Opinion
00-CV-205S.
August 29, 2004
DECISION AND ORDER
1. On March 6, 2000, pro se Plaintiff Ronald Davidson commenced this action pursuant to 42 U.S.C. § 1983. He alleges that Defendants Edward Donnelly and Jack Alexander unlawfully transferred him from one correctional facility to another in retaliation for several lawsuits that he filed against corrections officials. Defendants previously moved for summary judgment on the sole ground that Plaintiff failed to exhaust his administrative remedies. This Court denied that motion on April 29, 2003, due to the existence of a disputed material fact. Presently before this Court is Defendants' Second Motion for Summary Judgment addressing the merits of the case. For the following reasons, Defendants' motion is granted.
Cognizant of the distinct disadvantage that pro se litigants face, federal courts routinely read their submissions liberally, and interpret them to raise the strongest arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L.Ed.2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). As Plaintiff is proceeding pro se, this Court has reviewed his submissions and arguments accordingly.
Defendants' also renew their previous motion based on Plaintiff's alleged failure to exhaust his administrative remedies and request an evidentiary hearing on that issue. Because this Court is granting summary judgment on the merits, this request is moot.
2. At all times relevant, Plaintiff was in the custody of the New York State Department of Correctional Services ("DOCS"). (Defendants' Rule 56 Statement of Undisputed Facts ("Defendants' Statement"), ¶ 3.) Defendant Edward Donnelly was the Superintendent of the Wende Correctional Facility. (Defendants' Statement, ¶ 4.) Defendant Jack Alexander was the Director of Classification and Movement for DOCS. (Defendants' Statement, ¶ 5.)
3. Plaintiff was transferred from the Wende Correctional Facility to the Elmira Correctional Facility on or about June 8, 1999. (Defendants' Statement, ¶ 1.) Plaintiff contends that his transfer was orchestrated by Defendants to disrupt one of his pending federal lawsuits and in general retaliation for several lawsuits and grievances that he filed against DOCS officials. In particular, Plaintiff asserts that Defendant Donnelly personally told him that "he was going to get him out of his prison due to [his] complaints and litigation activities." (Plaintiff's Response to Defendants' Statement, ¶ 18; Davidson Affirmation filed May 5, 2004, ¶¶ 8-9.)
4. Defendants deny that they were personally involved in Plaintiff's transfer from Wende to Elmira. (Donnelly Decl., ¶ 6; Alexander Decl., ¶ 5.) Moreover, they contend that Plaintiff was transferred because of an incident in which he refused to move to a non-contact area in the visiting room. (Defendants' Statement, ¶ 14; Donnelly Decl., ¶ 4.) In support of their motion, Defendants have submitted the Transfer Summary Report prepared for Plaintiff's transfer. (Donnelly Decl., Exh. A.) The report indicates that Plaintiff was transferred because he created a problem in the visiting room at Wende with an attorney and a corrections officer when he refused to move to a non-contact area. (Donnelly Decl., Exh. A.) This report was prepared by a prison counselor at Wende who is not a defendant in this case. (Donnelly Decl., Exh. A.)
The report describes the explanation for Plaintiff's transfer as follows:
At Wende since 5/98, Davidson has accum. only 30 D KL in YR, most recent disc. involved him having prblem in visiting room w/attorney CO, when he did not want to move to a non contact area. Inmate has been programing as IGRC clerk, recomm. transf. to suitable max.
(Donnelly Decl., Exh. A.)
5. Summary judgment is warranted where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine issue" exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit under governing law."Anderson, 477 U.S. at 248.
6. In deciding a motion for summary judgment, the evidence and the inferences drawn from the evidence must be "viewed in the light most favorable to the party opposing the motion." Addickes v. S.H. Kress and Co., 398 U.S. 144, 158-159, 90 S. Ct. 1598, 1609, 26 L. Ed. 2d 142 (1970). "Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Mafucci, 923 F.2d 979, 982 (2d Cir. 1991). The function of the court "is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
7. The Second Circuit has cautioned district courts to view prisoners' retaliation claims with "skepticism and particular care" because of the ease and frequency with which they are fabricated. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983);Arce v. Walker, 58 F.Supp.2d 39, 46 (W.D.N.Y. 1999). Such skepticism is warranted "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 v. Walker, 239 F.3d 489, 493 (2d Cir. 2001).
8. It is well settled that a prisoner has no constitutional right to serve a sentence in a particular facility or to be transferred or not from one facility to another. See Prins v. Coughlin, 76 F.3d 504, 507 (2d Cir. 1997) (per curiam). Rather, prison officials have "broad discretion" to determine where a prisoner will be housed. See Merriwether v. Coughlin, 879 F.2d 1037, 1045-46 (2d Cir. 1989). Nonetheless, prison officials may not retaliate against prisoners for exercising their constitutional rights. See Franco v. Kelly, 854 F.2d 584, 588-91 (2d Cir. 1988).
9. A prisoner asserting a retaliation claim must set forth evidence that he engaged in constitutionally protected activity, and that retaliation against the protected conduct was a substantial or motivating factor in the defendant's actions.See Mount Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). If this showing is made, the burden then shifts to the defendant to demonstrate that the same action would have been taken against the plaintiff absent the retaliatory motivation. Graham, 89 F.3d at 79-80; Higgins v. Khahaifa, No. 95-CV-684, 1999 WL 307689, at *2 (W.D.N.Y. Apr. 30, 1999). "Regardless of the presence of retaliatory motive, however, a defendant may be entitled to summary judgment if he can show dual motivation, i.e., that even without the improper motivation the alleged retaliatory action would have occurred." Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003). "At the summary judgment stage, if the undisputed facts demonstrate that the challenged action clearly would have been taken on a valid basis alone, defendants should prevail." Davidson v. Chestnut, 193 F.3d 144, 149 (2d Cir. 1999) (per curiam).
10. In the present case, there is no dispute that Plaintiff was engaged in a constitutionally protected activity, to wit: the exercise of his constitutional right to file grievances and lawsuits against prison officials. See Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997). On the second prong of Plaintiff's burden, there is a material issue of fact as to whether retaliation against Plaintiff's protected conduct was a substantial or motivating factor in Defendants' actions. Plaintiff has provided sworn testimony that Defendant Donnelly personally told him that "he was going to get him out of his prison due to [his] complaints and litigation activities." (Plaintiff's Response to Defendants' Statement, ¶ 18; Davidson Affirmation filed May 5, 2004, ¶¶ 8-9.) Defendant Donnelly denies being involved in Plaintiff's transfer. (Donnelly Decl., ¶ 6; Alexander Decl., ¶ 5.) Summary judgment in Defendant Donnelly's favor is therefore precluded on this basis. However, Plaintiff has presented no specific evidence that Defendant Alexander was personally involved in his transfer. Accordingly, summary judgment in Defendant Alexander's favor due to lack of evidence of his personal involvement in the alleged constitutional deprivation is warranted. Colon, 58 F.3d at 873.
11. Despite the existence of a material issue of fact related to Defendant Donnelly, the inquiry does not end. This Court must move to the second step of the analysis. See Chestnut, 193 F.3d at 149 (wherein the Second Circuit vacated the district court's denial of summary judgment based on the existence of a material issue of fact as to whether retaliation was a motivating factor in the defendants' actions and remanded for consideration of whether the defendants would have taken the same action on a valid basis). On this stage of the analysis, this Court finds that both Defendants are entitled to summary judgment because they have demonstrated that Plaintiff's transfer would have occurred absent the alleged retaliatory motivation. As set forth above, Defendants deny that they were personally involved in Plaintiff's transfer and have submitted the Transfer Summary Report as proof that Plaintiff was transferred because of an incident in which he refused to move to a non-contact area in the visiting room. (Defendants' Statement, ¶ 14; Donnelly Decl., ¶¶ 4, 6 and Exh. A; Alexander Decl., ¶ 5.)
12. Plaintiff has submitted nothing to rebut Defendants' evidence of non-retaliatory cause for his transfer. He does not deny that the visiting room incident took place nor does he otherwise challenge the veracity of the Transfer Summary Report. Instead, Plaintiff offers unsupported allegations that any transfer based on the visiting room incident would be against DOCS policy and is therefore pretext. Nothing in the record, however, supports Plaintiff's claim in this regard. Prison officials have broad discretion in running penal institutions, discretion that extends to decisions regarding the transfer and placement of inmates. Moreover, actions by prison officials are entitled to a presumption of properness, a presumption that Plaintiff has not rebutted. Higgins, 1999 WL 307689, at *3. Further, the Second Circuit has noted that:
Plaintiff's reference in his papers to the visiting room incident as "the alleged incident" does not constitute a denial that the incident took place. The record contains no factual assertions or statements from Plaintiff denying his involvement in this incident or otherwise challenging the Transfer Summary Report's description of the event.
the conclusion that the state action would have been taken in the absence of improper motives is readily drawn in the context of prison administration where we have been cautioned to recognize that prison officials have broad administrative and discretionary authority over the institutions they manage.Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994).
Accordingly, this Court finds that the unrebutted evidence demonstrates that the transfer Plaintiff challenges as retaliatory would have occurred on a valid basis, that being the visiting room incident as set forth in the Transfer Summary Report. Summary judgment in Defendants' favor is therefore granted. See Amaker v. Foley, 94-CV-843, 2003 WL 21383010, at *3 (W.D.N.Y. Feb. 18, 2003) (granting summary judgment on prisoner's retaliation claim where non-retaliatory purpose was unrebutted).
13. Finally, this Court notes that summary judgment in Defendants' favor is also warranted on the independent basis that Plaintiff has failed to establish that the alleged denial of his constitutional right to file grievances and lawsuits against prison officials was more than a de minimus deprivation. See Chestnut, 193 F.3d at 150. In Chestnut, the Second Circuit favorably cited Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999) and other cases for the proposition that alleged retaliation against a prisoner is actionable only if such retaliation is likely to chill a person of ordinary firmness from continuing to engage in the constitutionally protected activity. In his Complaint, Plaintiff alleges that his transfer directly impacted a case that he had pending before the Honorable John T. Curtin of this district, Davidson v. Brzezniak, 95-CV-204C, and generally has had a chilling effect on him. (Complaint, ¶¶ 6-8, 12, 26.) However, Plaintiff has failed to demonstrate that any such chilling effect has occurred. To the contrary, it is clear that it has not.
14. First, Plaintiff is represented by able counsel inBrzezniak, and the docket in that case, with some 285 entries, reveals that the case has been vigorously prosecuted and is on trial track. Plaintiff's transfer had little, if any, impact on that case. Second, Plaintiff is a frequent litigator in federal and state courts, and there is no indication whatsoever that his transfer from Wende to Elmira has chilled his litigious nature. For example, a review of this district's docketing system indicates that Plaintiff has been a party to no less than thirty cases here, at least five of which Plaintiff filed after the transfer he complains of in this case. Clearly Plaintiff remains undeterred in his prosecution of this and other legal actions.
Westlaw searches reveal numerous other reported cases involving Plaintiff from New York state courts, federal district courts, and the Second Circuit Court of Appeals.
15. Accordingly, this Court finds that even assuming arguendo that Plaintiff properly exhausted his administrative remedies, Defendants are entitled to summary judgment because they have demonstrated that Plaintiff's transfer would have occurred for a valid reason absent the alleged retaliatory motivation. Moreover, Defendants are also entitled to summary judgment because Plaintiff has failed to establish that his transfer to Elmira had anything more than a de minimus effect on his ability to file grievances and lawsuits against prison officials. Defendants' Second Motion for Summary Judgment is granted.
IT HEREBY IS ORDERED, that Defendants' Second Motion for Summary Judgment (Docket No. 44) is GRANTED.
FURTHER, that the Clerk of the Court is directed to close this case.
SO ORDERED.