Opinion
9:10-CV-0968 (LEK/TWD)
10-23-2014
BENNIE GIBSON, Plaintiff, v. BRIAN FISCHER, Commissioner, et. al., Defendants.
APPEARANCES: BENNIE GIBSON 441-13-09730 Plaintiff pro se RNDC 11-11 Hazen Street East Elmhurst, New York 11370 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 OF COUNSEL: KEITH J. STARLIN, ESQ. Assistant Attorney General
APPEARANCES: BENNIE GIBSON
441-13-09730
Plaintiff pro se
RNDC
11-11 Hazen Street
East Elmhurst, New York 11370
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
OF COUNSEL: KEITH J. STARLIN, ESQ.
Assistant Attorney General
THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
Pro se Plaintiff Bennie Gibson, formerly an inmate under the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), filed an Amended Complaint in this 42 U.S.C. § 1983 civil rights action against twenty-one named Defendants, two Jane Does, and ten John Does. (Dkt. No. 50.) A number of the Defendants moved for partial dismissal of Plaintiff's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 121.) The motion was granted in part and denied in part by the Hon. Lawrence E. Kahn. (Dkt. No. 176.) Judge Kahn also conducted an initial review under 28 U.S.C. 1915A of claims in Plaintiff's Amended Complaint which were not included in the motion to dismiss. Id.
Plaintiff's Amended Complaint was designated as the operative pleading in the action on January 6, 2012. (Dkt. No. 72 at 3.)
Plaintiff was incarcerated at the time this action was commenced. (Dkt. No. 218-7 at 10.) He was released from DOCCS custody in or about August of 2012. Id. at 18.
Plaintiff's Amended Complaint was dismissed, in most instances with leave to amend, against all of the Defendants except for David Allen ("Allen"), Donald Maher ("Maher"), Albert Bushane, Jr. ("Bushane"), Scott Schreurs ("Schreurs"), sued as "Schurr or Schremp," Ingraham, and Young, spelled "Yung" in Defendants' motion papers. Plaintiff did not file a second amended complaint following Judge Kahn's dismissal of the majority of his claims. The remaining Defendants filed an Answer to Plaintiff's Amended Complaint (Dkt. No. 185), and Defendants Allen, Maher, Bushane, and Schreurs have now moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. (Dkt. No. 218.) Plaintiff has filed papers in opposition to the motion (Dkt. No. 223), the moving Defendants have filed reply papers (Dkt. No. 224), and Plaintiff has filed sur-reply papers. (Dkt. Nos. 229 and 230). The Court has considered all of the parties' submissions, and for the reasons that follow, recommends that Defendants' summary judgment be granted.
Defendants Ingraham and Young (Yung) have not moved for summary judgment.
I. BACKGROUND
A. Eighth Amendment Claim for Excessive Force Against Allen and Maher
According to the allegations in Plaintiff's Amended Complaint, on August 10, 2010, when Plaintiff went into the Adirondack law library, Defendant Maher called him an asshole for filing so many grievances. (Dkt. No. 50 at 20.) As Plaintiff was typing up copies of an order to show cause for an Article 78 proceeding, Maher asked him what he was working on. Id. Maher continued to call Plaintiff an asshole. Plaintiff politely told Maher to move out of his way, at which point Maher slapped Plaintiff's paperwork stating that he did not to take "sh_ _" from inmates and called for back-up. Id. at 21.
Defendants Maher and Allen, along with five or six unidentified corrections officers, grabbed Plaintiff, shoved him into the hallway, pushed his head repeatedly into the wall, and kicked his legs open several times. Allen handcuffed Plaintiff and hit him on the back and shoulders while Maher punched Plaintiff in the presence of four or five correction officers. Id
After the incident with Defendants Maher and Allen, Plaintiff was taken to the infirmary where he was forced to sign a document stating he was not hurt, even though his back was hurt. Id. According to Plaintiff, he was surrounded by corrections officers at the time and felt that if he did not play along he would be killed. Id. Plaintiff was then placed in the Special Housing Unit ("SHU") and taken to Upstate Correctional Facility ("Upstate") the following day. Id.
At his deposition in this case, Plaintiff testified that on August 10, 2010, while he was in the library typing an order to show cause, Maher looked at him and said he wanted to explain to Plaintiff what the library was for. (Dkt. No. 218-7 at 141-144.) Plaintiff responded something to the effect, "you want to what?" Id. Maher then punched Plaintiff in the jaw and took his papers and threw them on the ground and started yelling at Plaintiff. Id. at 144, 146.
After waiting until everyone had left the library so there would be no witnesses, Maher and Allen took Plaintiff into the hallway, pushed his forehead against the wall three or four times, handcuffed him, kicked his legs apart, and started punching him in his sides using handcuffs like brass knuckles. Id. at 144-151, 164-65. According to Plaintiff, Maher and Allen held back a bit, not punching him too hard. Id. at 149. There was a third male officer involved in punching Plaintiff and a woman officer was also present. Id. at 158. Five or six other officers and an individual from Grievance at Adirondack stood by and watched. Id. at 146, 148. Plaintiff denies having resisted the corrections officers. Id. at 159-60.
Plaintiff was found guilty on the misbehavior charges filed by Maher and Allen regarding the August 10, 2010, incident and believes he appealed. Id. at 171-72.
B. Retaliation Claim Against Bushane
1. Allegations in Plaintiff's Amended Complaint
In his Amended Complaint, Plaintiff alleged that because he was not given a proper orientation when he was moved to Coxsackie Correctional Facility ("Coxsackie"), he was unfamiliar with the odd to even mess hall line formation. (Dkt. No. 50 at 25.) When Defendant Bushane told Plaintiff he had switched line formation on December 3, 2010, Plaintiff had no idea what Bushane was talking about. Id. Plaintiff, who was then placed in keeplock by Bushane for switching lines, asked for food and a grievance form. Id. Bushane allegedly said "I'm gonna get Nigger before he gets me." Id. A misbehavior report was filed accusing Plaintiff of having said "I don't want to eat. I feel I might hurt someone," and "I just sued some punkass police like you. I'll get my Jew attorney after you." Id. Plaintiff alleged that what he actually said was "Can I have a grievance form, I don't mind writing, filing a Order to Show Cause, filing a lawsuit, getting a Jewish attorney." Id.
2. Plaintiff's Deposition Testimony and Bushane's December 3, 2010, Misbehavior Report
At his deposition, Plaintiff testified that he had just come out of reception at Coxsackie and inmates were lining up to go eat. (Dkt. No. 218-7 at 61.) Having come to Coxsackie from a DOCCS camp, Plaintiff was unaware that there were odd and even lines, and when Plaintiff switched lines, Bushane told him he couldn't eat because he had switched lines and instructed him to go back to his cell. Id. at 62.
Bushane filed a misbehavior report charging Plaintiff with making threats; creating a disturbance; interference with an employee; refusing a direct order; and a movement regulation violation on December 3, 2010. (Dkt. No. 218-11.) According to the report, when Bushane noticed Plaintiff cross from the even side of the line to the odd side, he counseled him on proper movement and control within the facility. Id. at 1. Plaintiff then said he did not want to eat because he was afraid of what he would do to someone if he stayed out. Id. Bushane took it as a threat, and Plaintiff was escorted back to his cell. Id. At that point, Plaintiff stated "I will get my Jew lawyer on this shit, I just received a eighteen thousand dollar settlement from some punk ass police like you." Id. Plaintiff was found guilty of creating a disturbance, interference with an employee, and making threats. He was found not guilty of refusing a direct order and movement regulation violation. Id. at 2. Plaintiff was placed on keep lock status per the area sergeant. Id.
Plaintiff disputed Bushane's misbehavior report in his deposition testimony, denying he had said he did not want to eat or that he felt like he wanted to hurt someone. Id. at 105. Plaintiff acknowledged that he had never filed a grievance against Bushane prior to the incident and did not even know him since it was his first day at Coxsackie, and he had just left reception. Id. Plaintiff also denied telling Bushane about the Jewish lawyer who had represented Plaintiff in the settlement of a lawsuit and claims Bushane made up the whole thing about the Jewish lawyer. Id. at 107. According to Plaintiff, he only discussed his lawyer with an inmate who was talking about a lawsuit when Plaintiff was preparing for a shower. Id. at 107. Plaintiff had recommended his lawyer to the inmate. Id. at 108. Plaintiff testified at his deposition that he only told Bushane he had someone he could complain to about mistreatment, so he didn't want to get into anything with him. Id.
During the course of his deposition testimony, Plaintiff contradicted himself concerning the exchange he had with Bushane with regard with his request to file a grievance. Initially, Plaintiff testified that it was during the line incident that he told Bushane he wanted to have a grievance. He also testified it was at that point that Bushane said he was going to get that nigger before he gets me and wrote a misbehavior report concerning the line switching incident. Id. at 62.
Plaintiff's later testimony was somewhat more in line with the allegations in his Amended Complaint. (see Dkt. No. 50 at 25.) According to Plaintiff, he asked Bushane for a grievance form when Bushane came back to the cell block after the meal Plaintiff had missed and thereafter heard Bushane tell the sergeant he was "going to get nigger before he gets me." Id. at 110-11. Plaintiff testified that he thought Bushane was in the process of writing the misbehavior report when Plaintiff asked for a grievance form, but then backtracked, stating he could not truthfully answer when Bushane began writing the misbehavior report. Id. at 110-11.
3. December 3, 2010, Grievance Against Bushane
Plaintiff filed a grievance dated December 3, 2010, against Bushane regarding the line incident. (Dkt. No. 218-12.) The grievance was stamped received on December 6, 2010. Id. at 1. The grievance stated that Plaintiff was transferred from reception at Coxsackie with no problem other than being denied breakfast and lunch because he did not step out for breakfast quickly enough. Id. at 3. Plaintiff entered block F1 with no problem. Id. Bushane, whose name Plaintiff did not know until he saw it on the misbehavior report Bushane filed, began talking about him. Id. According to Plaintiff, corrections officers thought he was a grievance agent. Id. Bushane indicated that someone wanted to take Plaintiff outside and beat the shit out of him. Id. Prior to the line incident, Bushane told a "white shirt" that Plaintiff was causing him problems. Id. Plaintiff paid no attention and asked to take a shower. An officer, presumably Bushane, said he had opened Plaintiff's door so he could take a shower but did not actually open the door. Id.
Bushane then opened the cells for chow. Id. According to Plaintiff, there was no odd or even line for reception, that the lines merged into one line. Id. Plaintiff was not sure if he switched lines because he was not paying attention. Id. Bushane told Plaintiff he did not know what was going on, that he could not eat, and to go with Bushane. Id. Bushane took Plaintiff to his cell, and Plaintiff asked for a grievance form. Id. When an officer told Plaintiff to get with the program, Plaintiff responded he did not mind writing and was willing to take the beat down and his Jewish attorney had just won a settlement. Id. Plaintiff also complained in the grievance about being required to participate in ART. Id. at 1.
ART is a DOCCS program "designed to assist inmates in identifying and controlling their aggressive behavior." See http://www.doccs.ny.gov/ProgramServices/transitional.html (last checked on October 8, 2014).
The investigation report on Plaintiff's grievance by Lieutenant Meigs indicated that when he interviewed Plaintiff, Plaintiff told him that the only times he missed meals and a shower were when he was in Reception on November 24, 2010. Id. at 8. Upon review of the log books, Meigs learned that no one had refused any meals that day and all inmates ate, and that those who asked for showers received them. Id. According to Meigs, during the interview Plaintiff seemed more concerned about his counselor making him participate in ART than his grievance regarding Bushane. Id. A memo from Bushane to Meigs denied unprofessional conduct and expressed the belief that the grievance was filed in retaliation for the misbehavior report Plaintiff received on December 3, 2010. Id. at 8, 10. Meigs stated that he had found no evidence supporting Plaintiff's grievance and believed that the grievance was filed in retaliation for the misbehavior report. Id. The grievance was denied by the superintendent, or his designee, and the denial was upheld by CORC. Id. at 4-5. Nowhere in his grievance did Plaintiff mention any comment by Bushane to the effect that he was "going to get nigger before he gets me," (Dkt. Nos. 218-7 at 110-11), and in his opposition papers, Plaintiff appears to concede that his grievance did not include a complaint regarding Bushane's alleged retaliatory filing of a false misbehavior report. (Dkt. No. 223 at 3.)
Inasmuch as Bushane has not raised failure to exhaust with regard to Plaintiff's retaliation claim against him as a ground for summary judgment, the Court has not considered it.
C. Retaliation Claim Against Schreurs
1. Allegations in Plaintiff's Amended Complaint
In his Amended Complaint, Plaintiff alleged that while he was at Coxsackie, Defendant Schreurs called the count ten minutes early at 10:20 a.m. one day. (Dkt. No. 50 at 28.) Plaintiff claims he did not see or hear Schreurs call the count and left his cube and started toward the front area. He was ten to fifteen feet from his cube when inmate Ortiz mouthed "count," at which point Plaintiff turned around and saw Schreurs watching television and not doing the count. Id. Plaintiff then heard Schreurs say "that's it! I'm locking your crazy ass up. You always fucked with me." Id. Plaintiff said nothing and started to pack. He went to keeplock because Schreurs filed a misbehavior report stating that Plaintiff had said "I cleared the count myself I have something to do.["] Id; see also Dkt. No. 218-14 at 4. According to Plaintiff, Schreurs filed the misbehavior report in retaliation for a letter Plaintiff had previously written to the Inspector General complaining he had been erroneously confined in his cube by Schreurs. (Dkt. No. 50 at 28.)
2. Plaintiff's Grievance, Deposition Testimony, and Affidavit in Opposition
At his deposition, Plaintiff was shown his March 22, 2011, grievance against Schreurs, received by the IGP supervisor on March 28, 2011. (Dkt. Nos. 218-7 at 39; 218-13.) The grievance contained two separate complaints. The first involved a March 15, 2011, incident where Gibson had been cube restricted for not signing the call-out sheet. (Dkt. No. 218-13 at 2.) Plaintiff testified that he was supposed to have a call-out for the gym, but there was no recreation sheet posted, and Plaintiff was restricted to his cube by Schreurs because he and another inmate said they were going to complain about not being able to go to the gym. (Dkt. No. 218-17 at 242-43.)
The second complaint in the grievance involved the March 22, 2011, incident where Schreurs claimed Plaintiff failed to remain in his cube while Schreurs called the count. (Dkt. No. 218-13 at 3.) According to Plaintiff, he was on the way to put some food in the microwave when he heard someone say it was count time. He then turned around and was around twenty feet from his cube when he was told to "pack up." Id.
At his deposition, Plaintiff testified that when he left his cube for the microwave, Schreurs was watching TV and as far as Plaintiff knew, never called the count. (Dkt. No. 218-7 at 45-46. ) An inmate mouthed that the count was being called, and when Plaintiff turned around to go back to his cube Schreurs began screaming at him about it. Id. at 46-48. Plaintiff believed that Schreurs gave him a hard time because Plaintiff had written a grievance about the earlier cube restriction. Id. at 48. Plaintiff testified that he did not say anything to Schreurs about calling his own count, and that Schreurs' misbehavior report stating that Plaintiff did is completely inaccurate. Id. at 49-50.
3. Defendants Schreurs' Declaration Regarding the Count Incident
In his Declaration, Schreurs reaffirmed the truth and accuracy of his misbehavior report involving the March 22, 2011, count incident and denied that the misbehavior report was filed to retaliate against Plaintiff for anything. (Dkt. No. 218-17 at ¶¶ 4-5.) Schreurs explained that the inmate count procedure is absolutely vital to ensure that all inmates are present and accounted for, and disruptions in the count could potentially result in failing to detect a missing inmate or one in distress. Id. at ¶ 6. Schreurs explained that before he starts the count he yells "count," and once he starts the count, every inmate must return immediately to his cube and remain there throughout the count. Id. at ¶¶ 7-8. When the count is finished, Schreurs yells "clear." Id.
An inmate leaving his cube during the count is in violation of DOCCS prison rule 112.21 (Count Procedure Violation) and possibly other rules. Id. at ¶ 8. Prior to March 22, 2011, Schreurs had verbally warned Plaintiff on two or three occasions not to leave his cell during count and by March 22, 2011, Plaintiff had been in Dorm I long enough to be familiar with the procedure. Id. at ¶ 10.
On March 22, 2011, Schreurs yelled "count" loudly enough for all inmates in Dorm I to hear. Inmates out of their cubes immediately began returning to them and Plaintiff began walking through the dorm. Plaintiff was in his cube when Schreurs walked by and saw Schreurs doing the count. Id. at ¶ 11. When Schreurs finished the count and began to return to the podium to compare the inmates he had counted with the list of those who should be present, he observed Plaintiff leave his cube and walk towards the day room. Id. at ¶ 10. Schreurs interrupted his count procedure and asked Plaintiff what he was doing during the count. Plaintiff said he had cleared the count himself and had things to do. Id. at ¶ 11. Plaintiff stopped walking and stared at Schreurs and when again ordered back to his cube became argumentative with Schreurs. Id.
As an experienced DOCCS corrections officer familiar with the DOCCS prison rules and proper inmate conduct, Schreurs determined that Plaintiff's actions were in violation of DOCCS rules 104.13 (creating a disturbance);112.21 (failure to comply with inmate count procedures);112.20 (delaying an inmate count); and 106.10 (refusing a direct order). Id. at ¶ 13 and p. 11. Schreurs drafted and filed a misbehavior report on the date of the incident. Id. Schreurs claims that he had no knowledge of Plaintiff having written any letter or otherwise complained about him to the DOCCS Inspector General prior to filing the misbehavior report. Id. at ¶ 14. Plaintiff was found guilty of refusing a direct order, delaying the count, and a count procedure violation, and not guilty of creating a disturbance. Id. at p. 8.
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 (Dkt. No. 50) was properly verified under 28 U.S.C. § 1746. See LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (use of the language "under penalty of perjury" substantially complies with 28 U.S.C. § 1746).
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 [thepro 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 unpublished decisions cited herein will be provided to Plaintiff by the Clerk in accordance with LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009).
Where, as in this case, Plaintiff has failed to respond to the movant's statement of material facts as required under L.R. 7.1(a)(3), see Dkt. No. 223, 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 Champion, v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996.)
L.R. 7.1(a)(3) provides that "The opposing party shall file a response to the Statement of Material Facts [submitted by the movant]. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises . . . 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." However, 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).
Defendants have complied with L.R. 56.2 by providing Plaintiff with the requisite notice of the consequences of his failure to respond to the summary judgment motion. (Dkt. No. 218 at 4.)
III. ANALYSIS
A. Failure to Exhaust Administrative Remedies with Regard to Plaintiff's Eighth Amendment Excessive Force Claim Against Maher and Allen
Defendants Maher and Allen seek summary judgment dismissing Plaintiffs' Eighth Amendment excessive force claim solely on the ground that Plaintiff failed to exhaust his administrative remedies. (Dkt. No. 53-3 and 53-4.) The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996) imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, and expressly requires that no action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. "[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 in which they are confined. Jones v. Bock, 549 U.S. 199, 218 (2007) (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)).
Defendants included failure to exhaust administrative remedies as an affirmative defense in their Answer. (Dkt. No. 218-6 at ¶ 49.)
