Opinion
Civil Action No. 9:12-CV-1891 (LEK/DEP)
08-22-2014
ROBERT L. MURRAY, Plaintiff, v. DR. GILLANI, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ROBERT L. MURRAY 05-A-5765 Five Points Correctional Facility Caller Box 119 Romulus, NY 14541 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: JOSHUA E. McMAHON, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: ROBERT L. MURRAY
05-A-5765
Five Points Correctional Facility
Caller Box 119
Romulus, NY 14541
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: JOSHUA E. McMAHON, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Robert L. Murray, a New York State prison inmate, has filed this action against several individuals employed by either the New York State Office of Mental Health ("OMH") or New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his civil rights. Although plaintiff's complaint, as amended, asserted several claims against the defendants, those that have survived initial review by the court are limited to an excessive force cause of action against four DOCCS corrections officers and two OMH nurses, all of whom remain unidentified, and a retaliation claim against an OMH psychiatrist and licensed psychiatric nurse practitioner.
Currently pending before the court is a summary judgment motion filed by the defendants seeking dismissal of plaintiff's remaining claims based either on plaintiff's failure to identify the individuals that allegedly assaulted him or the contention that the record evidence contains no genuine dispute of material fact with respect to whether the defendants unlawfully retaliated against him for engaging in protected activity. For the reasons set forth below, I recommend that defendants' motion be granted. I. BACKGROUND
In their motion, defendants also seek dismissal of plaintiff's damage claims against them in their official capacities, based upon the Eleventh Amendment, and urge qualified immunity as an alternative ground for dismissal. Because I recommend dismissal of plaintiff's complaint on the merits, I have not addressed these two additional arguments.
Although plaintiff has opposed defendants' motion for summary judgment, he did not file an opposition to defendants' Local Rule 7.1(a)(3) Statement of Material Facts. See generally Dkt. Nos. 51, 52. By its terms, Local Rule 7.1 provides, in part, that "[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced a non-movant's failure to properly respond. See, e.g., Elgamil v. Syracuse Univ., No. 99-CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases). Undeniably, pro se litigants are entitled to some measure of forbearance when defending against summary judgment motions. Jemzura v. Public Svc. Comm'n, 961 F.Supp. 406, 415 (N.D.N.Y.1997) (McAvoy, J.). The deference owed to pro se litigants, however does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules. Robinson v. Delgado, No. 96-CV-0169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J., adopting report and recommendation by Hurd, M.J.). Stated differently, "a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary judgment." Latouche v. Tompkins, No. 09-CV-0308, 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.). Here, because plaintiff was warned of the consequences of failing to properly respond to defendants' Local Rule 7.1 Statement, Dkt. Nos. 49-40, 50, and he has failed to do so, I will deem defendants' facts contained in their Local Rule 7.1 Statement as having been admitted to the extent they are supported by accurate record citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.1996). As to any facts not contained in defendants' Local Rule 7.1 Statement, in light of the procedural posture of this case, the court is "required to resolve all ambiguities and draw all permissible factual inferences" in favor of plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently in the custody of the DOCCS. See generally Dkt. No. 7. Although he is now confined elsewhere, at the times relevant to the claims in this action, plaintiff was incarcerated in the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. Id. While at Clinton, plaintiff received mental health treatment for his diagnosed anti-social personality disorder and mild mental retardation in a satellite unit of the Central New York Psychiatric Center ("CYNPC"), operated by the OMH and located within the facility. Dkt. No. 49-12 at 2. A Residential Crisis Treatment Program ("RCTP") operates within the CNYPC satellite unit and exists for purposes of admitting individuals with suicidal ideation or severe psychiatric decompensation. Id. at 4. Individuals are admitted to cells in the RCTP with appropriate safety precautions for observation and daily evaluation. Id.; Dkt. No. 49-26 at 2. At the times relevant to plaintiff's claims, he was treated by, inter alia, Dr. Sohail Gillani, an OMH licensed psychiatrist, and Travis Sawyer, an OMH psychiatrist nurse practitioner ("PNP"), both of whom were stationed at the CNYPC satellite unit. Dkt. No. 49-12 at 1, 5; Dkt. No. 49-26 at 1, 4.
According to plaintiff's amended complaint, on December 7, 2012, he was told by unidentified DOCCS corrections officers that staff in the OMH wanted to see him, and was escorted by the officers to the CNYPC satellite unit at Clinton. Dkt. No. 7 at 5-6. Plaintiff alleges that "one morning," on an unspecified date but presumably December 7, 2012, he was attacked by one unidentified DOCCS sergeant and four unidentified corrections officers. Id. at 6. The DOCCS officers allegedly handcuffed plaintiff, laid him on a bed inside his cell, elbowed him in the back, punched him in the face, and told him to shut up. Id. One of the officers allegedly placed pressure on plaintiff's Adam's apple and did not release until another officer intervened. Id. According to plaintiff, he was forcibly medicated by two unidentified nurses during the attack. Id. at 6-7.
According to the evidence submitted by defendants in support of their motion, plaintiff was admitted to the RCTP for observation and stabilization on December 7, 2012. Dkt. No. 49-12 at 4-5; Dkt. No. 49-13 ; Dkt. No. 49-26 at 3; Dkt. No. 49-27 . His admittance was prompted by plaintiff's report to an unidentified OMH staff member that his mind was racing and he believed defendant Gillani was tampering with his medications. Dkt. No. 49-13 ; Dkt. No. 49-27 . The unidentified staff member reported in a written therapist progress note that, during a meeting with the plaintiff he could not make eye contact, his speech was rapid, and he was unable to report what he had eaten that day. Id. Upon admittance to the RCTP, a nurse noted plaintiff was "disheveled, rambling, [experiencing] paranoid ideation, incoherent, restless, [and] non-compliant [with] psych[iatric] medications." Dkt. No. 49-15 at 1; Dkt. No. 49-29 at 1.
Also on December 7, 2012, while plaintiff was admitted in the RCTP, defendant Gillani prescribed him an antipsychotic medication that can also be used to counteract agitation and aggression during an emergency situation. Dkt. No. 49-12 at 5; Dkt. No. 49-16 at 1. Plaintiff was administered the medication twice on that date without incident. Dkt. No. 49-12 at 5-6; Dkt. No. 49-17 at 1-2.
Plaintiff remained in the RCTP from December 7, 2012 through December 14, 2012, at which time he was discharged and returned to his regular cell at Clinton. Dkt. No. 49-23 at 2-3. Upon his discharge, plaintiff was prescribed three medications and scheduled for reassessment two weeks later. Id. at 3. During the period of his RCTP confinement, plaintiff was observed to be in various mental states, at times exhibiting agitation, accompanied by yelling and banging, and on occasion refusing meals and medications. See generally Dkt. Nos. 49-19 - 49-23.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on December 28, 2012, with the filing of a complaint and accompanying application to proceed in this action in forma pauperis ("IFP"). Dkt. Nos. 1, 2. He thereafter filed an amended complaint and IFP application on January 7, 2013. Dkt. Nos. 5, 7. In the currently operative amended complaint, plaintiff names Dr. Sohail Gillani and PNP Travis Sawyer as defendants, and also asserts claims against seven defendants as yet unidentified, including a DOCCS corrections sergeant, four DOCCS corrections officers, and two OMH nurses, all of whom are sued as "Doe" defendants. See generally Dkt. No. 7. Plaintiff's amended complaint asserts three causes of action against the defendants, including excessive force, interference with access to the courts, and cruel and unusual punishment. Id.
Following an initial review of plaintiff's amended complaint and IFP application, Senior District Judge Lawrence E. Kahn issued a decision on March 21, 2013, granting plaintiff IFP status, dismissing plaintiff's conditions of confinement and court access claims without prejudice, and denying plaintiff's motion for a preliminary injunction. Dkt. No. 15.
Plaintiff's second motion for a preliminary injunction was denied by decision and order issued by Judge Kahn on January 6, 2014. Dkt. No. 42.
On February 10, 2014, following the close of discovery, defendants moved for the entry of summary judgment dismissing plaintiff's remaining claims. Dkt. No. 49. In their motion, defendants contend that (1) plaintiff's excessive force cause of action is subject to dismissal based upon his failure to identify the Doe defendants against whom the claim is asserted; (2) no reasonable factfinder could conclude, based on the record evidence, that a sufficient nexus exists between plaintiff's alleged protected conduct and defendants' alleged adverse action; (3) plaintiff's damage claims against the defendants in their official capacities are subject to dismissal based on Eleventh Amendment immunity; and (4) the named defendants are entitled to qualified immunity from suit. See generally Dkt. No. 49-2. In response, plaintiff has submitted nearly 200 pages of documents, including a single-page declaration stating that he was assaulted "by OBS staff on the orders of MHU staff" on May 16, 2013. Dkt. Nos. 51, 52. With limited exception, the documents submitted by plaintiff in opposition to the motion do not relate to the claims in this case. See generally id.
More specifically, some of the documents relate to plaintiff's disciplinary proceedings arising from incidents occurring at Clinton in June and August 2013. Dkt. No. 51 at 2-82. Other documents relate to incidents occurring at Clinton in February and April 2013. Id. at 98-127. Although plaintiff submitted a one-page declaration complaining of an incident on May 16, 2013, none of the documents attached to the declaration relate to that incident. Dkt. No. 52 at 1. Instead, plaintiff attached a copy of his amended complaint, ten pages of documents related to the grievance he filed regarding the incident in the RCTP on December 7, 2012, and copies of case law. Dkt. No. 52 at 2-65.
Defendants' motion, which is now fully briefed, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Failure to Identify the Doe Defendants
Following an initial review of plaintiff's complaint, Senior District Judge Kahn issued the following admonition to plaintiff in his order on March 21, 2013:
Plaintiff is advised that the United States Marshals Service cannot effect service on a 'Doe' defendant. In the event that Plaintiff wishes to pursue his claims against the John Doe and Jane Doe Defendants, he must take reasonable steps through discovery to ascertain the identities of these individuals. Upon learning the identity of a Doe Defendant, Plaintiff must further amend his Amended Complaint to name her properly as a defendant. If Plaintiff fails to ascertain the identity of any Doe Defendant so as to permit the timely service of process, this action will be dismissed against that individual.Dkt. No. 15 at 8. Judge Kahn further directed "that Plaintiff take reasonable steps to ascertain the identities of the 'John and Jane Doe' Defendants, and when identified, seek to amend the Amended Complaint (Dkt. No. 7) to add the individuals as defendants in this action pursuant to Rule 15(a) of the Federal Rules of Civil Procedure[.]" Id. at 13. Defendants now argue that plaintiff's failure to fulfill these requirements and to amend his complaint and arrange for service of process upon the unidentified defendants warrants dismissal of his claims against them. Dkt. No. 49-2 at 5-7.
Rule 4(m) of the Federal Rules of Civil Procedure requires that service of a summons be effectuated within 120 days of its issuance, absent a court order extending that period. Fed. R. Civ. P. 4(m). Upon a showing of good cause, this time for service must be extended. See Panaras v. Liquid Carbonic Indus. Corp., 94 F.3d 338, 340 (7th Cir. 1996). "If, however, good cause does not exist, the court may, in its discretion, either dismiss the action without prejudice or direct that service be effected within a specified time." Panaras, 94 F.3d at 340 (citing Fed. R. Civ. P. 4(m)); see also Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir. 2007) ("We hold that district courts have discretion to grant extensions even in the absence of good cause."); Romandette v. Weetabix Co., Inc., 807 F.2d 309, 311 (2d Cir. 1986). When examining whether to extend the prescribed period for service, a district court is afforded ample discretion to weigh the "overlapping equitable considerations" involved in determining whether good cause exists and whether an extension may be granted in the absence of good cause. Zapata, 502 F.3d at 197.
Rule 4(m) provides that,
[i]f a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.Fed. R. Civ. P. 4(m). This court's local rules shorten the time for service from the 120 day period under Rule 4(m) to sixty days. N.D.N.Y. L.R. 4.1(b).
In this case, despite being explicitly informed of his obligation to identify the Doe defendants, amend his complaint accordingly, and arrange for the issuance and service of summonses upon those defendants, plaintiff failed to do so. It is true that plaintiff appears to have made one attempt, by letter dated January 27, 2012, to obtain the necessary information from defendants' counsel. Dkt. No. 49-5. In response, defendants' counsel advised plaintiff that the information needed to discern the identities of those involved could be ascertained from the mandatory disclosures served upon plaintiff on December 31, 2013. Dkt. No. 49-6. Throughout the course of discovery, which was originally scheduled to close on September 12, 2013, but was extended to December 30, 2013, plaintiff failed to elicit the court's assistance in obtaining the information necessary to ascertain the identities of the Doe defendants. Under these circumstances, I recommend that plaintiff's claims against the Doe defendants, which include a DOCCS sergeant, four DOCCS corrections officers, and two OMH nurses, be dismissed, without prejudice, based upon his failure to timely identify and serve those defendants. See Mosley v. Woodly, No. 11-CV-1490, 2013 WL 5347272, at *3 (N.D.N.Y. Sept. 23, 2013) (Hurd, J., adopting report and recommendation by Treece, M.J.) (dismissing the "doe" defendant because the plaintiff failed to ascertain the identity of the defendant and serve him within the time periods allowed under either the local rules of practice for this court or the Federal Rules of Civil Procedure); Thaxton v. Simmons, No. 10-CV-1318 , 2013 WL 4806457, at *6 (N.D.N.Y. Sept. 9, 2013) (D'Agostino, J., adopting report and recommendation by Treece, M.J.) (same).
Although I have been given no reason to doubt this assertion by counsel, because the court has not been provided with copies of the mandatory discovery materials forwarded to plaintiff pursuant to the court's Rule 16 order, I am unable to verify that the information necessary to identify the Doe defendants was included in those materials.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
C. Sufficiency of Plaintiff's Retaliation Claim
Liberally construed, plaintiff's amended complaint alleges that his admission into the RCTP on December 7, 2012, was in retaliation for his having previously filed a lawsuit against defendant Gillani and another OMH staff member at the facility. Dkt. No. 7 at 8. In their motion, defendants contend that no reasonable factfinder could conclude, based on the record evidence, that a nexus exists between plaintiff's admission to the RCTP and his earlier lawsuit. Dkt. No. 49-2 at 7-13
A cognizable section 1983 retaliation claim lies when prison officials take adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). The Second Circuit has cautioned, however, that, because of "the ease with which claims of retaliation may be fabricated," courts should "examine prisoners' claims of retaliation with skepticism and particular care." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003). To state a prima facie claim under section 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that (1) the conduct at issue was protected, (2) the defendants took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.).
Defendants concede, and I conclude, for purposes of the pending motion, that plaintiff has established that he engaged in protected activity, satisfying the first prong of the retaliation analysis. It is well settled that the filing of a lawsuit constitutes protected activity for purposes of a First Amendment retaliation cause of action. See, e.g., Colon, 58 F.3d at 872 ("Prisoners, like non-prisoners, have a constitutional right of access to the courts and to petition the government for the redress of grievances."); accord, Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009).
With respect to the second prong of the retaliation analysis, although defendants suggest that neither defendant Gillani nor defendant Sawyer were personally involved in admitting plaintiff to the RCTP, both defendants state in their declarations that "[a]dmittance to the RCTP is either approved by the psychiatrist, if present at the facility[,] or by the Chief of the Medical Health Unit, if no psychiatrist is available." Dkt. No. 49-26 at 2; see also Dkt. No. 49-12 at 4. Moreover, defendant Gillani states that, "[a]s the physician or nurse practitioner, admitting or discharging someone to the RCTP is not a prerogative. It is a decision in combined discussion between DOCCS, OMH nursing staff or a therapist." Dkt. No. 49-12 at 4. Because defendants Gillani and Sawyer, through their declarations, suggest that the decision to admit an inmate to the RCTP is a collaborative one that involves a discussion among all of the inmate's care providers, and because defendants Gillani and Sawyer were, at the relevant times, two of plaintiff's providers, I find that there is a dispute of material fact as to whether those defendants were involved in the decision to admit plaintiff to the RCTP. For purposes of this motion, I therefore assume, without deciding, that admitting the plaintiff into the RCTP constituted adverse action. See Morales v. Mackalm, 278 F.3d 126, 131-32 (2d Cir. 2002), abrogated on other grounds by Porter v. Nussle, 534 U.S. 516, 532 (2002), (finding the allegation that the plaintiff was transferred to a psychiatric facility in retaliation for filing a grievance against the defendant "must be construed as describing an adverse action"); Chavis v. Struebel, 317 F. Supp. 2d 232, 238 (W.D.N.Y. 2004) ("[T]ransferring an inmate to another housing unit or to a psychiatric facility or assigning the inmate a less desirable work assignment satisfies the adverse action requirement.").
Turning now to the third element of a retaliation claim, causation, I find that no reasonable factfinder could conclude that the decision to admit plaintiff into the RCTP was motivated by his earlier lawsuit, filed against defendant Gillani. To establish the requisite connection between protected speech and adverse action, a plaintiff must prove that the protected conduct was a "substantial and motivating factor to the adverse action taken by prison officials." Bennett v. Goord, 343 F.3d at 133, 137 (2d Cir. 2003). In this case, there is no evidence, aside from plaintiff's vague and nearly indecipherable allegation in his amended complaint, that defendants Gillani and Sawyer admitted him to the RCTP because of the earlier lawsuit filed against defendant Gillani. Plaintiff's amended complaint alleges that (1) he "was told that Dr. Gillani and Sawyer and the Unit Chief put me up in the OBS, and (2) "MHU STAFF is playing a lot of games with me Dr. Gillani [sic] after I file a lawsuit against him[.]" Dkt. No. 7 at 7, 8. Upon initial review of plaintiff's amended complaint, mindful of the court's obligation to liberally construe a pro se plaintiff's complaint, Senior District Judge Kahn permitted plaintiff's retaliation claim to proceed based on those allegations. Dkt. No. 15 at 7-8. At this stage in the proceedings, however, plaintiff's unsupported allegation contained in his amended complaint is not sufficient to give rise to a dispute of material fact regarding defendants' motivation for admitting him into the RCTP. Aside from plaintiff's allegation, all of the record evidence suggests that plaintiff was admitted into the RCTP on December 7, 2012, for legitimate reasons, including his diagnosis of anti-social personality disorder, coupled with his abnormal behavior observed by an OMH staff member at Clinton and his refusal to take his medication. Dkt. No. 49-12 at 2; Dkt. No. 49-13 at 1-2. In addition, the evidence demonstrates that while in the RCTP, plaintiff continued to exhibit abnormal and disruptive behavior and refused to eat or take prescribed medications. Dkt. Nos. 49-15, 49-17 - 49-20. Plaintiff's unsupported and vague allegation of retaliation is not sufficient to overcome all of this evidence. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) ("[I]f the production of all relevant documents fails to add substance to the allegations and if the relevant officials submit affidavits explaining their reasons for the challenged actions, summary judgment dismissing the complaint may be granted[.]"); Demaio v.Coughlin, No. 89-CV-1237, 1994 WL 714537, at *3 (W.D.N.Y. Dec. 9, 1994) (granting summary judgment in favor of the defendants where the only evidence supporting the plaintiff's retaliation claim was the plaintiff's conclusory allegations in his amended complaint).
Accordingly, because I conclude that no reasonable factfinder could conclude, based on the record evidence, that defendants Gillani and Sawyer retaliated against plaintiff by admitting him into the RCTP in December 2012, I recommend that plaintiff's retaliation claim against those defendants be dismissed.
Even if a plaintiff carries the burden of establishing a prima facie case of retaliation, defendants may nonetheless avoid liability by proving, by a preponderance of the evidence, that they would have taken the same action against plaintiff even in the absence of protected conduct. Mount Healthy City Sch. Dist. Educ., 429 U.S. at 287; Dillan, 497 F.3d at 255. I further find that, even if plaintiff were able to establish a prima facie case of retaliation, no reasonable factfinder could conclude, based on the record evidence, that defendants would not have taken the same action even absent retaliatory motivation.
IV. SUMMARY AND RECOMMENDATION
The two remaining claims in this action assert causes of action for excessive force against unidentified Doe defendants, and for unlawful retaliation against the two named defendants. Plaintiff's claims against the Doe defendants are subject to dismissal based upon his failure to identify the defendants involved, amend his complaint, and arrange for service of process upon those defendants. Turning to the remaining retaliation claim against the two named defendants, I find that no reasonable factfinder could conclude that plaintiff's admission into the RCTP at Clinton on December 7, 2012, was motivated by retaliation for having filed an earlier lawsuit against defendant Gillani.
Based upon the foregoing it is therefore hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 49) be GRANTED, and that all remaining claims of the plaintiff in this action be dismissed, with prejudice as against defendants Gillani and Sawyer, and without prejudice with respect to the Doe defendants.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: August 22, 2014
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge