, plaintiff's documentary evidence establishes
that Dr. Adams “determined that an electric shaver and
Magic Shave [we]re not medically indicated” and that there
was “no medical indication for medical boots.” Dkt. No.
14-5 at 8; Dkt. No. 14-4 at 68. Dr. Adams’ declaration, in
which he states that his “denial of plaintiff's requests for
medical boots, lotion, blood pressure and other medications
was based on [his] professional evaluation of [p]laintiff's
medical needs”; that “[i]n [his] estimation, the boots and
medications requested were unnecessary”; and that he
“never ... with[e]ld medications as a means of retaliation for
[plaintiff's] filing of grievances,” corroborates plaintiff's
documentary evidence. Dkt. No. 68-14 at 2 ¶¶ 6, 8.
Plaintiff's conclusory allegations to the contrary, including
that the skin prescriptions do not work, see Dkt. No.
14-1 at 29 ¶ 38, fail to raise a genuine issue of material
fact, are unsupported by the record, and amount only
to a personal disagreement with Dr. Adams’ treatment
based on his professional medical judgment—which fails
to support a constitutional claim. See Chance, 143 F.3d
at 703 (“It is well-established that mere disagreement
over the proper treatment does not create a constitutional
claim.”). Consequently, it is recommended that plaintiff's
First Amendment retaliation claim against Dr. Adams be
dismissed.
Rep. Rec. at 63-64.
Plaintiff objects to this recommendation because, he
contends, he “never said anything about grievances,” and
“said it was because [Plaintiff] wanted to talk to [Dr. Adams]
about [Plaintiff's] case.” Obj. at 12. Plaintiff asserts that
“Adams only prescribed the medications in question after
three complaints and it was the wrong medication! [sic]” Id.
He argues that a jury “needs to decide if Dr. Adams [sic]
actions is [sic] that of a normal doctor or acceptable standards
of practice.” Id. Plaintiff's objection is merely a re-argument
of that presented to and rejected by Magistrate Judge
Hummel, and supports the magistrate judge's conclusion that
Plaintiff fails to raise a viable constitutional claim because
his claim amounts only to a personal disagreement with Dr.
Adams’ treatment based on Dr. Adams’ professional medical
judgment. Plaintiff's objection in this regard is overruled.
Plaintiff asserts in conclusory fashion that Defendant
Clemons did not obtain a valid mail watch order and
that such an order “doesn't even state what the probable
cause is.” Obj. at 12. However, this conclusory contention
does not overcome Magistrate Judge Hummel's finding
that “defendants establish through admissible evidence
[that] Clemons did obtain a 60-day mail watch order
for all of plaintiff's incoming and outgoing non-privileged
correspondence, which Supt. Kirkpatrick approved on
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December 9, 2016.” Rep. Rec. at 65 (citing Dkt. No. 68-16
at 2 ¶ 7). For reasons discussed above regarding Plaintiff's
burden in opposing a properly supported motion for summary
judgment, this objection is overruled.
As to Plaintiff's Eighth Amendment medical indifference
claim against Dr. Gillani, Magistrate Judge Hummel wrote:
Upon careful review of the evidence, the undersigned
concludes that no reasonable juror could conclude that
Dr. Gillani acted with deliberate indifference to plaintiff's
serious medical needs. It is undisputed that plaintiff was
placed in the [mental health unit (“MHU”)] on April 27,
2014, where he stayed until May 1, 2015, because he
expressed threats of self-harm. See Dkt. No. 14-1 at 10
¶ 17; Dkt. No. 68-25 at 3 ¶ 13. Plaintiff told Dr. Gillani
“[e]very[ ]day ... throughout [his] stay” in [MHU] that he
“would commit suicide if [he] was forced to go back to 13
Cell and live under such inhumane conditions.” Dkt. No.
14-1 at 10 ¶ 17; see Dkt. No. 68-13 at 39. Thus, plaintiff's
stated intention to commit suicide establishes the objective
element of the deliberate medical indifference test. See
Allah, 2010 WL 5860290, at *8.
As defendants argue, however, the record establishes that
Dr. Gillani did not act with deliberate indifference. See
Dkt. No. 68-3 at 13-14. Dr. Gillani's sworn declaration and
treatment notes establish that he conducted an evaluation
of plaintiff on May 1, 2014, and concluded that plaintiff
was not suffering from any psychiatric illness, but rather,
exhibiting an “environment-related agenda” designed at
being “released from the SHU” and “that plaintiff's
complaints did not stem from mental illness, but rather,
were calculated toward an effort to be released from his
confinement in the SHU.” Dkt. No. 68-25 at 3 ¶¶ 23-25.
Dr. Gillani based his conclusion on numerous factors,
including that he had been informed that plaintiff had not
engaged in self-harming behavior prior to his April 2014
transfer to MHU, his statements to Dr. Gillani that he did
not wish to return to SHU and that he would prefer to
return to general population to use the law library, and
his denial of having suicidal ideas. See id. at 3 ¶¶ 15-16,
19. Dr. Gillani also observed that plaintiff had been eating
and sleeping normally, denied having psychotic or anxiety
symptoms, and had a history of engaging in “self-harming
gestures” but no history of in-patient psychiatric treatment.
Id. at ¶ 21; see id. at ¶¶ 17, 19. Dr. Gillani's May 1,
2014 conclusions are bolstered by plaintiff's deposition
testimony in which he stated that, “[a]t one point, [he]
couldn't take the smell [of 13 Cell] so [he] attempted
suicide to get out of the cell so that they going to move
[him] to [MHU] so that [he] didn't ... have to take the
smell inside of [13 C]ell.” Dkt. No. 68-13 at 23. Moreover,
consistent with Dr. Gillani's analysis, following his release
back to SHU, on May 5, 2014, plaintiff alleges only that
he engaged in the self-harming gesture of “fixing a noose
around [his] neck,” but does not allege in his Amended
Complaint that he engaged in any actual suicide attempt
on that date. See Dkt. No. 14-1 at 10 ¶ 17. Based on
the foregoing, “deliberate indifference cannot be inferred”
from Dr. Gillani's decision to discharge plaintiff back to
SHU on May 1, 2015, as the evidence before the Court does
not establish that his decision “was ... such a substantial
departure from accepted professional judgment, practice,
or standards as to demonstrate that [Dr. Gillani] did not
base [his] decision on such a judgment.” Sims, 2012 WL
566875, at *6.
*7 Moreover, plaintiff's allegations, made for the first
time at deposition, that he made two suicide attempts
shortly after being examined by Dr. Gillani on two
unspecified occasions, are uncorroborated by the record
and do not defeat defendants’ properly supported motion
for partial summary judgment as to his Eighth Amendment
medical indifference claim. See Dkt. No. 68-13 at 30,
37-42. Plaintiff's deposition testimony that he actually
attempted suicide by hanging on two occasions is wholly
self-serving and directly contradicts the allegations made in
the Amended Complaint, which state only that he “became
suicidal,” expressed “suicidal plans and ideations” prior to
being admitted to MHU in April 2014; “fix[ed] a noose to
his neck” after being released on March 5, 2014; and that
he “told [Dr.] Gillani of [his] suicidal plans if [he] returned
to 13 Cell.” Dkt. No. 14-1 at 10 ¶ 17, 66 ¶ 95 (internal
quotation marks omitted). Indeed, when asked whether he
“kn[e]w the dates” of his two suicide attempts, plaintiff
responded “I don't. They're listed in the complaint.” Dkt.
No. 68-13 at 30. However, no such dates or events are
mentioned in the Amended Complaint, and the record is
devoid of any evidence corroborating these belated and
self-serving allegations. See Dkt. No. 14-1 at 10-11 ¶ 17,
66 ¶ 95. Thus, although plaintiff's pro se submissions
are to be construed to raise the strongest arguments they
suggest, a party opposing summary judgment “may not
rely merely on allegations ... in its own pleading; rather,
it[ ] must ... set out specific facts showing a genuine
issue for trial.” Green v. Gunn, No. 06-CV-6248 (CJS),
2009 WL 1809932, at *5 (W.D.N.Y. June 24, 2009)
(internal quotation marks and citation omitted). Plaintiff
has failed to make such a specific factual showing to
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raise a genuine issue for trial concerning Dr. Gillani's
conduct. Accordingly, it is recommended that plaintiff's
Eighth Amendment deliberate medical indifference claim
against Dr. Gillani be dismissed.
Rep. Rec. at 68-71.
In his objections addressed to this claim, Plaintiff argues first
that “even if Gillani concluded on May 1, 2014, that I was not
suffering from any psychiatric illness, but rather exhibiting an
environment-related agenda, he still should not have set me
back to the SHU to kill myself! I don't know any other doctor
that would, except the ones that work for MHU of course!”
Obj. at 13. This objection is based upon a disagreement with
Dr. Gillani's medical opinion and does provide a sufficient
basis to reject Magistrate Judge Hummel's recommendation.
Plaintiff argues next that Dr. Gillani's affidavit “is not
acceptable because it is based on third-party hearsay” that
he had been informed that Plaintiff had not engaged in self-
harming behavior prior to his April 2014 transfer to MHU.
Medical opinions are often based upon the representations
of third parties as to a patient's conduct or exhibition
of symptoms, and as Magistrate Judge Hummel indicates,
Dr. Gillani's opinion was based upon a number of factors
including what Plaintiff himself told the doctor about his
aversion to returning to 13 Cell in the SHU, and Dr. Gillani's
observation that Plaintiff had been eating and sleeping
normally, denied having psychotic or anxiety symptoms, and
had a history of engaging in self-harming gestures but no
history of in-patient psychiatric treatment. The reference to
third-party representations was not the central basis of Dr.
Gillani's opinion and is not a basis to reject that opinion or
Magistrate Judge Hummel's recommendation to dismiss this
claim based on Plaintiff's failure to demonstrate deliberate
indifference related to the decision to discharge Plaintiff back
to SHU on May 15, 2015. Plaintiff's current contention that
he never told Dr. Gillani that he was not having suicidal
ideations, or that he was eating and sleeping normally, appear
to be issues raised for the first time in the objections and
therefore failed to provide a sufficient basis to reject the
magistrate judge's thorough opinion. Moreover, as Magistrate
Judge Hummel stated, Dr. Gillani concluded that Plaintiff was
not suffering from any psychiatric illness and had no history
of in-patient psychiatric treatment, but rather was exhibiting
an “environment-related agenda” designed to avoid being
released from the MHU to the SHU. Further, as also stated by
the magistrate judge, Dr. Gillani's May 1, 2014 conclusions
are bolstered by Plaintiff's deposition testimony in which
he stated that, “[a]t one point, [he] couldn't take the sm ell
[of 13 Cell] so [he] attempted suicide to get out of the cell
so that they going to move [him] to [MHU] so that [he]
didn't ... have to take the smell inside of [13 C]ell.” Dkt. No.
68-13 at 23. Moreover, consistent with Dr. Gillani's analysis,
following his release back to SHU on May 5, 2014, Plaintiff
alleges only that he engaged in the self-harming gesture of
“fixing a noose around [his] neck,” but does not allege in his
Amended Complaint that he engaged in any actual suicide
attempt on that date. Plaintiff's current contention that he
was “depressed and suicidal out of mind” does not provide a
sufficient basis to conclude that the magistrate judge should
have rejected Dr. Gillani's opinion and found that Dr. Gillani
acted with deliberate indifference to Plaintiff's well-being.
Plaintiff's objections in this regard are overruled.
IV. CONCLUSION
*8 For the reasons discussed above, the Court ACCEPTS
and ADOPTS the recommendations in the January 24, 2020
Report-Recommendation and Order, Dkt. No. 83, for the
reasons stated therein. Thus, it is hereby
ORDERED that Defendants’ motion for partial summary
judgment, Dkt. No. 68, is GRANTED, and the following
claims are DISMISSED with prejudice: (1) First
Amendment retaliation claims against Sgt. Orzech, C.O.
Mailloux, Sgt. Randall, C.O. Gadway, C.O. Lee, C.O.
Beaudette, Sgt. Delisle, C.O. Stickney, and Dr. Adams; (2)
First Amendment claim against Librarian Delisle; (3) First
Amendment mail tampering claim against Clemons; and (4)
Eighth Amendment medical indifference claim against Dr.
Gillani, and it is further
ORDERED that the following defendants are
TERMINATED from this action: Dr. Gillani, Dr. Adams,
Librarian Delisle, C.O. Mailloux, C.O. Beaudette, C.O.
Gadway, C.O. Stickney, and Clemons.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1329138
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Footnotes
1 Magistrate Judge Hummel wrote after discussing Matsushita and Kerzer:
A party opposing summary judgment is required to submit admissible evidence. See Spiegel v. Schulmann,
604 F.3d 72, 81 (2d Cir. 2010) (“It is well established that in determining the appropriateness of a grant of
summary judgment, [the court] ... may rely only on admissible evidence.”) (internal quotation marks and
citation omitted); see also Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) (“[A]ffidavtis must
be based upon concrete particulars, not conclusory allegations.” (internal quotation marks and citation
omitted)). “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). “ ‘The 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) (brackets omitted) (quoting Anderson, 477 U.S. at 252).
Rep. Rec. at 36-37 (emphasis added by Magistrate Judge Hummel).
2 Plaintiff asserts in his objections that he has a recorded conversation between himself and Randall that
allegedly indicates that his behavior did not warrant being placed in 13 Cell. See Obj. at 7. To the extent
this references a DVD that Plaintiff claims to have that shows his interactions with correction officers in the
property area, Magistrate Judge Hummel notes that Plaintiff stated that he could controvert Defendants’
assertion that he became aggressive in the property area but that “no such evidence has been submitted to
the Court as of the filing of plaintiff's opposition on July 22, 2019; the deadline for filing opposition papers has
expired; and plaintiff's general disagreement with defendants’ documentary evidence fails to raise a genuine
issue of material fact.” Rep. Rec at 44. To the extent that Plaintiff's objection is based upon the same DVD,
or is based on a different recording that was not presented to the magistrate judge, this evidence will not be
considered on the objection. See Monroe, 2019 WL 409412, at *2(“[A] a district court will ordinarily refuse to
consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first
instance.”). “[F]or the district judge to review new evidence or arguments would reduce the magistrate's work
to something akin to a meaningless dress rehearsal,” Michalow v. East Coast Restoration & Consulting Corp.,
No. 09-cv-5475, 2018 WL 1559762, at * 6 (E.D.N.Y. Mar. 31, 2018)(quotations and citation omitted), and
would frustrate the congressional objective behind § 636(b)(1) which is intended to alleviate the congestion
of litigation in the district courts. Cf. U.S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“[T]o construe § 636(b)
(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion
of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term
‘de novo’ does not indicate that a secondary evidentiary hearing is required.”)).
3 (“[T]he record evidence establishes only that (1) plaintiff was placed in a cell with a shield after C.O.
Lee informed his area supervisor of plaintiff's threatening statements; (2) Sgt. Delisle and Sgt. Orzech
recommended renewing the shield order on three separate occasions because “monitoring indicate[d] that
the threat to staff ... ha[d] not lessened” and “continuation of th[e shield] order for staff protection [wa]s
warranted at th[ose] time[s]”; and (3) the shield order was authorized by higher ranking Clinton personnel.
Dkt. No. 14-4 at 46, 47, 48.”)
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