1. DOCCS Internal Grievance Program
In New York State prisons, DOCCS has a well-established three-step Internal Grievance Program ("IGP"). See N.Y. Comp. Codes R. & Regs. tit. 7, Part 701. (2013). The first step requires an inmate to file a grievance complaint with the facility's IGP clerk. Id. at § 701.5(a). If there is no informal resolution, the Inmate Grievance Resolution Committee ("IGRC") holds a hearing. Id. at § 701.5(b)(2). If the grievance is denied by written decision of the IGRC, id. at § 701.5(b)(3), the grievant may appeal the IGRC's decision to the facility's superintendent within seven calendar days of receipt of the IGRC's written decision. Id. at 701.5(c)(1). The appeal of a grievance involving an institutional issue is decided by the superintendent of the facility. Id. at § 701.5(c)(3)(ii). Grievances regarding DOCCS-wide policy issues are forwarded directly to the Central Review Committee ("CORC") for a decision under the process applicable to the third step. Id. at 701.5(c)(3)(i). The third step is an appeal to CORC, id. at 701.5(d)(1)(i), which issues a written decision. 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, 2010 U.S. Dist. LEXIS 32014, at *16 (N.D.N.Y. Mar. 31, 2010); Bailey v. Fortier, No. 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *6, 2012 U.S. Dist. LEXIS 185178, at *14-15 (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).
2. Evidence Regarding Exhaustion under the DOCCS IGP
In their Statement of Material Facts, Defendants state that Plaintiff did not file a grievance regarding the alleged use of excessive force by Maher or Allen (Dkt. No. 218-1 at ¶ 5), and that Plaintiff did not appeal to CORC with regard to any grievance regarding the alleged use of excessive force by Maher and Allen. Id. at ¶ 6. Those factual statements are supported by evidence in the summary judgment record and therefore are deemed admitted in light of Plaintiff's failure to comply with L.R. 7.1(a)(3), despite his pro se status. See Kidkarndee v. Koenigsmann, 9:12-CV-0502 (GTS/CFH), 2014 WL 1239319, at *4, 2012 U.S. Dist. LEXIS 38939, at *14 (N.D.N.Y. Mar. 25, 2014) (citing Cusamano v. Sobek, 604 F. Supp. 2d 416, 427 & n.6 (citing cases)).
Richard P. Donaldson ("Donaldson"), the IGP supervisor at Adirondack from August 2009, through the present, explained in his Declaration that when an inmate sends a written complaint to the grievance office at Adirondack, Donaldson generally meets with the inmate to determine the nature of the grievance, and the grievance is logged in. (Dkt. No. 218-15 at ¶¶ 1,3-4.) Grievances regarding staff conduct are sent directly to the superintendent for investigation. Id. at ¶ 4. After investigation, the superintendent renders a response, sending the grieving inmate two copies one for the inmate's records and one for the inmate to send back if he wishes to appeal to CORC. Id. at ¶¶ 4-5.
According to Donaldson, all documents, or copies thereof, related to a grievance, including investigations and appeals, are maintained in the Adirondack grievance office in the ordinary course of business. Id. at ¶ 6. The grievance office keeps the documents for the current year as well as the previous four years, and documents dating back to January 1, 2010, are presently on file. Id. Thus, documents regarding any grievances filed by Plaintiff at Adirondack from January 1, 2010, through the present, including any grievance filed with regard to the alleged use of excessive force by Defendants Maher and Allen on August 10, 2010, would, in the ordinary course of Adirondack's business, presently be maintained in the Adirondack grievance office. Id. A search of the Adirondack grievance files by Donaldson revealed that Plaintiff did not file any grievances while confined at Adirondack. Id. at ¶¶ 7-8.
Plaintiff was transferred to Upstate the day after the incident with Maher and Allen. The list of grievances filed by Plaintiff at Upstate does not include a grievance related to the alleged use of excessive force by Maher and Allen. (Dkt. No. 218-7 at 35.)
As Assistant Director of the DOCCS Inmate Grievance Program, Jeffrey Hale's ("Hale") duties and responsibilities include maintaining records of all appeals of inmate grievances to CORC. (Dkt. No. 218-16 at ¶¶ 1-2.) According to Hale, DOCCS Directive #4040 requires that grievance files and logs be maintained for at least the current year plus the previous four calendar years. Id. at ¶ 8. Hale serves as custodian of the records maintained by CORC. Id. at ¶ 7. In his Declaration, Hale states that he conducted a thorough search of the CORC databases created and maintained in the ordinary course of DOCCS business, for records of an appeal to CORC of any grievance filed by Plaintiff concerning allegations of excessive force by DOCCS personnel, or failure to intervene on the part of DOCCS personnel, at Adirondack. Id. at ¶ 10. Hale's search revealed that no such grievance was ever appealed to CORC by Plaintiff. Id. at ¶ 10 and pp. 5-6.
Even if the Court were to exercise its discretion to overlook Plaintiff's failure to comply with L.R. 7(a)(3) in light of his pro se status, see Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001), Plaintiff has failed submit evidence raising a material issue of fact on whether he filed an excessive force grievance against Maher or Allen and properly followed through on all of the steps required to exhaust under DOCCS IGP. See Woodford, 548 U.S. at 93.
Plaintiff has conceded that there was a grievance system and an IGRC in place at Adirondack and testified at his deposition that he had met with them while at Adirondack. (Dkt. No. 218-7 at 32.) In his Affidavit in opposition, Plaintiff has stated that "Gibson was placed in Box at Adirondack after Maher incident (Maher - Allen) and maintain writing grievances to both Adirondack and Coxsackie from Upstate and from Coxsackie (transfer to Upstate box where ticket hearing was held) . . . Gibson also did appeal upon belief issues.)" (Dkt. No. 223 at 3.) Plaintiff also stated:
Plaintiff did file grievance and states concerning use of force at Adirondack AND Coxsackie and maintains grievance for some reason unexplained kept acting as if letters written to them should not be stated (accepted) and were actually Harassment complaints besides fact Warden ans Captains were aware of force against plaintiff and (were) were (grievance) while in box sent to both Adirondack and Upstate Box and Coxsackie as to wit Plaintiff was given complete runaround.
2) Plaintiff has all these documents at 70 west 115 street Apt 13c except problem is (this is going to be hard to believe) somehow a Muslim-Dominican Reality company located on 125th St (moved since) (NYNY) directed me to this location and the guy is a police
agent besides fact he lives in Projects and should not be renting rooms out in the first place.
Id. at 4. When shown a list of grievances he had filed at Upstate, where he was transferred the day after the incident with Maher and Allen, Plaintiff acknowledged that none related to the alleged use of excessive force by Maher and Allen at Adirondack. (Dkt. No. 218-7 at 35.) Although Plaintiff claimed the list was incomplete, he did not elaborate. Id. at 35-36.
Plaintiff has offered no evidence supporting his bald assertion that he attempted to file a grievance at Upstate and no evidence showing that he followed all of the steps of the IGP through an appeal to CORC. Therefore, based on the record, the Court concludes that Defendants Maher and Allen have established by a preponderance of the evidence that Plaintiff failed to exhaust his administrative remedies with regard to his excessive force claim against Defendants Maher and Allen, and that no reasonable jury could find otherwise.
3. Hemphill Inquiry
An exhaustion review does not end when defendants are found to have met the burden of establishing a plaintiff's failure to exhaust. "Once a defendant has adduced reliable evidence that administrative remedies were available to Plaintiff and that Plaintiff nevertheless failed to exhaust those administrative remedies, Plaintiff must then 'counter' Defendants' assertion by showing exhaustion unavailability, estoppel, or 'special circumstances' [under Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004)]." Murray, 2010 WL 1235591, at *4. Hemphill sets forth a three-part inquiry for district courts. First, courts must determine if administrative remedies were in fact available to plaintiff. The evidence establishes that administrative remedies were available to Plaintiff. The DOCCS IGP is well established. According to Donaldson, the IGP and Directive # 4040 are both available in the Adirondack Library, and every inmate who transfers into Adirondack goes through an orientation that includes how to file and appeal grievances. (Dkt. No. 218-15 at ¶ 2.) Plaintiff's deposition testimony reveals that he was aware of the IGP and knew that there was a grievance system and an IGRC in place at Adirondack. (Dkt. No. 218-7 at 32.) While Plaintiff contends that there were no grievance forms available at Adirondack, he was aware that it was not necessary to use a specific form to submit a written grievance. (Dkt. Nos. 218-7 at 36; 223 at 4.) Moreover, Plaintiff admittedly filed a number of grievances at Upstate. (Dkt. No. 218-7 at 35.)
Second, courts must determine if the defendants are estopped from presenting non-exhaustion as an affirmative defense because they prevented the plaintiff inmate from exhausting his administrative remedies by "beating him, threatening him, denying him grievance forms and writing implements, and transferring him to another correctional facility." Hemphill, 380 F.3d at 688 (citing Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir. 2004)). Generally, defendants cannot be estopped from asserting a non-exhaustion affirmative defense based upon the actions or inaction of other individuals. Murray, 2010 WL 1235591, at *5 & n.26 (collecting cases).
In his deposition, Plaintiff complained that Maher did not allow grievance forms in the library at Adirondack. (Dkt. No. 218-7 at 155.) However, Plaintiff was aware that it was not necessary to use a specific form to submit a grievance; he acknowledged that he was allowed to write grievances in his cell; and he was in SHU from the time of the incident with Maher and Allen until he was transferred to Upstate the following day. Id. at 155; Dkt. No. 50 at 21. Therefore, the evidence does not support an estoppel against Maher. Whether or not Maher allowed inmates to work on grievances in the library is not relevant to the exhaustion issue in this case.
There is no evidence that Corrections Officers Maher and Allen were involved in the decision to transfer Plaintiff from Adirondack to Upstate.
In his Affidavit in opposition, Plaintiff claims that he sent a grievance to Adirondack from Upstate and the law clerks were threatened by Maher not to handle it. (Dkt. No. 223 at 3.) Again, Plaintiff has submitted no evidence in support of his claim and was not at Adirondack when the alleged threat would have been made. Plaintiff's conclusory assertion, unsupported by evidence, is not enough to support an estoppel against Maher. See Cole, 1999 WL 983876, at *3 (bald assertions unsupported by evidence cannot defeat summary judgment motion).
Third, the Second Circuit explained in Hemphill that there are certain "special circumstances" in which even though administrative remedies may have been available and the defendants may not be estopped from asserting a non-exhaustion defense, the inmate's failure to exhaust may be justified. Hemphill, 380 F.3d at 686. "Special circumstances" have been found to include an incorrect but reasonable interpretation of DOCCS' regulations or failing to file a grievance in the precise manner prescribed by DOCCS as a result of threats. See, e.g., Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) (failure to exhaust was justified where plaintiff inmate's interpretation of regulations was reasonable and prison official threatened inmate).
Subsequent to Hemphill, the Supreme Court decided Woodford v. Ngo, 548 U.S. 81 (2006). The question addressed in Woodford was whether "a prisoner can satisfy the [PLRA's] exhaustion requirement by filing an untimely or otherwise procedurally defective administrative grievance or appeal." Id. at 83-84. The Supreme Court resolved the question in the negative, explaining that the PLRA requires "proper exhaustion" "using all steps that the agency holds out, and doing so properly (so that the agency addressed the issues on the merits)." Id. at 90 (citation omitted). Although the Second Circuit has acknowledged that there is some question as to whether the estoppel and special circumstances inquiries in Hemphill survived Woodford, the Court has as yet found it unnecessary to decide the issue and appears to still be considering all three Hemphill inquiries in exhaustion cases. See, e.g., Amador v. Andrews, 655 F.3d 89, 102-03 (2d Cir. 2011) (finding it unnecessary to decide whether Hemphill is still good law because plaintiff had failed to establish that defendants were estopped from raising non-exhaustion as an affirmative defense).
Plaintiff testified at his deposition that when he attempted to file a grievance with regard to the incident with Maher and Allen after his transfer to Upstate, he was told by grievance personnel at Upstate that since the alleged excessive force took place at Adirondack, he would have to send his grievance to Adirondack. (Dkt. No. 218-7 at 153.) According to Plaintiff, when he wrote to Adirondack, he was told that since he was no longer at Adirondack, he had to report grievances where he was presently incarcerated. Id.
Plaintiff has admitted he did not write to the grievance clerk to let him or her know that his grievance against Maher and Allen was not being handled and he was going to take an appeal. Id. at 154. Furthermore, Plaintiff testified at his deposition that he didn't think he had taken an appeal, and as previously noted, there is no record of an appeal to CORC. Id; Dkt. No. 218-16 at ¶ 10.
In order to prevail on an argument that the grievance procedure was not available to him, or that there were special circumstances because the officials did not file the grievances, Plaintiff must show that he nonetheless followed the grievance procedure through all of the steps in the DOCCS regulations. See, e.g., Belile v. Griffin, No. 9:11-CV-0092 (TJM/DEP), 2013 WL 1776086, at *3-4, 7, 2013 U.S. Dist. LEXIS 47137, at *10, 22-23 (N.D.N.Y. Feb. 12, 2013) (plaintiff failed to exhaust his administrative remedies because he had not followed through on all of the steps, i.e., he did not appeal to the superintendent of the facility or appeal any unfavorable decision of the superintendent to CORC; plaintiff alleged he had filed two grievances by placing the grievances in his meal slot to be filed by corrections officers, but claimed they were intercepted or discarded, and never received a determination on the grievances); Veloz v. New York, 339 F. Supp.2d 505, 516 (S.D.N.Y. 2004) ("[P]laintiff's allegation that these particular grievances were misplaced or destroyed by correctional officers ultimately does not relieve him of the requirement to appeal these claims to the next level once it became clear to him that a response to his initial filing was not forthcoming."), aff'd, 178 F. App'x 39 (2d Cir. 2006); Atkins v. Menard, No. 9:11-CV-0366 (GTS/DEP), 2012 WL 4026840, at *4, 2012 U.S. Dist. LEXIS 130059, *13 (N.D.N.Y. Sept. 12, 2012) (finding that plaintiff failed to exhaust where he had the "ability, and indeed the duty, to appeal the IGRC's nonresponse (to his grievance) to the next level, including CORC, to complete the grievance process."); Murray v. Palmer, No. 03-CV-1010, (DNH/GLS), 2008 WL 2522324, at *16, 18, 2008 U.S. Dist. LEXIS 47933 (N.D.N.Y. June 20, 2008) (finding that in order to exhaust available administrative remedies with regard to his grievance, plaintiff had to file an appeal with the superintendent from the IGRC's nonresponse, which included a failure to acknowledge the receipt of a grievance and assign it a number); Midalgo v. Bass, No. 03-CV-1128 (NAM/RFT), 2006 WL 2795332, at *7, 2006 U.S. Dist. LEXIS 98871, at *16-17 (N.D.N.Y. Sept. 26, 2006) (observing that plaintiff was required to seek an appeal to the superintendent, even though he never received a response to his grievance and was not assigned a grievance number); Gill v. Frawley, No. 02-CV-1380, 2006 WL 1742738, at *11 & n. 77, 2006 U.S. Dist. LEXIS 41984 (N.D.N.Y. June 22, 2006) (Lowe, M.J.) ("[A]n inmate's mere attempt to file a grievance (which is subsequently lost or destroyed by a prison official) is not, in and of itself, a reasonable effort to exhaust his administrative remedies since the inmate may still appeal the loss or destruction of that grievance."); Waters v. Schneider, No. 01 Civ 5217(SHS), 2002 WL 727025, at *2, 2002 U.S. Dist. LEXIS 7166, at *4-5 (S.D.N.Y. Apr. 23, 2002) (finding that in order to exhaust administrative remedies, plaintiff had to file an appeal with the superintendent from IGRC's non-response to his grievance, of which no record existed). Plaintiff has failed to make that showing.
Inasmuch as Defendants Maher and Allen have satisfied their burden of establishing that a grievance procedure was available to Plaintiff and he did not exhaust his administrative remedies under that procedure, and Plaintiff has failed to submit evidence showing that exhaustion was unavailable under the Hemphill inquiry, the Court recommends that Defendants Maher and Allen be granted summary judgment dismissing Plaintiff's Amended Complaint.
B. Retaliation Claim Against Bushane
1. Law Regarding Retaliation Claims
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, corrections officials may not take actions that would have a chilling effect upon an inmate's exercise of First Amendment rights. See Pidlypchak, 389 F.3d at 381-83. Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 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 v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citations omitted), overruled on other grounds, Swierkiewicz, 534 U.S. 506.
To state a retaliation claim under 42 U.S.C. § 1983, a plaintiff must allege facts plausibly suggesting that: (1) the speech or conduct at issue was "protected"; (2) the defendants took "adverse action" against the plaintiff namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action in other words, that the protected conduct was a "substantial or motivating factor" in the defendants' decision to take action against the plaintiff. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Pidlypchak, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492). If a plaintiff carries this burden, the defendant must show, by a preponderance of the evidence, that he would have taken the action against the Plaintiff "even in the absence of unprotected conduct." Mt. Healthy, 429 U.S. at 287.
Several factors may be considered in determining whether a causal connection exists between the plaintiff's protected activity and a prison official's actions. Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). Those factors include: (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. Id. (citing Colon, 58 F.3d at 872-73). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Id.
2. Plaintiff's Retaliation Claim
Plaintiff claims that Bushane issued a false misbehavior report in retaliation for his exercise of a protected First Amendment right. Bushane seeks summary judgment dismissing Plaintiff's retaliation claim against him on the grounds that a threat to hire an attorney or file a grievance is not protected First Amendment conduct for purposes of a retaliation claim, and that the evidence establishes it was Bushane's action in beginning to discipline Plaintiff which led to Plaintiff's threats to file a grievance, not the other way around. (Dkt. Nos. 218-2 at 10-14; 224 at 10.)
Bushane does not dispute that filing a false misbehavior report can constitute "adverse action" for purposes of a retaliation claim. See Pidlypchak, 389 F.3d at 384.
Bushane has relied primarily on the district court decision in Henry v. Dinelle, No. 10-CV-0456 (GTS/DEP), 2011 WL 5975027, at *7, 2011 U.S. Dist. LEXIS 136583, at *21-23 (N.D.N.Y. Nov. 29, 2011) for the proposition that threatening to retain counsel and/or expressing an intent to file a grievance are not protected First Amendment activity for purposes of a retaliation claim. In Henry, the district court did not come down on the side of a bright-line rule that threats to hire an attorney or file a grievance cannot constitute protected First Amendment conduct for purpose of a retaliation claim. Rather, the court based its conclusion that the plaintiff's statement was not protected on the specific facts of the case, including the fact that, unlike this case, the inmate in Henry made no mention of an intent to file a grievance. Id. (questioning whether "an inmate's one-time making of an oral statement (immediately after the use of force against him) that he would be 'contacting [his] attorney,' or 'calling a lawyer' at some unidentified point in the future constitutes engagement in activity that is protected by the First Amendment especially where, as here, the inmate did not reference the prison grievance process in his statement.") Moreover, the court in Henry concluded that even assuming, for the sake of argument, that the plaintiff's statement was constitutionally protected, he had failed to show that the statement was a motivating factor for the issuance of the misbehavior report. Id.
Defendants cite Henry, 2011 WL 5975027, as having been affirmed by the Second Circuit at 557 F. App'x 20 (2d Cir. 2014). However, that appeal was from the denial of a post-trial motion by the plaintiff for judgment nothwithstanding the verdict, or for a new trial in the action, see 929 F. Supp. 2d 107 (N.D.N.Y. 2013), and the question of whether threats to contact counsel or file a grievance are protected conduct was not in issue.
The district court did note in Henry, and this Court acknowledges, that "numerous cases exist for the point of law that even expressly threatening to file a grievance does not constitute protected activity." (emphasis in original) (citing, e.g., Bridges v. Gilbert, 557 F.3d 541, 554-55 (7th Cir. 2009) ("[I]t seems implausible that a threat to file a grievance would itself constitute a First Amendment protected grievance.") (emphasis in original); Ingram v. SCI Camp Hill, No. 08- CV-0023, 2010 WL 4973302, at *15, 2010 U.S. Dist. LEXIS 127124, at *44 (M.D. Pa. Dec. 1, 2010) ("Stating an intention to file a grievance is not a constitutionally protected activity"), aff'd, 448 F. App'x 275 (3d Cir. 2011); McKinnie v. Heisz, No. 09-CV-0188, 2009 WL 1455489, at *11, 2009 U.S. Dist. LEXIS 39821, at *30 (W.D. Wis. May 7, 2009) ("Hoping to engage in constitutionally protected activity is not itself constitutionally protected activity. At most, petitioner's actions could be construed as a 'threat' to assert his rights but that is not enough.")). Id. at *7 n.12 & 13.
However, there are also a numerous decisions in which a threat to file a grievance or lawsuit has been found to be constitutionally protected speech for purposes of a retaliation claim. See, e.g., Sprau v. Coughlin, 997 F. Supp. 390, 393 (W.D.N.Y. 1998) (finding that "plaintiff's conduct in threatening to file a complaint was protected by the First Amendment's guarantee of the right to petition the government for redress of grievance."); Garcia v. Strayhorn, No. 13-CV-807-BEN (KSC), 2014 WL 4385410, at *6, 2014 U.S. Dist. LEXIS 123660, at *15 (S.D. Cal. Sept. 3, 2014) ("Review of current caselaw indicates that an inmate's threat to file a prison grievance constitutes protected speech.") (collecting cases); Pasley v. Conerly, No. 2:08-cv-13185, 2010 WL 3906120, at *9, 2010 U.S. Dist. LEXIS104763, at *30-31 (E.D. Mich. Sept. 10, 2010) (guided in part by the Sixth Circuit decision in Pasley v. Conerly, 345 F. App'x 981, 984 (6th Cir. 2009), finding that a threat to file a grievance arguably constituted constitutionally protected conduct, the court concluded that plaintiff's threat to file a grievance constituted constitutionally protected conduct); Carter v. Dolce, 647 F. Supp. 2d 826, 834 (E.D. Mich. 2009) ("The Court believes that when it comes to protecting First Amendment rights, including the right to petition the government for redress, there is little difference between retaliating against a person for filing a grievance, and retaliating for threatening to file one. . . . Once a prisoner makes clear his intention to resort to official channels to seek a remedy for ill treatment by a prison employee, retaliation against the prisoner by that employee implicates all the policies intended to protect the exercise of a constitutional right.")
The evidence in the summary judgment record is inadequate for the Court to make a determination as to whether or not Plaintiff's conduct in this case merits First Amendment protection. Furthermore, even if the following factual statements regarding Bushane included in Defendants' Statement of Material Fact are deemed admitted, they do not establish the absence of material issues of fact in dispute on the issue of causal connection and fail to establish Bushane's entitlement to judgment as a matter of law:
13. The misbehavior report in question from Defendant Bushane was filed on December 3, 2010 (Exhibit "H" to Starlin Declaration).
14. Plaintiff's grievance regarding Bushane was filed on December 6, 2010. (Exhibit "I" to Starlin Declaration).
15. In his grievance regarding Bushane, Plaintiff claims that after defendant Bushane pulled him from a "chow" line (i.e. mess hall line) for an infraction, plaintiff asked defendant Bushane "[d]o you have a 4040 form " (i.e. inmate grievance form) and also said "I don't mind getting a Jewish attorney." (Exhibit "T" to Starlin Declaration at 2-3).
16. Plaintiff alleges that after he asked defendant Bushane if the latter had a grievance form, and said he didn't mind getting a Jewish attorney, that defendant Bushane wrote the misbehavior report in question. (Exhibit "I" to Starlin Declaration at 2-3; Exhibit "A" to Starlin Declaration at 25).
17. Plaintiff did not file a grievance or lawsuit against defendant Bushane before defendant Bushane filed the misbehavior report in question. (Exhibit "H" to Starlin Declaration; Exhibit "I" to Starlin Declaration).
18. At his deposition, plaintiff stated in his sworn testimony that he did not say anything to Bushane about getting an attorney in regard to this mess hall line incident. (Exhibit "D" to Starlin Declaration at 111-113).
The allegations in Plaintiff's Amended Complaint and his deposition testimony concerning his request for a grievance form and Bushane's comment to the effect he was going to get nigger before nigger got him leave some question as to when and where the statements were made at the time of the line incident, (Dkt. No. 218-7 at 62), or after Plaintiff had been returned to his cell when Bushane had already made the decision to file a misbehavior report. Id. at 110-11; Dkt. No. 50 at 25. The inconsistencies in Plaintiff's evidence, which go to causal connection, do not allow the Court to judge Plaintiff's credibility under Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005) in this case both because they are relatively minor and they are not directly contradicted by other admissible evidence in the record. Id.
In Jeffreys, the Second Circuit made it clear that it is only "in the rare circumstance where the plaintiff relied almost exclusively on his own testimony, much of which is contradictory and incomplete," that the court may conclude that no reasonable jury would credit his testimony. 426 F.3d at 554. "To qualify for application of the Jeffreys exception, a defendant must meet each of the following three requirements: 1) the plaintiff must rely almost exclusively on his own testimony; 2) the plaintiff's testimony must be contradictory or incomplete; and 3) the plaintiff's testimony must be contradicted by evidence produced by the defense." Kilmartin v. Schaffer, No. 9:12-CV-1167 (FJS/CFH), 2013 WL 5929447, at *6, 2013 U.S. Dist. LEXIS 156688, at *15 (N.D.N.Y. Nov. 1, 2013) (citation and internal quotation marks omitted).
Bushane has not submitted a declaration or affidavit in support of his motion. Nor has Bushane submitted any other admissible evidence addressing Plaintiff's claim that Bushane said he "was going to get nigger before he gets me" after Plaintiff asked for a grievance form. (Dkt. No. 218-7 at 62.) Furthermore, the file on Plaintiff's grievance against Bushane, submitted in support of Bushane's motion, consists of unsworn documents which are inadmissible on summary judgment. (Dkt. No. 218-12.) See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) ("[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment."); Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006) (movant bears the initial burden of showing through production of admissible evidence that he is entitled to judgment as a matter of law); see also Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir. 1986) (an unsworn letter does not constitute admissible evidence on a summary judgment motion).
Bushane submitted an unsworn, handwritten memorandum as a part of the investigation of Plaintiff's grievance against him. The statement, which does not constitute admissible evidence, states only that "[a]t no time did I acted (sic) in a unproffesianal (sic) manner. This grievance is in direct retaliation for the misbehavior report inmate Gibson received on 12/3/10." (Dkt. No. 218-12 at 10.)
Given the foregoing, the Court concludes that there are questions of material fact with regard to whether Plaintiff's threat to file a grievance and possible reference to retaining an attorney constitute protected First Amendment conduct and whether the filing of the misbehavior report by Bushane is causally connected to Plaintiff's conduct. Therefore, the Court recommends that Defendant Bushane's request for summary judgment on the merits be denied.
3. Qualified Immunity
Bushane has moved in the alternative for summary judgment on qualified immunity grounds. (Dkt. No. 218-2 at 17-20.) Public officials sued in their individual capacity who are performing discretionary functions are entitled to qualified immunity so long as "their conduct does not violate clearly established . . . rights of which a reasonable person would have known." Vincent v. Yelich, 718 F.3d 157, 166 (2d Cir. 2013). The qualified immunity inquiry "turns primarily on objective factors." Id. (citation and internal punctuation omitted.) "If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct." Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Qualified immunity is an affirmative defense on which defendants bear the burden of proof. Vincent, 718 F.3d at 166.
Even assuming that Plaintiff's threat to file a grievance against Bushane and/or retain counsel constitutes protected First Amendment conduct, and assuming further that Bushane filed the misbehavior report in response to Plaintiff's threats, the Court concludes that Bushane is entitled to qualified immunity. The question of whether a threat to file a grievance or retain counsel is protected by the First Amendment does not appear to have been squarely addressed by either the Supreme Court or the Second Circuit. As discussed above, the right to threaten to file a grievance or to retain counsel without experiencing any adverse action remains unsettled in several circuits. Therefore, based upon a review of relevant case law, the Court finds that the right was not clearly established at the time of the incident in question and recommends that Bushane be granted summary judgment on Plaintiff's retaliation claim on the alternative ground of qualified immunity. See Henry, 2011 WL 5975027, at *10 (right to make a statement of intent to contact an attorney without adverse action not clearly established at the time in question); Dawson v. Audet, No. 12-cv-00901-MSK-BNB, 2014 WL 4947315, at *5, 2014 U.S. Dist. LEXIS 139381, at *12-13 (D. Colo. Sept, 30, 2014) ("Because [plaintiff] has not shown, and apparently cannot show, that the law 'clearly establishes' that an inmate's threat to file a grievance against a prison official enjoys First Amendment protection, [defendant] is entitled to qualified immunity on [plaintiff's] retaliation claim.").
C. Retaliation Claim Against Schreurs
Plaintiff claims that Defendant Schreurs filed a misbehavior report against him on March 22, 2011, in retaliation for a letter Plaintiff had written to the DOCCS Inspector General complaining about Schreurs confining him to his cube instead of allowing him to attend a call-out in the gym. (Dkt. No. 50 at 28.) Defendant Schreurs seeks summary judgment on Plaintiff's retaliation claim against him on the grounds that he was unaware that Plaintiff had submitted a complaint letter concerning him to the Inspector General at the time he filed the misbehavior report, and that the Inspector General never received a letter from Plaintiff regarding the March 15, 2011, incident Plaintiff allegedly wrote him about. (Dkt. No. 218-2 at 16.)
Defendants' Material Statement of Facts includes the following:
24. On March 22, 2011 (the same day as this inmate count incident), defendant Schreurs wrote up and filed an Inmate Misbehavior Report against Plaintiff in regard to this inmate count incident. (Schreurs Declaration at ¶ 13; Exhibits "A" to Schreurs Declaration at 4).
25. Prior to writing and filing that March 22, 2011 Inmate Misbehavior Report, defendant Schreurs had no knowledge that plaintiff had allegedly written a letter about him to the DOCCS Inspector General and was unaware of any official complaints lodged against him by plaintiff. (Schreurs Declaration at paragraphs 4, 14).
26. Plaintiff did not write any letter to the DOCCS Inspector General regarding defendant Schreurs prior to March 22, 2011. (Quackenbush Declaration ¶¶ 5-6).
27. The only letter the DOCCS Inspector General received from inmate Bennie Gibson about defendant Schreurs is dated April 18, 2011. (Quackenbush Declaration ¶ 7).
Each of the foregoing statements is supported by record evidence submitted by Defendants. As previously noted, Schreurs stated in his Declaration that he had no knowledge of Plaintiff sending a letter complaining about him to the Inspector General when he filed the misbehavior report. (Dkt. No. 218-17 at ¶ 14.) Furthermore, Charles Quackenbush ("Quackenbush"), Associate Attorney with the Office of Counsel for DOCCS, explained that letters sent by inmates to the DOCCS Inspector General are reviewed for appropriate action and kept in an inmate correspondence file until the inmates incarceration, after which they are archived and eventually destroyed. (Dkt. No. 218-18 at ¶¶ 1, 4.) Quackenbush examined DOCCS Central file on Plaintiff in connection with this lawsuit and although he found four letters Plaintiff had sent to the Inspector General prior to March 22, 2011, none of the four mentioned or dealt with Schreurs. Id. at ¶¶ 5-6. The only letter in the DOCCS Central file from Plaintiff with any mention of Schreurs was dated April 18, 2011, subsequent to the March 22, 2011, incident. Id. at ¶ 7. Statements 24-27 are therefore deemed admitted by virtue of Plaintiff's failure to respond in compliance with L.R. 7.1(a)(3), see Kidkarndee, 2014 WL 1239319 at * 4; and these statements, along with the evidence supporting them, establish Schreurs' entitlement to summary judgment dismissing Plaintiff's retaliation claim.
As with Plaintiff's excessive force claims against Maher and Allen, even if the Court were to exercise its discretion to overlook Plaintiff's failure to comply with L.R. 7(a)(3), Plaintiff has failed to submit evidence raising a material issue of fact as to whether Schreurs' filing of the misbehavior report was done in retaliation for the exercise of a protected First Amendment right by Plaintiff. Plaintiff's bald assertion that he wrote to the Inspector General concerning Schreurs prior to the time he filed the misbehavior report is not supported by evidence, and is, therefore, not sufficient to overcome a motion for summary judgment. Cole, 1999 WL 983876 at *3. The Court finds that given the absence of evidence of protected conduct, no rational factfinder could conclude that Schreurs retaliated against Plaintiff and recommends that Defendant Schreurs' motion for summary judgment be granted.
Inasmuch as the Court is recommending that Schreurs be granted summary judgment on the merits, it has not addressed his alternative request for summary judgment on qualified immunity grounds.
ACCORDINGLY, it is hereby
RECOMMENDED, that Defendants Maher, Allen, Bushane, and Schreurs' motion for summary judgment be GRANTED; and it is hereby
Plaintiff's excessive force claims against Defendants Ingraham and Young (Yung), on which summary judgment was not sought, are still pending.
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ORDERED that in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam), the Clerks Office provide Plaintiff with copies of the following unpublished decisions cited herein.
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, 6(a), 6(e). Dated: October 23, 2014
Syracuse, New York
/s/_________
THÉRÈSE Wiley Dancks
United States Magistrate Judge