Opinion
9:14-CV-0803 (BKS/TWD)
09-03-2015
JOHNATHAN JOHNSON, Plaintiff, v. JEFF MCKAY, GAIL HAPONIK, DR. CARL KOENIGSMANN, JOSEPH BELLINIER, MAUREEN E. BOLL, BRIAN FISCHER, DAVID ROCK, THEODORE ZERNIAK, DONALD UHLER, Defendants.
APPEARANCES: JOHNATHAN JOHNSON 89-A-1042 Plaintiff pro se Upstate Correctional Facility P.O. Box 2001 Malone, NY 12953 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: RYAN L. BELKA, ESQ.
APPEARANCES: JOHNATHAN JOHNSON
89-A-1042
Plaintiff pro se
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
OF COUNSEL: RYAN L. BELKA, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
I. INTRODUCTION
This pro se prisoner civil rights action, commenced by Plaintiff Johnathan Johnson pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Brenda K. Sannes, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Plaintiff is a frequent litigator who is barred from proceeding in forma pauperis in federal court absent a showing of an exception to the "three strikes" rule in the Prison Litigation Reform Act of 1996. 42 U.S.C. §1997e(a). See Johnson v. Adams, No. 10 Civ. 1082 (DNH/DEP), 2012 WL 3052957, 2012 U.S. Dist. LEXIS 104723 (N.D.N.Y. July 5, 2012) (recounting Plaintiff's litigation history); Johnson v. McKay, No. 9:14-CV-0803 (BSK/TWD), 2015 WL 1735102, at * 4 n.2, 2015 U.S. Dist. LEXIS 50014, at * 10 n.2 (N.D.N.Y. April 16, 2015) (identifying cases filed in the Northern District of New York from 2007 to 2013). This action was commenced in the New York State Supreme Court, County of Franklin and removed to the United States District Court for the Northern District of New York by Defendants on July 2, 2014. (Dkt. No. 1.) Plaintiff's motion to remand was denied by the Hon. Gary L. Sharpe, Chief United States District Judge, by Decision and Order dated December 9, 2014. (Dkt. No. 17.)
In his original Complaint (Dkt. No. 5), Plaintiff claimed that Defendants Jeff McKay, Gail Haponik, Dr. Carl Koenigsmann, Joseph Bellnier, Maureen E. Boll, Brian Fischer, David Rock, Theodore Zerniak, and Donald Uhler: (1) denied him access to the courts by depriving him of paper, mail, outside communications and access to the prison law library; and (2) denied him videotapes for and access to inmate grievance procedures. Id. Defendants moved to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 2.)
This Court recommended that Defendants' motion to dismiss be granted, and that Plaintiff be granted leave to amend his claim regarding access to the courts and denied leave to amend his claims regarding access to the inmate grievance program. Johnson v. McKay, No. 9:14-CV-0803 (BSK/TWD), 2015 WL 1735102, at * 11, 2015 U.S. Dist. LEXIS 50817, at * 14 (N.D.N.Y. April 16, 2015). Judge Sannes approved and adopted this Court's Report- Recommendation and ordered the dismissal with prejudice of Plaintiff's claim for denial of evidence for and access to grievance procedures, and the dismissal without prejudice of Plaintiff's denial of access to the courts claim. Johnson v. McKay, 2015 WL 1735102, at * 6, 2015 U.S. Dist. LEXIS 50014, at 14 (N.D.N.Y. April 16, 2015).
The Court will provide Plaintiff with copies of unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Plaintiff filed a notice of interlocutory appeal to the Second Circuit on April 23, 2015 (Dkt. No. 22), and an Amended Complaint against the same Defendants on April 24, 2015. (Dkt. No. 24.) In his Amended Complaint, Plaintiff has asserted claims for: (1) denial of his First Amendment right to access to the courts, specifically the Appellate Division, Third Department and the New York State Court of Claims; and (2) retaliation for filing lawsuits and inmate grievance complaints. Id. Defendants have now filed a Rule 12(b)(6) motion to dismiss Plaintiffs' Amended Complaint. (Dkt. No. 26.) For the reasons that follow, the Court recommends that Defendants' motion to dismiss be granted.
Plaintiff included the retaliation claim in his Amended Complaint despite the ordering language in Judge Sannes' Memorandum-Decision and Order authorizing Plaintiff to file an Amended Complaint "limited to his claim for denial of access to the courts, to plausibly suggest that he suffered an actual injury." Johnson v. McKay, 2015 WL 1735102, at * 6. Because the Plaintiff's Amended Complaint can be liberally construed to allege that some of the retaliatory acts were undertaken to deny him access to the courts, the Court has construed the retaliation claim to be within the scope of the grant of leave for purposes of Defendants' Rule 12(b)(6) motion.
II. PLAINTIFF'S AMENDED COMPLAINT
A. Access to the Courts
Plaintiff alleges in his Amended Complaint that Defendants Donald Uhler ("Uhler"), former Deputy Superintendent at Upstate Correctional Facility ("Upstate"), and Theodore Zerniak ("Zerniak"), a Corrections Captain at Upstate, "authorized depriving [Plaintiff] of access to . . . correspondence privileges of personal correspondence and privileged correspondence . . . during the years of 2010-thru 2013" and thus "refused to permit [Plaintiff] to petition the courts for grievance etc." (Dkt. No. 24 at 4-6.) Plaintiff claims they did so through the issuance of "paper" deprivation orders under DOCCS Directive 4933, § 305.2, N.Y. Comp.Codes R. & Regs. ("N.Y.C.R.R.") tit. 7, § 305.2, which violated Plaintiff's right under Directive 4933, § 304.13, 7 N.Y.C.R.R. § 304.13, to send and receive regular and privileged correspondence. Id. at 6-7.
Plaintiff alleges in conclusory fashion that Defendants Jeff McKay ("McKay"), Gail Haponik ("Haponick"), Joseph Bellnier ("Bellnier"), Maureen Boll ("Boll"), and Brian Fischer ("Fischer") implemented and enforced Uhler and Zerniak's unconstitutional issuance of deprivation orders, thereby depriving him of "access to the courts, law library, grievance proceedings, outside communication and ALL inside communication," including communication with Defendants David Rock ("Rock") and Fischer. Id. at 6.
Plaintiff also claims that on October 3, 2011, Uhler had all of the documents regarding Plaintiff's litigation pending in the Appellate Division, Third Department confiscated from his cell. Id. at 7. Uhler allegedly refused to return the state court litigation documents resulting in dismissal by the Third Department of pending cases challenging conditions at Upstate from 2010 to 2013. Id. at 7. Plaintiff contends that he "had to deny Court of Claims appearance from 2010-thru 2013 due to the depriving [him] of 'ALL' his lawsuits in State Court and to date." Id at 7-8.
B. Retaliation
Plaintiff alleges in his Amended Complaint that Uhler and Zerniak placed him on paper deprivation orders in retaliation for his filing of inmate grievances and federal and state lawsuits during the period 2010 through 2013. Id. at 5-6. Plaintiff further claims that the "prison guards retaliated against Johnson in eleven and Eight Building, and alleged that Johnson, had papers covering cell lights, doors, windows, etc. and subsequently, Johnson pending lawsuits, documents, Article 78 petition(s), Court of Claims documents, Federal Court's document would taking from Johnson's cell." Id. at 5.
III. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM
A defendant may move to dismiss a complaint "for failure to state a claim upon which relief can be granted" under Rule 12(b)(6). The motion tests the formal legal sufficiency of the complaint by determining whether it conforms to Federal Rule of Civil Procedure 8(a)(2), which requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972). Satisfaction of the requirement that a plaintiff "show" that he or she is entitled to relief requires that the complaint "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not shown that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim that is plausible on its face." Twombley. 550 U.S. at 570. While Rule 8(a)(2) "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me-accusation." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). A complaint which "tenders 'naked assertion[s]' devoid of 'further factual enhancement'" does not suffice. Id. (citation omitted)
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
Where a party is proceeding pro se, 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." See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citations omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after Twombly).
Where a pro se complaint fails to state a cause of action, the court generally "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco, 222 F.3d at 112 (citation omitted).
IV. ANALYSIS
A. Present Status of the District Court's Jurisdiction Over the Action
Although neither party has raised the issue, because Plaintiff has a pending interlocutory appeal to the Second Circuit from the decision granting the motion to dismiss his original Complaint, the Court must consider whether the district court has been divested of jurisdiction by the appeal.
Normally, the docketing of a notice of appeal will divest the district court of jurisdiction over the issues presented in the appeal. Retirement Bd. of the Policemen's Annuity and Ben. Fund of the City of Chicago v. The Bank of New York Mellon, 775 F.3d 154, 158 n.3 (2 Cir. 2014) (citing Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). "The divestiture of jurisdiction rule is, however, not a per se rule." United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996). "It is a judicially crafted rule rooted in the interest of judicial economy, designed to avoid confusion or waste of time resulting from having the same issues before two courts at the same time." Id. (citation and internal quotation marks omitted). Therefore, "its application is guided by concerns of efficiency and is not automatic." Id.
The Second Circuit has ruled that a notice of appeal from a non-final order of the district court did not divest the jurisdiction of the district court. See Leonhard v. United States, 633 F.2d 599, 610 (2d Cir. 1980) ("we see no efficiency to be gained by allowing a party arbitrarily to halt the district court proceedings by filing a plainly unauthorized notice which confers on this Court the power to do nothing but dismiss the appeal."). In fact, in Leonhard, the Circuit Court found retention of jurisdiction in the district court under those circumstances to be "the preferable view." Leonhard, 633 F.2d at 610. This Court agrees and finds that the district court has jurisdiction over the case and the power to determine Defendants' motion to dismiss Plaintiff's Amended Complaint despite Plaintiff's interlocutory appeal.
B. Personal Involvement
Defendants move to dismiss the complaint on the grounds that Plaintiff fails to adequately allege the personal involvement of any Defendant. (Dkt. No. 26 at 5.) Plaintiff claims his Amended Complaint addresses all of the listed Defendants. (Dkt. No. 28 at 4.)
Under Second Circuit precedent, "personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a § 1983 cause of action against an individual, a Plaintiff must show some "tangible connection" between the unlawful conduct and the Defendant. Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). If the defendant is a supervisory official, a mere linkage to the unlawful conduct through the prison chain of command (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) (per curiam); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam). In other words, supervisory officials may not be held liable merely because they held positions of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996) (citations omitted). Rather, supervisory personnel may be considered personally involved if they: (1) directly participated in the violation; (2) failed to remedy that violation after learning of it through a report or appeal; (3) created, or allowed to continue, a policy or custom under which the violation occurred; (4) had been grossly negligent in managing subordinates who caused the violation; or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citations omitted).
In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court ruled that where the underlying constitutional claim is a claim of intentional discrimination, a supervisory official's liability must be judged by the official's purpose rather than the official's knowledge of subordinates' actions or policies. The Second Circuit has not yet issued a decision discussing Iqbal's effect on the Colon categories. Several district courts in the Second Circuit have determined that Iqbal nullified some of the Colon categories. See Sash v. United States, 674 F. Supp. 2d 531, 543-44 (S.D.N.Y. 2009) (collecting cases). The Second Circuit itself has noted that "Iqbal has . . . engendered conflict within our Circuit about the continuing vitality of the supervisory liability test set forth in Colon." Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d Cir. 2012). The Second Circuit declined to address the issue in Reynolds, however. In Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013), the Second Circuit stated that "[Iqbal] may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations" but again declined to address the issue because it was not adequately pled in the complaint and has not addressed it since that time. The Court will assume for the purposes of this motion that Colon remains good law.
1. Uhler and Zerniak
The factual allegations in Plaintiff's Amended Complaint regarding Defendants Uhler and Zerniak's issuance of paper deprivation orders and Uhler's removal of legal papers from Plaintiff's cell are adequate to make a plausible showing of personal involvement by those two defendants under the first Colon category. (Dkt. No. 24 at 5-7.)
2. McKay, Haponik, Bellnier, Boll, Rock, and Fischer
Plaintiff has alleged in his Amended Complaint that Defendants McKay, Haponik, Bellnier, Boll, Rock, and Fischer implemented and enforced the unconstitutional paper deprivation orders issued by Uhler and Zerniak under Directive 4933, which resulted in Plaintiff's denial of access to the courts. Id. at 6. This plausibly suggests, although barely, that these Defendants directly participated in the alleged violation of Plaintiff's constitutional rights under the first Colon factor.
C. Access to Courts
Plaintiff alleges that he was denied access to the courts as a result of being deprived of paper by all of the Defendants with the exception of Rock and having his legal materials removed from his cell by Uhler. (Dkt. No. 24 at 5-7.) "A prisoner has a constitutional right of access to the courts for the purpose of presenting his claims, a right that prison officials cannot unreasonably obstruct and that states have affirmative obligations to assure." Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986) (citing Bounds v. Smith, 430 U.S. 817, 821-23 (1977)). To state a claim for denial of access to the courts, a Plaintiff must allege facts that plausibly suggest: "(1) a 'nonfrivolous, arguable underlying claim' that has been frustrated by the defendants' actions, and (2) a continued inability to obtain the relief sought by the underlying claim." Arar v. Ashcroft, 585 F.3d 559, 592 (2d Cir. 2009) (quoting Christopher v. Harbury, 536 U.S. 403, 415-16 (2002)).
As the District Court noted in dismissing Plaintiff's original Complaint for failure to state a claim:
"[T]he right [of access to the courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." Harbury, 536 U.S. at 415. In other words, plaintiff must demonstrate an "actual injury" by showing that his underlying claim was nonfrivolous. Lewis v. Casey, 518 U.S. 343, 351-353 [ ] (1996) (reasoning that the "actual injury" requirement means that inmates "must demonstrate that a nonfrivolous legal claim ha[s] been frustrated or was being impeded.") "It follows that the underlying cause of action, whether anticipated or lost, is an element that must be described in the complaint." Harbury, 536 U.S. at 415. Ultimately, "the complaintJohnson v. McKay, 2015 WL 1735102, at * 3.
should state the underlying claim in accordance with Federal Rule of Civil Procedure 8(a), just as if it were being independently pursued." Id. at 417.
The District Court found that Plaintiff had failed to state any facts suggesting what underlying claims or causes of action were allegedly frustrated by Defendants. Id. at * 4. Finding Plaintiff's claim that he sustained injury because he lost his appeals in State court to be entirely conclusory, the District Court concluded that Plaintiff had failed to state a plausible claim for denial of access to the courts because the original Complaint alleged no facts suggesting an actual injury. Id.
Although Plaintiff was granted leave to file an amended complaint with respect to his access to the courts claim "to plausibly suggest that he suffered an actual injury," Johnson v. McKay, 2015 WL 1735102, at * 6, his Amended Complaint fares no better than his original Complaint in that regard. Plaintiff has not described the underlying claims and causes of action in the Appellate Division Third Department and New York State Court of Claims, or claims he has been prevented from pursuing in litigation because of the alleged denial of access to the courts. (Dkt. No. 24.) In addition, Plaintiff has again failed to allege facts plausibly showing that the actions of the Defendants have any bearing whatsoever on his losses in State court. Therefore, the Court recommends that Plaintiff's First Amendment denial of access to the courts claim be dismissed.
D. Retaliation
Plaintiff has added a claim for retaliation against Defendants in his Amended Complaint. (Dkt. No. 24.) According to Plaintiff, during the years 2010 through 2013, he filed inmate grievances against prison employees, nurses, and prison guards at Upstate, and he filed lawsuits in Federal and State court. (Dkt. No. 4 at 5.) Plaintiff claims that the deprivation orders issued by Defendants Uhler and Zerniak during those years, which deprived him of the ability communicate with the courts, were issued in retaliation for the filing of lawsuits and grievances against all of the Defendants and other prison employees. Id. at 5. Plaintiff further claims that Uhler had Plaintiff's legal papers relating to matters pending in the Third Department confiscated from his cell in retaliation for the lawsuits Plaintiff had filed. Id. at 7. In addition, Plaintiff has alleged generally that "the prison guards retaliated against Johnson" after he filed grievances against prison employees, nurses and prison guards. Id.
Plaintiff has not identified the prison guards who allegedly retaliated against him, nor has he named any prison guards as defendants. (See Dkt. No. 24 at 1-3, 5.) The Court has therefore disregarded Plaintiff's claim against the non-defendant prison guards.
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) that 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 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 (internal quotation marks omitted).
An inmate bears the burden of showing that "the protected conduct was a substantial or motivating factor" in a defendant's 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.
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 v. Gillespie, 791 F.Supp. 2d 353, 371 (S.D.N.Y. 2011).
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. at 508. 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 becauseDawes, 239 F.3d at 491. Accordingly, claims of retaliation must be supported by specific facts; conclusory statements are not sufficient. Flaherty, 713 F.2d at 13.
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.
Plaintiff alleges that Uhler and Zerniak retaliated against him for filing lawsuits and grievance against all of the Defendants and other prison personnel over the years. (Dkt. No. 24 at 5.) The filing of lawsuits and grievances is protected conduct for purposes of First Amendment retaliation claims. See Colon, 58 F.3d at 872; Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). Therefore, the allegations in Plaintiff Amended Complaint plausibly show that Plaintiff was engaged in protected conduct.
Plaintiff has alleged that Uhler and Zerniak's retaliatory issuance of paper deprivation orders denied him the ability to pursue litigation pending in the Third Department and Court of Claims. (Dkt. No. 26 at 5-8.) The Court finds that impeding or preventing an inmate from pursuing constitutionally protected state court litigation in retaliation for the filing of lawsuits could constitute adverse action for purposes of a retaliation claim. Furthermore, Courts have held that theft, confiscation, or destruction of an inmate's legal documents can constitute an adverse action for purposes of a retaliation claim. See, e.g., Smith v. City of New York, No. 03 Civ. 7576 (NRB), 2005 WL 1026551, at *3, 2005 U.S. Dist. LEXIS 7903, at *10 (S.D.N.Y. May 3, 2005) (retaliatory destruction of prisoner's legal documents appears designed to deter plaintiff's exercise of constitutional rights and constitutes adverse action for purposes of a retaliation claim).
However, Plaintiff has failed to make a plausible showing that Uhler and Zerniak's adverse actions against him were causally connected to his exercise of protected First Amendment rights. Plaintiff's conclusory assertion that Uhler and Zerniak retaliated against him for filing lawsuits against all of the Defendants and filing grievances during the period 2010 through 2013 lacks the specificity required to state a claim for retaliation. See Flaherty, 713 F.2d at 13 (retaliation claims must be supported by specific facts).
Plaintiff's Amended Complaint is devoid of specific facts regarding the content of the deprivation orders allegedly issued by Uhler and Zerniak, when the orders were issued, and the facts and circumstances surrounding issuance of the orders. Plaintiff's Amended Complaint is likewise devoid of specific facts regarding the lawsuits he relies upon as protected conduct for his retaliation claim the defendants in each, the claims asserted, when they were commenced, the status or outcome, and the temporal proximity between lawsuits in which Uhler and Zerniak were named as defendants and their issuance of deprivation letters or Uhler's removal of Plaintiff's legal papers.
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. See, e.g., 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). There is no logical basis for concluding that it would be any less difficult to establish that a lawsuit against another party or parties would give a defendant cause to retaliate.
Because Plaintiff has failed to make a plausible factual showing of causation in his Amended Complaint, the Court recommends that his retaliation claim against Uhler and Zerniak be dismissed.
E. Leave to Amend
As noted above, a claim in a pro se complaint should not be dismissed without granting leave to amend at least once where the complaint, read liberally, gives some indication that a valid claim might be stated. Cuoco, 222 F.3d at 112. The District Court has already allowed Plaintiff an opportunity to amend his access to the courts claim. See Johnson v. McKay, 2015 WL 1735102, at * 6. Judge Sannes clearly explained in her Decision granting leave that "[t]o state a claim for denial of access to the courts, plaintiff must plead the underlying claim and facts to plausibly suggest that it is not frivolous." Id. at 4. Plaintiff has failed to do so in his Amended Complaint. Given Plaintiff's obvious disregard of Judge Sannes' clear analysis of the deficiencies in his original Complaint and his continued failure in his Amended Complaint to plead specific facts regarding the underlying legal claims and facts in the lawsuits at issue, the Court is disinclined to recommend that the District Court afford Plaintiff another opportunity to amend his access to the courts claim against the Defendants. Therefore, the Court recommends that Plaintiff's First Amendment access to the courts claim be dismissed with prejudice as against all of the Defendants.
However, because Plaintiff's retaliation claim against Uhler and Zerniak is asserted for the first time in his Amended Complaint, and it is not entirely clear that Plaintiff will be unable to assert a valid retaliation claim against one or both of those Defendants, the Court recommends that Plaintiff's retaliation claim against Uhler and Zerniak be dismissed without prejudice, and that Plaintiff be granted leave to file a Second Amended Complaint limited to his retaliation claim against those two Defendants.
ACCORDINGLY, it is
RECOMMENDED that Defendants' motion to dismiss Plaintiff's Amended Complaint for failure to state a claim (Dkt. No. 26) be GRANTED ; and it is further
RECOMMENDED that the dismissal of Plaintiff's access to the courts claim as against all of the Defendants be dismissed with prejudice; and Plaintiff's retaliation claim against Uhler and Zerniak be dismissed without prejudice and with leave to file a Second Amended Complaint limited solely to that claim; and it is hereby
ORDERED that the Clerk that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in 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, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: September 3, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge