Opinion
02 Civ. 8963 (RWS).
August 23, 2006
HAROLD J. SCOTT # 84-A-4541 Plaintiff Pro Se Great Meadow Correctional Facility Comstock, NY.
HONORABLE ELIOT SPITZER Attorney General of New York State Attorneys for Defendants New York, NY, By: STEVEN N. SCHULMAN, ESQ. Assistant Attorney General Of Counsel.
OPINION
Defendants Gerald Gardner ("Lt. Gardner") and John Carvill ("Carvill") (collectively, the "Defendants") have moved pursuant to Rule 56, Fed.R.Civ.P., for summary judgment to dismiss the amended complaint of plaintiff Harold J. Scott ("Scott") alleging a First Amendment unconstitutional transfer from the Department of Correctional Services' ("DOCS") Sullivan Correctional Facility ("Sullivan") to its Fishkill Correctional Facility Special Housing Unit 200 ("FCF") in retaliation for his exercise of his First Amendment rights. For the reasons set forth below, the motion is granted and the amended complaint is dismissed.
Prior Proceedings
At all relevant times, Scott was and is a prisoner in the custody of DOCS. He is currently incarcerated at Great Meadow Correctional Facility ("GMCF"), having previously been incarcerated at, among others, Sullivan and FCF.
Gardner was at all relevant times a correctional lieutenant employed by DOCS at SCF, but is now employed at Shawangunk Correctional Facility.
Carvill is a Classification Analyst in DOCS's Office of Classification and Movement. At all relevant times, Carvill has processed inmate transfers and worked in DOCS' Central Office in Albany.
Scott, pro se, filed his complaint on November 12, 2002, alleging that as the result of retaliation he: (1) was subjected to an inordinate number of urine tests; (2) received disciplinary sanctions for testing positive in one of them; (3) was subjected to unwanted mental health treatment; and (4) was transferred to an upstate facility. He also alleged several due process claims in the form of alleged errors in the disciplinary proceedings stemming from the positive drug test and placement in FSC 200. In response to a motion to dismiss by the Defendants by an opinion of October 31, 2003 (the "October 31 Opinion"), the motion to dismiss was granted with respect to all of Scott's claims except the retaliatory transfer claim and dismissing all but two defendants, Gardner and a John Doe classification and movement specialist. Scott v. Gardner, 287 F. Supp. 2d 477 (S.D.N.Y. 2004).
On April 12, 2004, Scott filed an amended complaint, naming Carvill in the place of John Doe.
Scott moved to reconsider the October 31 Opinion and by opinion of November 9, 2004 (the "November 9 Opinion") briefing was ordered, Scott v. Gardner, 344 F. Supp. 2d 421 (S.D.N.Y. 2004). By opinion of April 28, 2005 (the "April 28 Opinion"), the motion to reconsider was granted and, upon reconsideration, the dismissal of the previously dismissed claims was reaffirmed.Scott v. Gardner, 2005 U.S. Dist. LEXIS 7372 (S.D.N.Y. Apr. 28, 2005).
The motion for summary judgment by Gardner and Carvill to dismiss the remaining retaliatory transfer claim was marked fully submitted on March 31, 2006.
The following statement of facts is based on Defendants' Local Rule 56.1 Statement of Facts Which Are Not in Material Dispute ("Stmt."). Record references are contained in the Rule 56.1 Statement, the Plaintiff's Statement pursuant to Local Rule 56, the Amended Complaint ("Compl."), the declaration of Lt. Gardner ("Gardner Dec."), the affidavit of Carvill ("Carvill Aff.") and the declaration of Steven N. Schulman ("Schulman Dec.") to which is annexed the transcript of Scott's deposition (cited herein as "Scott Dep.") and documents pertaining to disciplinary proceedings and Scott's affidavit in opposition with attached exhibits. The facts are not in dispute except as noted.
Scott has been in DOCS custody since 1984 on a sentence of 37 1/2 years to life. He was transferred to Sullivan in October 1996 and to FCS and GMCF in April and June 1999, respectively. Scott was given urine tests for the presence of drugs on September 11 and September 19, 1998, and on January 18, February 20, March 13, and March 26, 1999. (Stmt. ¶ 10). The September 19, 1998, and the March 13, 1999 tests were ordered by Lt. Gardner. (Id.). The March 13, 1999 sample had a positive result. (Id.).
During the period of these urine tests, Scott was the plaintiff in another prisoner civil rights lawsuit, Scott v. Coughlin. (Stmt. ¶ 6). Neither Lt. Gardner nor Carvill were parties to that suit. (Stmt. ¶ 7). Scott also had a work assignment delivering books to keeplocked inmates. He also complained frequently about staff misconduct. (Stmt. ¶ 9).
Lt. Gardner ordered the urine test ultimately given on March 13, 1999 on a random basis four days earlier on March 9, 1999. Lt. Gardner did not participate in taking, handling, testing or analyzing the sample, nor did he direct anybody to alter the sample or falsify the test results.
According to Scott, his transfers out of Sullivan first to FCS and then to GMCF, were in retaliation for the exercise of his First Amendment rights, namely a lawsuit involving alleged misconduct in disciplinary proceedings which was ongoing at the time, Scott v. Coughlin, and complaints about urine tests improperly ordered by Lt. Gardner. The Defendants deny that they took any action pertaining to Scott with a retaliatory motive. Neither Carvill nor Lt. Gardner were defendants in Scott v. Coughlin. Scott and Lt. Gardner never discussed Scott v. Coughlin.
On January 6, 1999, Scott traveled from Sullivan to Green Haven Correctional Facility ("GHCF") and back on an inspection trip in connection with the case of Scott v. Coughlin. According to Scott, Lt. Gardner engineered the subsequent transfer in retaliation for this trip. Scott contends that Lt. Gardner regarded this as unusual, objected to Scott's possession of a pass to deliver law library books to keeplocked inmates, and did not approve of his frequent complaints of officer misconduct.
Scott was required to take several urine tests for the presence of drugs on September 11 and September 19, 1998, January 18, February 20, March 13, and March 26, 1999, and Scott alleges that the tests on September 19, 1998, and March 13, 1999, were ordered by Lt. Gardner. Only the test of the March 13, 1999 sample had a positive result.
According to Scott he was referred to the Office of Mental Health ("OMH") for psychiatric treatment because he complained about taking these tests. Lt. Gardner is not alleged to have had anything to do with the OMH treatment.
Lt. Gardner ordered the March 13, 1999 urine test on March 9, 1999. The Request for Urinalysis Test made by Lt. Gardner stated it was ordered on a random basis. As lieutenant and a watch commander, Lt. Gardner could order the test without further approval by a superior. According to Lt. Gardner, he did not participate in taking, handling, testing or analyzing the sample, nor did he direct anybody to alter the sample or falsify the test results. The sample tested positive for the presence of opiates in both initial and confirmatory tests.
According to Scott, the circumstances indicate that Lt. Gardner had a retaliatory motive in ordering the test. As a result of the positive test, Scott received a misbehavior report which resulted in a disciplinary hearing conducted by Lt. Longobardo on March 19, 1999. Lt. Gardner did not testify at the hearing and Scott has not testified and is unaware that Lt. Gardner had any role in the hearing. Scott was found guilty at the hearing and given 180 days keeplock, of which 90 were suspended, among other sanctions.
Scott has cited no authority that Lt. Gardner had the power to transfer an inmate to a different facility other than Scott's personal experience and knowledge. (Scott Aff. ¶ 101). Transfers for disciplinary reasons are initiated by corrections counselors. Although Lt. Gardner may recommend transfers for approval through the chain of command, he did not do so in Scott's case.
DOCS policy permits transfer of inmates in the Southern tier of New York State who receive substantial disciplinary sanctions of more than 60 days within a year in keeplock or in a special housing unit ("SHU"). Placement in the Southern tier is regarded as a privilege for inmates with relatively clean disciplinary records because a disproportionate number of inmates are from the New York City area. When an inmate in a Southern tier facility, such as Sullivan, received such a substantial disciplinary sanction, he is commonly transferred to an upstate facility.
Following and arising from the sanction imposed at the disciplinary hearing, Scott was given an unscheduled transfer review on March 22, 1999 by corrections counselors. The review stated that:
SCOTT RECENTLY RECEIVED 120 DAYS KEEPLOCK AFTER TESTING POSITIVE FOR OPIATES. SUCH CONDUCT RENDERS HIM SUITABLE FOR TRANSFER TO AN UPSTATE MAX A FACILITY. TRANSFER RECOMMENDED.
The review was noted for a priority transfer. The review was signed by Counselor Leonard Findling, Senior Counselor Ed Mitchell, and Deputy Superintendent for Programming Kevin Hunt. The recommendation was forwarded to Carvill for processing.
According to Scott, he complained to Lt. Gardner about the number of urine tests he had been given, but in his deposition he stated that his disciplinary sanction had already been imposed and that he was already on keeplock status when his complaint to Lt. Gardner was made on March 22, 1999, the date that the transfer review occurred. (Scott Dept. at 63-65, 70).
Prior to leaving Sullivan, Scott had one more urine test, apparently authorized from DOCS's Central Office in Albany. Scott has no information that Lt. Gardner was involved in ordering it.
Scott has never met Carvill and was not aware of his name until this litigation. Having received the transfer recommendation, Carvill did not have the discretion to ignore it. Upon referral, he determined that the criteria for a disciplinary transfer had been made. The transfer was based solely on the information contained in DOCS's computer system.
Carvill was not familiar with Scott's lawsuits and Scott has testified that he does not know whether Carvill had a motive to retaliate. (Scott Dep. at 90). According to Carvill he had no retaliatory motive.
Scott was transferred from Sullivan to Downstate Correctional Facility on April 1, then to Fishkill the following day, April 2, 1999, and placed in Fishkill SHU 200, the special housing unit on the grounds of Fishkill.
Scott was a Maximum A security inmate. According to Carvill, DOCS policies permit the placement of maximum security inmates on keeplock or SHU status for at least 45 days into SHU 200 units. SHU 200 units are SHU units on the grounds of medium security facilities. According to Carvill, Scott was placed in Fishkill SHU 200 because it had the available space.
On May 19, 1999, Scott's keeplock sanction was modified from 180 days to 90 days in keeplock, none of it suspended.
Scott was transferred from Fishkill to GMCF on or about June 17, 1999, upon completion of his disciplinary sanction. GMCF is an upstate maximum security facility and Scott was designated for placement in its general population. No evidence has been presented that Lt. Gardner had any role in the transfer from Fishkill to GMCF.
No evidence has been presented that either Lt. Gardner or Carvill had any role in urine tests he received after leaving Sullivan or that Lt. Gardner and Carvill had contact with each other. Lt. Gardner and Carvill deny knowing each other.
On February 7, 2000, subsequent to his transfer to GMCF, Scott's disciplinary sanction was administratively reversed while an Article 78 state court judicial review was pending. The grounds asserted for the administrative reversal was that hearing failed "to thoroughly address medication issue with health services staff." The Summary Judgment Standard
Pursuant to Rule 56, summary judgment may be granted only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); SCS Communications, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir. 2004). The court will not try issues of fact on a motion for summary judgment, but rather, will determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
Summary judgment is appropriate where the moving party has shown that "little or no evidence may be found in support of the nonmoving party's case. When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (internal citations omitted). If, however, "`as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'"Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).
The moving party has the burden of showing that there are no material facts in dispute, and the court must resolve all ambiguities and draw all reasonable inferences in favor of the party opposing the motion. Bickhardt v. Ratner, 871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp., 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Thus, "summary judgment may be granted if, upon reviewing the evidence in the light most favorable to the non-movant, the court determines that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under the governing law," and a dispute about a genuine issue of material fact occurs if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party."Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
In considering this motion, the Court is mindful that Scott is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Nevertheless, pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotation marks omitted).
No Retaliatory Motive To Transfer On the Part Of Lt. Gardner Has Been Established
As explained by one court,
[p]rison officials have broad discretion to transfer prisoners to another facility. An inmate may not, however, be transferred solely in retaliation for his exercising his constitutional rights.Napoleoni v. Scully, 932 F. Supp. 559, 563 (S.D.N.Y. 1996) (internal citations omitted).
In order to establish his First Amendment retaliation claim, Scott must advance non-conclusory allegations supporting three elements:
(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001). Summary judgment is appropriate where proof of retaliation is based entirely on circumstantial evidence. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Flaherty v. Coughlin, 710 F.2d 10, 13 (2d Cir. 1983)); Mabery v. Coughlin, No. 93 Civ. 3221 (LAP), 1996 U.S. Dist. LEXIS 5703, at *14 (S.D.N.Y. Apr. 30, 1996); see also Deters v. Lafuente, 368 F.3d 185, 190 (2d Cir. 2004) (holding plaintiffs must offer "some tangible proof to demonstrate that their version of what occurred was not imaginary"). Conclusory assertions of retaliatory motive and speculation are not sufficient to withstand summary judgment.See Napoleoni, 932 F. Supp. at 564.
Assuming for the purposes of this motion that Scott's other lawsuits and complaints satisfy the first element, it is concluded that Scott has not met the second and third elements with respect to Lt. Gardner.
In retaliation claims, not only must a plaintiff show that defendants engaged in conduct for retaliatory reasons, but also that there was a direct causal connection between the conduct and the adverse action alleged to have infringed on his constitutional rights.
[T]hus, even if the plaintiff shows that the defendant was motivated at least in part by retaliatory animus and the defendant fails to prove that, absent that retaliatory animus, he would have taken the same action, the plaintiff must still demonstrate that the causal connection between the defendants' action and the plaintiff's injury is sufficiently direct.Gierlinger v. Gleason, 160 F.3d 858, 872 (2d Cir. 1998).
In order to establish his claim against Lt. Gardner, Scott must show that Lt. Gardner was personally involved in the alleged constitutional deprivation. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). Where an inmate alleges retaliation in the form of a transfer to a different correctional facility, the inmate must show that the defendant was involved in the transfer decision. See Gadson v. Goord, No. 96 Civ. 7544 (SS), 1997 U.S. Dist. LEXIS 18131, at *26-27 (S.D.N.Y. Nov. 13, 1997); Mabery, 1996 U.S. Dist. LEXIS 5703, at *14. As explained by the Second Circuit, even if a plaintiff contends that a defendant had retaliatory intent, "intent is not an issue where . . . defendants had no authority to act." Deters, 368 F.3d at 189. Scott has submitted no evidence establishing that Lt. Gardner caused or was involved in Scott's transfer.
It bears noting that Scott's claims that the urine test themselves were retaliatory were dismissed for failure to exhaust available administrative remedies. See Scott, 287 F. Supp. 2d at 488-90; 2005 U.S. Dist. LEXIS 7372, at *12.
The evidence submitted indicates that Lt. Gardner did not conduct the hearing, nor did he participate in it as a witness. Lt. Longobardo, not Lt. Gardner, imposed the sanction which triggered the disciplinary transfer. Lt. Gardner did not have the authority to order or initiate the transfer, nor did he recommend it. Additionally, there is no evidence the defendant Carvill who processed the transfer at the departmental level contacted Lt. Gardner. Carvill and Lt. Gardner did not know each other.
While Scott contends that the transfer resulted from his complaints to Lt. Gardner about the urine tests, the evidence demonstrates that his complaints to Lt. Gardner began the day after the transfer process had already been initiated. Scott did not complain about the urine tests to Lt. Gardner until March 23, 1999, the day after the decision to request his transfer had been made. There is no evidence that Lt. Gardner was aware of complaints against him until after the transfer had already been approved by persons not under Lt. Gardner's supervision. Additionally, although Scott points to Lt. Gardner's expression of satisfaction that Scott would be leaving, this fact is insufficient to establish retaliation in the absence of evidence that Lt. Gardner participated in the transfer.
Scott has also contended that he was transferred because of his reputation as a complainer, that Lt. Gardner regarded as unusual Scott's court trip in Scott v. Coughlin, and that Lt. Gardner disapproved of Scott's possession of a pass to deliver books to keeplocked inmates, a required prison duty which would be assigned to another inmate if Scott could not do it.
However, as set forth above, even if it is assumed that an issue exists as to whether Lt. Gardner had a retaliatory motive to order the urine tests, there is no basis to infer that he was involved in the subsequent chain of events.
Scott has also sought to establish that Lt. Gardner was involved in events subsequent to authorizing the urine teston account of his role as a supervisor. However, the Court of Appeals for the Second Circuit has held that personal involvement may not be inferred merely from the fact of supervisory authority. See Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (per curiam). There is no evidence that Lt. Gardner directed the personnel involved in taking and testing the urine sample to tamper with the results or that he was involved in the disciplinary hearing.
Scott has also alleged that Corrections Officer Young complained about Scott's activities and required Scott to take another urine test and that Young conversed with Lt. Gardner during this process. Even if this account is credited, it in no way establishes an inference that Lt. Gardner was responsible for Scott's transfer.
Accordingly, because Scott has failed to "identify evidence that would permit the trier of fact to draw a reasonable inference of unlawful conduct," see Francis v. Coughlin, 891 F.2d 43, 47 (2d Cir. 1989), summary judgment is warranted with respect to Scott's claims against Gardner.
No Retaliatory Motive To Transfer Has Been Established With Respect To Carvill
With respect to Scott's claim of retaliation by Defendant Carvill, Scott does not allege that Carvill was involved in ordering his drug test, performing the test, writing the misbehavior report alleging the positive results, or conducting the disciplinary hearing with its finding of guilt and imposition of a disciplinary sanction. Carvill's only role was processing Scott's transfers.
Scott's transfer out of Sullivan was initiated by corrections counselors at Sullivan based upon the imposition of a then 120 day keeplock sanction. According to his affidavit based on information contained in the computer system, Carvill decided that the criteria for a disciplinary transfer was met and processed the transfer. Scott was transferred to Fishkill SHU 200 to serve his disciplinary sanction based on the availability of space.
Scott contends that a retaliatory motive may be inferred from irregularities in the transfers and that regulations permit the placement of inmates at minimum and medium security facilities under keeplock sanction into SHU units. However, according to Carvill, DOCS directives are interpreted as permitting the placement of maximum security keeplock inmates into SHU 200 units which are on the grounds of medium security facilities. Regardless of the nature of DOCS' policy or whether it is clearly expressed by the directives, such an irregularity, even if it existed, does not establish a retaliatory motive for Carvill.
Similarly, Scott has also contended that DOCS policy only permits disciplinary transfers of inmates at quarterly review. However, even if it is assumed that the disputed policies stem from Carvill's interpretation or misinterpretation of DOCS policies, Scott has not adduced any evidence to show that his transfer comprised of more than entries on a computer screen to Carvill, and Scott had no personal knowledge that Carvill had a motive to retaliate. Carvill was not familiar with Scott's lawsuits and Carvill and Lt. Gardner did not know each other. Finally, Carvill specifically denied a retaliatory motive.
Scott has also contended that a retaliatory motive may be inferred because DOCS does not transfer all inmates who have received a disciplinary sanction sufficient to invoke the policy. The materials submitted establish that there were 229 total transfers from Sullivan in 1998 and 1999 as the result of the imposition of disciplinary sanctions and that in 64 of these cases the discipline was drug related. During that same period, requests originating from Sullivan for transfers based on disciplinary sanctions for substance abuse related offenses were turned down in 11 cases. Nine of the 11 denied transfers involved circumstances Scott did not share, four had an OMH Service Level of 1, the level requiring the most care.
DOCS' placement of Scott into the SHU 200 was in literal accordance with the regulation which expressly permits the placement of inmates on keeplock status at medium and minimum security facilities into SHU at those facilities. See 7 NYCRR § 301.6(a) (2); DOCS Directive 4933 § 306.1(a) (2). The regulation and the directive apply to "an inmate in a medium or minimum security correctional facility," not merely to medium or minimum security inmates. When Scott was at Fishkill he was in fact "an inmate in a medium security facility," see 7 NYCRR § 100.90(c).
Scott has urged that an inference of retaliation be drawn from a series of alleged procedural defects with the transfer. He has contended that he received a disciplinary penalty in excess of DOCS guidelines. However, the disciplinary penalty was imposed by Lt. Longobardo, not Carvill, and when it was reduced on administrative appeal from 180 to 90 days, it was still sufficiently long to justify the transfer. The ultimate reversal of a disciplinary conviction does not itself suggest retaliation.See Allah v. Greiner, No. 03 Civ. 3789 (NRB), 2006 U.S. Dist. LEXIS 6092, at *21 n. 17 (S.D.N.Y. Feb. 15, 2006).
Scott has contended that his transfer was designated a "priority" rather than a "regular" unscheduled review. In any case, Scott's transfer was ordered on March 23, and he was not moved until April 1, 1999.
Scott has also contended that he had an OMH Level of 2, which should have excluded him from the transfer and that Counselor Findling falsified Scott's OMH level entry into DOCS' computer system in processing the transfer. However, Scott's quarterly counseling review, which is itself dated March 4, 1999, indicated that Scott's OMH level was 3 as of February 8, 1999, six weeks before the transfer was processed. Scott has no evidence that Findling made the entry and does not attribute a retaliatory motive to Findling.
Scott has not adduced any evidence that Carvill made any statements suggesting a bad motive or that Carvill was even aware of any protected activity Scott may have engaged in. See Dawes, 239 F.3d at 492. Scott has not refuted the evidence that Carvill did not know Lt. Gardner and did not know Scott apart from the information on the records in front of him. Scott has contended that as a classification analyst Carvill "may" have been privy to orders in his prior litigation. This is surmise which does not create a genuine issue of material fact. See Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).
Scott's claim against Carvill seeks to draw an inference of a retaliatory motive from the alleged procedural irregularities in processing the transfer. Even if there were inaccurate entries in DOCS' computer system, these entries existed before Carvill became involved in the matter when the transfer request was forwarded to him from the facility. Scott has not presented any evidence which shows that Carvill had any reason to be aware of any of these purported inaccuracies.
Accordingly, no evidence has been submitted to permit an inference that Carvill engaged in retaliation against Scott and summary judgment is granted.
Conclusion
For the reasons set forth above, the Defendants' motion for summary judgment is granted and the amended complaint is dismissed.
Submit judgment on notice.
It is so ordered.