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finding no evidence of causal connection where "[t]here is no evidence disputing [defendant's] statement that he was unaware of grievances previously filed by [p]laintiff prior to conducting the cell search . . ., and therefore was in no way influenced by such grievances in conducting the search or filing the Misbehavior Report"
Summary of this case from Stone v. EamerOpinion
9:13-CV-0590 (GTS/TWD)
12-09-2015
BRUCE HENSON, Plaintiff, v. GAGNON, et al., Defendants.
APPEARANCES: BRUCE HENSON Plaintiff pro se 09-A-1436 Upstate Correctional Facility P.O. Box 2001 Malone, New York 12953 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: MELISSA A. LATINO, ESQ. Assistant Attorney General
APPEARANCES: BRUCE HENSON
Plaintiff pro se
09-A-1436
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: MELISSA A. LATINO, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT AND RECOMMENDATION
Plaintiff Bruce Henson commenced this pro se civil rights action under 42 U.S.C. § 1983 asserting claims arising out of his incarceration at Upstate Correctional Facility ("Upstate"). (See generally Dkt. No. 1.) A number of originally named defendants and the majority of the claims asserted by Plaintiff in his complaint were dismissed from the case by the Hon. Glenn T. Suddaby, Chief United States District Judge, on initial review done pursuant to 28 U.S.C. §§ 1915(e) and 1915A. (Dkt. No. 10.) The sole remaining claims are: (1) First Amendment retaliation claims against Defendant Sergeant Brian Gagnon ("Gagnon") and Corrections Officer Eric DuFrane ("DuFrane") for allegedly planting evidence in his cell during a cell search and filing a false Misbehavior Report against Plaintiff based upon the planted evidence, and including a factually unsupported smuggling claim in retaliation for grievances he had filed against Upstate staff; (2) a First Amendment retaliation claim against Hearing Officer Don Haug ("Haug"), incorrectly sued as "Hough," based upon Haug's decision and the penalty imposed by him in Plaintiff's disciplinary hearing on the Misbehavior Report ; and (3) a claim for deliberate indifference against former Upstate Superintendent David Rock ("Rock") for failing to correct misconduct by his staff after receiving reports disclosing it. Id. at 34-35.
Edward Saldano was also initially named as a Plaintiff in the action. (Dkt. No. 1.) However, Saldano was dismissed from the action without prejudice early on for failing to comply with an order regarding payment of the filing fee. (Dkt. Nos. 9-10.)
Because the paragraphs in Plaintiff's complaint are not numbered consecutively throughout the pleading, and there are instances of the same number being used for more than one paragraph, references to the complaint herein are to the page number assigned by the Court's CM/ECF electronic docketing system.
This matter is now before the Court on the remaining Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 40.) Plaintiff has opposed the motion. (Dkt. No. 43.) For the reasons that follow, the Court recommends that Defendants' motion for summary judgment be granted.
I. BACKGROUND
A. Random Cell Frisk/Search Procedure at Upstate
According to Defendant Gagnon, he receives a list of randomly selected cells to be frisked/searched for security purposes on a daily basis and, in his role as Sergeant, often directs corrections officers under his supervision to conduct the cell searches and to report any concerns to him. (Dkt. No. 40-4 at ¶¶ 4-5.) Gagnon receives the list of cells to be searched in a memorandum from the Captain's Office to the Watch Commander. Id. at ¶ 6. The day and time of the searches is varied to prevent predictability, which would be counterproductive to the searches. Id. at ¶ 5. Plaintiff acknowledged in his deposition testimony that random searches are done at every facility. (Dkt. No. 40-5 at 13.)
Defendant Corrections Officer DuFrane has been trained to do cell searches by the Department of Corrections and Community Supervision ("DOCCS"). (Dkt. No. 40-3 at ¶¶ 3-4.) DuFrane, who conducts multiple routine cell searches a week at the direction of his supervisor, described the routine cell frisk/search procedure in his Declaration. Id. at ¶ 7. In accordance with DOCCS policy, DuFrane examines the cell for contraband, including drugs, and weapons or items. Id. at ¶ 9. DuFrane also examines State and personal property of the inmate for damage. Id. at ¶ 10.
For security purposes, DuFrane is required to examine the bars, windows, locks/locking mechanisms, interior and exterior walls, secure cabinets, vents, and lighting and plumbing fixtures in the cell, because an inmate could hide contraband in the lighting and plumbing. Id. at ¶¶ 11-12. As a part of the inspection, DuFrane looks at the security screws in the cover of the light in the cell and the screws in the doors. Id. at ¶ 13.
According to DuFrane, Special Housing Unit ("SHU") inmates have an exercise area outside of their cell which is controlled by DOCCS, and only a DOCCS official can open or close the exercise door. Id. at ¶¶ 14-15. The control panel to open and close the exercise door is covered by a steel plate secured by security screws, which are difficult to unthread in order to prevent an inmate from opening the panels to hide contraband or escape to the outside area. Id. at ¶¶ 16-17. Loosening of the screws generally requires a special security screwdriver. Id. at ¶ 17. However, DuFrane knows of many inmates who have removed the screws, despite the difficulty, and many more who have attempted to do so by unthreading them. Id. at ¶ 18. The integrity of the security screws is important to facility security, not only because if an inmate were to remove the screws he could open the exercise door, but because the inmate could gain access to the cavity behind the steel plate and use the space for contraband, and the screws could be used as a weapon or part of a weapon. Id. at ¶¶ 19-22.
B. Random Cell Frisk/Search of Plaintiff's Cell on November 29, 2012
Plaintiff was transferred from the SHU at Coxsackie Correctional Facility to the SHU at Upstate on September 24, 2012. (Dkt. No. 43-1 at 4.) Plaintiff's cell, B-14 in SHU 8 Building, which he shared with his cellmate Edward Saldano ("Saldano"), was randomly selected to be frisked/searched for security purposes on November 29, 2012. (Dkt. No. 40-4 at ¶¶ 9-10.) Plaintiff and Saldano had been moved into the cell on October 25, 2012. (Dkt. No. 40-8 at 37.)
Gagnon was working the 2:00pm to 10:00pm shift on 8-Block on November 29, 2012, when he received the memorandum identifying the cells to be searched that day. (Dkt. No. 40-4 at ¶¶ 7-9 and 8.) Plaintiff's cell was included on the list. Id. at 8. Although according to Gagnon, he directed Defendant DuFrane to conduct the cell frisk/search that included Plaintiff's cell, (Dkt. No. 40-4 at ¶ 11), Plaintiff claims that there were seven corrections officers, as well as Gagnon, present during the search. (Dkt. No. 1 at 27-28.)
Plaintiff's claim that Gagnon and DuFrane conducted the November 29, 2012, search on his cell in retaliation for grievances filed by Plaintiff was dismissed by Judge Suddaby on initial review. (Dkt. No. 10 at 34-35.)
DuFrane informed Plaintiff and Saldano that he was going to search their cell and, in accordance with DOCCS policy, removed them from the cell to conduct the search. (Dkt. Nos. 1 at 27; 40-3 at ¶¶ 32-33.) During the search, DuFrane discovered that the steel plate covering the electronic mechanism that controlled the exercise door was missing a screw and that three other screws were loose. (Dkt. No. 40-3 at ¶ 34.) DuFrane was concerned with what he perceived to be a serious violation that threatened the safety and security of staff, inmates, and the public. Id. at ¶ 35. DuFrane was most troubled by the missing screw, which could have been used as an anchor for a dragline to pass contraband from one cell to another, or passed to another inmate who might have used it to make a weapon. Id. at ¶ 36.
DuFrane also found ripped up State sheets which had been formed into draglines in the corner of Plaintiff's cell. Id. at ¶ 37. According to DuFrane, draglines are used to drag, fish, or throw contraband from one cell to another. Id. DuFrane, who given both the missing screw and the draglines, was concerned that Plaintiff had been passing contraband, or was intending to pass or receive contraband, immediately notified his area Supervisor Gagnon. Id. at ¶¶ 38-39. Upon being notified, Gagnon went to Plaintiff's cell and saw both the draglines and the missing and loose screws in the steel plate. (Dkt. No. 40-4 at ¶¶ 13-14.) Gagnon also considered it to be a very serious violation that threatened the safety and security of the facility. Id. at ¶ 15. According to Gagnon and DuFrane, Plaintiff had not told either one of them about the missing and loose screws or torn sheets prior to the search on November 29, 2012, although he was required to advise staff of both of those things. (Dkt. Nos. 40-3 at ¶¶ 49-50; 40-4 at ¶¶ 26-27.)
DuFrane drafted a Misbehavior Report, dated November 29, 2012, describing what he had seen and found in Plaintiff's cell. (Dkt. Nos. 40-3 at ¶¶ 42-43; 40-8 at 46.) In accordance with DOCCS policy, DuFrane took photographs of the draglines and steel plate with the missing and loose screws and attached them to the Misbehavior Report. (Dkt. Nos. 40-3 at ¶¶ 45-46; 40-8 at 47-48.) Gagnon signed off on the Misbehavior Report and endorsed the charges of smuggling in violation of 114.10, tampering with property in violation of 116.11, and property damage or loss in violation of 116.10. (Dkt. Nos. 40-4 at ¶ 24; 40-8 at 46.)
Plaintiff claims that DuFrane planted the evidence used to support the Misbehavior Report during the November 29, 2012, cell search. (Dkt. Nos. 1 at 42-43; 43 at ¶ 24.) In addition, he claims that DuFrane and Gagnon filed a Misbehavior Report that contained a smuggling claim for which there was no factual basis for the purpose of increasing the Tier level of the Report to Tier III. (Dkt. Nos. 1 at 42-43.) Plaintiff contends that they did so in retaliation for grievances filed against other corrections officers by Plaintiff, and a grievance Plaintiff's cellmate Saldano filed against DuFrane on or about October 27, 2012, regarding Saldano's failure to receive his underclothes for forty days of his confinement at Upstate. (Dkt. No. 1 at 24, 26, 42-43.)
C. Hearing Before Defendant Haug on the Misbehavior Report
At the designation of the Superintendent at Upstate, Defendant Haug, Food Service Administrator at Upstate, serves as an impartial hearing officer for Tier III disciplinary hearings. (Dkt. No. 40-8 at ¶¶ 2-3.) Haug was appointed by the Superintendent to act as the impartial hearing officer at the disciplinary hearing on the Misbehavior Report on Plaintiff prepared by DuFrane and endorsed by Gagnon Id. at ¶ 8-9. Prior to the hearing, Haug received the Misbehavior Report and attached pictures of the steel plate with the missing and loose screws and draglines found in Plaintiff's cell during the search. Id. at ¶¶ 12, 17-19.
According to Haug, he commenced Plaintiff's disciplinary hearing on December 6, 2012, and the hearing was concluded on January 4, 2013. Id. at ¶ 8. The hearing was conducted on December 6, 2012, December 20, 2012, and January 4, 2013. Id. at 14, 20, and 30. On the initial hearing date, Plaintiff brought up the smuggling charge and asked Haug what it was he was supposed to have smuggled. Id. at 18-19. Haug indicated they would deal with the smuggling issue when the hearing resumed. Id. Plaintiff brought up the smuggling charge again on January 4, 2013, noting that he was charged with smuggling even though the Misbehavior Report said nothing about smuggling. Id. at 36. No witness testimony was given on December 6, 2012. Id. at 14-19.
Corrections Officer Keleher testified at Plaintiff's request when the hearing resumed on December 20, 2012. (Dkt. No. 40-8 at ¶ 25 and 20-21.) Plaintiff claimed that no search had been conducted before he and his cellmate were moved into the cell on October 25, 2012, and he wanted Keleher to testify as the signator of the October 26, 2012, Cell Inventory Checklist, which Plaintiff claimed was a fake. (Dkt. Nos. 1 at 17-18, 20; 43 at 4; 43-1 at ¶ 27.) Plaintiff also claimed that his signature on the Checklist had been forged. Id. Presumably, Plaintiff was attempting to establish that there had been no search, and therefore no record of whether the screws were already missing and loose and there were already draglines made from sheets in the cell when Plaintiff and Saldano were moved in.
Keleher testified regarding the October 26, 2012, Checklist prepared in connection with a cell search he had done on Plaintiff's cell, which indicated that there were no issues with the cell, i.e., no contraband found or torn sheets. (Dkt. No. 40-8 at ¶ 20 and 49.) Keleher testified that the Checklist included both his and Plaintiff's signatures. Id. at 20. When asked by Haug, Keleher testified that the inspection was done on October 26, 2012, because Plaintiff and his cellmate had to be in the cell at the time of the inspection. Id. at 22. Plaintiff disagreed, stating that the New York Code of Rules and Regulations and DOCCS Supervision Directive 4933 required that the inspection be done before inmates are moved into a cell. Id. at 23.
Plaintiff claims that Keleher perjured himself at the hearing. (Dkt. No. 1 at 6.)
Plaintiff informed Haug that he needed the testimony of the movement officer regarding when Plaintiff had been moved into the cell, and Haug indicated he would "check on the movement thing" but would have to postpone the hearing again. Id. Plaintiff also requested that the SHU log and cell search logs and a videotape of the search on November 29, 2012, be provided to him. Id. at 26-28. Haug told Plaintiff there was no videotape that would show inside the cell. Id. at 28. When the hearing resumed on January 4, 2013, Haug gave Plaintiff a copy of the cell search log he had requested. Id. at 30. Haug also told Plaintiff that he had compared his handwriting sample with the signature on the October 26, 2012, Checklist and concluded that they were pretty close, and there was no reason to think someone else had signed it for him. Id. Plaintiff renewed his request that the movement officer be called to testify as to the exact date he moved into the cell in order to clarify that a cell search was not done the day he and Saldano moved in. Id. at 30. According to Plaintiff, the movement officer had testified at Saldano's disciplinary hearing that they were moved into the cell on October 25, 2012. (Dkt. No. 40-8 at 31.) Haug, who noted that Keleher had not disputed Plaintiff's claim that he moved in on October 25, 2012, and had indicated that the inspection was not done before Plaintiff moved in but on October 26, 2012, did not call the movement officer as a witness at the hearing Id. at 31-32.
Plaintiff's cellmate Saldano was called to testify on January 4, 2013, at Plaintiff's request. Id. at 34. Saldano testified that at his disciplinary hearing, Keleher had testified that he did a cell inspection on October 26, 2012, prior to Saldano coming into the cell, and that the movement officer had testified that Plaintiff and Saldano had moved into the cell on October 25, 2012. Id. at 37. Saldano testified he knew for a fact that Keleher did not do a cell search before they moved in because while they were in the hallway, before they had been in the cell, Keleher opened the door and trashed up the garbage left in the cell by the former occupant and kicked it into the hall. Id. at 37-38.
At Haug's request, Gagnon also testified on January 4, 2013. Id. at 40. Haug showed Gagnon the Misbehavior Report and, presumably showing him the picture of the torn sheets, asked Gagnon if they were the sheets he took out of Plaintiff's cell. Gagnon answered in the affirmative and indicated that the sheets were piled in the corner of the cell. Id.
D. Haug's Determination and Modification on Review
Haug issued a written decision on the charges in the Misbehavior Report on January 4, 2013. (Dkt. No. 40-8 at 42-43.) Haug found Plaintiff guilty of 114.10 smuggling, 116.10 property damage or loss, and 116.10 tampering with property. Id. Haug relied upon the Misbehavior Report written by DuFrane and sponsored by Gagnon; the October 26, 2012, Cell Inventory Checklist showing no damage and bearing what Haug had determined to be Plaintiff's signature; Keleher's testimony regarding a search having been done before Plaintiff entered the cell; Saldano's testimony that Keleher was in the cell before he and Plaintiff entered it; Gagnon's testimony that the sheets were found in the corner near the exercise pen; Plaintiff's failure to present evidence contradicting the testimony; and the invalidity of Plaintiff's objections. (Dkt. No. 40-8 at 42-43.)
Haug imposed a penalty of nine months in SHU, three months loss of good time, and restitution in the amount of $13.00 for the two sheets and one pillow case. Id. Haug's articulated rationale for the penalty was to act as a deterrent for future misconduct that could result in a more serious disposition. Id.
Plaintiff requested a discretionary review of Haug's determination by Defendant Superintendent Rock. (Dkt. No. 43-1 at 9.) Rock explained in his determination of January 9, 2013, that a superintendent's discretionary review looked at the charges and the penalty imposed, and that the superintendent had discretion to lower the amount of the penalty, which he declined to do. Id. On appeal to Albert Prack, Director SHU/Inmate Discipline, Prack modified Haug's determination by dismissing the 114.10 smuggling charge on the grounds that it could not be substantiated by the Misbehavior Report. (Dkt. No. 43-1 at 21-22.)
E. Plaintiff's Retaliation Claim Against Haug
The sole claim against Haug that survived initial review is Plaintiff's claim that Haug's discliplinary hearing decision and penalty, which Plaintiff claimed were not based upon the evidence, were "vengeful" and in retaliation for grievances Plaintiff submitted against Haug prior to the completion of the disciplinary hearing. (Dkt. No. 1 at 8.) The first grievance against Haug, dated December 19, 2012, complained that Haug's false statement that he had to seek an extension on the disciplinary hearing on Plaintiff's Misbehavior Report because of an extensive witness list was retaliatory and vengeful and violated Plaintiff's constitutional rights because it kept him in SHU for a longer period of time. (Dkt. No. 43-1 at 5-7.)
Plaintiff has submitted a copy of the December 19, 2012, grievance in opposition to Defendants' motion for summary judgment. (Dkt. No. 43-1 at 5-7.) The grievance is not on the printout of closed grievances filed by Plaintiff that was submitted by Defendants. (Dkt. No. 40-5 at 24.) It is unclear from the certification of Jeffrey Hale accompanying the list and Declaration of Melissa A. Latino, Defendants' counsel, whether the list purports to contain all of the grievances filed by Plaintiff. Id. at 1-2 and 23. It would appear that it may not since Grievance No. UST-51144-13, challenging the inclusion of the smuggling charge by the Review Officer, which is annexed to the Declaration of Scott Woodward submitted by Defendants, is not on the closed grievances list. (Dkt. No. 40-7 at 6-9.)
In the second grievance against Haug, dated December 21, 2012, Plaintiff reiterated his previous grievance against Haug regarding the allegedly false pretenses relied upon by Haug in seeking an extension on the disciplinary hearing. Plaintiff also complained about the escorting officers, including a claim that Haug looked to one of the escorting officers as if asking her for advice each time Plaintiff asked for pertinent pieces of evidence from the hearing officer, further showing Haug's bias and partiality. Id. at 25.
There is no evidence in the record that either of the grievances was filed with the Inmate Grievance Office at Upstate or acted upon by the Inmate Grievance Resolution Committee. According to Plaintiff's complaint, as of January 17, 2013, well after Haug had issued the allegedly retaliatory decision and penalty, Plaintiff had yet to receive grievance numbers or any acknowledgment of receipt of the grievances dated December 19, 2012, and December 21, 2012, from the Inmate Grievance Program. (Dkt. No. 1 at 13.) Plaintiff allegedly complained to Rock that Sergeant Gravlin withheld the grievances Plaintiff filed against Haug until the conclusion of the disciplinary hearing so that he could then dismiss the grievances. Id. at 8, 41.
Haug denies having had any knowledge during the hearing that Plaintiff had filed a grievance against him. (Dkt. No. 40-8 at ¶¶ 31-33.) Haug asserts that given his lack of knowledge, he was not influenced in any way by the grievance in rendering a decision and issuing a disposition in Plaintiff's disciplinary hearing. Id. at ¶ 34. According to Haug, he conducts numerous hearings each year, and "[t]he fact that a grievance may be filed against me by a disgruntled inmate, who is the subject of a disciplinary hearing over which I am presiding, does not affect my partiality in any manner, and in no way influences my disciplinary decisions." Id. at ¶ 35. Haug claims that he reasonably relied upon the hearing evidence in rendering his decision and defended his decision as supported by the evidence and the penalty imposed as reasonable and appropriate to the charges. Id. at ¶¶ 37-56. Haug contends that despite Prack's dismissal of the smuggling charge on appeal, it was reasonable, based on the hearing evidence, for Haug to find Plaintiff guilty of all of the charges in the Misbehavior Report. Id. at ¶¶ 58-61.
Plaintiff testified at his deposition that he "never grieved the hearing" because "there was no reason for [him] to file a grievance for the hearing because he appealed it." (Dkt. No. 40-5 at 14, 16.)
F. Supervisory Claim Against Rock
Claims that former Upstate Superintendent Rock exercised deliberate indifference by failing to take corrective action after receiving, reviewing, and responding to complaints and letters regarding staff misconduct and other matters are spread throughout Plaintiff's complaint. Plaintiff has alleged that Rock failed to take action when Plaintiff complained about the operation of the grievance procedure in connection with a September 29, 2012, grievance filed by him against Corrections Officer Sevey ("Sevey") regarding Plaintiff's medical diet food trays. (Dkt. No. 1 at 9.) According to Plaintiff, Rock responded but took no action. Id. On October 16, 2012, Plaintiff submitted another complaint to Rock regarding bias and the partial investigation done on the Sevey grievance. Id. at 21. On October 26, 2012, Rock denied the grievance which, according to Plaintiff, proved that the investigation had been suspect and biased. Id. In addition, Plaintiff complained to Rock regarding Sevey's alleged disposal of Plaintiff's library request forms under the direction of Sergeant Gravlin on January 5, 2013, thereby denying Plaintiff access to courts as needed. Id. at 8. Plaintiff also complained to Rock about F.O.I.L. Officer L. Demarse's intentional withholding of documentary evidence requested by Plaintiff regarding the deprivation order issued as a result of the November 29, 2012, cell search findings. Id.
Plaintiff has also alleged that he sent a complaint to Rock on November 16, 2012, expressing disappointment with the Progressive Inmate Movement System (PIMS"). Id. at 10. Plaintiff was interviewed by Gagnon, who allegedly made a threatening comment, and no further action was taken. Id. On November 15, 2012, Plaintiff sent Rock another complaint regarding his disappointment with PIMS. Id. at 26. According to Plaintiff, Rock did nothing towards resolving the situation and advised Plaintiff to go through the grievance program. Id.
Plaintiff has alleged he authored another complaint, which was sent to Rock on November 28, 2012, because Sevey was purposely not giving him toilet tissue. Id. at 26-27. Plaintiff contends that he received the same response from Rock (presumably being told to go through the grievance procedure) despite letting Rock know the urgency of the situation. Id.
When in addition to filing a grievance, Plaintiff complained to Rock about the allegedly retaliatory cell search by DuFrane, false Misbehavior Report, and deprivation order by Gagnon, Rock again responded in the same way, with no resolution even after numerous complaints. (Dkt. No. 1 at 11-12, 28.) Plaintiff also complained to Rock about Haug's bias while the disciplinary hearing was ongoing, Haug's bias in imposing a penalty of nine months in SHU when it was not based on the evidence presented, and Sergeant Gravlin's actions in holding the grievances Plaintiff filed against Haug until the conclusion of the hearing so that he could then dismiss them. Id. at 8, 41.
According to Rock, inmates file numerous grievances and complaints on a daily basis, and it was not typical for him to personally review or respond to all such complaints in his role as Superintendent. (Dkt. No. 40-6 at ¶ 7.) Rock often delegated investigations surrounding complaints of staff misconduct or conditions of confinement to his executive staff and fully relied upon their investigations and findings in the matters. Id. at ¶ 8. Complaints received regarding staff misconduct might be referred to the Deputy of Security of the Facility for review and investigation or to the Inspector General's Office if seemed appropriate. Id. at ¶ 9. As Superintendent, Rock also advised inmates to seek resolution through the Inmate Grievance Program, which was designed to provide an orderly, fair, and expeditious method of resolving complaints. Id. at ¶ 10. Rock would review the findings of those to whom he had given a complaint for investigation, and if it was determined that no evidence existed to support an inmate complaint, Rock would have no reason to believe any further action was required. Id. at ¶ 13.
Rock has no recollection of ever being made aware of any violation of Plaintiff's constitutional or federal rights. Id. at ¶ 15.
II. APPLICABLE LEGAL STANDARDS FOR SUMMARY JUDGMENT MOTIONS
Summary judgment may be granted only if the submissions of the parties taken together "show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (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. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
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. Salahuddin, 467 F.3d at 272-73. The nonmoving party must do more than "rest upon the mere allegations . . . of the [plaintiff's] pleading" or "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, 585-86 (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.") (citation and internal quotation marks omitted). A plaintiff's verified complaint is to be treated as an affidavit. 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 . . . .") (citations omitted).
In Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005), the Second Circuit reminded that on summary judgment motions "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." "To defeat summary judgment, . . . nonmoving parties "may not rely on conclusory allegations or unsubstantiated speculation." Jeffreys, 426 F.3d at 554 (citation and internal quotation marks omitted). "At the summary judgment stage, a nonmoving party must offer some hard evidence showing that its version of the events is not wholly fanciful." Id. (citation and internal quotation marks 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).
In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). "[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to formal pleadings drafted by lawyers." Govan v. Campbell, 289 F.Supp. 2d 289, 295 (N.D.N.Y. 2003) (quoting Haynes v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently forfeiting rights merely because they lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). The court is obliged 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, this does not mean that a pro se litigant is excused from following the procedural formalities of summary judgment, Govan, 289 F. Supp. 2d at 295, and "a pro se party's 'bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, No. 93 Civ. 5981 (WHP) (JCF), 1999 WL 983876 at *3, 1999 U.S. Dist. LEXIS 16767 at *8 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). Moreover, the latitude accorded a pro se litigant "does not relieve him of the obligation to respond to a motion for summary judgment with sufficient admissible evidence." Hamlett v. Srivastava, 496 F.Supp. 2d 325, 328 (S.D.N.Y. 2007) (citing Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)).
Copies of all unpublished decisions cited herein will be provided to Plaintiff in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
III. ANALYSIS
A. Deficiencies in Plaintiff's Opposition Papers
As required under N.D.N.Y. Local Rule ("L.R.") 7.1, Defendants have filed a statement of material facts with citations to the summary judgment record. (Dkt. No. 40-1.) Although Plaintiff has responded to the statement of material facts filed by Defendants (Dkt. No. 43-1 at 34-38), he has failed to do so in the manner required under L.R. 7.1(a)(3). Under the rule, the opposing party's response to the movant's statement of material facts "shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises." L.R. 7.1(a)(3).
Plaintiff's "Challenge to Statement of Facts" consists of challenges to and commentary on certain of Defendants' numbered statements of material fact, with citations to the record limited to Plaintiff's challenges to statements 45, 56, 60, 63, 75-76, 86, 89, 95, and 99. (Dkt. No. 43-1 at 34-38.) As to those, Plaintiff's citations are not to admissible evidence. Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the L.R. provides that facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Champion,v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." However, see Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted).
Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond to their summary judgment motion. (Dkt. No. 40 at 4.)
The Second Circuit, acknowledging a court's broad discretion to determine whether to overlook a failure to comply with local rules, has held that "while a court is not required to consider what the parties fail to point out in their [local rule statements of material facts], it may in its discretion opt to conduct an assiduous review of the entire record even where one of the parties has failed to file such a statement." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001) (citation and internal quotation marks omitted). The Court has opted to review the entire record in this case. However, the Court's review has revealed that Plaintiff's opposition, consisting of unsigned commentary on Defendants' submissions and a number of documents, but no affidavits or declarations, contains very little in the way of admissible evidence. Moreover, since Plaintiff's complaint is not verified, it may not properly be treated as an affidavit in opposition to Defendants' motion. (See Dkt. No. 1.)
28 U.S.C. § 1746 states that a statement of verification must be in "substantially" the same form as the statement set forth in § 1746(2), which reads "I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct." Although Plaintiff's signature in his complaint is notarized, the complaint has not been verified under oath. (Dkt. No. 1 at 44.) A complaint cannot be considered as an affidavit where, although notarized, it was not verified under oath. Inmates, Washington County Jail v. England, 516 F.Supp. 132, 138 (E.D. Tenn. 1980), aff'd without opinion, 659 F.2d 1081 (6th Cir. 1981) (Table).
B. Exhaustion of Administrative Remedies on Plaintiff's Retaliation Claim Against Haug
Although it is not entirely clear, it appears that Defendant Haug may be arguing that he is entitled to summary judgment on Plaintiff's retaliation claim on the ground that Plaintiff failed to exhaust his administrative remedies with regard to the claim. (Dkt. No. 40-2 at 3.) Plaintiff has acknowledged that he did not file a grievance with regard to the hearing. (Dkt. No. 40-5 at 14, 16.) However, "[w]here an inmate's federal claims arise directly out of a disciplinary or administrative segregation hearing, . . . (e.g., a claim of denial of procedural due process), he exhausts his administrative remedies by presenting his objections in the administrative appeals process, not by filing a separate grievance instead of or in addition to his ordinary appeal." Sweet v. Wende Correctional Facility, 514 F.Supp. 2d 411, 413 (W.D.N.Y. 2007) (internal quotations omitted) (quoting Rosales v. Bennett, 297 F.Supp. 2d 637, 639 (W.D.N.Y. 2004); see also Harvey v. Harder, No. 9:09-CV-154 (TJM/ATB), 2012 WL 4093792, at * 4, 2012 U.S. Dist. LEXIS 132248, at * 16 (N.D.N.Y. July 31, 2012) ("Generally, exhaustion of administrative remedies involves utilizing the facility's grievance process, however, when an inmate's federal claims arise directly out of a disciplinary or administrative segregation hearing or confinement, he exhausts his administrative remedies by presenting his objections in the administrative appeals process.").
Plaintiff pursued an administrative appeal from Haug's decision. (Dkt. No. 43-1 at 21-22.) However, since Plaintiff's submission on that appeal is not included in the record, the Court cannot determine whether Plaintiff raised his retaliation claim in the appeal. Because failure to exhaust is an affirmative defense, a defendant bears the burden of showing by a preponderance of the evidence that a plaintiff has failed to exhaust his available administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4, 2010 U.S. Dist. LEXIS 32014, at *16 (N.D.N.Y. Mar. 31, 2010). Haug has not done so. Therefore, the Court recommends that summary judgment in his favor for failure to exhaust be denied.
C. Retaliation Claims
To prevail on a First Amendment retaliation claim, an inmate must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected speech [or conduct] and the adverse action." Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)); see also 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, 534 U.S. 506, 508 (2002)). "Adverse action" for purposes of a retaliation claim has been defined objectively as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381.
An inmate bears the burden of showing that "the protected conduct was a substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). In evaluating whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, "a number of factors may be considered, 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 or her motivation. Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58 F.3d at 873). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id. A showing of temporal proximity, without more, has been found insufficient to survive summary judgment. See Roseboro v. Gillespie, 791 F.Supp. 2d 353, 370 (S.D.N.Y. 2011) (citations omitted).
Even if a plaintiff makes the appropriate showing of retaliation, a defendant may avoid liability if he demonstrates that he would have taken the adverse action in the absence of the protected conduct. 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 . . . that even without the improper motivation the alleged retaliatory action would have occurred.") (citation omitted); Roseboro, 791 F. Supp. 2d at 371.
Because of the relative ease with which claims of retaliation can be incanted, courts have scrutinized retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz, 534 U.S. 506. 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, 239 F.3d at 491. Accordingly, claims of retaliation must be supported by specific facts; conclusory statement are not sufficient. Flaherty, 713 F.2d at 13. Even where a complaint or affidavit contains specific assertions, the allegations "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.11, 2006 U.S. Dist. LEXIS 29745, at * 14 n.11 (N.D.N.Y. Apr. 24, 2006) (quoting Jeffreys, 426 F.3d at 554-55), aff'd. 219 F. App'x 110 (2d Cir. 2007).
1. Retaliation Claim Against DuFrane
Plaintiff claims that DuFrane planted evidence in his cell during a cell search, filed a false Misbehavior Report against him based upon the planted evidence, and added a factually unsupported smuggling charge in retaliation for grievances Plaintiff had filed against Upstate staff and a grievance Plaintiff's cellmate had filed against DuFrane. (Dkt. No. 1 at 24, 26, 42-43.)
The filing of grievances has been found to constitute protected First Amendment conduct for purposes of a retaliation claim. See David v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003). Furthermore, the planting of evidence and issuance of a false misbehavior report based upon that evidence has been found to constitute adverse action for purposes of a retaliation claim. See Pidlypchak, 389 F.3d at 384 (filing a false misbehavior report constitutes adverse action); Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995) (finding adverse action where plaintiff alleged that prison officials had planted contraband in his cell); Williams v. King, 56 F.Supp. 3d 308, 328 (S.D.N.Y. 2014) (the alleged planting of contraband and allegedly disproportionate administrative actions that follow have been found serious enough to constitute adverse action for retaliation purposes); Payne v. Axelrod, 871 F.Supp. 1551, 1556 (N.D.N.Y. 1995) (valid § 1983 retaliation claim stated where prisoner alleged that corrections officers planted contraband evidence in his cell and falsely charged him with possession).
However, DuFrane has denied Plaintiff's claim that he planted evidence and filed a false misbehavior report. According to DuFrane, he was not asked by any corrections official to plant evidence in Plaintiff's cell or damage his exercise door by removing screws, and he did not have torn, ripped sheets with him or a special screwdriver to unthread the screws when he went to Plaintiff's cell to conduct a routine search. (Dkt. No. 40-3 at ¶¶ 56-57.) In addition, according to DuFrane, he had not been in Plaintiff's cell prior to the search, and he would not have had an opportunity to damage Henson's state owned property or the steel plate during the search as there is such limited access to the cell. Id. at ¶ 58. DuFrane contends that he acted in accordance with DOCCS policy when he found the damage in Plaintiff's cell by advising Gagnon, taking photographs, and drafting the Misbehavior Report that was approved by Gagnon. Id. at ¶ 59. Furthermore, while the Misbehavior Report does not appear to include facts clearly supporting the smuggling charge that was dismissed by Prack on appeal, the review officer left in the smuggling charge and designated the Misbehavior Report as a Tier III. (Dkt. No. 40-8 at ¶ 6.)
Under N.Y. Comp.Codes R. & Regs, tit 7., § 251-2.2, the review officer is required to review misbehavior reports, classify them as a Tier I, II, or III, and refer them to the appropriate disciplinary body for action. § 251-2.2(a)-(b). The review officer has the authority to dismiss any misbehavior report which fails to state a valid charge. § 251-2.2(c). In Grievance No. UST-51144-13, filed by Plaintiff on January 8, 2013, Plaintiff complained that the review officer should have dismissed the smuggling charge on the grounds that there was no basis for the charge in the Misbehavior Report issued by DuFrane. (Dkt. No. 40-7 at 6.) In the Grievance, Plaintiff placed responsibility for the erroneous Tier III designation of the Misbehavior Report issued by DuFrane on the reviewing officer's failure to dismiss the smuggling charge. Id. at 8.
The record is devoid of evidence, admissible or otherwise, that supports Plaintiff's conclusory assertion that he was framed by DuFrane, and that the Misbehavior Report was based upon evidence planted by DuFrane. See Jeffreys, 426 F.3d 554 (nonmoving parties may not rely on "conclusory allegations or unsubstantiated speculation" to defeat summary judgment). In his unsigned, unverified response to DuFrane's Declaration, Plaintiff claims that inmates have no access to the special screwdrivers DuFrane claimed were generally required to unthread the security screws. (Dkt. Nos. 40-3 at ¶ 17; 43-1 at 45.) However, according to DuFrane, he has known of many inmates who have removed security screws and others who have attempted to do so by unthreading them. (Dkt. No. 40-3 at ¶ 18.)
At his disciplinary hearing, Plaintiff attempted to defend against the charges in the Misbehavior Report by attacking the validity of the October 26, 2012, Cell Inventory Checklist indicating no contraband was found in the room and his signature, and claiming that the cell was not inspected prior to the time he and his cellmate were moved there on October 25, 2012. (Dkt. No. 40-8 at 17-18, 49.) However, Keleher testified that an inspection of Plaintiff's cell was done, and the October 26, 2012, Cell Inventory Checklist was valid. (Dkt. No. 40-8 at 20-22.) Furthermore, Plaintiff's cellmate Saldano testified that when he and Plaintiff were in the hallway before being allowed in the cell, Saldano saw Keleher open the door, trash up the garbage left in the cell by the former occupant, and kick it in the hall. (Dkt. No. 40-8 at 37-38.) One could reasonably infer from Saldano's testimony that had there been draglines in the cell at the time, they would have been discovered and placed in the trash that Keleher kicked into the hall. Even if Plaintiff had been able to establish that there had been no search of the cell when Plaintiff moved in a month before the random frisk/search by DuFrane, that would not necessarily support an inference that the draglines and missing and loose screw were there when Plaintiff and his cellmate moved in. Furthermore, if they were, Plaintiff was required to report it to facility staff and did not. (Dkt. No. 40-3 at ¶¶ 49-50.)
Even if there were sufficient evidence to create an issue of material fact with regard the adverse action element of Plaintiff's retaliation claim, his claim against DuFrane falters on the third element, establishment of a causal connection between the protected conduct and the adverse action. See Holland, 758 F.3d at 225. There is no evidence in the record that Plaintiff himself had filed a grievance against DuFrane prior to the November 29, 2012, random frisk/search of his cell, and Plaintiff has conceded that his retaliation claim is based upon grievances he filed against other corrections officers and a grievance Saldano filed against DuFrane.
Plaintiff's exercise of his First Amendment rights was not involved in Saldano's filing of a grievance against DuFrane regarding Saldano's undergarments. Moreover, as a general matter, it is difficult to establish that a defendant had cause to retaliate against a plaintiff for filing a grievance against another party, in this case other corrections officers. See Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a corrections officer when the only alleged basis for retaliation was a complaint about an incident involving another corrections officer); Guillory v. Ellis, No. 9:11-CV-600 (MAD/ATB), 2014 WL 4365274, at 18, 2014 U.S. Dist. LEXIS 120709, at * 49 (N.D.N.Y. Aug. 28, 2014) ("it is difficult to establish one defendant's retaliation for complaints against another defendant"); Roseboro, 791 F. Supp. 2d at 369 (failure by plaintiff to provide any basis to believe corrections counselor would retaliate for a grievance in which she was not personally named); Ciaprazi v. Goord, No. 9:02-CV-915 (GLS/DEP), 2005 WL 3531464, at * 8-9, 2005 U.S. Dist. LEXIS 38232, at * 22 (N.D.N.Y. Dec. 22, 2005) (granting summary judgment and dismissing retaliation claim based only on plaintiff's conclusory allegations that the manifest falsity of the misbehavior report and testimony during the disciplinary hearing indicate the disciplinary matters were motivated by retaliatory animus due to grievances plaintiff filed against individuals other than the defendants involved in the disciplinary hearing).
As noted above, conclusory statements are not sufficient to support causation on retaliation claims; the claims must be supported by specific facts. Flaherty, 713 F.2d at 13. The record is devoid of evidence, admissible or otherwise, that supports Plaintiff's conclusory assertion that DuFrane planted evidence and issued the Misbehavior Report based upon evidence in retaliation for grievances Plaintiff had filed against other corrections officers. DuFrane states in his Declaration that he was not the subject of any grievance filed by Plaintiff at the time of the cell search. (Dkt. No. 40-3 at ¶ 55.) DuFrane does not work closely with the Inmate Grievance Program and would not be aware of how many grievances Plaintiff had filed against other corrections officers prior to November 29, 2012. Id. at ¶ 52. Moreover, according to DuFrane, it was of no concern to him whether Plaintiff files grievances against other corrections officer, and Plaintiff doing so would not motivate DuFrane to treat Plaintiff one way or another. Id. at ¶ 53. DuFrane was never asked by any corrections official to plant evidence in Plaintiff's cell or file a false misbehavior report against him. Id. at ¶ 56. There is no evidence disputing DuFrane's statement that he was unaware of grievances previously filed by Plaintiff prior to conducting the cell search on November 29, 2012, and therefore was in no way influenced by such grievances in conducting the search or filing the Misbehavior Report. Id. at ¶ 54.
In summary, Plaintiff's grievances were protected First Amendment conduct, and planting evidence and issuing a false misbehavior report based on the evidence constitutes adverse action. However, in light of the absence of record evidence establishing that DuFrane engaged in the alleged adverse action, and the lack of specific facts showing that DuFrane acted in retaliation for Plaintiff's filing of grievances against other corrections officers, the Court recommends that DuFrane be granted summary judgment.
2. Retaliation Claim Against Gagnon
Plaintiff also claims that Gagnon was involved in planting evidence in his cell during the cell search, that he signed off on DuFrane's allegedly false Misbehavior Report against Plaintiff based upon the planted evidence, and that he endorsed the factually unsupported smuggling charge in retaliation for grievances Plaintiff had filed against Upstate staff. (Dkt. No. 1 at 24, 26, 42-43.) As with DuFrane, Plaintiff claims that Gagnon engaged in those acts in retaliation for Plaintiff's filing of grievances against other corrections officials prior to the November 29, 2012, cell search. (Dkt. No. 1 at 24, 26, 42-43.)
According to Gagnon, after being advised by DuFrane of the results of the search of Plaintiff's cell, he went to the cell and personally saw the sheets, or draglines, in the corner of Plaintiff's cell and the missing and loose screws in the steel plate. (Dkt. No. 40-4 at ¶¶ 12-14.) Gagnon signed off on the Misbehavior Report having personally seen the draglines and missing and loose screws. Id. at ¶ 24. Gagnon has admitted endorsing the charges, including the smuggling charge. Id. at ¶ 25. Gagnon has denied ever asking any corrections official to falsify a misbehavior report against Plaintiff. Id. at ¶ 37.
The record contains no evidence, admissible or otherwise, that Gagnon was involved in planting evidence in Plaintiff's cell or knowingly approving a Misbehavior Report based upon planted evidence. As with DuFrane, Plaintiff may not rely on his "conclusory allegations" to defeat summary judgment. Jeffreys, 426 F.3d at 554.
Even if Plaintiff had raised a material question of fact on the issue of adverse action, his retaliation claim against Gagnon, as with his claim against DuFrane, falters on the issue of causation. As discussed above, it is difficult to establish that a defendant had cause to retaliate against a plaintiff for filing a grievance against other corrections officers. Wright, 554 F.3d 255 at 274. Gagnon's statement that he was unaware of grievances filed by Plaintiff prior to the November 29, 2012, cell search is undisputed by record evidence. (Dkt. No. 40-4 at ¶ 39.) Plaintiff's claim that Gagnon was acting in retaliation is wholly conclusory which, as with DuFrane, is not enough to survive summary judgment. See Flaherty, 713 F.2d at 13 (claims of retaliation must be supported by specific facts).
In light of the foregoing, the Court recommends that summary judgment be granted in Gagnon's favor.
3. Retaliation Claim Against Haug
Plaintiff's submission of grievances against Haug was protected First Amendment conduct. However, even were the Court to assume for purposes of this motion that Haug's decision finding Plaintiff guilty on all charges and the penalty imposed by him constituted adverse action, Plaintiff has failed to raise a question of material fact on the issue of causation. According to Haug, he had no knowledge during the hearing that Plaintiff had submitted grievances against him. (Dkt. No. 40-8 at ¶¶ 31-33.) Moreover, according to Haug, the fact that a disgruntled inmate who is the subject of a disciplinary hearing before him files a grievance does not affect his impartiality or influence his decisions or the penalty imposed by him. Id. at ¶ 34. Haug claims to have relied upon the evidence in rendering his decision, and he contends that despite Prack's dismissal of the smuggling charge on appeal, it was reasonable for him to have found Plaintiff guilty on the charge based on the evidence. Id. at ¶ 35.
Given the lack of evidence of causation, it is unnecessary for the Court to consider whether Haug's finding of guilt on the smuggling charge was reasonable based upon the evidence presented at the hearing.
Plaintiff's submissions, albeit largely inadmissible, offer support for Haug's claim that he did not know Plaintiff had filed grievances against him during the hearing. According to Plaintiff, Sergeant Gravlin withheld Plaintiff's grievances against Haug from filing during the disciplinary hearing, and as of January 17, 2013, nearly two weeks after the hearing ended, Plaintiff had yet to receive grievance numbers or any acknowledgment of receipt of the grievances. (Dkt. No. 1 at 8, 13, 41.) Given Haug's denial and the absence of evidence showing that Haug had knowledge of the grievances at the time he rendered his decision and imposed penalty at the disciplinary hearing, no reasonable juror could conclude that a causal connection existed between Plaintiff's grievances against Haug and Haug's decision and penalty in the disciplinary hearing.
Therefore, the Court recommends that Defendant Haug be granted summary judgment.
Inasmuch as the Court is recommending that Haug be granted summary judgment, it finds it unnecessary to reach his qualified immunity argument.
D. Deliberate Indifference Claim Against Rock
Plaintiff claims that after receiving, reviewing, and responding to a number of complaints regarding staff misconduct submitted by Plaintiff, Rock failed or correct, or was deliberately indifferent to the misconduct. (Dkt. No. 1 at 9-10, 13, 21, 26-29, and 41.) The now dismissed Defendants alleged by Plaintiff to have committed constitutional violations to which Rock was allegedly indifferent included Sevey, Gravlin, and Demarse. Plaintiff also claims indifference by Rock with regard to his claims against DuFrane, Gagnon, and Haug. Id. at 11-12, 28.
Plaintiff also claims that Rock wrongfully denied his September 30, 2012, grievance against Sevey regarding his medical diet food tray. (Dkt. No. 1 at 21.) However, Plaintiff's medical diet claim against Sevey was dismissed on initial review. (Dkt. No. 10 at 19-20.)
Plaintiff has also claimed that Rock was deliberately indifferent to his complaints about the PIMS program but has provided no evidence of constitutional violation by any of the defendants with respect thereto.
The law is clear that "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). "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." Iqbal, 556 U.S. at 676. ("Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior."). "Holding a position in a hierarchical chain of command, without more, is insufficient to support a showing of personal involvement." Groves v. Davis, No. 9:11-CV-1317 (GTS/RFT), 2012 WL 651919, at *6, 2012 U.S. Dist. LEXIS 25367, at *22-23 (N.D.N.Y. Feb. 28, 2012) (citing McKinnon, 568 F.2d at 934); see also Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (a "mere 'linkage in the prison chain of command' is insufficient to implicate a state commissioner of corrections . . . in a § 1983 claim") (quoting Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). Therefore, "a plaintiff must . . . allege a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).
The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.
The Second Circuit has expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). --------
Plaintiff's supervisory liability claim appears to fall within the second and fifth Colon categories. However, where as in this case a plaintiff "has not established any underlying constitutional violation, [he] cannot state a claim for § 1983 supervisor liability." Elek v. Incorp. Vill. of Monroe, 815 F.Supp. 2d 801, 807-08 (S.D.N.Y. 2011) (collecting cases); see also Tompkins v. City of New York, 50 F.Supp. 3d 426, 434 (S.D.N.Y. 2014) (same); Vail v. Lashway, No. 9:12-CV-1245 (GTS/RFT), 2014 WL 4626490, at * 20, 2014 U.S. Dist. LEXIS 129516, at * 50 (N.D.N.Y. Sept. 15, 2014) (same).
Plaintiff's underlying § 1983 claims against Sevey, Demarse, Gravlin, and all other originally named Defendants except DuFrane, Gagnon, and Haug, were dismissed for failure to state a claim on initial review. (Dkt. No. 10 at 50-51.) There is no evidence in the summary judgment record establishing that any of the original defendants dismissed from the case on initial review violated Plaintiff's constitutional rights. In addition, the Court is recommending summary judgment in DuFrane, Gagnon, and Haug's favor with respect to the retaliation claims remaining against them after initial review. If the District Court adopts this Court's recommendations, Plaintiff will also have failed to establish underlying constitutional violations against those Defendants. Therefore, the Court recommends that Rock be granted summary judgment on Plaintiff's supervisory liability claim.
ACCORDINGLY it is hereby
RECOMMENDED that Defendants' motion for summary (Dkt. No. 40) be GRANTED, and it is hereby
ORDERED that the Clerk provide Plaintiff with copies of all unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen 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. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: December 9, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge