Opinion
9:12-CV-00203 (MAD/TWD)
06-19-2015
RALPH ALICEA, Plaintiff, v. JOHN MALY, M. TRINIDAD, E. BODISON, S. KOBER, and JOHN/JANE DOE, Defendants.
APPEARANCES: RALPH ALICEA Plaintiff pro se 04-A-1138 Wende Correctional Facility Wende Road, P.O. Box 1187 Alden, New York 14004-1187 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: ADRIENNE J. KERWIN, ESQ. Assistant Attorney General
APPEARANCES: RALPH ALICEA
Plaintiff pro se
04-A-1138
Wende Correctional Facility
Wende Road, P.O. Box 1187
Alden, New York 14004-1187
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
OF COUNSEL: ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Pro se Plaintiff Ralph Alicea originally brought this civil rights action under 42 U.S.C. § 1983 against four named defendants and a John/Jane Doe defendant. All of the claims in Plaintiff's Amended Complaint (Dkt. No. 14), with the exception of retaliation claims against Defendants Shawangunk Correctional Facility ("Shawangunk") Correction Officer Marta Trinidad ("Trinidad") and Correction Counselor Earnel Bodison ("Bodison"), were dismissed by the Hon. Mae A. D'Agostino, D.J., on the Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 35.) Defendants Trinidad and Bodison have now moved for summary judgment on the retaliation claims pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 50.) Plaintiff has opposed the motion. (Dkt. No. 54.) For the reasons that follow, the Court recommends that Defendants' motion for summary judgment be granted.
Judge D'Agostino granted Plaintiff leave to amend with regard to a number of the dismissed claims. (Dkt. No. 35 at 14.) Plaintiff has not filed an amended complaint since the dismissal, and the time within to do so has expired. Id. 14-15.
I. FACTUAL BACKGROUND
A. Correction Officer Freeman's Alleged Misconduct
In November 2008, while Plaintiff was confined at Shawangunk, his wife visited a fellow inmate Daniel Monko ("Monko") and gave him a thirty-five pound food package. (Dkt. No. 14 at ¶¶ 17, 26.) According to Plaintiff, Correction Officer Freeman ("Freeman"), allegedly thinking that Plaintiff was attempting to circumvent package restrictions imposed against him in a disciplinary hearing, marked the food items in the package with an ultra violet ink stamp before the package was issued to Monko. Id. at ¶ 26. Two days later, Plaintiff's cell was searched, and Freeman reported finding some of the stamped food. Id. at ¶ 28.
Freeman filed Tier III misbehavior reports against Plaintiff and Monko. Id. at ¶ 28; Dkt. No. 54-6. At his hearing, Monko informed original Defendant John Maly ("Maly"), Deputy Superintendent of Security at Shawangunk, that all of the food items in the package from Plaintiff's wife were still in his possession at the time Plaintiff's cell was searched, and that Freeman had engaged in misconduct. (Dkt. Nos. 14, at ¶ 30; 50-3 at 13.) Maly thereafter, on his own accord, advised Monko that he would be contacting the Inspector General regarding the alleged misconduct. (Dkt. No. 50-3 at 13-14.) Monko also wrote to the Inspector General, purportedly at the urging of Maly, to report Freeman's alleged misconduct. (Dkt. No. 54-5 at 116-17.) All of the charges in the misbehavior report filed against Plaintiff by Freeman were dismissed except for the charge for possessing gang related material. (Dkt. No. 50-8 at 46-48.)
Plaintiff never contacted the Inspector General's Office regarding Freeman's alleged misconduct but was questioned as a part of the investigation conducted by the Inspector General. (Dkt. Nos. 14 at ¶ 33; 50-3 at 14, 22.) Plaintiff did file a grievance against Freeman on or about January 22, 2009. (Dkt. No. 54-4 at 10-11.) Plaintiff claims that both Trinidad and Bodison retaliated against him for his cooperation in the Freeman investigation and the grievance he filed against Freeman. (Dkt. Nos. 14 at ¶¶ 11, 116; 50-3 at 13.) Plaintiff may also be claiming that Bodison retaliated against him for filing grievances against Bodison. (Dkt. No. 14 at ¶ 116.)
Freeman was suspended during the investigation but subsequently returned to work and was assigned a steady officer in Plaintiff's housing block. (Dkt. No. 50-3 at 64.)
B. Trinidad
Defendant Trinidad's steady post at Shawangunk during the time period relevant to Plaintiff's claim was the package room. (Dkt. No. 50-12 at ¶ 4.) Among her duties as package room officer was signing for packages and inspecting them to ensure that they were in compliance with Department of Corrections and Community Supervision ("DOCCS") Directives 4911, 4421, and 4422. Id. at ¶ 5.
Directive 4911 establishes the DOCCS policy concerning packages and articles sent or brought to facilities and received through facility Package Rooms. (Dkt. No. 54-3 at 27.) Directive 4421 contains and describes the policies and procedures governing privileged correspondence that is entitled to a greater degree of confidentiality during processing within the facility than that accorded general correspondence. Id. at 7. Directive 4422 contains and describes the policies and procedures governing the correspondence program available to all offenders. Id. at 12.
On January 29, 2009, a sixty-two pound box addressed to Plaintiff was delivered to the Shawangunk package room and signed for by Trinidad. Id. at ¶ 6; Dkt. No. 50-3 at 34-35. The box had two different return addresses: "Office of the Appellate Defender, 45 West 45th Street, 7th Floor, New York, N.Y. 10036" and "RICHARD ALLEN, MANHATTAN MAIL ROOM, 1710 FIRST AVENUE, NEW YORK, N.Y. 10128." (Dkt. Nos. 50-6; 54-3 at 63.) According to Trinidad, upon inspection of the contents of the box, it did not appear to be from the address on the box. (Dkt. No. 50-12 at ¶ 7.) Trinidad, who claims to have been acting in accordance with the DOCCS Directives, forwarded the entire box and its contents to Deputy Superintendent of Security Maly and had no further involvement. Id. ¶¶ 9-10. According to Trinidad, she has never withheld an incoming package for any reason other than those required by DOCCS Directives. Id. at ¶ 11.
Plaintiff claims not to have learned that the box had arrived until a month later when his attorney contacted him to find out why he had not confirmed receipt. (Dkt. No. 50-3 at 35.) Plaintiff also claims that Trinidad was friends with Freeman and withheld the box in retaliation for his cooperation in the misconduct investigation by the Inspector General and for the grievance he filed against Freeman. (Dkt. Nos. 14 at ¶¶ 58-60; 50-3 at 16, 36.)
On or about February 27, 2009, Plaintiff filed a grievance against Trinidad and the entire package room staff claiming that the box had arrived at Shawangunk on January 29, 2009, was signed for by Trinidad, and that Plaintiff had not received the box or been informed that it was at the facility. (Dkt. No. 50-5 at 6-7.) Plaintiff referred to the package room staff's actions as "clear retaliation" against him. Id. at 7. On or about March 20, 2009, Plaintiff filed a grievance against Maly for withholding the package and failing to inform him that the box was in his possession, thereby denying Plaintiff his right of access to the courts. Id. at 5. The related grievances were consolidated. (Dkt. No. 14 at ¶ 79.)
An investigative report done on the grievances indicated that the package immediately came under scrutiny as "suspect legal mail" upon receipt at the facility, that it was held, and that subsequent inquiry determined that it was not sent by the return addressee. Id. at 8. According to Maly, the status of the package was contraband that was attempted to be introduced in the facility by an anonymous sender, and the package was the subject of an ongoing investigation. Id.
The Inmate Grievance Resolution Committee ("IGRC") issued a deadlocked decision. (Dkt. Nos. 14 at ¶ 80; 50-5 at 9.) On March 25, 2009, the Superintendent at Shawangunk denied the joint grievance for the reasons set forth in the investigative report. (Dkt. No. 50-5 at 10.) The joint grievance was unanimously denied on appeal to the Central Office Review Committee ("CORC") on May 6, 2009. Id. at 14. In a January 31, 2011, memorandum from Maly to Plaintiff regarding the box, submitted by Plaintiff in opposition to Defendants' motion, Maly wrote that he had previously explained to Plaintiff that "it had been determined beyond a doubt that the box had not been sent by the return addressee indicated, and that subsequent investigations into [the] matter indicated that it had been sent from a mailing business in Manhattan by a woman . . . [and] that as such [the] box was considered contraband and [he] would not be receiving it." (Dkt. No. 54-3 at 67.)
C. Bodison
1. Plaintiff's Relationship with Bodison Prior to the Freeman Misconduct Investigation
Defendant was transferred to Shawangunk in or about November 2005. (Dkt. Nos. 14 at ¶ 17; 50-7 at 32.) Defendant Bodison became Plaintiff's Correction Counselor early in his confinement at Shawangunk. (Dkt. No. 50-7 at 32.) According to Plaintiff, there were issues with Bodison from day one which created a difficult situation. (Dkt. No. 50-3 at 40.) Plaintiff described Bodison as "a hard-lined black man . . . who felt that his position [was] not to be questioned." Id. Bodison let Plaintiff know from the beginning that he should not think he was going to get favoritism because of the light color of his skin. Id. at 41.
Plaintiff described his relationship prior to the Freeman investigation as:
. . . very difficult. It was very difficult. It was very uncomfortable. His demeanor was always I don't know what you want to call it. I guess they call it in this day in time reversed racial I don't know what to tell you ma'am. It was just not a conducive relationship.Id. at 48. Plaintiff recalled Bodison commenting once when a disciplinary finding against Plaintiff had been expunged that he bet Plaintiff would not have been given that kind of review if he had been an African American inmate. Id. at 43. When counsel commented during Plaintiff's deposition that it sounded like Bodison had been a "jerk" to him the whole time and not only after the Freeman incident, Plaintiff indicated that he liked the characterization and described Bodison as "a very angry black man towards him." Id. at 54.
According to Bodison, Plaintiff was often disrespectful and hostile to him throughout their professional relationship. (Dkt. No. 50-13 at ¶ 6.) Bodison very frequently interacted with hostile, disrespectful and defiant inmates, and it was his style not to be, or appear to be, intimidated by such conduct so as to maintain his position of authority. Id. at ¶¶ 9-10. Bodison has denied treating Plaintiff any differently than other inmates to whom he was assigned. Id. at ¶ 21.
2. Relationship Following the Freeman Misconduct Claim and Investigation
According to Plaintiff, after he cooperated in the Freeman misconduct investigation, his relationship with Bodison deteriorated further. (Dkt. No 50-3 at 48.) Plaintiff testified at his deposition that on the day he was transferred from Shawangunk to Upstate Correctional Facility, an unidentified correction officer told him that Bodison was out to get him that no one was happy about the fact that Freeman had been suspended whether they liked her or not. Id. at 52. Bodison has stated in his Declaration that he at no time made any decision or took any action with respect to Plaintiff because Plaintiff had filed grievances against him or because Plaintiff had cooperated in the Freeman investigation. (Dkt. No. 50-13 at ¶ 11.)
a. Targeting Plaintiff's Family for Retaliation
Plaintiff testified at his deposition that after the Freeman situation, "[he] was targeted for retaliation [by Bodison], [his] family was targeted for retaliation, comments [were] made about the [Family Reunion Program] ("FRP"), that the relationship [with Bodison] just totally deteriorated where it became non-existent where [Plaintiff] did not want to meet with him in any form or fashion." (Dkt. No. 50-3 at 55.) When Plaintiff warned members of his family about the possible consequences of having to leave their vehicles with the Shawangunk staff while attending the FRP, i.e., staff could plant something incriminating in their cars, family members other than his wife were no longer comfortable attending. Id. at 56, 61. According to Plaintiff, Bodison started being "really nasty" to his family, id. at 48-49, and Bodison's behavior towards Plaintiff and his family was totally disrespectful and vile. Id. at 54.
b. Grievances Against Bodison
In Grievance No. 25220-09 against Bodison, dated June 29, 2009, Plaintiff complained about an incident that had occurred on June 18, 2009, when he was summoned to Bodison's office and questioned aggressively regarding a phone number. (Dkt. No. 54-5 at 33.) Correction Counselor Kober was present with Bodison, and when Plaintiff asked why Kober was there, Bodison stated unequivocally that Kober was there because "I feel intimidated by you so I want somebody present in the office when I meet with you." Id. When Plaintiff asked that a staff member be present on his behalf to insure that Bodison and Kober did not conspire to fabricate any part of the conversation, Bodison called in several correction officers and told them that Plaintiff was trying to intimidate him. Id. Plaintiff indicated that he did not want to continue the interview with Bodison and was allowed to leave. Id.
Plaintiff wrote that "[d]ue to this type of relationship reported herein continuing since my arrival at S.C.F. I request that C.C. Bodison not attempt to place me on a call out so that Bodison's feeling of being intimidated while in my presence will cease to continue and I will avoid being accused of any fabricated charges by C.C. Bodison." Id. Plaintiff noted in the grievance that Bodison had played a part in the incident involving Freeman, and that since that time the relationship between Plaintiff and Bodison had worsened. Id. The IGRC was deadlocked, and both Superintendent Smith and CORC denied the grievance. Id. at 48-49, 52.
In Grievance No. 25477-09 against Bodison, dated October 1, 2009, Plaintiff complained that he had been required to meet with Bodison against his will on September 16, 2009. (Dkt. No. 54-5 at 56-58.) When Plaintiff entered Bodison's office, Bodison, in a "very nasty and agitated tone" told Plaintiff to close the door and sit down. Id. at 57. Plaintiff informed Bodison that he was in his office under duress and would speak with Bodison and sign papers Bodison wanted signed only if a witness was present. Id. Bodison took Plaintiff's request as a refusal to sign. Id. Bodison called Correction Sergeant Aube ("Aube") into the room, and although Plaintiff agreed to sign the papers in Aube's presence, Bodison told Aube that the request was denied and Plaintiff was refusing. According to Plaintiff, Bodison then stated in a very low voice and in a perverse manner that if Plaintiff continued to file grievances and continued to bring attention to him, Bodison was going to make life for Plaintiff and his family very uncomfortable. Id. 57-58. In the grievance investigation, Aube stated that he did not hear or see any threatening conduct. Id. at 59.
In the Grievance, Plaintiff requested a complete investigation and a change in counselor. Id. at 58. He wrote that:
Since the exposure of the corrupt officer back in Nov. 2008, which resulted in D.S.S. Maly being obligated to contact the Inspector General's office, C.C. Bodison's mistreatment of grievant and his family has only [illegible] N.Y.S.D.O.C.S. policy. C.C. Bodison should not threaten to make life very uncomfortable for grievant and his family because grievant chooses to utilize the grievance process or has the intelligence to consult/write the necessary supervisors when a situation arises. Grievant's family, especially grievant's wife should not be made to feel like if their participation in the offered F.R.P. program here at the facility will be sabotaged by members of the counseling unit in retaliation for grievant utilizing the grievance process.Id. at 58. Superintendent Smith denied the grievance with the clarification that while the grievant was required to attend call outs and/or staff direction to report to an area of the facility, he was not required to participate in counseling activities. Id. at 59. CORC denied the action requested by Plaintiff, finding insufficient evidence of staff malfeasance. Id. at 61.
c. Quarterly Evaluations
Plaintiff claims that Bodison gave him poor quarterly evaluations as a result of his cooperation in the Freeman misconduct investigation. (Dkt. No. 14 at ¶ 42.) Plaintiff was unable to offer specifics regarding the evaluations at his deposition. (Dkt. No. 50-3 at 65.) In his Declaration, Bodison indicated that not all of his evaluations of Plaintiff were unsatisfactory, and that when Plaintiff did receive unsatisfactory evaluations it was because he had exhibited unacceptable behavior and received misbehavior reports. (Dkt. No. 50-13 at ¶ 12.)
The quarterly evaluations done by Bodison, in which Plaintiff's conduct was rated as acceptable, stable, marginal, or unacceptable, support Bodison's Declaration. (Dkt. No. 50-7 at 2-24.) Prior to the Freeman misconduct investigation that began in December 2008, Plaintiff received two acceptable, one stable and one unacceptable evaluation in 2006. Id. at 20, 22-24. In 2007, Plaintiff received three acceptable evaluation and one marginal evaluation. Id. at 16-19. In 2008, Plaintiff received acceptable evaluations in February, May, and November. Id. at 11, 14-15.
Subsequent to his cooperation in the Freeman misconduct investigation, Plaintiff received three acceptable evaluations and one unacceptable evaluation in 2009. Id. at 8-10, 12. In 2010, Plaintiff received three acceptable evaluations and one unacceptable evaluation. Id. at 2-4, 7. Plaintiff received an unacceptable evaluation in February 2011 and a stable evaluation in May 2011. Id. at 5-6. In each instance in which Plaintiff received an unacceptable evaluation, misconduct reports had been issued against him during the quarter. Id. at 2, 6, 12, 22.
d. Failure to Remove Expunged Disciplinary Findings
According to Plaintiff, Bodison failed to remove disciplinary findings from his guidance file after expungement in retaliation for the Freeman situation. (Dkt. No. 14 at ¶ 42.) In his Declaration, Bodison explained that he maintained guidance files chronologically, and when a disciplinary finding was expunged, the expungement was included in Plaintiff's file. (Dkt. No. 50-13 at ¶¶ 16-17.) Although Bodison did not remove mention of the guilty finding from Plaintiff's guidance file, he no longer relied upon or considered expunged records in decision making or evaluations. Id. Plaintiff conceded at his deposition that he could be wrong about references to an expunged finding being removed from guidance files. (Dkt. No. 50-3 at 58.)
e. Law Library Job
Plaintiff suggests in his Amended Complaint that he was passed over for a job in the law library in retaliation for cooperation in the Freeman investigation. (Dkt. No. 14 at ¶ 39.) At his deposition, Plaintiff testified that he believed he had completed his legal research class in 2007 and from 2008 on continuously applied for a job in the law library. (Dkt. No. 50-3 at 38.) According to Plaintiff, he never had a direct conversation with Bodison about the law library job but included it in his many conversations with Bodison concerning having his GED and having taken college courses, and thinking that being a porter pushing a broom all day did not fit his qualifications. Id. at 41.
Plaintiff testified at his deposition that Bodison had made it clear to him that he would not get a position as law library clerk. Id. at 42. When asked why Bodison had taken that position, Plaintiff stated that he could not say why but assumed that "[number one, of my prior history as a high ranking gang member that was he despised that, number one; number two, again, he was a difficult black man to be around who made many comments about the color of my skin and any favoritism that will be provided to, I guess, what he perceived as Caucasian inmates." Id. at 42-43.
Plaintiff described Bodison as never having gone above and beyond to assist him in his rehabilitation. Id. at 53. Bodison has stated in his Declaration that Plaintiff was never given a job in the law library because of Program Committee review and noted that it was not uncommon for inmates not to receive requested programming or jobs despite being or appearing to be qualified or eligible. (Dkt. No. 50-13 at ¶¶ 13-14.)
f. Bodison's Testimony that a Poster in Plaintiff's Cell was Gang Related
As noted above, all of the charges in the Freeman misbehavior report filed against Plaintiff by Freeman were dismissed except the charge for possessing gang related material. (Dkt. No. 50-8 at 46-48.) Bodison was called upon to testify as an expert on gang memorabilia at Plaintiff's hearing on the possession of gang related material charge. (Dkt. No. 50-9 at 19.) Bodison was called by the hearing officer over Plaintiff's objection that Bodison's position as Plaintiff's counselor and his pre-existing subjective opinion that Plaintiff was a gang member would prevent him from being objective. Id. at 11.
Bodison testified that the credentials which qualified him to testify as a gang memorabilia expert included his training as a DOCCS employee, along with additional training in gang related information. Id. at 21. Bodison confirmed in his Declaration that he continuously received updated training in gang recognition and awareness and as a matter of routine was called as a witness by hearing officers to testify at disciplinary hearings with regard to gang recognition and gang related issues. (Dkt. No. 50-13 at ¶¶ 18-19.) According to Bodison, he never volunteered to testify at a hearing or sought out opportunities to testify at a specific inmate's hearing, including Plaintiff's hearing. Id. at ¶ 21.
Bodison testified that in his opinion the poster was gang related, and that the gang was the Bloods. Id. at 19-20. Bodison based his opinion on the red bandana going around the face and the head, the standing in blood, dripping blood, and red sneakers. Id. When asked by the hearing officer what he had considered in reaching that conclusion, Bodison testified that he considered only the poster in rendering his opinion and did not consider Plaintiff's past disciplinary history or anything like that. (Dkt. No. 50-9 at 21, 24.) Bodison denied having spoken with Freeman regarding the poster. (Dkt. No. 50-10 at 10.)
II. APPLICABLE LEGAL STANDARDS
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).
Plaintiff's Amended Complaint was properly verified. (Dkt. No. 14 at 44.)
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).
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). 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." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). However, "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)).
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 OF PLAINTIFF'S RETALIATION CLAIMS
Plaintiff claims that Defendants have retaliated against him in various ways for exercising his right to file grievance complaints and cooperating in the Freeman investigation while confined at Shawangunk. Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004). Central to such claims is the notion that in a prison setting, correction officials may not take actions that would have a chilling effect upon an inmate's exercise of First Amendment rights. Id. at 381-83.
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 Pidlypchak, 389 F.3d at 380 (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 even 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).
A. Trinidad
1. Protected Conduct and Retaliatory Action
Plaintiff claims that Defendant Trinidad retaliated against him for his cooperation in the Freeman misconduct investigation and the grievance he filed against Freeman by inspecting and turning over to Maly the sixty-two pound box of legal documents sent to him by his attorney. (Dkt. Nos. 14 at ¶¶ 11, 16; 50-3 at 13.)
Plaintiff was questioned during his deposition about whether he claimed that Trinidad took any other retaliatory action against him. (see, e.g., Dkt. No. 50-3 at 27-38.) In response, Plaintiff mentioned his numerous unsuccessful applications to work in the law library; grievances not filed in a timely manner; several mysterious cell searches; and his family being made to wait for visits. Id. However, Plaintiff conceded that he could not say that Trinidad was involved in any of those situations. Id. at 28, 30, 37. Moreover, Trinidad has specifically denied having any knowledge that Plaintiff was attempting to obtain a job in the law library, and having any involvement in the hiring of inmates for the library and the collection or delivery of grievances. (Dkt. No. 50-12 at ¶¶ 11-13.) Therefore, Plaintiff's retaliation claim is limited to the sixty-two pound box Trinidad inspected and turned over to Maly on January 29, 2009.
The filing of grievances has been found to constitute protected First Amendment conduct for purposes of a retaliation claim. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) ("Retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments."); Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) ("the filing of prison grievances is a constitutionally protected activity" for purposes of a retaliation claim).
The Court assumes for purposes of this motion that cooperation in the Freeman misconduct investigation also constitutes protected conduct.
2. Adverse Action
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., Edwards v. Horn,
No. 10 Civ. 6194 (RJS)(JLC), 2012 WL 473481, at *15, 2012 U.S. Dist. LEXIS 18424, at *55 (S.D.N.Y. Feb. 14, 2012) (retaliatory loss of legal documents prevented plaintiff from prosecuting action, which was dismissed for failure to prosecute); 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).
According to Trinidad's Declaration, she was working in the Shawangunk package room when the box was delivered. (Dkt. No. 50-12 at ¶¶ 6-7.) She signed for the package; inspected the contents; concluded that it did not appear to have come from the address on the outside of the box and instead had come from an anonymous sender; forwarded the box to Maly in accordance with DOCCS Directives; and had no further involvement. Id. at ¶¶ 6-10.
The investigative report done on the grievances against Trinidad and Maly arising out of the confiscation of the box, filed by Plaintiff in opposition to Defendants' motion, indicates that the box immediately came under scrutiny as "suspect legal mail," was held, and that a subsequent inquiry determined that it was not sent by the return addressee. (Dkt. No. 54-3 at 55.)
In denying Plaintiff's grievances, Shawangunk Superintendent Smith wrote:
According to DSS Maly, grievant did receive a package on 1/29/09. The package was considered "suspect legal mail" and held pending investigation. A subsequent inquiry determined that the package was not sent by the return addressee. The status of this package is that of contraband that was being attempted to be introduced into a State correctional facility by an anonymous sender.Id. at 57. In his January 31, 2011, memorandum to Plaintiff, Maly wrote that it had been "determined beyond a doubt that the box had not been sent by the return addressee indicated, and that subsequent investigations into [the] matter indicated that it had been sent from a mailing business in Manhattan by a woman . . . and was considered contraband." (Dkt. No. 54-3.)
In moving for summary judgment, Trinidad contends that her conduct with regard to the box did not constitute adverse action because the box had two address labels; the labels were inconsistent; she was not required to assume that one or the other of the labels was correct; and she was entitled to refer the matter to her superiors. (Dkt. No. 50-15 at 9.) The problem with Trinidad's argument is that in her Declaration makes no mention of there having been two different return address labels on the box or that the presence of two labels influenced her decision to forward the box to Maly . (Dkt. Nos. 50-6; 50-12 at ¶ 7) In fact, Trinidad's Declaration states that "[u]pon inspection, it was determined that the contents of the package did not appear to be from the address that appeared on the outside of the package." Id. (emphasis added).
Trinidad's Declaration does not include the address to which she refers or the contents of the box. (Dkt. No. 50-12.) Nor has Trinidad provided the reasoning behind her determination that, based upon the contents of the box, it did not appear to come from the address. Id. In addition, while Trinidad identifies DOCCS Directives 4911, 4421, and 4422 as the Directives relevant to her inspection of packages, she fails to identify the provisions in the DOCCS Directives pursuant to which the box was inspected and forwarded to Maly. Id. at ¶¶ 5, 9.
Although Plaintiff claims that the box contained legal documents from his attorney, and his attorney was made aware that the box was confiscated, Plaintiff has submitted no evidence in support of his claim. For instance, although Plaintiff references correspondence received from appellate counsel Greenberg in or about February 2009 indicating that a box of legal documents had been sent to Plaintiff, received at Shawangunk on January 29, 2009, and signed for by Trinidad, Plaintiff has not submitted the letter as evidence. (Dkt. No. 14 at ¶ 66.) Nor has Plaintiff submitted a declaration from his attorney supporting his claim regarding the identity of the sender and the contents of the box.
In short, the evidence does not support Trinidad's argument that her actions were justified because there were two return addresses on the box. Nonetheless, because the evidence does establish that Trinidad forwarded the box to Maly and had no further involvement, and that it was Maly who conducted an investigation of the box and made the determination it was contraband, the Court finds that the evidence does not support a determination that Trinidad's actions constituted adverse action for purposes of Plaintiff's retaliation claim. The reason for the finding is that inspecting and forwarding the box to Maly would not in and of itself be likely to "deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381.
Plaintiff contends that Trinidad's inspection of his legal mail outside of his presence and failure to notify him his legal mail was being withheld; author a contraband receipt; file a report regarding the interception; enter his legal mail in the log book; and complete a chain of custody report violated numerous DOCCS Directives. (Dkt. Nos. 54-1 at ¶¶ 6-8; 54-2.) Failure to follow a DOCCS Directive does not give rise to a § 1983 claim. See Cabassa v. Gummerson, No. 9:01-CV-1039 (DNH/GHL), 2008 WL 4416411, at * 6 n. 24, 2008 U. S. Dist. LEXIS 72975, at * 8 n.24 (N.D.N.Y. Sept. 24, 2008) (violation of a DOCCS Directive does not give plaintiff a claim under 42 U.S.C. § 1983); see also Ahlers v. Nowicki, No. 9:12-CV-0539 (DNH/RFT), 2014 WL 1056935, at *4, 2014 U.S. Dist. LEXIS 35607, at * 10 (N.D.N.Y. Mar. 18, 2014) ("[C]laims involving the improper adherence to proprietary facility policies are incognizable under § 1983; only rights secured by the Constitution and federal law are actionable under § 1983."). Nor, assuming arguendo that Plaintiff's assertion is correct, would failure to follow DOCCS Directives in the manner claimed by Plaintiff constitute adverse action for purposes of his retaliation claim under the circumstances of the case.
3. Substantial and Motivating Factor
Even if the Court were to assume for purposes of this motion that Trinidad's conduct constituted adverse action, Plaintiff has failed to produce evidence sufficient to raise a question of fact as to whether his protected conduct was a "substantial or motivating factor" in Trinidad's actions with regard to the box. See Holland, 758 F.3d at 225-26 ("An inmate bears the burden of showing that the protected conduct was a substantial or motivating factor in the prison official['s action.]") (citation and internal quotation marks omitted).
Plaintiff claims that Trinidad retaliated against him for protected actions he took with respect to Freeman. 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 Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a correction officer when the only alleged basis for retaliation was a complaint about an incident involving another correction 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 correction 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).
Looking at the factors that can be considered in determining whether the requisite causal connection is present, the Court finds temporal proximity between Plaintiff's filing of his January 22, 2009, grievance against Freeman, and Trinidad inspecting the box and forwarding it to Maly on January 29, 2009. (Dkt. Nos. 50-3 at ¶ 6; 54-4 at 10-11.) However, as noted above, a showing of temporal proximity alone is not enough to survive summary judgment, and Plaintiff does not fare as well on the other factors to be considered on causation. See Roseboro, 791 F. Supp. 2d at 370. Plaintiff's grievance against Trinidad regarding the box was decided against him by Superintendent Smith and CORC. (Dkt. No. 50-5 at 10, 14.) Furthermore, Trinidad has stated in her Declaration that she has never withheld a package for any reason other than those required by DOCCS Directives (Dkt. No. 50-12 at ¶ 11), and there is no evidence in the record that she has made statements to the contrary.
In his Amended Complaint, Plaintiff alleged that Trinidad had a close personal relationship with Freeman, and that as he was being returned to his cell on December 11, 2008, after giving a statement as a part of the Freeman misconduct investigation, an unidentified correction officer advised him that the word was out that "[C.O.] Freeman's girl Trinidad was gunning for [him]." (Dkt. No. 14 at ¶¶ 33, 58-59.) However, at his deposition, Plaintiff conceded that the only basis for his allegations regarding a close personal relationship between Trinidad and Freeman was that he learned about the relationship "unofficially" hearing correction officers speaking among themselves or making comments to him indicating that they had a personal friendship. (Dkt. No. 50-3 at 19.) Plaintiff testified:
Q. . . . And the information that you had or that you learned about Trinidad and Freeman being friendly, was that through inmates or other officers, or something else?Id. at 21. Plaintiff could not recall discussing the Freeman situation with Trinidad or having any conversations with her. Id.
A. Again, as I said earlier, officers making comments in passing, conversations you overhear. You know, just it was brought to my attention that they had a personal
relationship outside of corrections, you know. I guess, friendships, barbeques. I don't know, I can't tell you. I'm just guessing. But I know definitely [they] said that's her girl, you know, meaning friends. I'm assuming that's what they meant by that.
The evidence shows that Plaintiff has relied entirely upon overheard comments by correction officers made in passing regarding a friendship between Trinidad and Freeman, and a comment by an unidentified correction officer that Trinidad was gunning for him, in "guessing" that the two were friends. Id. Plaintiff has submitted no evidence of direct knowledge of the relationship, if any, between Trinidad and Freeman, or that Trinidad's actions with regard to the box were motivated by their relationship. Allegations like those in Plaintiff's Amended Complaint and the statements made by him at his deposition "that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar College, 196 F.3d 435, 452 (2d Cir. 1999).
Given the foregoing, the Court recommends that Defendant Trinidad be granted summary judgment.
B. Bodison
1. Protected Conduct
Plaintiff claims in his Amended Complaint that Bodison retaliated against him and his family for his cooperation in the Freeman misconduct investigation and filing of a grievance against Freeman. (Dkt. No. 14 at ¶ 111.) Plaintiff's Amended Complaint, bolstered by his deposition testimony, can also be liberally construed to assert a retaliation claim against Bodison for grievances Plaintiff filed against him. Id. at ¶ 116. As noted above, the filing of grievances is protected conduct for purposes of retaliation claims. See Graham, 89 F.3d at 80.
2. Targeting Plaintiff's Family for Retaliation
Plaintiff's claim that Bodison targeted his family for retaliation because of his cooperation in the Freeman investigation and grievance against Freeman, along with the grievances Plaintiff filed against Bodison himself, is not supported by the evidence. (Dkt. Nos. 50-3 at 55; 54-5 at 57-58.) The evidence establishes that Plaintiff and Bodison had a very difficult relationship from day one, and that Plaintiff has attributed the difficulty in their relationship largely to racial problems. Id. at 40-41, 43, 48, 54. Although Plaintiff contends that the relationship deteriorated further as a result of his cooperation in the Freeman investigation, id. at 48, Plaintiff has presented no evidence of adverse action by Bodison with regard to his family sufficient to support a retaliation claim.
According to Plaintiff, after the Freeman misconduct claim was made, Bodison began making derogatory comments about Plaintiff's wife and became "really nasty" to his family totally disrespectful and vile. Id. at 48-49, 54, 56. In addition, Plaintiff claims that Bodison told him that if he kept filing grievances and continued to bring attention to Bodison, he would make life for Plaintiff and his family very uncomfortable. (Dkt. No. 54-5 at 57-58.) However, the only non-conclusory evidence regarding Bodison's interaction with Plaintiff's family is documentation of a May 2009, complaint from Plaintiff's mother that Bodison was very rude to her whenever she called to inquire about her son. (Dkt. No. 50-8 at 21.) Plaintiff testified at his deposition that after Freeman, Bodison told him that he would try to the best of his ability to prevent Plaintiff from attending FRP with his family. (Dkt. 50-3 at 61-62.) However, Plaintiff acknowledged that he was able to continue to attend FRP with his wife, even though his family was afraid to attend, not specifically because of Bodison, but out of Plaintiff's expression to them of concern that the Clinton staff might plant something incriminating in their cars. Id.
"Verbal harassment, or even threats, are generally held not to rise to the level of adverse action that will support a First Amendment retaliation claim." Rosales v. Kikendall, 677 F. Supp. 2d 643, 648 (W.D.N.Y. 2010) (citing Cabassa v. Smith, No. 9:08-CV-0480 (LEK/DEP), 2009 WL 1212495, at * 7, 2009 U.S. Dist. LEXIS 131431, at * 21 (N.D.N.Y. April 30, 2009) ("Courts addressing claims of verbal threats and harassments advanced to support First Amendment retaliation claims have uniformly held that such conduct is not sufficiently serious to meet this standard.")); Ross v. Westchester County Jail, No. 10 Civ. 3937(DLC), 2012 WL 86467, at * 7, 2012 U.S. Dist. LEXIS 3502, at * 19 (S.D.N.Y. Jan. 11, 2012) ("Non-specific verbal threats, harassing comments and hostile behavior do not constitute adverse actions sufficient to state a retaliation claim.").
Based upon the foregoing, the Court finds that there is no non-conclusory evidence in the record establishing adverse action by Bodison with regard to Plaintiff's family. Furthermore, Plaintiff has failed to provide more than conclusory evidence that Bodison's threats and hostile treatment towards Plaintiff's family were motivated by his involvement in the Freeman matter or grievances he filed against Bodison, as opposed to the "very difficult" relationship the two had from day one. See Flaherty, 713 F.2d at 13 (claims of retaliation must be supported by specific facts; conclusory statements are not sufficient).
3. Negative Quarterly Evaluations
Plaintiff claims that Bodison issued negative quarterly evaluations against him following his cooperation in the Freeman misconduct investigation. (Dkt. No. 14 at ¶ 42.) The evidence reveals that a majority of Plaintiff's quarterly evaluations by Bodison both before and after the Freeman investigation rated his conduct as acceptable. (Dkt. No. 50-7 at 2-24.) Plaintiff received only a small number of unacceptable behavior evaluations during that time. Id. at 2,6,12, 22. Bodison has stated in his Declaration that when Plaintiff received an unsatisfactory evaluation, it was because he had exhibited unacceptable behavior and received misbehavior reports. (Dkt. No. 50-13 at ¶ 12.) The evaluations reveal that in each of those instances where Plaintiff's conduct was found to be unacceptable, he had been the subject of misbehavior reports during the quarter. Id. at 2, 6, 12, 22.
The Court finds that the record contains no evidentiary support for Plaintiff's claim that Bodison's issuance of three quarterly inmate reviews finding Plaintiff's conduct unacceptable during the three year period following the Freeman misconduct investigation constituted adverse action that was motivated by Plaintiff's cooperation in the investigation. See Jeffreys, 426 F.3d at 554 (party may not rely on conclusory allegations or unsubstantiated speculation to defeat summary judgment).
4. Failure to Remove Expunged Disciplinary Findings
The undisputed evidence establishes that it was Bodison's practice to maintain guidance files in chronological order and not to remove items from the file. (Dkt. No. 50-13 at ¶ 16.) When a disciplinary finding was expunged, Bodison would include the expungement as a part of the file without clearing all mention of the guilty finding or sentence from his file. Id. The undisputed evidence also establishes that Bodison did not rely upon or consider expunged records in his decision making or inmate evaluations. Id. at ¶ 17.
There is no evidence showing that Plaintiff's cooperation in the Freeman misconduct investigation or his filing of grievances against Bodison was a substantial or motivating factor in Bodison's failure to remove expunged material from Plaintiff's file. Nor is there any evidence showing that Bodison's file keeping practices adversely affected Plaintiff.
5. Law Library Job
Even assuming for purposes of this motion that not being given a job in the library constituted adverse action, Plaintiff has failed to produce any evidence supporting his claim that Bodison acted to keep Plaintiff from being given a position in the law library in retaliation for Plaintiff's cooperation in the Freeman misconduct investigation or filing grievances against Bodison. Plaintiff received his law library certification in 2007 and concedes that he began seeking a job in the library without success in 2008, before the Freeman investigation which began in late 2008, and the grievances filed against Bodison in 2009. (Dkt. No. 50-3 at 38.) When asked why Bodison had told him he would never get a position as a law library clerk, Plaintiff testified that he assumed it was because of his history as a high ranking gang member and Bodison's negative feelings about favoritism being shown to those he perceived to be Caucasian inmates. Id. at 42-43. According to Bodison, Plaintiff was never given a job in the law library because of Program Committee review, and it was not uncommon for inmates not to received requested jobs. (Dkt. 50-13 at ¶¶ 13-14.)
6. Bodison's Testimony Regarding the Poster
There is no evidence in the record supporting Plaintiff's claim that Bodison testified at his hearing on the possession of gang related material charge in retaliation for Plaintiff's cooperation in the Freeman misconduct investigation. The evidence establishes that Bodison had some expertise in gang recognition and gang related issues and was routinely called as a witness by hearing officers to testify on gang related matters at disciplinary hearings. (Dkt. No. 50-13 at ¶¶ 18-19.) Bodison was asked to testify at Plaintiff's hearing and based his opinion that the poster was gang related solely on the poster itself, without considering Plaintiff's past disciplinary history or anything like that. Id. at ¶¶ 19-21.
The hearing took place in late December 2008 and early January 2009, well before Plaintiff's June 29, 2009, and October 1, 2009, grievances against Bodison submitted as evidence by Plaintiff. (Dkt. Nos. 50-9 at 1; 50-10, at 1; 50-11 at 1; 54-5.) Therefore, Plaintiff has no claim that Bodison testified against him in retaliation for grievances filed against Bodison. --------
7. Conclusion
Based upon the foregoing, the Court concludes that there is no evidence in the record upon which a jury could reasonably find that Bodison retaliated against Plaintiff for his cooperation in the Freeman misconduct investigation or the filing grievances against Freeman or Bodison, and recommends that Bodison be granted summary judgment.
C. Qualified Immunity
Defendants contend that if the Court were to find that their actions violated Plaintiff's rights, they would nonetheless be entitled to qualified immunity. (Dkt. No. 50-15 at 12-14.) Inasmuch as the Court is recommending that Defendants' motion for summary judgment be granted on other grounds, it finds it unnecessary to reach their qualified immunity argument.
ACCORDINGLY, it is hereby
RECOMMENDED, that Defendants' motion for summary judgment (Dkt. No.50) be GRANTED IN ITS ENTIRETY; and it is hereby
ORDERED, 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 (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: June 19, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge