06-1728 | Omnilex

Texto completo

06-1728 (L), 06-1808 - pr
Wright v. Goord

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2007

(Argued: April 23, 2008
Decided: February 3, 2009)
Docket Nos. 06-1728 (L), 06-1808 - pr

MELVIN M. WRIGHT, JR., as Administrator of the
Affairs of Melvin O. Wright, deceased,

Plaintiff-Appellant,

\- V. -

GLENN S. GOORD, Commissioner; A. DIRE, Corrections
Officer, Coxsackie Correctional Facility; M. DERMUTT,
Corrections Officer, Coxsackie Correctional Facility;
M. KASUNIC, Corrections Officer, Coxsackie
Correctional Facility; GARY H. FILION, Superintendent
of Coxsackie Correctional Facility; TIBERIS,
Corrections Officer, Coxsackie Correctional
Facility; ZIMBER, Corrections Officer, Coxsackie
Correctional Facility; and A. MORRIS, Corrections
Officer, Coxsackie Correctional Facility,

# Defendants-Appellees,

NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
NEW YORK STATE, and DAVID A. PATERSON, * Governor of
New York State in his official capacity,

Defendants.

Before: JACOBS, Chief Judge, KEARSE and KATZMANN, Circuit Judges.

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Pursuant to Federal Rule of Appellate Procedure 43 (c) (2),
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Governor David A. Paterson is automatically substituted
for former Governor George E. Pataki as a defendant in
this case.

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Consolidated appeals from judgments of the United States
District Court for the Northern District of New York, summarily
dismissing claims under 42 U.S.C. § 1983 against New York State
Department of Corrections officers for alleged violations of the
First and Eighth Amendments.

Affirmed.

CAROLYN A. KUBITSCHEK, New York, New York
(Darius Charney, Lansner & Kubitschek, New
York, New York, Efaon Cobb, law student
intern, Daniil Karp, student intern, on the
brief) , for Plaintiff-Appellant.

MARTIN A. HOTVET, Assistant Solicitor General
of the State of New York, Albany, New York
(Andrew M. Cuomo, Attorney General, Barbara
D. Underwood, Solicitor General, Andrea
Oser, Deputy Solicitor General, Albany, New
York, on the brief), for Defendants-
Appellees.

KEARSE, Circuit Judge:

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In these consolidated appeals, plaintiff Melvin M. Wright,
Jr., as administrator of the affairs of Melvin O. Wright
("Wright") , who was an inmate in the custody of the New York State
Department of Correctional Services ("DOCS") from 1982 until
November 2007, a month before his death, pursues challenges to
summary judgments entered in two actions in the United States
District Court for the Northern District of New York dismissing
Wright's claims, brought pursuant to 42 U.S.C. § 1983, against
several DOCS corrections officers ("COs") for alleged use of
excessive force in violation of the Eighth Amendment and
retaliation in violation of the First Amendment. On appeal,

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plaintiff contends that summary judgment was inappropriate because
there were genuine issues of material fact to be tried with
respect to these claims. For the reasons that follow, we find no
error and affirm the judgments.

## I. BACKGROUND

The present appeals arise out of two actions brought by
Wright, then proceeding pro se, to complain of a series of events
that occurred in 2003 at New York State's Coxsackie Correctional
Facility ("Coxsackie"), where Wright had been incarcerated since
August 2002. The issues on appeal have been limited (see Part
I.E. below) by a prior order of this Court dismissing Wright's
appeal with respect to certain of his claims and allowing him to
proceed -- and appointing counsel to represent him -- on his "claim
that the defendants violated his Eighth Amendment rights when he
was assaulted and intimidated by correctional officers at
Coxsackie Correctional Facility" and other undismissed claims.
Wright v. Goord, No. 06-1808 (2d Cir. Sept. 22, 2006) .

A. The First Action ( "Action I")

Wright first commenced an action in June 2003 against DOCS
and several individual defendants. His second amended complaint
in that action ("second amended complaint" or "Action I Second
Amended Complaint") named as individual defendants DOCS
Superintendent Glenn S. Goord, Coxsackie Superintendent Gary H.

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Filion, and Coxsackie COs Tiberis, Zimber, and Morris, and
described incidents occurring in February and April 2003 in which
Wright asserted that his constitutional rights had been violated.

The first incident, according to the second amended
complaint, occurred on or about February 6. Wright, an African-
American housed in a DOCS regional medical ward annexed to
Coxsackie, was assaulted by his then-cellmate Robert Brandel with
the latter's walking cane. Brandel, who Wright alleged was
Caucasian, then summoned "security" and accused Wright of both
assaulting him and calling him a "Cracker." (Action I Second
Amended Complaint (1 6-8.) " [S]ecurity" took Brandel's cane and
moved Wright to another cell, making comments to Wright about his
not liking "crackers." (Id. || 7-8.) No disciplinary action was
taken against either inmate. (Deposition of Melvin O. Wright
("Wright Dep. ") 13.) Wright did not know the names of the Cos to
whom he referred as security. (Id. at 17-18.)

The second amended complaint alleged that on February 26,
the COs, upon learning that Brandel had committed the assault,
gave the cane back to him. The pleading suggested that the
return of the cane to Brandel in these circumstances, with the COs
believing that Wright disliked "crackers," constituted a threat
against Wright by the COs themselves:

[w]hen, security learned that inmate Brandel, was the
person that committed the assault against [Wright],
February 26, 2003; security gave Brandel, back his
walking cane. After taken the cane from him that
night of February 6, 2003; stating: "You don't like
crackers? "

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10\. Especially, after the willful attempt and
threats to inflict injury upon [Wright], and coupled
with an apparent present ability so to do from
corrections officers; and any intentional display of
force such as was shown that night of February 26,
2003\. Was enough for [Wright] to have reason to fear
or expect immediate physical harm or assault by the
officers; therefore, also a grievance was filed.

(Action I Second Amended Complaint 11 8, 10.) On February 27,
Wright wrote a letter to the county district attorney, with a copy
to Superintendent Filion, complaining about these events. Wright
never received a response to this letter (see id. | 9), the text
of which is set out in Part II. B. 2. below.

The second incident of which Wright complained in Action I
occurred on or about April 2, 2003. While Wright was in his cell
working on legal papers, another inmate, George Cavallo, brought
newspapers to Wright's cell. (See id. | 11.) CO Morris observed
this and ordered Wright to get rid of the papers. Wright
responded that he was not going to get rid of his legal papers,
and he then took the newspapers to Cavallo's cell. (See Wright
Dep. 18-19.) Morris promptly issued a misbehavior ticket to
Wright charging him with (1) refusing a direct order, (2) being
out of place, (3) engaging in unauthorized exchange of personal
property, and (4) possessing an authorized item in an unauthorized
area. (See Inmate Misbehavior Report, dated April 2, 2003.) With
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respect to the same incident, Morris also issued a misbehavior
report against Wright on April 9, 2003. (See Action I Second
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Amended Complaint | 13.) Wright filed grievances complaining of
Morris's actions. He claimed, inter alia, that Morris's
instruction that Wright "move his legal work" on April 2

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constituted an obstruction of justice and that Morris's filing of
the April 2 misbehavior report was "in []retaliation of a
complaint [Wright] filed February 27, 2003, for an assault
committed against him." (Wright grievance dated April 2, 2003, at
1-2) . He claimed that Morris's April 9 misbehavior report with
regard to the April 2 incident was intended to interfere with
Wright's legal work. (See Wright Dep. 22-23; Wright grievance
dated April 9, 2003.)

The April 9 misbehavior report was summarily dismissed two
days later by a DOCS sergeant. (See Action I Second Amended
Complaint | 14.) The charges in the April 2 misbehavior report
were adjudicated in a disciplinary hearing conducted by Tiberis on
April 14. (See Disciplinary Hearing, April 14, 2003, at 1-2.)
Tiberis found Wright not guilty of refusing a direct order or of
being out of place. However, he found that Wright had taken the
newspapers back to Cavallo in violation of prison rules and that
Wright was thus guilty of the two remaining charges, i.e.,
possessing property in an unauthorized area and unauthorized
exchange of property. (See id. at 12-13.)

No misbehavior report was issued to Cavallo. The second
amended complaint asserted that the bringing of disciplinary
charges against Wright, a Black person, but not against Cavallo, a
White person, denied Wright equal protection. (See Action I
Second Amended Complaint | 15.)

The second amended complaint demanded damages against each
defendant in his individual and official capacity in the amounts

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1 of "$3,600 Zillions dollars; $3,600 Tillions dollars; $3,600
Billions dollars; $3,600 Millions dollars; $3,600 Thousands
dollars." (Id. [ 19.)

In November 2003, Wright sought permission to insert
another claim in his second amended complaint; he proposed to name
additional COs as defendants, including M. Kasunic, asserting
that he had been assaulted and retaliated against by Kasunic in
May 2003. However, the document Wright proffered was a fragment
of a pleading to be inserted as a supplement to his second amended
complaint, and the court denied his request because court rules
required that any amended complaint be a complete pleading.
Rather than proffering a complete third amended complaint, Wright
commenced a second action.

### B. The Second Action ( "Action II")

In Wright's second action, his pleading consisted of a
short document labeled a complaint (but containing no factual
allegations) plus an expressly incorporated accompanying affidavit
containing numbered paragraphs that set out, inter alia, Wright's
factual allegations (collectively "Action II Complaint" or
"Complaint") . The Action II Complaint named as individual
defendants Goord and COs A. Dire ( "Dirie"), M. Dermutt
( "McDermott") , and Kasunic, and reiterated the allegations made in
Action I as to, inter alia, Brandel's assault on Wright in early
February, the comment that Wright did not like "Crackers, " the
COs' return of Brandel's cane to Brandel construed by Wright as a

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threat of attack by the COs, and Wright's letter of complaint to
the county district attorney. (See Action II Complaint (1 9-13.)
Paragraph 14 of the Complaint began with the word "Retaliation"
and described events of May 4, 2003. Paragraphs 14 and 15 alleged
that Wright, 66 years of age in May 2003 and suffering from
emphysema, returned from a "Retreat" to his cell in the hospital
ward to access his oxygen tank; while using the oxygen Wright was
fixing a cup of coffee, but he needed to get hot water from the
day room. The Complaint went on to allege that when Wright went
into the day room, he

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18 (Id. [ 16.)

was assaulted by C.O. M. Kasunic, . . . trying to
throw [Wright] to the floor. To try and make him
spill his hot coffee on him, but [Wright] let the cup
dropped to the floor. Then Kasunic, started kicking
his cup around the day room. "When I tell you to do
something. Dont be asking me any question, Just do
it."

The Complaint alleged that Kasunic, in an attempt to cover
up his assault of Wright and in an act of systematic criminal
coercion, filed a misbehavior report against Wright. (See id.
[[ 17-18.)

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This misbehavior report was adjudicated in a
disciplinary hearing conducted by McDermott (see id. [ 18), at
which Wright described Kasunic's alleged assault (see Part I.C.
below) . The misbehavior report was upheld by McDermott, whose
26 decision was affirmed by Dirie. (See Action II Complaint
11 18-19.)

C. Wright's Deposition and Hearing Testimony and the Summary
Judgment Motions

Wright's first action had been assigned to Judge Lawrence
E. Kahn; his second action was assigned to Chief Judge Norman A.
Mordue. Although the actions were not consolidated, defendants
took a single deposition of Wright for the two actions.

At his deposition, Wright described the February 6 cane
incident, introduced in Action I and reiterated in Action II, much
as it was described in his pleadings. The COs separated Wright
from Brandel that night by moving Wright to another room in the
medical ward, where he had a new cellmate. (See Wright Dep.
13-15.) Although Wright testified that he did not know which COs
had come to his cell on February 6 (see id. at 17-18), he
testified that Kasunic was not one of them:

A.
Kasunic wasn't there that day, but the
next day.

Q. The next day?

A. Kasunic said, "You don't like crackers. "

I said, "What? What do you mean? I don't like
crackers."

He said, "Yeah. You don't like crackers." But
he used to do it when nobody was around, so I ignored
him.

(Id. at 35.)

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When asked how he knew that the cane had been returned to
Brandel on February 26, Wright responded " [b]ecause I seen him
back with the cane." (Id. at 16.) Wright testified that when he
complained -- saying "' [t]his man hit me with the cane. You're
going to give him back the cane?'" -- the person to whom he

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complained "said the medical department gave it back to him. "
(Id.)

With respect to the April 2 newspaper incident, Wright
reiterated his complaint of disparate enforcement of prison rules :

Q. There is a rule here in the prison that
inmates are not supposed to trade and collect each
other's property, isn't that right?

A. I guess so. But then why did I get a ticket
instead of George?

(Wright Dep. 23; see also id. at 19 (testifying that Morris
instructed another CO to "' [g]ive the nigger a ticket . ' ") .)

As to the misbehavior report filed by Morris on April 9
with respect to the April 2 newspaper incident, Wright testified
that he attributed that report to an effort by Morris to stop
Wright from working on his legal papers, but that Morris "didn't
put it like that. " (Id. at 23.) Wright testified that his legal
papers related to his "conviction." (Id. at 19; see also
Action II Complaint | 10 (Wright's legal papers contended that his
service of the 15-years-to-life term of imprisonment, imposed on
him in 1982, should have been completed in January or February
1991) .)

With respect to the alleged assault by Kasunic, Wright
testified as follows:

Q. Did Officer Kasunic assault you physically?

A. Yes, he did.

Q. Tell me about that.

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A. I come down from a prayer meeting that they
had upstairs in the dayroom, just like this upstairs,
and I think the date was May 4, 2003.

Q. Yes.

A. Okay. And I'm struggling to get to my air,
because they didn't allow the air, so I had the
concentrator. It doesn't work by battery. So I'm
trying to get to my room so I can get air. So when
the air come on, I took in air like I did today, and
I came down to fix me a cup of coffee.

Q. You came down to this room, dayroom to get
yourself some coffee?

A. Right. And Kasunic approached me, told me I
got to throw it away. I looked at him and I said,
"For what?"

He said, "Because was [sic] already out you
can't leave and come back." I just came from
upstairs. So when I didn't throw it away now --

A. When I didn't throw it away -- I'd like to
stop at this point because here -- because I have had
an operation on my colon, right, and this is where he
tried to grab me in the neck. I dropped the cup of
coffee and I was down like this.

Q. With your body, you're leaning forward,
putting your hands on your thighs, catching your
breath?

A. Yes. At the time -- he threw my cup around
the room.

A. First he kicked my cup around the room, and
at that time I thought the man was going completely
out of his mind. I was looking at him. And so I
walked outside and one officer put the cup on the
railing outside the door. Do you know the railings
out there? So I picked it up, I picked the cup up
from there

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Q. Well, let me just make sure we've got our
details straight. You said when Kasunic put his
hands on you, he puts one hand around the base of

your neck and the other hand around you [r] abdomen,
around your stomach area, and used force to stand you
up, stand you up onto your feet?

A. No, he used force to try to cause injury,
and I was backing off of him. I had dropped my cup,
and I was backing off of him, you know. You know, I
stopped the force with me from my neck, and I stopped
the force where I had the operation.

Q. You used your hands to push his hands off of
you?

A. Right.

Q. Okay.

A. And after I dropped my coffee, he went
kicking my cup around the dayroom.

Q. So after the two of you physically
separated, he then concentrated his attention on your
coffee cup, which was bouncing around the floor?

A. Which he was kicking around the floor.

Q. . . . . So as he was kicking the coffee cup
around. You walked under your own power through one
of these two doors into the hallway here?

A. After I got my breath back.

Q. You got your breath back, okay. Did you
have the oxygen concentrate machine with you at this
moment ?

A. No.

Q. So you had no medical equipment with you.
You're walking without oxygen support?

A. I'm not sure, but I think somebody brought
the tank down to escort me back to my room.

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Q. And where was Kasunic at that time?

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A. I don't know. He was back at his desk. And
I picked up my cup and went on about my business.

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(Wright Dep. 36-41.)

As to his claims of injury as a result of his encounter
with Kasunic, Wright testified as follows:

Q. Did you experience any physical injuries
from this incident apart from your shortness of
breath?

A. It's hard to say, because I have a
respiratory problem. All that stems from a
respiratory problem

Q. You had several minutes where you had some
acute shortness of breath, is that what you're
saying?

A. Right. By that time I couldn't move. . . .
Back then I couldn't even move at all. That's why I
stood there with my hands on my thighs, trying to get
myself together.

Q. You allege that you suffer from emphysema,
is that right?

A. Emphysema, yeah.

Q. When did you develop that?

A. . . . back in '99.

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of his deposition in 2005 was about the same as it had been in
2003 (see id. at 57) .

Although Wright testified that Kasunic, while placing one
hand on the back of Wright's neck, had grabbed Wright's abdomen at
the site of Wright's colon surgery (see id. at 38-39), he did not
testify that he suffered any pain at that site. The colon surgery
to which Wright referred had taken place in mid-December 2001
(see, e.g., Letter from Melvin Wright in Action II to Clerk of the

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District Court dated August 29, 2005 ("Wright Action II Letter to
Court"), at 1), and the surgical staples had been removed sometime
between December 2001 and August 2002 (see Wright Dep. 51-52;
Wright Action II Letter to Court at 1) .

With respect to the Action II Complaint's allegation of
retaliation, Wright testified in his deposition as follows:

Q. In your complaint, I'm going to back track a
little bit to the May 4, 2003 incident with Officer
Kasunic. In your complaint in Paragraph 14 you state
that this incident was retaliation.

In federal litigation that's a term that means a
certain thing. Are you alleging that Officer Kasunic
retaliated against you or his behavior towards you
was retaliation for something?

A. Yes.

Q. What was he retaliating against?

A. The fact that Brandell [sic] told him that
the staff -- that I don't like crackers and the word
went around that I don't like crackers.

Q. So if Kasunic was retaliating against you,
it's because he believed you -- he believed you were a
racist and you didn't like white people. Is that
what he was retaliating about?

A. Yes.

(Wright Dep. 48-49.)

After taking Wright's deposition, defendants moved for
summary judgment dismissing his complaint in each case. In
support of their motions, defendants submitted Wright's
deposition testimony, as well as, inter alia, records of Wright's
February 27 letter to the county district attorney, Wright's
grievances, and the disciplinary hearing conducted by McDermott on

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1
the misbehavior report filed by Kasunic. In that hearing, Wright
described Kasunic's alleged assault on him as follows:

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McDermott: What I need to know is the exact
type of assault, what did he do. Did he punch you,
grab you, kick you, what did he do?

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Wright: He tried to throw me to the ground.

McDermott :
[sic] So did he grab you,

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Wright: Yes he did.

McDermott: Where did he grab you?

Wright: What?

McDermott: Where did he grab you, on your body,
what did he grab?

Wright : He grabbed me.

McDermott: Right.

Wright: Well he tried to grab me around my
neck. He had a body hold
[sic] trying to throw
me down and hit the wall.

McDermott: Did you hit the ground?

Wright: What, did I hit the ground because he
told me to. So when he got off he had my hands on my
knees because I couldn't move.

McDermott: So in the day room Kasunic grabbed
you about the body and tried to throw you to the
floor.

Wright: That's right. And that was after I
came out [of] my room.

McDermott: Now you pushed him away?

Wright: Pushed him off me.

McDermott: You pushed him off you?

Wright: To get out of his hold that he had on
me .

McDermott: Then he stopped.

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Wright: No then he kicked my cup all around the
room.

McDermott: No I am talking about your physical
well being. He stopped that pretty rapidly, he tried
to throw you, you pushed away from him, and than
[sic] he stopped assaulting you?

Wright: You already know that .

McDermott: All I want to know is about the
assault.

Wright : Right.

McDermott: You said he grabbed you. He tried
to throw you to the floor.

Wright: Well.

McDermott: You pushed away from him?

Wright: The only reason he stopped was because
he seen me get ready to hit him.

McDermott: All he was worried about was your
fists. Your fist.

Wright: Yeah.

McDermott: Okay.

Wright :
[sic] (inmate is mumbling) he
stopped and started kicking my foot.

McDermott: Did he touch you
[sic]

Wright :
[sic]

McDermott: Did he touch you again?

Wright: Not after that.

(Disciplinary Hearing, May 14, 2003 ("May 14 Disciplinary Hrg. ") ,
at 9-10.)

In Action I, defendants contended that summary judgment
dismissing the second amended complaint was appropriate on a
variety of grounds, including lack of evidence of any injury to

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Wright or any disciplinary action against him in connection with
the February cane incident. With respect to the April newspaper
incident, defendants asserted in a statement of undisputed facts
pursuant to Local Rule 7.1 of the Northern District of New York
("Local Rule 7.1") that Wright, in his grievances and his
disciplinary hearing testimony, had neither alleged any
misbehavior by Cavallo nor complained of any racially disparate
treatment. Defendants contended that there was no evidence of any
arbitrary action by Morris.

In Action II, defendants contended that summary judgment
dismissing the Complaint was appropriate because, inter alia,
Wright's own testimony showed (a) that, in the May 4 incident,
Wright had experienced only a few minutes' shortness of breath,
and (b) that any force used by Kasunic against Wright was not
15 excessive.

Wright opposed summary judgment in each action, submitting
in each an affidavit in which he asserted that prison officials
were aware of "officers who allegedly wrote false disciplinary
report [s] ,
and obstacles to protect from corrections
officers that caused [Wright] to suffered physical injuries and
emotional trauma." (Affidavit of Melvin O. Wright in Action I,
dated August 15, 2005 ("Wright Aug. 15, 2005 Aff. "), 1 6; see
Affidavit of Melvin O. Wright in Action II, dated August 19, 2005,
1 7.) And in each action Wright sent an unsworn letter to the
district court stating that he had been "attack[ed] or assaulted
by another inmate February 6, 2003; and threaten[ed] by

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corrections officers from April 2, 2003, to May 4, 2003, after
being assaulted by an officer" and that these events caused him
mental anguish, physical and psychic injuries, sensation of pain,
and feelings of distress, fright, and anxiety. (Letter from

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Melvin Wright in Action I to Clerk of the District Court dated
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August 29, 2005 ("Wright Action I Letter to Court"), at 1-2;
Wright Action II Letter to Court at 1-2). Wright did not submit
in either action any statement of disputed facts pursuant to Local
9 Rule 7.1.

### D. The District Court Decisions

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In each action, the defendants' summary judgment motion
was referred to a magistrate judge for report and recommendation.
In Action I, in a Report and Recommendation dated February 27,
2006 ("Action I Report"), adopted by and reprinted with the
district court's subsequent Decision and Order, see Wright v.
Goord, No. 03 Civ. 0743, 2006 WL 839532 (N.D.N.Y. Mar. 27, 2006)
("Wright I") , at *1, Magistrate Judge David E. Peebles recommended
dismissing the second amended complaint in its entirety. The
magistrate judge recommended, inter alia, that Wright's claims for
money damages against DOCS and the individual defendants in their
official capacities be dismissed on the ground of Eleventh
Amendment immunity; he recommended that all of the claims against
Commissioner Goord be dismissed for lack of any evidence of his
personal involvement in the alleged constitutional violations.
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See id. at *6. As to Wright's remaining claims -- construed as

(1) Eighth Amendment and substantive due process claims based on
the COs' failure to protect Wright from Brandel in the February
2003 cane incident, and (2) equal protection and procedural due
process claims based on the bringing of disciplinary proceedings
against Wright but not Cavallo with respect to the April 2003
newspaper incident -- the magistrate judge recommended that those
claims be dismissed on the merits for lack of evidentiary support
as to essential elements of the claims. See id. at \*7 -\* 11.

Wright filed objections to the Action I Report, simply
reiterating in affidavit form most of the factual allegations in
the second amended complaint. (See Affidavit of Melvin 0. Wright
dated March 7, 2006 ("Wright Mar. 7, 2006 Aff. "), at 2-5 (setting
out the allegations made in paragraphs 6-10, 12, 15, and 16 of the
second amended complaint) . )

Judge Kahn, in a Decision and Order dated March 27, 2006,
after undertaking a de novo review of the record and considering
Wright's objections, approved and adopted the Action I Report and
granted defendants' motion for summary judgment dismissing the
second amended complaint. See Wright I, 2006 WL 839532, at *1.

In Action II, in a Report and Recommendation dated March
1, 2006 ("Action II Report"), adopted by and reprinted with the
district court's subsequent Memorandum-Decision and Order, see
Wright v. New York State Department of Correctional Services, No.
04 Civ. 0308, 2006 WL 752787 (N.D.N.Y. Mar. 22, 2006)
( "Wright II"), at *1, Magistrate Judge Gustave J. DiBianco
recommended granting defendants' summary judgment motion in its

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entirety. Wright's Action II claims against DOCS had been
dismissed previously; in the Action II Report, the magistrate
judge recommended dismissing the claims against all of the
individual defendants except Kasunic on the ground that there was
no evidence of their personal involvement in the events giving
rise to those claims.

As to Kasunic, the magistrate judge determined that Wright
had stated an Eighth Amendment claim based on Kasunic's alleged
assault during the May 2003 coffee incident but recommended that
that claim be dismissed. Citing Wright's testimony in his
deposition and in the May 14 disciplinary hearing, the magistrate
judge concluded that the amount of force used was de minimis, that
Wright suffered no injury, and that even viewing the evidence in
the light most favorable to Wright, no reasonable factfinder could
conclude that Kasunic used excessive force during the coffee
incident. See Wright II, 2006 WL 752787, at *6.

The magistrate judge also concluded that Wright had stated
a First Amendment claim that Kasunic had retaliated against Wright
because Kasunic believed Wright was a racist. However, the
magistrate judge recommended dismissing that claim on the ground
that " [t]he alleged dislike of white people is not a
constitutionally protected activity." Id. at *8.

Wright objected to the Action II Report by reiterating
most of the factual allegations in his Action II Complaint. (See
Wright Affidavit In Support of Objections Motion dated March 11,
2006 ("Wright March 11, 2006 Aff. "), at 2-7 (setting out the

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allegations made in paragraphs 9-14, and 16-19 of the Complaint) .)
Chief Judge Mordue, in a Memorandum-Decision and Order dated March
22, 2006, considered Wright's objections, conducted a de novo
review of the record, accepted and adopted the Action II Report,
and granted defendants' motion for summary judgment dismissing the
Action II Complaint. See Wright II, 2006 WL 752787, at *1.

Judgments were entered dismissing Wright's complaints, and
these appeals followed.

E. The Issues on Appeal

As briefly indicated above, in connection with an
application by Wright in this Court for assignment of counsel to
represent him in challenging the decisions of the district court,
this Court reviewed Wright's claims in order to determine whether
they could be pursued consistent with 28 U.S.C. § 1915 (e) ( "The
court may request an attorney to represent any person unable to
afford counsel, " but "the court shall dismiss the case at any time
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if the court determines that
the
appeal
is
frivolous
[or] fails to state a claim on which relief may
be granted; or
seeks monetary relief against a defendant who
is immune from such relief. "). We dismissed so much of Wright's
appeal as sought to pursue his claims with respect to equal
protection, procedural due process, and failure to provide
protection from Brandel, concluding that "the appeal of the
district court decision dismissing those claims lacks an arguable
basis in fact or law. See Neitzke v. Williams, 490 U.S. 319, 325
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(1989) ; 28 U.S.C. § 1915 (e) ." Wright v. Goord, No. 06-1808 (2d
Cir. Sept. 22, 2006) ("Wright III"), at 1. Our order appointed
counsel to represent Wright with respect to the claims as to which
his appeal was not dismissed, mentioning in particular his "claim
that the defendants violated his Eighth Amendment rights when he
was assaulted and intimidated by correctional officers at
Coxsackie Correctional Facility." Id. at 1-2.

Appointed counsel argues that in both Wright I and
Wright II, the district court erred in granting summary judgment
dismissing Wright's Eighth Amendment claims and in dismissing
claims that the Coxsackie COs violated the First Amendment by
retaliating against Wright for filing grievances.

### II. DISCUSSION

Summary judgment is appropriate only "if the pleadings,
the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law." Fed
R. Civ. P. 56 (c) ; see also Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986) ; McPherson v. Coombe, 174 F.3d 276, 279-80 (2d Cir.
1999). A genuine issue of fact means that "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) ; see, e.g., Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.

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1996\) (a genuine issue is one that "can 'reasonably be resolved in
favor of either party'" (quoting Anderson, 477 U.S. at 250) ) .

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We review a district court's decision to grant summary
judgment de novo, see, e.g., Johnson v. Goord, 445 F.3d 532, 534
(2d Cir. 2006), "'resolv[ing] all ambiguities and draw[ing] all
permissible factual inferences in favor of the party against whom
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summary judgment is sought, '" id. (quoting Terry v. Ashcroft, 336
F.3d 128, 137 (2d Cir. 2003) ); see, e.g., Graham v. Henderson, 89
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F.3d at 79 ("The evidence of the party opposing summary judgment
is 'to be believed, and all justifiable inferences are to be drawn
in [that party's] favor. '" (quoting Anderson, 477 U.S. at 255) ) .
When a motion for summary judgment is properly supported by
documents or other evidentiary materials, the party opposing
summary judgment may not merely rest on the allegations or denials
of his pleading; rather his response, by affidavits or otherwise
as provided in the Rule, must set forth "specific facts"
demonstrating that there is "a genuine issue for trial." Fed. R.
Civ. P. 56 (e) .

#### A. The Eighth Amendment Claims of Cruel and Unusual Punishment

##### 1. Action I

Plaintiff contends that the district court in Wright I
erred in dismissing the Action I claim for use of excessive force
because the court failed to construe liberally the "complaint and
other documentation" that he contends "demonstrate [d] an Eighth
Amendment claim based on an ongoing campaign of harassment and

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intimidation against [Wright] that began with verbal threats and
harassment and culminated in a physical assault." (Wright brief
on appeal at 13.) For several reasons, even with all justifiable
inferences drawn in Wright's favor, the record does not support
this characterization of Wright's pleading and submissions in
Action I.

First, the only concretely alleged physical assault by a
corrections officer in either of Wright's lawsuits was the alleged
assault by Kasunic. That claim, however, was not asserted in
Action I. Although Wright attempted to add his claim of a Kasunic
assault to Action I, he was informed that simply appending that
claim to his second amended complaint, as he sought to do, was
not permitted by court rules. Wright then elected to commence a
new lawsuit to assert the Kasunic assault claim rather than filing
a third amended complaint to assert that claim in Action I. Thus,
the alleged assault on Wright by Kasunic was not part of Action I.

Second, although the cane incident alleged in Action I
involved an assault on Wright, that was an assault by Brandel, his
cellmate. This Court's order in Wright III affirmed the Wright I
rejection of any claim that corrections officers had improperly
failed to protect Wright from Brandel. And there was no
allegation or proffer of proof in Action I of any physical assault
on Wright by any corrections officer.

Third, although paragraph 10 of the second amended
complaint in Action I, which is set out in full in Part I.A.
above, referred to an "intentional display of force such as was

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shown that night of February 26, 2003," that phrase was the only
suggestion in the case that there had been any display of force on
February 26. The pleading itself contained no allegation that in
fact any force had been used on February 26. Similarly, although
paragraph 10 also made reference to pre-February 26 "threats to
inflict injury upon [Wright], " this offhand suggestion that there
had been such threats was entirely conclusory and was not detailed
elsewhere in the pleading. And nothing in Wright's affidavits
provided any basis for inferring that any use of force had
occurred on February 26 or that any officer had threatened Wright
with physical injury before that date.

Finally, to the extent that paragraph 10 of the second
amended complaint was intended to suggest that corrections
officers, upon learning that Brandel had hit Wright with the cane,
returned the cane to Brandel on February 26 so that he could
assault Wright again (see also Wright brief on appeal at 8 ("on
February 26, 2003, prison staff returned the cane to Mr. Wright's
cellmate
thereby re-arming Wright's assailant") ), Wright
proffered no evidence to support that suggestion. Indeed, Brandel
was no longer Wright's cellmate, Wright having been moved to a new
cell on February 6. And Wright's deposition testimony revealed
that Wright had no information about the return of the cane to
Brandel except that he saw Brandel with the cane and, upon
complaining that Brandel had previously hit him with the cane,
Wright was informed that the cane had been returned to Brandel not
by security officers but by the medical staff.

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Wright's brief on appeal states that on February 26, i. e.,

same day [that the cane was returned to Brandel],
officers, including defendant-appellee Morris,
accosted Mr. Wright, shouting and taunting him about
the cane . . . and the alleged "cracker"
comments. . . . By their shouting and threatening
posturing, the officers convinced Mr. Wright that
they all were about to assault him.

(Wright brief on appeal at 8). But the record citations
accompanying this statement are only to Wright's pleadings, which
were conclusory, and to deposition testimony describing events of
April 2 and February 6, not February 26 (see id. at 8-9). There
was no factual allegation in the second amended complaint as to
any instance on which any CO threatened to subject Wright to
physical injury. Nor did Wright adduce any evidence of such a
threat.

In sum, nothing in the papers submitted by Wright in
Action I permitted the inference that Wright had been assaulted,
or threatened with personal injury, by a corrections officer. We
conclude that the Wright I court properly dismissed Wright's
Eighth Amendment claims in Action I.

##### 2. Action II

The Complaint in Action II did allege in nonconclusory
terms that Wright had been subjected to excessive force by Kasunic
on May 4 during the coffee incident. However, we agree with the
Wright II court that Wright's own testimony would prevent a
rational juror from finding in his favor on this claim.

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Analysis of a claim for use of excessive force begins with
"identif [ication of] the specific constitutional right allegedly
infringed by the challenged application of force." Graham v.
Connor, 490 U.S. 386, 394 (1989) ; see generally Baker v. McCollan,
443 U.S. 137, 140 (1979) (the first step in analysis of any claim
brought under § 1983 is to identify the precise constitutional
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right allegedly violated). In the context of a claim by a
prisoner that he was subjected to excessive force by prison
employees, the source of the ban against such force is the Eighth
LO Amendment's ban on cruel and unusual punishments. The validity of
the prisoner's claim must "be judged by reference to th[is]
specific constitutional standard . . . , rather than to some
generalized 'excessive force' standard. "
Graham v. Connor, 490
U.S. at 394; see, e.g., Whitley v. Albers, 475 U.S. 312, 318-26
(1986) (claim of excessive force to subdue convicted prisoner is
to be analyzed under an Eighth Amendment standard) .

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. See, e.g., Hudson v.
McMillian, 503 U.S. 1, 7-8 (1992); Blyden v. Mancusi, 186 F.3d
252, 262 (2d Cir. 1999). 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. Id. at 262 (quoting Wilson v. Seiter, 501 U.S. 294, 299

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(1991) ) ; see, e.g., Sims v. Artuz, 230 F.3d 14, 21 (2d Cir. 2000) ;
Davidson v. Flynn, 32 F.3d 27, 30 & n.2 (2d Cir. 1994). When
prison officials are accused of using excessive force, the
"wantonness" issue turns on "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; see also
Blyden v. Mancusi, 186 F.3d at 262-63.

The objective component of a claim of cruel and unusual
punishment focuses on the harm done, in light of "contemporary
standards of decency." Hudson, 503 U.S. at 8 (internal quotation
marks omitted) . In assessing this component, the court must ask
whether "the alleged wrongdoing was objectively 'harmful enough'
to establish a constitutional violation." Id. (quoting Wilson,
501 U.S. at 298). But 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." Hudson, 503 U.S. at 9.

Accordingly, 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, our Court has reversed summary
dismissals of Eighth Amendment claims of excessive force even
where the plaintiff's evidence of injury was slight and the proof
of excessive force was weak. See, e.g., Scott v. Coughlin, 344
F.3d 282, 291 (2d Cir. 2003) (reversing summary dismissal of
prisoner's complaint, though suggesting that prisoner's evidence

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of an Eighth Amendment violation was "thin" as to his claim that a
corrections officer struck him in the head, neck, shoulder, wrist,
abdomen, and groin, where the "medical records after the
incident with [that officer] indicated only a slight injury") ;
Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir. 1999) (vacating
district court's sua sponte dismissal of prisoner's complaint,
though characterizing his "excessive force claim [a]s weak and his
evidence [as] extremely thin" where prisoner alleged that he was
hit by prison guards "after he was handcuffed" but "the only
injuries he suffered were a bruised shin and swelling over his
left knee") .

Nonetheless, the Eighth Amendment's prohibition against
cruel and unusual punishment does not extend to "de minimis uses
of physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind." Hudson, 503 U.S. at 10
(internal quotation marks omitted). "'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. '" Id. at 9
(quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) ) .

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asserted in Action II.

In the present case, Wright's evidence with respect to his
claim that Kasunic violated his Eighth Amendment rights by
grabbing him in the dayroom on May 4 falls far short of even the
level of evidence that we termed "thin" in Scott v. Coughlin and
Griffin v. Crippen, and was insufficient with respect to both the
objective and subjective components of the Eighth Amendment claim

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As to the objective component, Wright's description of the
coffee incident does not permit a finding that Kasunic's alleged
conduct was "objectively 'harmful enough' to establish a
constitutional violation." Hudson, 503 U.S. at 8. Apart from the
several minutes during which he experienced acute shortness of
breath, Wright could not say that he experienced any physical
injuries from his encounter with Kasunic. (See Wright Dep. 42.)

Wright testified that he spent a few minutes leaning
forward with his hands on his thighs, and "got [his] breath back. "
(Wright Dep. 38, 40.) Someone brought Wright an oxygen tank (see
id. at 41), and Wright testified that he then left the dayroom:
Kasunic "was back at his desk. And I picked up my cup and went on
about my business" (id. ) .

Further, although in describing Kasunic's conduct, Wright
said that Kasunic had placed a hand on the site of Wright's colon
surgery, Wright did not testify that this had caused him any pain
at that site. Indeed, when expressly questioned at his deposition
as to what injuries he claimed to have suffered as a result of his
encounter with Kasunic, Wright did not testify that Kasunic's
actions caused him any pain whatever -- physical or emotional -- other
than the shortness of breath.

In sum, although Wright stated conclusorily in some of his
submissions to the district court in opposition to defendants'
motions for summary judgment that he had suffered "physical
injuries" (see, e.g., Wright Aug. 15, 2005 Aff. 1 6), neither his
deposition testimony nor any other evidentiary material in the

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record reveals that as a result of the May 4 coffee incident
Wright suffered any physical injury other than a few minutes'
shortness of breath. Plainly, given his testimony, any injury to
Wright was de minimis.

As discussed above, the absence of any significant injury
to Wright does not end the Eighth Amendment inquiry, for our
standards of decency are violated even in the absence of such
injury if the defendant's use of force was malicious or sadistic.
But the record here does not permit an inference that Kasunic
acted in such a manner or with such intent.

When Wright was asked at the May 14 disciplinary hearing
whether Kasunic had punched, kicked, or grabbed him, Wright
testified only that Kasunic grabbed him and attempted to throw him
to the ground. (See May 14 Disciplinary Hrg. at 9-10.) Wright's
brief on appeal cites a strength disparity between Wright and
Kasunic (see Wright brief on appeal at 7, 17), a disparity that is
acknowledged by Kasunic in a June 3, 2003 memorandum to a DOCS
sergeant and is easily inferable in recognition of Wright's age --
nearly 66 -- at the time of the incident. But the mere existence of
greater strength does not mean that such strength was used, and
Wright's deposition testimony definitively negates any possibility
that Kasunic used his greater strength during the coffee incident.
Wright testified:

[Kasunic] used force to try to cause injury, and I
was backing off of him. I had dropped my cup, and I
was backing off of him, you know. You know, I
stopped the force with me from my neck, and I stopped
the force where I had the operation.

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Q. You used your hands to push his hands off of
you?

A. Right.

(Wright Dep. 38-39.) Similarly, at his disciplinary hearing,
Wright testified that he " [p]ushed [Kasunic] off" (May 14
Disciplinary Hrg. at 10) .

Finally, although Wright stated that Kasunic had placed
one hand on Wright's abdomen at the site of his colon surgery,
there was no evidence that that placement was sadistic or
malicious. Wright did not testify that Kasunic knew or had reason
to know that his abdomen was unusually tender. Nor does the
record reveal any basis for inferring that Kasunic would have been
aware that it was a surgical site. Wright's surgery had been
performed some 17 months earlier -- and some eight months before
Wright became an inmate at Coxsackie.

In sum, the evidence was that Kasunic grabbed Wright, and
Wright pushed him away; while Wright leaned over to catch his
breath, Kasunic kicked Wright's coffee cup around the room, but
only the coffee cup was abused. After the few minutes needed to
catch his breath, Wright left the dayroom, took his cup, and "went
on about [his] business." As a matter of law, this record would
not permit a rational factfinder to find that Kasunic subjected
Wright to excessive force or cruel and unusual punishment.
Summary judgment dismissing this claim was proper.

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B. Retaliation

###### 1. Action I

Plaintiff contends that the district court erred in
failing to read Wright's papers in Action I sufficiently liberally
to conclude that Wright asserted a claim of retaliation. The
argument is that Wright filed a grievance in April 2003 alleging
that Morris filed the April 2 misbehavior report with regard to
the newspaper incident in retaliation for Wright's having
complained to the county district attorney on February 27 with
respect to the cane incident, and that the April 2003 grievance
was incorporated by reference into the Action I Second Amended
Complaint. We reject that argument.

First, we see no indication in the record that either of
the grievances filed by Wright against Morris with respect to the
April 2 newspaper incident was attached to the second amended
complaint. Second, a claim of retaliation was not integral to
the claim that Wright alleged with respect to the newspaper
incident, i.e., the equal protection claim that Morris's issuance
of a misbehavior report against Wright and not against Cavallo
constituted disparate treatment based on race. (See, e.g.,
Action I Second Amended Complaint | 15; Wright Dep. 19, 23.)
Indeed, in the sections of the second amended complaint that
allege "Facts" and "Causes of Action" (see Action I Second
Amended Complaint (1 6-22), there is but one terse -- and largely
incomprehensible -- mention of Wright's April grievance :

Officer A. Morris, yelled from A desk to officer
Zimber at B desk to give that nigger a ticket; Tape

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no. 03-0858, of witnesses; and Grievance no. CX-9520-
03, expired past the 12 working days limitation.

3 (Id. | 12.)

There was a clearer statement in the second amended
complaint that Wright had filed a grievance against Morris with
regard to the April 2 incident; but that statement was made in the
preliminary sections of the pleading, which followed a form
promulgated by the United States District Court for the Northern
District of New York for "Inmate Civil Rights Complaint [s]
Pursuant to 42 U.S.C. § 1983." Given that prisoners are required
to exhaust certain claims administratively before bringing suit in
federal court, see 42 U.S.C. § 1997e (a), the form required that,
before asserting facts and causes of action, a plaintiff provide
information as to, inter alia, whether his place of confinement
had a grievance procedure, if so whether he had pursued his claims
in the grievance procedure, and if not whether he had complained
to prison authorities about the facts alleged in his complaint.
Wright's pleadings followed this format. (See, e.g., Action I
Second Amended Complaint | 4.) And although paragraph 4 of the
second amended complaint asserted, more clearly than did the
"Facts" and "Causes of Action" sections of the pleading, that
Wright had filed a grievance against Morris, paragraph 4 did not
disclose that the grievance claimed that Morris's misbehavior
reports against Wright constituted retaliation. Indeed, no form
of the word "retaliation" appeared anywhere in the second amended
complaint.

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Understandably, the magistrate judge did not mention a
claim of retaliation in making his recommendation to the district
judge for the disposition of the second amended complaint. Wright
lodged objections to the Action I Report; but they did not include
an objection that that report failed to address a claim of
retaliation. We view Wright's failure to make that objection as
confirmation of our view that he had no belief that he had
asserted a retaliation claim in Action I. And if in fact he had
intended to assert and believed he had asserted such a claim, he
waived his right to challenge the dismissal of that claim on
appeal by failing to make a retaliation-claim-related objection to
the Action I Report's recommendation that the second amended
complaint be dismissed in its entirety.

Finally, we note that Wright's counsel on these appeals
appears to argue that Morris's April 9 misbehavior report was
filed in retaliation for Wright's filing the grievance on April 2,
which in turn was based on the misbehavior report Morris had filed
against Wright on April 2. (See Wright brief on appeal at 24
("When [Wright] filed a . . . complaint, on April 2, 2003,
Morris again retaliated, filing new charges against [Wright]
based on the very same incident. "). Wright, however, did not make
this argument in the district court. Rather, in the district
court proceedings, as described in Parts I.A. and I.C. above,
Wright claimed only that Morris filed the April 9 misbehavior
report in order to interfere with Wright's legal work. (See
Wright Dep. 22-23; Wright grievance dated April 9, 2003.) Given

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that Wright raises this new retaliation contention for the first
time on appeal, and indeed made an entirely different claim with
respect to the April 9 misbehavior report in the proceedings
before the district court, we decline to address the new
contention. See, e.g., Wal-Mart Stores, Inc. v. Visa U.S.A.,
Inc., 396 F.3d 96, 124 n.29 (2d Cir. 2005) ("'The law in this
Circuit is clear that where a party has shifted his position on
appeal and advances arguments available but not presented below,
waiver will bar raising the issue on appeal. '" (quoting
United States v. Braunig, 553 F.2d 777, 780 (2d Cir. 1977) ) .

##### 2. Action II

Plaintiff argues that the district court erred in
dismissing Wright's retaliation claim in Action II by failing to
consider that the defendant COs may have retaliated against Wright
for filing grievances. We have several difficulties with this
argument.

To begin with, the Action II Complaint, although
describing Kasunic's alleged assault of Wright on May 4 as
"Retaliation" (Action II Complaint | 14), does not identify the
actions of Wright for which Kasunic allegedly retaliated. At his
deposition, Wright testified as follows:

Q.
Are you alleging that Officer
Kasunic retaliated against you or his behavior
towards you was retaliation for something?

A. Yes.

Q. What was he retaliating against?

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A. The fact that Brandell [sic] told him that
the staff -- that I don't like crackers and the word
went around that I don't like crackers.

Q. So if Kasunic was retaliating against you,
it's because he believed you -- he believed you were a
racist and you didn't like white people. Is that
what he was retaliating about?

A. Yes.

(Wright Dep. 49; see also id. at 35 (testifying that Kasunic had
commented on Wright's purported dislike of "crackers") .)
Accordingly, the district court reasonably viewed Wright's
Action II retaliation claim as asserting that Kasunic retaliated
against Wright because Kasunic believed Wright was a racist.

The claim of retaliation on that basis was expressly
abandoned by Wright's counsel on this appeal. At oral argument,
when asked what Wright contended was the basis for Kasunic's
retaliatory animus, counsel responded as follows :

COUNSEL: Retaliation for his complaint to the
district attorney, which he had made on February
27th.

As the court may be aware, the problems began on
February 6th when a cellmate attacked Mr. Wright with
a cane and then to cover up the assault, the cellmate
accused Mr. Wright of calling his cellmate a cracker,
which is a derogatory term for a white person.

The prison guards heard about the false
statement and came to the mis-conclusion that Mr.
Wright was a bigot and began to threaten and to
intimidate him. He is not claiming retaliation for
that

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THE COURT :
I'm sorry, he's not
claiming retaliation for, for what?

COUNSEL: For the quard's misperception that he
was a bigot.

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(Tape of oral argument (emphases added) .) Although on this
appeal, in which Wright is represented by counsel, it is now
clarified that Wright's claim is that he was retaliated against
for filing grievances, this could not have been clear to the
district court. In objecting to the magistrate judge's
recommendations in Action II, Wright repeated nearly verbatim the
allegations in his Complaint and added that the defendant
corrections officers were motivated by the desire for revenge and
that their misbehavior reports were filed, and that Kasunic
assaulted him, "for the sole purposes of 'retaliation' and
'revenge. '" (Wright March 11, 2006 Aff. at 7.) But Wright did
not specify the supposed reasons for the alleged desires for
retaliation and revenge. Given Wright's explicit and unambiguous
deposition testimony that his claim was that Kasunic retaliated
against Wright because Kasunic "believed [Wright] w[as] a racist"
(Wright Dep. 49), it is difficult to fault the district court for
not viewing Wright as claiming that he was being retaliated
against for exercising his First Amendment right to file
grievances.

Wright's counsel at oral argument of this appeal specified
that Wright "is claiming retaliation because . . . of the letter
that he wrote to the district attorney saying that he feared for
his physical health because the guards threatened and harassed
him." (Tape of oral argument. ) That February 27 letter to the
county district attorney was indeed mentioned in paragraph 12 of
Wright's Action II Complaint, which reiterated his Action I Second

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Amended Complaint allegations with respect to the February 2003
cane incident. The letter itself, which was one of the documents
submitted by defendants in support of their motion for summary
judgment in Action I, read as follows:

Dear Sir:

Any willful attempt or threat to inflict injury
upon the person of another, when coupled with an
apparent present ability so to do, and any
intentional display of force such as would give the
victim reason to fear or expect immediate bodily
harm, constitutes an assault.

Approximately, about the week of February 6,
2003, inmate Brandel, Id. 00-B-0791, here in some
kind of protected custody (P.C.) as a patient in the
hospital infirmary (allegedly); attacked inmate
Wright, with his walking cane by hitting him on his
head with it. Then inmate Brandel, [ran] to the
emergency nurse bell and pushed it asking for
security. When security arrived inmate Brandel,
reversed the incident and told them Wright, hit him
with the cane, at 11:30 p.m., and called him a
"Cracker, " with the cane still in his hand, pursuant
to Correctional Law Sections 52.19, 114. A, and
138.4; Title 18 U.S.C. Sections 241, 242, and 18
U.S.C. § 3041 (F) .

Then security removed Wright, from his room and
gave the room to Brandel, and took his cane, and then

complaint is based on lack of security or racism,
(Emphasis yours) ?

Sincerely submitted
MELVIN O. WRIGHT, SR.

(Letter from Melvin 0. Wright to Prosecutor's Office dated
February 27, 2003.)

Even if a claim of retaliation for having written this
letter were properly preserved for appeal, we could not agree that
it was error to dismiss Wright's Action II retaliation claim. The

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district court correctly found that the Action II Complaint
alleged that the retaliatory act was Kasunic's assault on Wright
during the coffee incident. Other than Kasunic, the only
individual defendants named in the Action II Complaint were
Goord, McDermott, and Dirie, none of whom was alleged to have
participated in that event. Wright's D.A. Letter complained of
the cane incident; but neither Kasunic nor any other officer was
named in that letter. Wright testified that Kasunic in fact was
not one of the officers who came to Wright's cell after Wright was
hit with the cane on February 6. And Wright had no reason to
believe that Kasunic was involved in returning the cane to
Brandel, as Wright was informed that the cane had been returned by
the medical staff.

Given this record, no rational juror could conclude that
if Kasunic assaulted Wright, it was in retaliation for Wright's
having written, some 10 weeks earlier, a letter that did not name
Kasunic or any other officers and complained of an incident in
which Kasunic was not a participant.

# CONCLUSION

We have considered all of plaintiff's arguments in these
consolidated appeals and have found them to be without merit. The
judgments of the district court are affirmed.

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(L), 06-1808 - pr Wright v. Goord

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