Opinion
9:14-CV-00836 (GLS/TWD)
10-19-2016
JAMAL SALAAM BEY, Plaintiff, v. CHRISTOPHER MILLER, et al. Defendants.
APPEARANCES: JAMAL SALAAM BEY a/k/a Raymond Davis Plaintiff pro se Great Meadow Correctional Facility Box 51 Comstock, New York 12821 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ. Assistant Attorney General
APPEARANCES: JAMAL SALAAM BEY
a/k/a Raymond Davis
Plaintiff pro se
Great Meadow Correctional Facility
Box 51
Comstock, New York 12821 HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224 OF COUNSEL: COLLEEN D. GALLIGAN, ESQ.
Assistant Attorney General THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se Plaintiff Jamal Salaam Bey, a/k/a Raymond Davis, an inmate in the custody of the New York Department of Corrections and Community Supervision ("DOCCS") and housed at Great Meadow Correctional Facility ("Great Meadow"), commenced this civil rights action pursuant 42 U.S.C. § 1983 on July 11, 2014. (Dkt. No. 1.) Plaintiff originally brought suit only against DOCCS, claiming that because he is Moorish, neither the United States nor New York State have jurisdiction over him, and that he had been unlawfully stolen and was illegally confined by DOCCS and forced into slavery. Id. Plaintiff's original complaint was construed as alleging a claim under the First Amendment Free Exercise Clause for failing to allow Plaintiff to freely practice his Muslim faith. Id. Plaintiff's claims were all dismissed upon initial review pursuant to 28 U.S.C. §§ 1915(e) and 1915A, and Plaintiff was granted leave to serve an amended complaint with regard to the claims dismissed without prejudice. (Dkt. No. 7 at 15.)
On January 15, 2015, Plaintiff filed an amended complaint, which is the operative pleading in the action. (Dkt. No. 11.) Upon initial review, two newly named defendants and all of the claims in Plaintiff's amended complaint were dismissed except for Plaintiff's First Amendment retaliation claims against newly named Defendants Ms. Karen Johns ("Johns") and Ms. Murphy ("Murphy"), teachers at Great Meadow, and a Fourteenth Amendment claim against newly named Defendant Christopher Miller ("Miller"), Superintendent at Great Meadow. (Dkt. No. 13 at 8-9.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
Remaining Defendants Johns, Murphy, and Miller have now moved for summary judgment. (Dkt. No. 27.) Plaintiff has opposed the motion, and Defendants have filed a reply. (Dkt. Nos. 35 and 36.) For the reasons that follow, the Court recommends that Defendants' motion for summary judgment (Dkt. No. 27) be granted in its entirety.
In response to Defendants' motion, Plaintiff filed papers consisting of a series of statements, each labeled as an "amended complaint." (Dkt. No. 35-1.) The "amended complaints" address specific claims made by Plaintiff. Id. With the exception of an attachment to one of Plaintiff's "amended complaints," none of his opposition papers are verified or sworn to under penalty of perjury. Id. at 16-17. Plaintiff's submission is treated as his response to Defendants' motion for summary judgment. See Text Order, dated August 2, 2016.
II. FACTUAL BACKGROUND
A. Johns Misbehavior Report
Plaintiff was housed at Great Meadow during the January 2014 through December 2014 time period relevant to his claims. (Dkt. No. 11 at 2, 4.) According to Johns, a teacher at Great Meadow during the summer of 2014, Plaintiff was assigned to her classroom in July 2014 as a part of his mandatory program assignment and failed to attend class on July 17, 2014. (Dkt. No. 27-8 at ¶¶ 1, 4-5.) Green Meadow security personnel located Plaintiff in the law library and directed him to class. Id. at ¶ 6; Dkt. No. 27-3 at 22.
Plaintiff claims that he did not have a program card assigning him to school at the time, and he had been in the law library working on an appeal. (Dkt. No. 27-3 at 22.) Plaintiff does not believe he was ever properly assigned to a school program. Id. at 19. Plaintiff testified at his deposition that he had never been to class prior to July 17, 2014, and had not previously met Johns. Id. at 23, 35.)
When Plaintiff entered Johns' classroom, she directed him to take a seat. (Dkt. No. 27-8 at ¶ 7.) According to Johns, Plaintiff turned and faced her and yelled "I won't do anything" at her in front of the inmates in class, causing a disturbance among the students. Id. at ¶ 8. Johns ordered Plaintiff to go sit on the bench outside of the classroom with Officer Nitche ("Nitche") and told Nitche that Plaintiff had yelled and disrupted her class. Id. at ¶¶ 9-10. Plaintiff claims that Johns was belligerent and acted "real hostile" towards him. (Dkt. No. 27-3 at 23.)
Johns issued a misbehavior report on Plaintiff regarding the July 17, 2014, incident charging him with 102.10 threats; 109.10 out of place; 104.13 creating a disturbance; 106.10 refusing a direct order; and 107.10 interference with employees Id. at ¶ 11; Dkt. No. 26-6 at 7. Bey was put in keeplock. (Dkt. No. 26-6 at 8.) Plaintiff plead not guilty to the charges at his Tier II hearing. Id. at 10. Following the hearing, Plaintiff was found guilty of 104.13 creating a disturbance and 107.10 interference with employee. He was found not guilty on the remaining charges in the misbehavior report. Id. at 14. The penalty imposed by the hearing officer included thirty days in keeplock and corresponding loss of various privileges. Id.
B. Murphy Misbehavior Report
Murphy is a teacher at Great Meadow. (Dkt. No. 27-9 at ¶ 1.) According to Murphy, Plaintiff was enrolled in her class at Great Meadow on September 29, 2014, as a part of his mandatory program assignment. Id. at ¶ 4. Plaintiff did not attend class on September 29, 2014, and was reported to be "in cell/AWOL." Id. at ¶ 5. Plaintiff did not attend class on September 30, 2014, October 1, 2014, and October 3, 2014, and was reported to be in the law library. Id. at ¶ 6. On October 6, 2014, Plaintiff again failed to attend class and was reported to be "in cell/AWOL." Id. at ¶ 7. Murphy wrote a misbehavior report on Plaintiff on October 6, 2014, for 109.10 being out of place. Id. at ¶ 9; Dkt. No. 27-7 at 10. Murphy had never met Plaintiff at the time she wrote the misbehavior report. (Dkt. No. 27-9 at ¶ 9.) Plaintiff was found guilty of the charge at his Tier II hearing, and a penalty of thirty days in keeplock and corresponding loss of various privileges was imposed. (Dkt. No. 27-7 at 17.)
C. Miller's Lack of Involvement in the Affirmance of the Guilty Findings in Plaintiff's Two Tier II Hearings
Plaintiff has sued Great Meadow Superintendent Miller for failing to overturn the determinations of guilt on the Tier II hearings held on the misbehavior reports issued by Johns and Murphy. (Dkt. Nos. 11 at 7; 27-3 at 51-52; 35-1 at 7-9.) Miller has stated in his Declaration that he did not review Plaintiff's appeal or participate in the review or affirmance of the hearing officers' determinations in either of the two Tier II hearings. (Dkt. No. 27-5 at ¶¶ 10, 17.) The appeals from the Tier II hearing determination on Johns' July 17, 2014, and Murphy's October 6, 2014, misbehavior reports were referred by Miller's office to Captain Zazistaski ("Zazistaski") for review and determination. (Dkt. Nos. 27-5 at 8, 15; 27-6 at 2; 27-7 at 12.) Zazistaski affirmed the hearing determinations on the two misbehavior reports. (Dkt. Nos. 27-5 at ¶¶ 9, 16; 27-6 at 1; 27-7 at 1.)
III. APPLICABLE SUMMARY JUDGMENT 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). 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." "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). 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).
Although Plaintiff's amended complaint is described by him as a "verified complaint," there is no verification, nor was the amended complaint signed under penalty of perjury. (See Dkt. No. 11.)
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 (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).
IV. FAILURE TO RESPOND TO MOVANTS' STATEMENT OF MATERIAL FACTS
Plaintiff has failed to respond to Defendants' Statement Pursuant to L.R. 7.1(a)(3) setting forth the material facts as to which Defendants assert no genuine issue of fact exists. (See generally Dkt. Nos. 28, 34, 35-1.) L.R. 7.1(a)(3) provides that "The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert."
While pro se litigants are undeniably "entitled to some measure of forbearance when defending against summary judgment motions, the deference owed to pro se litigants . . . does not extend to relieving them of the ramifications associated with the failure to comply with the courts local rules." Liberati v. Gravelle, No. 12-CV-00795 (MAD/DEP), 2013 WL 5372872, at * 7 (N.D.N.Y. Sept. 24, 2013) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)); Latouche v. Tompkins, No. 09-CV-0308 (NAM), 2011 WL 1103045, at * 1 (N.D.N.Y. Mar. 23, 2911) ("a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a summary judgment motion").
Where, as in this case, a party has failed to respond to the movant's statement of material facts in the manner required under L.R. 7.1(a)(3), the facts in the movant's statement will be accepted as true (1) to the extent they are supported by evidence in the record, and (2) the nonmovant, if proceeding pro se, has been specifically advised of the possible consequences of failing to respond to the motion. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d. Cir. 2004) ("[I]n determining whether the moving party has met his burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts in the moving party's [Statement of Material Facts]. It must be satisfied that the citation to evidence in the record supports the assertion.") (citations omitted); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) (requirement that pro se be advised of possible consequences of failing to respond to summary judgment motion, including movant's statement of material facts pursuant to local rules); L.R. 56.2 ("Notice to Pro Se Litigants of the Consequences of Failing to Respond to a Summary Judgment Motion").
Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond properly to their summary judgment motion, including the failure to respond to Defendants Material Statement of Facts. (Dkt. No. 27 at 3.)
Courts in this district have found it appropriate to enforce L.R. 7.1(a)(3) and its predecessor L.R. 7.1(f), by deeming facts set forth in a statement of material facts not in dispute to have been admitted based upon the opposing party's failure to properly respond to the statement. See, e.g., Borihane v. Outhouse, No. 9:05-CV-1256 (NAM/DEP), 2007 WL 2071698, at * 3 (N.D.N.Y. July 18, 2007) (following L.R. 7.1(a)(3) and accepting statement of material facts as uncontroverted) (citing Elgamil v. Syracuse Univ., No. 99-CV-611 (NPM/GLS), 2000 WL 1264122, at * 1 (N.D.N.Y. Aug. 22, 2000) (listing cases)). The Court recommends that notwithstanding Plaintiff's pro se status, the District Court follow the practice of enforcing L.R. 7.1(a)(3) and accept the facts set forth in Defendants' Material Statement of Facts as uncontroverted to the extent supported by record evidence.
V. ANALYSIS
A. Exhaustion
One of the grounds on which Defendants Johns and Murphy seek summary judgment is Plaintiff's failure to exhaust his administration remedies with regard to the retaliation claims he has asserted against them. (Dkt. No. 27-1 at 9-11.)
1. Legal Standard
Under the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).
In order to properly exhaust administrative remedies under the PLRA, inmates are required to complete the administrative review process in accordance with the rules applicable to the particular institution to which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)). In New York state prisons, DOCCS has a well-established three-step inmate grievance program. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2013).
Generally, the DOCCS Inmate Grievance Program ("IGP") involves the following procedure for the filing of grievances. First, an inmate must file a complaint with the facility's IGP clerk within twenty-one calendar days of the alleged occurrence. Id. at § 701.5(a) (2010). A representative of the facility's inmate grievance resolution committee ("IGRC") has sixteen calendar days from receipt of the grievance to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, the full IGRC conducts a hearing within sixteen calendar days of receipt of the grievance (Id. at § 701.5(b)(2)), and issues a written decision within two working days of the conclusion of the hearing. Id. at § 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at § 701.5(c)(1). If the grievance involves an institutional issue (as opposed to a DOCCS-wide policy issue), the superintendent must issue a written decision within twenty calendar days of receipt of the grievant's appeal. Id. at § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the central office review committee ("CORC") for a decision under the process applicable to the third step. Id. at § 701.5(c)(3)(i).
Third, a grievant may appeal to CORC within seven working days of receipt of the superintendent's written decision. Id. at 701.5(d)(1)(i). CORC is to render a written decision within thirty calendar days of receipt of the appeal. Id. at 701.5(d)(3)(ii). If a prisoner has failed to properly follow each of the applicable steps prior to commencing litigation, he has failed to exhaust his administrative remedies. Woodford, 548 U.S. at 93. Because failure to exhaust is an affirmative defense, defendants bear the burden of showing by a preponderance of the evidence that a plaintiff has failed to exhaust his available administrative remedies. See Murray v. Palmer, No. 9:03-CV-1010 (GTS/GHL), 2010 WL 1235591, at *4 (N.D.N.Y. Mar. 31, 2010); Bailey v. Fortier, No. 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6 (N.D.N.Y. Oct. 4, 2012) (the party asserting failure to exhaust bears the burden of proving its elements by a preponderance of the evidence).
A prisoner's failure to exhaust, however, does not end a court's exhaustion review. For more than ten years, courts in this district were guided by the Second Circuit's decision in Hemphill v. New York. 380 F.3d 680, 686 (2d Cir. 2004). Under Hemphill, the Second Circuit established a three-part inquiry to determine whether, inter alia, a plaintiff's failure to exhaust available administrative remedies could nevertheless be justified by "special circumstances." Id. However, on June 6, 2016, the Supreme Court rejected the "special circumstances" exception applied by many circuits, and held that "[c]ourts may not engraft an unwritten 'special circumstance' onto the PLRA's exhaustion requirement." Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1862 (2016). In Ross, the question before the Court was whether there is a "special circumstances" exception under the PLRA when the inmate erroneously believed that he had satisfied the exhaustion requirement. Id. at 1855. In an opinion by Justice Elena Kagan, the Supreme Court held that there is no such exception:
Generally, the "special circumstances" exception was applied where a prisoner has been threatened with physical retaliation for exhausting administrative remedies or where the prisoner reasonably misinterpreted the statutory requirements of the appeals process. Giano v. Goord, 380 F.3d 670, 676 (2d Cir. 2004), abrogated by Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850 (2016).
the [PLRA] mandates that an inmate exhaust "such administrative remedies as are available" before bringing suit to challenge prison conditions. The court below adopted an unwritten "special circumstances" exception to that provision, permitting some prisoners to pursue litigation even when they have failed to exhaust available administrative remedies. Today, we reject that freewheeling approach to exhaustion as inconsistent with the PLRA.Id. at 1854-55. (internal citation omitted).
The Supreme Court rejection of the "special circumstances" exception still, however, does not end a court's review "because the PLRA contains its own, textual exception to mandatory exhaustion." Id. at 1858. Under the PLRA, "the exhaustion requirement hinges on the 'availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones." Id. Thus, courts are still tasked with determining whether or not a prisoner's administrative remedies are, in fact "available."
To guide courts in this analysis, the Supreme Court identified "three kinds of circumstances" in which an administrative remedy, "although officially on the books," is not "available." Id. at 1853. First, "an administrative procedure is unavailable when (despite what regulations or guidance materials may promise) it operates as a simple dead end with officers unable or consistently unwilling to provide any relief to aggrieved inmates." Id. "Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use." Id. at 1853-54. Finally, an administrative remedy is not "available" when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." Id.
2. Analysis
Defendants assert that Plaintiff filed five grievances while incarcerated at Great Meadow. (Dkt. Nos. 28 at ¶ 42.) Defendants' record evidence shows that Plaintiff filed the following grievances in 2014: Grievance No. 57,344-14, dated February 19, 2014, complaining of tooth pain (Dkt. No. 27-4 at 15); Grievance No. 57,537-14, dated Match 17, 2014, complaining of medical indifference regarding his hearing, id. at 20; Grievance No. 57,546-14, dated March 29, 2014, complaining of being pat frisked while working in the mess hall, id. at 32; and Grievance No. 57,895-14, dated June 15, 2014, complaining of unnecessary cell search and excessive cruel and unusual punishment. Id. at 57.
The grievance records submitted by Defendants show that Plaintiff's Grievance No. 58, 975-15, although dated January 8, 2014, was filed on January 9, 2015, and appears to refer to an incident that occurred on January 5, 2015, in which Plaintiff was taken from the law library to a class for which he had not been authorized. (Dkt. No. 27-4 at 2.) Plaintiff complained in the grievance that he had not had a program card for three weeks and an unidentified male had attempted to give him a program care without proper authority. Id. at 4. Plaintiff claimed not to need school and asked to go before the Program Committee. Id. Plaintiff's January 21, 2015, note signing off on the grievance states "I have a date to be seen by the Program Committee." Id. at 3.
In his opposition to Defendants' motion, Plaintiff submitted a grievance complaint form, dated July 17, 2014, in which he complains of retaliation by the same female school teacher against whom he had filed a grievance three weeks earlier. (Dkt. No. 34 at 1.) Plaintiff has not submitted evidence regarding the filling or resolution of the grievance, and there is no evidence in the record showing the filing by Plaintiff of a grievance against a school teacher three weeks earlier. According to Defendants, the grievance was not filed with the IGP at Great Meadow, and Plaintiff did not produce the grievance during the course of discovery. (Dkt. No. 36 at ¶ 8.)
Even if Plaintiff had filed the grievance submitted with his opposition papers, or any grievance at all, against Johns and Murphy, he did not exhaust his administrative remedies under the PLRA. Defendants have submitted the results of a record search by the Assistant Director of the Inmate Grievance Program for DOCCS which establishes that Plaintiff has not appealed any facility level grievances to CORC. (Dkt. No. 27-10 at ¶¶ 1, 8-12.) Based upon the foregoing, the Court finds that Plaintiff has failed to exhaust his administrative remedies with regard to his retaliation claims against Johns and Murphy. See Woodford, 548 U.S. at 93 (in order to exhaust his administrative remedies, a prisoner must properly follow each of the applicable steps of the DOCCS IGP, including an appeal to CORC, prior to commencing litigation).
Furthermore, the summary judgment record is devoid of evidence raising a genuine issue of fact with regard to whether the administrative remedies under the IGP were "available" to Plaintiff. See Ross, 136 Sup. Ct. at 1858. There is no evidence that the DOCCS IGP operates as a "simple dead end," id.; no evidence that the provisions of the IGP relevant to the grievance process to be followed by Plaintiff were "so opaque" as to be practically speaking incapable of use, id. at 1853-54; and no evidence that prison administrators thwarted Plaintiff from taking advantage of the IGP. Id. Therefore, the Court recommends that Defendants Johns and Murphy be granted summary judgment on the grounds that Plaintiff has failed to exhaust his administrative remedies with regard to his retaliation claims against him.
Plaintiff appears to state in conclusory fashion in his unsworn opposition that he attempted to file in excess of twelve to twenty grievances regarding prison conditions, policies, and procedures not being followed by staff, but only four went to CORC because his filing of initial grievances and appeals were obstructed. (Dkt. No. 35-1 at 4.) Plaintiff has provided no actual evidence of obstruction with respect to any grievance, including grievances he claims to have filed against Johns and Murphy. Bald assertions, unsupported by evidence, are insufficient sufficient to overcome a summary judgment motion. Cole, 1999 WL 983876 at *3.
B. Retaliation Claims Against Johns and Murphy
Plaintiff claims that Defendants Johns and Murphy filed false misbehavior reports against him in retaliation for grievances he had filed with regard to his participation in the school program. (Dkt. Nos. 27-3 at 35, 46-48; 35-1 at 10, 14, 16.) The Court finds that even if Plaintiff had exhausted his administrative remedies on the retaliation claims, Defendants Johns and Murphy would be entitled to summary judgment.
Plaintiff's assertion that Murphy filed a false misbehavior report against him in retaliation for his having filed a grievance against him is found in several places. Docket No. 35-1 at page 16 is the only place the claim is asserted in a document submitted under penalty of perjury.
1. Legal Standard
To prevail on a First Amendment retaliation claim, an inmate must establish "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected speech [or conduct] and the adverse action." Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009); see also Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002)). "Adverse action" for purposes of a retaliation claim has been defined objectively as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights." Pidlypchak, 389 F.3d at 381. Otherwise, the retaliatory act is simply de minimis and outside the scope of constitutional protection. See Roseboro v. Gillespie, 791 F. Supp. 2d 353, 370 (S.D.N.Y. 2011) (citing Dawes, 239 F.3d at 292-93).
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 generally been found insufficient to survive summary judgment. See Roseboro,791 F. Supp. 2d at 370 (citations omitted).
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 and detailed facts; conclusory statements are not sufficient. Flaherty, 713 F.2d at 13; see also Houston v. Goord, No. 9:03-CV-1412 (GTS/DEP), 2009 WL 890658, at * 11 (N.D.N.Y. March 31, 2009) ("Analysis of retaliation claims . . . requires thoughtful consideration of the evidence presented concerning the protected activity in which the inmate has engaged and the adverse action taken against him or her, as well as the evidence tending to link the two. When such claims, which ordinarily are exceedingly case specific, are alleged in conclusory fashion, and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, the entry of summary judgment dismissing plaintiff's retaliation claims is warranted.").
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.
2. Analysis
Plaintiff claims that Johns and Murphy filed false misbehavior reports against him in retaliation for filing grievances. The filing of grievances has been found to constitute protected First Amendment conduct for purposes of a retaliation claim. See 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). In addition, the filing a false misbehavior report can be adverse action for retaliation purposes. Gill, 389 F.3d at 384.
Plaintiff's retaliation claims against Johns and Murphy fail, however, on the issue of causation. In her Declaration, Johns has stated that at the time she prepared the misbehavior report on July 17, 2014, she was unaware of any grievances filed by Plaintiff. (Dkt. No. 27-8 at ¶ 12.) Johns has asserted that the misbehavior report was based solely upon the events of July 17, 2014, and not in retaliation for any actions taken by Plaintiff at any other time. Id. at ¶ 13.
In addition, although the July 17, 2014, grievance against a female teacher submitted by Plaintiff in opposition to Defendants' motion (Dkt. No. 34 at 1) references a grievance against the same teacher three weeks earlier, evidence submitted by Defendants shows that no grievances relating to the school program were filed by Plaintiff until July 9, 2015. (Dkt. No. 27-4 at 2.) At his deposition, Plaintiff testified that he had never met Johns prior to the day he was called to her classroom. (Dkt. No. 27-3 at 35.) He also testified that he had not written a grievance regarding school prior to the incident with Johns on July 17, 2014. Id. at 36.
Based upon the record evidence, Plaintiff did not file a grievance against Johns prior to the issuance of the misbehavior report on July 17, 2014, thus negating the possibility that the filing of a grievance was "a substantial or motivating factor" in Johns' filing the misbehavior report, Graham, 89 F.3d at 79, and entitling Johns to summary judgment on Plaintiff's retaliation claim.
Murphy has stated in her Declaration that she had not met Plaintiff at the time she issued a misbehavior report against him on October 6, 2014, and she was unaware of any grievances filed by Plaintiff. (Dkt. No. 27-9 at ¶¶ 9-10.) According to Murphy, her misbehavior report was based solely upon Plaintiff's failure to attend class on October 6, 2014, and during the previous week and not in retaliation for any action by Plaintiff prior to that time. Id. at ¶ 11. Plaintiff testified at his deposition that he had never met Murphy prior to October 6, 2014. (Dkt. No. 27-3 at 51.)
Contrary to Plaintiff's conclusory assertion that Murphy filed the misbehavior report in retaliation for grievances he had filed against her (Dkt. No. 35-1 at 10, 14, 16), DOCCS grievance records reveal that Plaintiff filed no grievance against Murphy or anyone else regarding the school program prior to her issuance of the misbehavior report. (Dkt. Nos. 27-2 at ¶ 4; 27-4 at 1-77.) Moreover, since Plaintiff admittedly did not know Murphy prior to issuance of the misbehavior report, there is no evidentiary support for Plaintiff's conclusory claim.
In sum, based upon the foregoing, the Court finds that even if Plaintiff had been found to have exhausted his administrative remedies or been excused from doing so, Johns and Murphy would be entitled to summary judgment on Plaintiff's retaliation claims because no reasonable jury could conclude from the evidence that the filing of grievances by Plaintiff was a substantial motivating factor in the issuance of the misbehavior reports. See Jeffreys, 426 F.3d at 554 (in order to avoid summary judgment, "there must be evidence on which the jury could reasonably find for the plaintiff").
C. Fourteenth Amendment Claim Against Miller
Plaintiff has alleged a Fourteenth Amendment denial of due process claim against Superintendent Miller for failing to overturn the determinations of guilt against Plaintiff at the Tier II hearings on the misbehavior reports issued by Johns and Murphy. (Dkt. No. 27-3 at 51-52.) Miller has stated in his Declaration that Plaintiff's appeals from the hearing officer's determination of guilt and imposition of penalties on the Johns and Murphy misbehavior reports were forwarded to Zazistaski for review and determination, and that Miller himself did not review the appeals or participate in the review or affirmation of the hearing officer's determinations or penalties. (Dkt. No. 27-5 at ¶¶ 8-10, 15-17.) According to Miller, it was Zazistaski who affirmed the hearing officer's determinations and penalties. Id. at ¶¶ 9, 16. Miller's statements are supported by record evidence. (See Dkt. Nos. 27-5 at 8, 15; 27-6 at 1-2; 27-7 at 1,12.)
To be held liable for a constitutional violation under § 1983, a defendant must have had the requisite amount of personal involvement in the violation. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994). Supervisory officials may not be held liable merely because they hold a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Moreover, "a supervisory official . . . cannot be held liable under section 1983 solely for the acts of his subordinates." Friedland v. Otero, Civil No. 3:11cv606 (JBA), 2014 WL 1247992, at * 9 (D. Conn. Mar. 25, 2014) (citing Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985)). The Second Circuit has held that personal involvement by a supervisor necessary to state a claim under § 1983 may be found where: "(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Colon, 58 F.3d at 873.
The Second Circuit has thus far expressly declined to determine whether Iqbal eliminated any of the Colon bases for liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013). --------
A supervisory official has no personal involvement for purposes of § 1983 when his involvement was limited to forwarding Plaintiff's "disciplinary appeals . . . to other staff members." Pilgrim v. Artus, No. 9:07-CV-1001 (GLS/RFT), 2010 WL 3724883, at * 7 (N.D.N.Y. Mar. 18, 2010); see also Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997) (holding that referral of appeals down the chain of command does not create personal involvement on the part of the referee); Brown v. Goord, No. 9:04-CV-0785 (TJM/GHL), 2007 WL 607396, at * 10 (N.D.N.Y. Feb. 20, 2007) (citing cases for the proposition that a supervisor may "delegat[e] to high-ranking subordinates the responsibility to read and respond to . . . complaints by prisoners" without becoming personally involved).
The Court finds, based upon the evidence in the record, that Miller had no personal involvement in the review and determination of Plaintiff's appeals and is entitled to summary judgment on Plaintiff's Fourteenth Amendment claim. Therefore, the Court recommends that summary judgment be granted in Miller's favor.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 27) 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: October 19, 2016
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge