Opinion
9:20-CV-1035 (MAD/ML)
05-09-2023
ANDREW HENDRICKS, Plaintiff, v. C. DELUTIS, Captain of Security, Clinton Correctional Facility, Defendant.
LETITIA A. JAMES BRENDA BADDAM, ESQ.
LETITIA A. JAMES BRENDA BADDAM, ESQ.
REPORT AND RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
Currently before the Court, in this civil rights action filed by Andrew Hendricks (“Plaintiff”) against C. DeLutis (“Defendant”), is Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. (Dkt. No. 46.) For the reasons set forth below, I recommend that Defendant's motion be denied.
I. RELEVANT BACKGROUND
A. Plaintiff's Claims
At this procedural posture, Plaintiff asserts one claim of retaliation against Defendant. (Dkt. No. 8; Dkt. No. 9; Dkt. No. 28; Dkt. No. 30.) More specifically, Plaintiff alleges that on October 20, 2017, he filed a grievance against Correction Officer Ayotte (“C.O. Ayotte”) and that on October 26, 2017, Defendant removed Plaintiff from his position in the Clinton Correctional Facility (“Clinton”) Annex tailor shop in retaliation for the grievance against C.O. Ayotte. (Dkt. No. 8 at 5-6.)
It is unclear whether this grievance was filed on October 13, 2017, or October 20, 2017. (Compare Dkt. No. 8 at 2 [alleging that the grievance was filed on October 13, 2017], and Dkt. No. 8 at 3 [same], with Dkt. No. 8 at 5-6 [alleging that the grievance was filed on October 20, 2017], and Dkt. No. 8 at 7 [same].) However, for purposes of this motion, the Court need not resolve this conflict.
B. Defendant's Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Defendant in his Statement of Material Facts and not denied by Plaintiff in a response. (Compare Dkt. No. 46, Attach. 2 [Def.'s Statement of Material Facts], with Dkt. No. 48 at 1-4 [Pl's Resp.].)
1. Plaintiff was an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) during the time of all events alleged in the Amended Complaint.
2. Plaintiff initiated this action by the filing of a complaint on September 3, 2020.
3. By Decision and Order, Plaintiff's Complaint was dismissed on October 29, 2020, with permission to file an amended complaint within thirty days.
4. Plaintiff filed his Amended Complaint on November 18, 2020.
5. A motion to dismiss pursuant to Rule 12(b)(6) was filed on behalf of Earl Bell, Defendant, D. Holdridge, and Shelley M. Mallozzi on March 1, 2021.
6. Following the Court's review, a Report and Recommendation was issued and ultimately adopted, which dismissed all of Plaintiff's claims except the First Amendment retaliation claim against Defendant.
7. DOCCS Directive 4803 governs Inmate Program Placement. The purpose of this directive is to establish standard guidelines for assigning programs to incarcerated individuals. Appropriate programming is essential to maintaining a safe and secure environment in correctional facilities for incarcerated individuals, staff, and visitors.
8. Security Sensitive Assignments are work or program assignments that may pose a potential concern based on the area of the assignment, require increased staff/inmate conduct, or require inmate handling of tools or other sensitive materials.
9. Incarcerated individuals in work locations over six months that are considered security sensitive are periodically reviewed to determine the appropriateness of the assignment and continued placement in that location.
10. DOCCS Directive 4803 (V)(B) makes clear that a program and/or work assignment is provided to an incarcerated individual entirely at the discretion of the facility administration.
11. DOCCS Directive 4803 mandates that a “Policy, Procedures, and Standards for Programming Offenders” manual (the “Manual”) be maintained and made readily available.
12. The Manual states that a Program Committee is responsible for the placement into and the removal of incarcerated individuals from programs and work assignments.
13. The Program Committee shall include a security staff member who holds the rank of Sergeant or higher.
14. The security representative will determine any program restriction based on security assessment.
15. A change of assignment is the process whereby an offender is removed from one paid assignment and placed into another paid assignment.
16. A change of assignment can be made at any time, in person or in writing, for security reasons when deemed appropriate by the Deputy Superintendent of Programs.
17. A change of assignment can be made at any time, in person or in writing, if it is determined to be in the best interest of facility operations.
18. When any program change is made that was not initiated by the incarcerated individual, the incarcerated individual will be informed by the Program Committee Chairperson, in person or in writing, of the reason for the change, unless providing the inmate with the reason compromises the safety and security of the facility.
19. Assignments with special criteria, such as security sensitive areas are not unusual for facilities.
20. Offenders assigned to sensitive locations within a facility are reviewed to determine continued suitability in those positions.
21. DOCCS deems it good policy to review the program assignments that are high profile every six months.
Although Plaintiff denies this alleged fact, he does not cite to any portion of the record to support that an issue of fact remains for trial. (Dkt. No. 48 at 2, ¶ 21.) Instead, Plaintiff merely asserts that the Manual does not support the alleged fact. (Id.) However, Defendant's citation to the record does support the fact alleged. Thus, it is deemed admitted.
22. The program assignments referenced as security sensitive areas are law library clerks, ministerial service clerks, tool clerks in maintenance or vocational shops, administrative building runners, etc.
23. The offenders assigned to these programs should be rotated to ensure a number of offenders get the opportunity to experience these assignments while at the same time maintaining security.
24. As offenders spend extended lengths of time in a particular assignment there is a greater chance for the offender to be viewed as having “power or influence” by the other offenders. Additionally, there is an increased potential for offender manipulation of the area.
25. Offenders assigned to these sensitive areas accept these assignments with the understanding they may be removed from that assignment at any time for security or programmatic reasons.
26. Working with security, the Program Committee Chairperson will identify each work location in which it is necessary to have offenders screened by security prior to assigning offenders to that area.
27. Plaintiff brings this action alleging that, while housed at Clinton, on or about October 26, 2017, Defendant ordered his removal from his work assignment at the Annex tailor shop in retaliation for a grievance that Plaintiff filed against C.O. Ayotte, an unnamed party to this action.
28. Plaintiff was assigned to the tailor shop in the Clinton Annex at all relevant times.
29. Clinton has two tailor shops: Clinton main tailor shop and Clinton Annex tailor shop, both of which are security sensitive areas.
30. The tailor shop in the Clinton Annex is a security sensitive area given the widely publicized 2015 escape out of the Clinton main tailor shop and its use of civilian, non-security staff.
The Court deems Plaintiff's denial based on his lack of knowledge as an admission. Genger v. Genger, 663 Fed.Appx. 44, 49 n.4 (2d Cir. 2016) (summary order) (noting that a statement that one “ha[d] no recollection” of a fact “does not constitute a denial”); F.D.I.C. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 205 F.3d 66, 75 (2d Cir. 2000) (“[V]ague denials and memory lapses . . . do not create genuine issues of material fact.”); Creighton v. City of NY, 12-CV-7454, 2017 WL 636415, at *40 (S.D.N.Y. 2017) (finding no issue of fact where one witness had a recollection of an event while another witness to same event has no specific recollection “one way or the other”); Percoco v. Lowe's Home Ctrs., LLC, 208 F.Supp.3d 437, 440 n.2 (D. Conn. 2016) (“Plaintiff, at various points, fails to admit or deny facts and instead states that she has ‘no knowledge.' . . . The Court deems those facts admitted because ‘no knowledge' is a noncognizable response.”); In re Horowitz, No. 14-36884, 2016 WL 1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (“On a motion for summary judgment, denials based on a lack of knowledge or information sufficient to form a belief are insufficient to contest a disputed fact ....”); Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, 2015) (“On a motion for summary judgment, denials of fact that are based on a lack of personal knowledge, mere information or belief, and/or inadmissible evidence are insufficient to create a genuine dispute.”).
31. Given that the tailor shop is a security sensitive area, additional security measures have been implemented to prevent any future escape attempts out of this area.
See, supra, note 3.
32. Additional security measures include the removal of incarcerated individuals from this program assignment if security concerns on behalf of security staff arise.
See, supra, note 3.
33. Plaintiff was placed on and off in Clinton main tailor shop and Clinton Annex tailor shop several times between February 10, 2014, and November 2017.
34. Plaintiff was placed in the Clinton Annex tailor shop in July of 2017.
35. Plaintiff testified that he has a “pretty good working relationship with some of the higher ups,” which provided him with privileges that not all incarcerated individuals were privy to.
36. One such privilege included bypassing the waiting period and standard process for placement in the Annex tailor shop.
37. In or around October 2017, the tailor shop in the Clinton Annex was managed by a civilian worker known as D. Grenier, with the assistance of one staff personnel.
38. On October 11, 2017, the Tailor Shop was managed by D. Grenier.
39. Plaintiff worked at the Clinton Annex tailor shop five days per week on or around October through November of 2017.
40. Plaintiff and D. Grenier would see each other anywhere from once a week to all five working days of the week.
41. On October 11, 2017, the Plaintiff was issued a counseling notification by civilian worker D. Grenier, accusing the Plaintiff of harassment for making a flat tire noise and laughing when she requested that the Plaintiff return to work after a break.
42. Plaintiff signed the inmate counseling notification on October 11, 2017.
Defendant cites to his declaration at paragraph 28 in support of this fact alleged. (Dkt. No. 46, Attach. 2 [citing Dkt. No. 46, Attach. 4 at ¶ 28].) However, the support for this fact is contained in Defendant's declaration at paragraph 39. (Dkt. No. 46, Attach. 4 at ¶ 39.) Moreover, the Court notes that Plaintiff “agree[s]” with this fact. (Dkt. No. 48 at 3, ¶ 42.) As a result, it is deemed admitted.
43. The following day, Plaintiff alleged that he was “harassed, threatened and intimidated” by C.O. Ayotte.
44. On October 20, 2017, the Plaintiff filed a grievance with Clinton's Grievance Office (CLA-7768-17), claiming that he was threatened and intimidated by C.O. Ayotte on October 12, 2017. Defendant was not named in this Grievance.
See, supra, note 3.
45. On October 26, 2017, Defendant was instructed by the Watch Commander and Deputy Superintendent of Security D. Holdridge that the Plaintiff posed a security threat to the safety and security of the facility due to his familiarity with staff members.
See, supra, note 3.
46. On October 26, 2017 at 3:28 p.m., after receiving the information from Deputy Superintendent of Security D. Holdridge, Defendant immediately wrote an email to Kami Hicks directing that Plaintiff be removed from the tailor shop due to security reasons.
47. On October 27, 2017, Defendant received Plaintiff's harassment grievance (CLA-7768-17) against C.O. Ayotte.
Plaintiff denies this fact and states that “[t]here is no record of when [Defendant] received [Plaintiff's] harassment grievance complaint against C.O. Ayotte.” (Dkt. No. 48 at 3, ¶ 47.) However, Plaintiff fails to identify any portion of the record in support of his denial. (Id.); see N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably deemed [movant's] statement of facts to be admitted” because the non-movant submitted a responsive Rule 7.1[a][3] statement that “offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations”); Jamison v. Metz, 865 F.Supp.2d 204, 207 n.1 (N.D.N.Y. 2011) (“[W]herever [the Pro Se] Plaintiff has [wilfully] failed to cite record evidence in support of his denials of properly supported facts . . . the Court has deemed such facts admitted to the extent they are not clearly in dispute.”), rev'd in part on other grounds, 541 Fed.Appx. 15, 17-19 (2d Cir. 2013); Prindle v. City of Norwich, 15-CV-1481, 2018 WL1582429, at *2 n.2 (N.D.N.Y. Mar. 27, 2018) (“In this portion of his Rule 7.1 Response, Plaintiff made a blanket denial of all of the facts in the corresponding paragraph of Defendants' Rule 7.1 Statement but cited a portion of the record that disputed only one of the facts asserted by Defendants, in violation of the District's Local Rules of Practice.”); Int'l Gateway Exch., LLC v. W. Union Fin. Servs., Inc., 333 F.Supp.2d 131, 145 (S.D.N.Y. 2004) (“IGE submits no evidence to support this assertion; in particular, IGE's Rule 56.1 [Response] on this point . . . does not cite to a single piece of evidence that Western Union did not provide this documentation to IGE, which means that those Rule 56.1 allegations do not comply with the Local Rules of this Court and I must ignore them.”). Defendant submitted admissible evidence in support of this fact as asserted. (Dkt. No. 46, Attach. 2 at ¶ 47 [citing Dkt. No. 48, Attach. 4 at ¶ 44].) Thus, it is deemed admitted.
48. As a Captain, Defendant does not personally investigate these grievance complaints, but he assigns a Sergeant to investigate the allegations contained in the grievance.
Plaintiff “partially denie[s]” this fact as asserted because he has “no knowledge of what [Defendant's] duties are as Captain.” However, Plaintiff's lack of knowledge is insufficient to create a genuine issue of fact for trial. See, supra, note 3.
49. Defendant assigned Sgt. J. Stuart to investigate the allegations contained in Plaintiff's grievance CLA-7768-17.
50. Sgt. Stuart interviewed Plaintiff and C.O. Ayotte on October 27, 2017.
51. Plaintiff was not intimidated or harassed during the interview with Sgt. Stuart.
52. After interviewing Plaintiff and C.O. Ayotte regarding grievance CLA-7768-17, Sgt. J. Stuart authored a memorandum to Defendant on October 29, 2017, opining that Plaintiff's grievance had no merit.
53. Defendant reviewed the paperwork and statements in response to Plaintiff's grievance and filed them with Clinton's Inmate Grievance Supervisor.
54. Defendant's investigation resulted in the dismissal of Plaintiff's grievance as “unsubstantiated” and no “evidence of staff malfeasance” was found.
55. Plaintiff was removed from the Annex tailor shop on November 5, 2017.
56. Multiple times in early November, Plaintiff requested information about his removal from the Annex tailor shop.
57. On November 27, 2017, Plaintiff wrote a letter to Clinton Deputy Superintendent for Security Daniel Holdridge requesting information regarding his removal from the tailor shop.
58. By letter dated November 27, 2017, Plaintiff was informed by Deputy Superintendent for Security, D. Holdridge, that Defendant directed Plaintiff's removal from the Annex tailor shop for security reasons and it was in the best interest of the Clinton Annex industry and security. Because there was confidential documentation supporting his removal, D. Holdridge advised Plaintiff that his removal was clearly warranted.
59. Defendant asserts that Plaintiff's removal was based on confidential information received from staff personnel.
See, supra, note
60. Defendant contends that Plaintiff's removal was in the best interest of the Clinton Annex and its continued operation.
61. Defendant asserts that upon receiving sensitive security information deeming it inappropriate for Plaintiff's work assignment to remain at the Annex tailor shop, his placement was reassigned.
See, supra, note
62. Plaintiff's work assignment was entirely at the discretion of the facility administration.
63. Plaintiff's change of assignment was deemed appropriate by the Deputy Superintendent of Programs.
See, supra, notes 3, 9.
64. Plaintiff's removal was requested by Defendant before he received Plaintiff's grievance and ordered the investigation of Plaintiff's harassment grievance.
See, supra, note
65. Defendant contends that Plaintiff's change of assignment was not done in retaliation, but was due to legitimate security concerns.
66. Defendant contends that he did not violate Plaintiff's constitutional rights as it relates to the events of October 2017.
C. Parties' Briefing on Defendant's Motion for Summary Judgment 1. Defendant's Memorandum of Law
Generally, in support of his motion for summary judgment, Defendant asserts the following two arguments: (1) Plaintiff's retaliation claim fails as a matter of law because (a) he fails to establish a causal connection between the protected conduct and the adverse action, and (b) in any event, Defendant had a legitimate, non-retaliatory reason for Plaintiff's removal and as such, would have taken the action in the absence of an improper motive, and (2) Defendant is entitled to qualified immunity. (Dkt. No. 46, Attach. 1 at 9-23.)
More specifically, Defendant first argues that Plaintiff's retaliation claim fails as a matter of law because his allegations regarding why Defendant would have retaliated against him on behalf of C.O. Ayotte do not meet the heightened burden to establish a causal connection. (Dkt. No. 46, Attach. 1 at 11-21.) Moreover, Defendant argues that temporal proximity alone is insufficient to establish an inference of retaliation at the summary judgment stage. (Id.) Further, Defendant argues that Plaintiff does not have a constitutional right to a particular prison job and his removal was proper pursuant to DOCCS Directive 4803, which governs inmate program placement. (Id.) Defendant asserts that he had a legitimate, non-retaliatory reason for removing Plaintiff from his position-Plaintiff's familiarity with staff created a security concern in a security sensitive area-and he would have removed Plaintiff from the tailor shop in the absence of Plaintiff's grievance against C.O. Ayotte. (Id.)
Second, Defendant argues that, in the alternative, he is entitled to summary judgment pursuant to the doctrine of qualified immunity. (Dkt. No. 46, Attach. 1 at 21-23.) More specifically, Defendant argues that he did not violate Plaintiff's statutory or constitutional rights and did not retaliate against Plaintiff but removed Plaintiff for security reasons. (Id.) Further, Defendant argues that he was abiding by the relevant DOCCS Directive and it was thus, objectively reasonable for him to believe that his acts were lawful. (Id.)
2. Plaintiff's Opposition
Generally, in opposition to Defendant's motion, Plaintiff argues that (1) he has established a causal connection between the protected conduct and the adverse action; (2) Defendant had no legitimate reason to remove Plaintiff from the program; and (3) Defendant is not entitled to qualified immunity. (Dkt. No. 48, Attach. 1 at 4-9.)
First, Plaintiff asserts that Defendant's argument-that Plaintiff has failed to establish a causal connection-is merely a regurgitated argument that the Court expressly rejected in Defendant's motion to dismiss. (Dkt. No. 48, Attach. 1 at 4-5.) More specifically, Plaintiff argues that a causal connection can be inferred from (a) the temporal proximity of his protected speech and the adverse action, (b) Defendant's failure to follow DOCCS's policies and procedures regarding removal of an inmate from program, and (c) Defendant's removal of Plaintiff from his position in the tailor shop before even beginning the investigation into Plaintiff's grievance against C.O. Ayotte. (Id.)
Second, Plaintiff argues that Defendant had no legitimate reason to remove him from his position in the tailor shop. (Dkt. No. 48, Attach. 1 at 5-7.) Plaintiff argues that Defendant's “self-serving declaration about what D. Holdridge allegedly told him is un[]supported and uncorroborated by any record evidence, documentation, etc. and is therefore h[ea]rsay.” (Dkt. No. 48, Attach. 1 at 5.) In addition, Plaintiff argues that pursuant to the Manual, a change of assignment may be made “for security reasons when deemed appropriate by the Deputy Superintendent for Programs.” (Dkt. No. 48, Attach. 1 at 6 [citing Dkt. No. 46, Attach. 4 at 26].) However, Plaintiff argues that there is “no record of the deputy Superintendent for Programs approving [his] removal from the Tailor Shop.” (Dkt. No 48, Attach. 1 at 6.) Moreover, Plaintiff asserts that if he was a safety and security threat to the facility, it does not make sense why he was not removed from his position until November 5, 2017, when Defendant was informed of the concern on October 26, 2017. (Id. at 6-7.) Further, Plaintiff argues that Defendant concocted the defense that Plaintiff was a safety concern to justify Defendant's actions after Plaintiff testified at his deposition that he had a “pretty good relationship with the higher-ups,” and Plaintiff's removal was in retaliation for the grievance he filed. (Id. at 7.)
Third, Plaintiff argues that Defendant is not entitled to qualified immunity. (Id. at 8.) Plaintiff alleges that Defendant's actions were not related to the safety and security of Clinton, were not approved by the Deputy Superintendent for Programs, and were not in accordance with DOCCS Directive 4803 or the Manual. (Id.) Plaintiff argues that Defendant should have known that his actions were unreasonable. (Id.) Finally, Plaintiff argues that even if Defendant did not receive Plaintiff's grievance until the day after he removed Plaintiff from the tailor shop, it does not mean that Defendant did not know about Plaintiff's grievance in advance and retaliate against Plaintiff because of the grievance. (Id. at 9.)
3. Plaintiff's Supplemental Letter
On February 27, 2023, Plaintiff filed a letter requesting “permission to amend or add two critical points” to his opposition. (See generally Dkt. No. 49.) More specifically, Plaintiff argues that (1) if Defendant's assertion-that upon receipt of D. Holdridge's message that Plaintiff posed a security risk and “immediately” recommended Plaintiff's removal from the tailor shop-is accurate, then Defendant did not and could not have sought and obtained the required approval from the Deputy Superintendent for Programs before removing Plaintiff from his position, and (2) Defendant still has not produced (even in redacted form) any documentation that D. Holdridge allegedly possessed which prompted Defendant's removal of Plaintiff from the tailor shop. (Id.)
II. RELEVANT LEGAL STANDARDS
A. Standard Governing A Motion For Summary Judgment
Under Fed.R.Civ.P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law ....Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248.
As a result, “[c]onclusory 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) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed.R.Civ.P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute-even if that nonmovant is proceeding Pro Se. (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) As has often been recognized by both the Supreme Court and Second Circuit, even Pro Se litigants must obey a district court's procedural rules.
Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases).
Cusamano, 604 F.Supp.2d at 426 & n.3 (citing cases).
Cusamano, 604 F.Supp.2d at 426-27 & n.4 (citing cases).
Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F.Supp.2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant's failure to respond to the motion does is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement-even when the non-movant was proceeding Pro Se .
Among other things, Local Rule 56.1 (previously Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1.
Cusamano, 604 F.Supp.2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”).
Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3). Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein ....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
B. Standard Governing Claims of First Amendment Retaliation
“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) that there was a causal connection between the protected conduct and the adverse action.” Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir. 2020) (cleaned up). As the Second Circuit has repeatedly cautioned, “[c]ourts properly approach prisoner retaliation claims ‘with skepticism and particular care,' 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.'” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)); see also Phelps v. Kapnolas, 308 F.3d 180, 187 n. 6 (2d Cir. 2002).
“[T]he use of the prison grievance system” is constitutionally protected conduct under the First Amendment. Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004); see Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (holding that “retaliation against a prisoner for pursuing a grievance violates the right to petition the government for redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983.”). Furthermore, “adverse action” for the purposes of a retaliation claim has been defined as “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights . . . [o]therwise the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection.” Davis, 320 F.3d at 353 (citing Dawes, 239 F.3d at 493).
To establish a causal connection between protected activities and the adverse action, the court may consider a number of factors, including “(1) the outcome of any hearing concerning the allegedly retaliatory charges; (2) the inmate's prior disciplinary record; (3) any statements made by the defendant concerning his motivation; and[] (4) the temporal proximity between the protected activity and the defendant's adverse action.” Williams v. Muller, 98-CV-5204, 2001 WL 936297, at *3 (S.D.N.Y. Aug. 17, 2001) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) abrogated, in part, on other grounds by Tangreti v. Bachmann, 983 F.3d 609 (2d 2020)). However, with respect to temporal proximity at the summary judgment stage, the Second Circuit has “consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim.” Washington v. Afify, 681 Fed.Appx. 43, 46 (2d Cir. 2017).
III. ANALYSIS
A. Whether Plaintiff Sufficiently Established a Causal Connection Between the Protected Conduct and the Adverse Action
After carefully considering the matter, I answer this question in the affirmative.
For purposes of this motion, Defendant conceded that Plaintiff engaged in constitutionally protected speech by the filing of a grievance. (Dkt. No. 46, Attach. 1 at 11 [“For purposes of this motion only, Defendant DeLutis concedes that Plaintiff has satisfied the first element of his retaliation claim.”]); see Davis v. Goord, 320 F.3d at 352-53 (“[T]he filing of prison grievances is a constitutionally protected activity.”); Flood v. Cappelli, 18-CV-3897, 2019 WL 3778736, at *7 (S.D.N.Y. Aug. 2, 2019) (collecting cases) (holding that the filing of a grievance is protected speech).
Moreover, the Court notes that Defendant did not contest whether Defendant's action removing Plaintiff from his position in the tailor shop was an adverse action. (See generally Dkt. No. 46.)
For the following three reasons, I reject Defendant's argument that Plaintiff fails to establish a causal connection between his protected speech on October 12, 2017, and Defendant's e-mail to Ms. Hicks on October 26, 2017, telling her to remove Plaintiff from his position in the tailor shop.
First, the Second Circuit has made clear that “temporal proximity of an allegedly retaliatory [action] to a grievance may serve as circumstantial evidence of retaliation.” Gayle v. Gonyea, 313 F.3d 677, 683 (2d Cir. 2002) (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015) (holding that, within the context of an employment discrimination claim, “[a] retaliatory purpose can be shown indirectly by timing: protected activity followed closely in time by adverse employment action.”). Here, the alleged protected conduct and adverse action occurred within sufficiently close time to support an inference of retaliation. See Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (citing Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001) (suggesting the lapse of five months between protected activity and retaliation may show a causal connection)) (holding that the passage of “only six months” is sufficient to support an inference of a causal connection).
Second, as stated above, although temporal proximity alone is insufficient to survive a motion for summary judgment, Washington v. Afify, 681 Fed.Appx. at 46, Plaintiff identifies additional evidence from which, a causal connection could be inferred. For example, as Plaintiff identifies, Plaintiff was removed from his position in the tailor shop by Defendant at the direction of D. Holdridge. (Dkt. No. 46, Attach. 4 at ¶¶ 41-43.) However, the Manual states that “[a] change of assignment can be made . . . by the Deputy Superintendent for Programs.” (Dkt. No. 46, Attach. 4 at 26.) Neither Defendant nor D. Holdridge were the Deputy Superintendent for Programs and thus, neither of them were empowered to change Plaintiff's assignment pursuant to the Manual. Although Defendant's affidavit states that Plaintiff's change of assignment was “deemed appropriate by the Deputy Superintendent of Programs,” (Dkt. No. 46, Attach. 4 at ¶ 57), it is unclear when that finding was made. Defendant affirmed that after he received the information from D. Holdridge he “immediately wrote an email to Kami Hicks recommending Plaintiff's removal from the tailor shop.” (Dkt. No. 46, Attach. 4 at ¶ 43.) Thus, it is reasonable to conclude that Defendant took the adverse action-the e-mail to remove Plaintiff from his position in the tailor shop-before obtaining approval from the Deputy Superintendent of Programs. Moreover, it is not clear whether the Deputy Superintendent of Programs' determination that Plaintiff's change of assignment was merely a post hoc approval of the action taken by Defendant or whether the Deputy Superintendent of Programs was actively involved in Plaintiff's change of assignment pursuant to the Manual. While Defendant's alleged failure to follow DOCCS' policies and procedures does not “explicitly state an intent to retaliate, [it] is consistent with and impl[ies] a retaliatory motive.” Burton v. Lynch, 664 F.Supp.2d 349, 368 (S.D.N.Y. 2009).
Third, although “it is difficult to establish one defendant's retaliation for complaints against another defendant,” Hare v. Hayden, 09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011), there are sufficient facts in the record from which a reasonable fact finder could conclude that Defendant retaliated against Plaintiff on behalf of C.O. Ayotte. More specifically, it is undisputed that Defendant was involved in the investigation of Plaintiff's grievance against C.O. Ayotte. (Dkt. No. 46, Attach. 4 a6 ¶¶ 44-49.) In addition, although Defendant affirmed that he requested Plaintiff's removal from his assignment in the tailor shop before he received Plaintiff's harassment grievance against C.O. Ayotte (Dkt. No. 46, Attach. 4 at ¶¶ 44, 58), as Plaintiff identifies, Defendant fails to identify when he became aware of Plaintiff's grievance against C.O. Ayotte. This distinction is especially significant given the delay between when Plaintiff filed his grievance-on October 20, 2017-and when Defendant received it-on October 27, 20217, from which a reasonable juror could conclude that Defendant was aware that the grievance had been filed and merely physically received it on October 27, 2017. At this juncture, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant.
Although “[a] lack of knowledge regarding the allegedly protected activity defeats a retaliation claim,” Girard v. Cuttle, 15-CV-0187, 2018 WL 4190140, at *7 (N.D.N.Y. Aug. 10, 2018) (Stewart, M.J.), report and recommendation adopted by, 2018 WL 4188431 (N.D.N.Y. Aug. 31, 2018) (McAvoy, J.), aff'd, 826 Fed.Appx. 41 (2d Cir. 2020), here the record is ambiguous about when Defendant became aware of Plaintiff's grievance. Moreover, Defendant did not directly assert that summary judgment should be granted because he lacked knowledge of Plaintiff's grievance until after the alleged adverse action was taken. (See generally Dkt. No. 46.)
As a result, I recommend that Defendant's motion for summary judgment arguing that Plaintiff fails to establish a causal connection be denied.
B. Whether Defendant Established a Legitimate, Non-Retaliatory Reason for Plaintiff's Removal, Which He Would Have Taken in the Absence of Improper Motive
After carefully considering the matter, I answer this question in the negative.
It is well-settled that, even where the plaintiff can make a showing of retaliatory motive, the defendant may be entitled to summary judgment if he can show that the alleged adverse action would have occurred even in the absence of the improper motivation. Greer v. Mehiel, 805 Fed.Appx. 25, 29 (2d Cir. 2020) (citing Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003)) (“[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.”), cert. denied, 141 S.Ct. 136 (2020), reh'g denied, 141 S.Ct. 217 (2020). The defendant bears the burden of making the showing that he would have taken exactly the same action in the absence of an improper motive. Greer, 805 Fed.Appx. at 29 (citing Scott, 344 F.3d at 288).
If the defendant meets his burden offering a legitimate, non-discriminatory reason for the adverse action, the burden returns to the plaintiff to show that the real reason for the adverse action was his protected activity. See Porter v. Port Auth. of New York and New Jersey, 15-CV-3558, 2022 WL 991978, at *7 (E.D.N.Y. Mar. 31, 2022) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015); Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843 (2d Cir. 2013)) (holding that the McDonnell Douglas burden-shifting approach applies to retaliation claims in violation of 42 U.S.C. § 1983); Alali v. DeBara, 07-CV-2916, 2008 WL 4700431, at *5 n.12 (S.D.N.Y. Oct. 24, 2008) (citing Thomas v. New York City Health & Hosps. Corp., 02-CV-5159, 2004 WL 1962074, at *16 n.7 (S.D.N.Y. Sept. 2, 2004) (“While McDonnell Douglas . . . involved claims brought under Title VII . . ., courts have held that discrimination and retaliation claims brought under 42 U.S.C. §§ 1981 and 1983 follow the same analysis.”)).
Here, Defendant affirmed that Plaintiff's change of assignment was done due to legitimate security concerns. (Dkt. No. 46, Attach. 4 at ¶ 61.) However, Plaintiff swore under penalty of perjury that Defendant had “no reason to have [Plaintiff] removed from the Tailor Shop.” (Dkt. No. 48, Attach. 1 at 5.) Moreover, Plaintiff has not acknowledged violating a DOCCS rule or policy and thus admitted that a punishment would have been imposed in the absence of his protected conduct. See e.g., Woods v. Chadwick, 21-CV-0662, 2023 WL 2864805, at *5 (N.D.N.Y. Jan. 30, 2023) (Baxter, M.J.) (dismissing the plaintiff's retaliation claim where it was “beyond dispute that plaintiff's discipline . . . would have been pursued and imposed even in the absence of any retaliatory motive” and the plaintiff acknowledged that he violated “the established rules and procedures”), report and recommendation adopted by, 2023 WL 2568890 (N.D.N.Y. Mar. 20, 2023) (Suddaby, J.); Stevens v. Duquette, 20-CV-0853, 2022 WL 2292975, at *8 (N.D.N.Y. Apr. 19, 2022) (Baxter, M.J.) (dismissing the plaintiff's retaliation claim where the defendant “would have taken the same action even if she had known of plaintiff's prior grievances against other corrections officers” and the plaintiff admitted during his deposition “to violating [the] rule” and refusing a direct order), report and recommendation adopted by, 2022 WL 2292047 (N.D.N.Y. June 24, 2022) (Sannes, J.).
To the extent that Defendant highlights Plaintiff's deposition testimony to contend that Plaintiff admitted to having close relationships with staff members, which presents a security concern, I find that contention unpersuasive. Plaintiff testified that when he transferred to from Clinton Main to the Clinton Annex, he was able to bypass the normal waiting process for placement in the Annex tailor shop. (Dkt. No. 46, Attach. 3 at 26-27.) However, Plaintiff transferred from Clinton Main to Clinton Annex in July 2017. (Id. at 26.) Thus, his close relationships with staff members, which permitted him this special privilege, was apparent in or around July 2017. Defendant did not take any action to remove Plaintiff from his assignment in the Annex tailor shop until October 26, 2017, approximately three months later. A reasonable juror could reject Defendant's proffered reason for Plaintiff's change of assignment based on this evidence.
Further, as Plaintiff identifies, Defendant affirms that Plaintiff was removed from the Annex tailor shop on November 5, 2017. (Dkt. No. 48, Attach. 1 at 6 [citing Dkt. No. 46, Attach. 4 at ¶ 50].) However, if Plaintiff posed a threat to the safety and security of the facility- as Defendant contends-it is unclear why Plaintiff's removal from his position in the tailor shop took ten days (from October 26, 2017, when Defendant was instructed by D. Holdridge that Plaintiff posed the security threat, until November 5, 2017, when Plaintiff was removed). Again, a reasonable juror could reject Defendant's proffered reason for the change of assignment based on this evidence.
As a result, I recommend that Defendant's motion for summary judgment asserting that he would have taken the same action in the absence of improper motive, be denied.
C. Whether Defendant is Entitled to Qualified Immunity
After carefully considering the matter, I answer this question in the negative.
“Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Brown v. City of New York, 862 F.3d 182, 190 (2d Cir. 2017) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). In other words, “[an] officer is entitled to qualified immunity if (1) his conduct does not violate a clearly established constitutional right, or (2) it was ‘objectively reasonable' for the officer to believe his conduct did not violate a clearly established right.” Hartline v. Gallo, 546 F.3d 95, 102 (2d Cir. 2008). When determining whether the right at issue is clearly established such that “the contours of the right are sufficiently clear that a reasonable official would understand that what he is doing violates that right,” a court should ask “(1) Was the law defined with reasonable clarity? (2) Had the Supreme Court or the Second Circuit affirmed the rule? and (3) Would a reasonable defendant have understood from the existing law that the conduct was unlawful?” Gonzalez v. City of Schenectady, 728 F.3d 149, 158 (2d Cir. 2013) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987); Young v. City of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)) (internal alterations and quotation marks omitted).
With regard to the second question, the Second Circuit has explained that, to determine whether a right is clearly established, “we generally look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks omitted) (quoting Okin v. Vill. of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 433 (2d Cir. 2009)).
With regard to the first question, the Supreme Court has repeatedly admonished lower courts “not to define clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011). “[A] case directly on point” is not necessarily required, “but existing precedent must have placed the statutory or constitutional question beyond debate.” al-Kidd, 563 U.S. at 741.
Based on the analysis set forth above, disputed issues of fact are present regarding whether it was objectively reasonable for Defendant to believe that removing Plaintiff from his assignment in the tailor shop, was lawful. For example, there is an issue of fact surrounding when Defendant became aware of Plaintiff's grievance, and whether any DOCCS policies or directives were violated in the removal of Plaintiff from his assignment in the tailor shop. Because facts remain in dispute as to the reasonableness of Defendant's belief that his conduct did not constitute retaliation, I cannot conclude that he is entitled to qualified immunity as a matter of law. See Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999) (When “there are facts in dispute that are material to a determination of reasonableness,” summary judgment on the basis of qualified immunity is inappropriate); Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996) (holding that matter of officers' qualified immunity could not be resolved as a matter of law because determination of whether it was reasonable for officers to believe their actions met established legal principles depended on disputed versions of facts); Bell v. Luna, 10-CV-0008, 2013 WL 12399553, at *6 (D. Conn. July 11, 2013) (denying the defendant's motion for summary judgment on qualified immunity grounds where disputed issues of fact were present regarding whether the defendant's conduct was objectively reasonable).
As a result, I recommend that Defendant's motion for summary judgment on the ground of qualified immunity be denied.
ACCORDINGLY, it is respectfully
RECOMMENDED that Defendant's motion for summary judgment (Dkt. No. 46) be DENIED; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.
If you are proceeding Pro Se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. FED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. FED. R. CIV. P. 6(a)(1)(C).
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