Opinion
9:13-CV-0186 (GTS/TWD)
01-28-2015
ROBERT L. MURRAY, Plaintiff, v. S. NEPHEW, G. PROVOST, Defendants.
APPEARANCES: ROBERT L. MURRAY Plaintiff pro se 276 East 171st Street, Room 4 Bronx, NY 10457 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Defendants The Capitol Albany, NY 12224 OF COUNSEL: JUSTIN L. ENGEL, ESQ.
APPEARANCES: ROBERT L. MURRAY
Plaintiff pro se
276 East 171st Street, Room 4
Bronx, NY 10457
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, NY 12224
OF COUNSEL: JUSTIN L. ENGEL, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER
This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Glenn T. Suddaby, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Robert L. Murray claims that Defendants Sara Nephew and Gail Provost, both rehabilitation counselors at the Clinton Correctional Facility satellite of the Central New York Psychiatric Center, retaliated against him for filing an earlier lawsuit against Defendant Nephew. (Dkt. No. 5.) Currently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and for attorney's fees pursuant to 42 U.S.C. § 1988. (Dkt. No. 54.) For the reasons discussed below, I recommend that the Court grant Defendants' motion for summary judgment but deny Defendants' request for attorney's fees.
I. FACTUAL AND PROCEDURAL SUMMARY
On December 5, 2012, Plaintiff filed a federal lawsuit against Defendant Nephew. Murray v. Nephew, Case No. 9:12-CV-1783 (FJS/CFH) ("Nephew I"), Dkt. No. 1. At that time, Defendant Nephew was serving as Plaintiff's primary therapist. (Dkt. No. 54-5 ¶ 3.) On February 8, 2013, United States Magistrate Judge Christian F. Hummel directed that the Clerk issue a summons and forward it and a copy of the complaint to the United States Marshal for service upon Defendant Nephew. Nephew I, Dkt. No. 8 at 3. The facility received the summons and complaint on February 21, 2013. Nephew I, Dkt. No. 11. Non-party Nancy Halleck, Acting Deputy Counsel for Litigation, acknowledged receipt of the summons and complaint on behalf of Defendant Nephew on March 11, 2013. Id. Defendant Nephew declares that her "best recollection" is that she first learned about Nephew I in December 2013, when the Assistant Attorney General handling the case informed her that this Court had granted a pre-answer motion to dismiss. (Dkt. No. 54-5 ¶ 7.) The docket for Nephew I reflects that Judge Hummel recommended dismissal on December 5, 2013. Nephew I, Dkt. No. 24. Senior United States District Court Judge Frederick J. Scullin, Jr., adopted the Report-Recommendation on December 27, 2013. Nephew I, Dkt. No. 28.
The events that form the basis of this litigation occurred in February 2013, after Plaintiff filed Nephew I but before it had been served on Defendant Nephew. See generally Dkt. No. 1. On February 4, 2013, Defendant Provost became Plaintiff's primary therapist. (Dkt. No. 54-8 ¶ 8.) She scheduled Plaintiff for a mandatory call-out for 9:30 a.m. on February 13, 2013. Id.
Plaintiff, who had received Judge Hummel's order directing service of Nephew I on February 12, 2013, believed that Defendant Nephew had arranged the call-out. (Dkt. No. 5 at 4.) Plaintiff refused to go to the call-out "because I was in fear of my well being and . . . staff has be[e]n harassing me and put the[ir] hands on me and put[t]ing me in strip cells and th[e]y tr[i]ed to kill me." Id. At Defendant Provost's direction, correction officers made "several attempts" to get Plaintiff to leave his cell. (Dkt. No. 54-8 ¶ 9.) The correction officers issued several direct orders and explicitly warned Plaintiff that his failure to attend the mandatory call-out could result in disciplinary sanctions. Id.
After the third unsuccessful attempt to get Plaintiff to attend the mandatory call-out, Defendant Provost issued a misbehavior report charging Plaintiff with being out of place and refusing a direct order. (Dkt. No. 54-8 ¶ 10.) Plaintiff contends that Defendant Provost wrote the misbehavior report in retaliation for Plaintiff's filing of Nephew I. (Dkt. No. 5 at 4.) Both Defendant Nephew and Defendant Provost declare that they had no knowledge of Nephew I on February 13, 2013. (Dkt. No. 54-5 ¶ 5; Dkt. No. 54-8 ¶ 12.)
A disciplinary hearing was conducted regarding the misbehavior report on February 18, 2013. (Dkt. No. 54-13.) The hearing transcript states that Plaintiff refused to attend the hearing. Id. at 2. Plaintiff contends that "I was wa[i]ting to go to the hearing but th[e]y never called me[.]" (Dkt. No. 5 at 5.) Plaintiff further contends that "officers came to my cell and told me I be[tt]er not go to the hearing and if I go som[e]thing would happen to me." Id. at 4-5. Plaintiff was found guilty and sentenced to thirty days in keeplock and loss of privileges. (Dkt. No. 54-13 at 5.)
Citations to page numbers in the disciplinary hearing packet refer to the page numbers assigned by the Court's electronic filing system.
Plaintiff filed the complaint in this action on February 19, 2013. (Dkt. No. 1.) He filed an amended complaint as of right on March 29, 2013. (Dkt. No. 5.) The amended complaint is the operative complaint. On August 13, 2013, the Court dismissed all of Plaintiff's claims except for the claim that Defendants Nephew and Provost retaliated against him for filing Nephew I. (Dkt. No. 7 at 21.) Defendants now move for summary judgment. (Dkt. No. 54.) Plaintiff has opposed the motion by re-filing his original complaint and his amended complaint as declarations. (Dkt. No. 56.) Defendants have filed a reply. (Dkt. No. 57.)
II. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). 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). 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. Id. at 273. 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, 586 & n.11 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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).
A fact is "material" only if it would have some effect on the outcome of the suit. Anderson, 477 U.S. at 248.
III. ANALYSIS
A. Retaliation Claim
Plaintiff claims that Defendants Nephew and Provost retaliated against him for filing Nephew I by issuing a false misbehavior report against him on February 13, 2013. (Dkt. No. 5 at 4.) Defendants move for summary judgment of this claim, arguing that (1) it is barred by the doctrine of res judicata; (2) Plaintiff was not engaged in protected activity because Nephew I was a frivolous lawsuit; (3) Plaintiff cannot prove causation; (4) Plaintiff would have received the misbehavior report even in the absence of the alleged retaliatory animus; and (5) they are entitled to qualified immunity. (Dkt. No. 54-2.) The Court will address only the third and fourth arguments, as they most efficiently resolve the claim.
Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004). 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). 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 v. Sorema N.A., 534 U.S. 506 (2002).
To prove a retaliation claim under 42 U.S.C. § 1983, a plaintiff must show 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. Gill, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492).
Here, Plaintiff has shown that he engaged in protected conduct by filing Nephew I. Prisoners "have a constitutional right of access to the courts." Bounds v. Smith, 430 U.S. 817, 821 (1977).
Plaintiff has shown that Defendant Provost took adverse action. The Second Circuit defines "'adverse action' objectively, as retaliatory conduct 'that would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional rights.'" Gill, 389 F.3d at 381 (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003), superseded by 320 F.3d 346, 2003 U.S. App. LEXIS 13030, 2003 WL 360053 (2d Cir. Feb. 10, 2003)) (emphasis omitted). The Second Circuit has "made clear that this objective test applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits." Id. "[T]here is little doubt that a misbehavior report would constitute an 'adverse action.'" Anderson v. Leghorn, Civ. No. 9:07-CV-1184 (DNH/RFT), 2011 U.S. Dist. LEXIS 16587, at *13, 2011 WL 691658, at *4 (N.D.N.Y. Jan. 24, 2011) (citation omitted).
The record does not reflect any adverse action by Defendant Nephew. Although Plaintiff asserts that Defendant Nephew "had G. Provost RCII write a misbehavior report against me" (Dkt. No. 5 at 4), there is no evidence that Defendant Nephew was at all involved in that decision. Defendant Nephew declares that she had no idea that Defendant Provost had issued a misbehavior report until this lawsuit was filed. (Dkt. No. 54-5 ¶ 17.) She declares that she "never encouraged or directed Ms. Provost to issue the Misbehavior Report, and ha[s] no recollection of ever discussing the matter with Ms. Provost." Id. ¶ 18. Plaintiff's assertion that Defendant Nephew was involved is mere speculation without any basis in personal knowledge. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d Cir. 2004); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 643 (2d Cir. 1988); Applegate v. Top Assoc., Inc., 425 F.2d 92, 97 (2d Cir. 1970) (rejecting affidavit made on "suspicion . . . rumor and hearsay"); Spence v. Maryland Cas. Co., 803 F. Supp. 649, 664 (W.D.N.Y. 1992) (rejecting affidavit made on "secondhand information and hearsay"), aff'd, 995 F. 2d 1147 (2d Cir. 1993).
The Court will provide Plaintiff with a copy of this unpublished decision in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Plaintiff has not, however, shown any causal connection between Nephew I and the events of February 13, 2013. 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, 872-73 (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.
Here, there is no evidence suggesting the presence of the second, third, or fourth factors. The only evidence in the record even suggesting a causal connection is the fact that Plaintiff received Judge Hummel's order directing service of Nephew I the day before Defendant Provost issued the misbehavior report. (Dkt. No. 5 at 4.) The undisputed evidence shows, however, that neither Defendant Nephew nor Defendant Provost was aware of Nephew I on February 13, 2013. (Dkt. No. 54-5 ¶ 5; Dkt. No. 54-8 ¶ 12.) Indeed, the undisputed evidence shows that the Nephew I summons and complaint were not received by the facility until eight days after the misbehavior report was issued. Nephew I, Dkt. No. 11. Thus, Plaintiff has not raised a triable issue of fact that there was any temporal proximity between the protected conduct and the adverse action.
Even if Plaintiff had raised a triable issue of fact regarding temporal proximity, it would be insufficient to raise a triable issue as to a causal connection. The Second Circuit has held in the context of employment law that "[w]here timing is the only basis for a claim of retaliation . . . an inference of retaliation does not arise," particularly where other adverse actions preceded the protected conduct. Slattery v. Swiss Rein. Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). Here, timing is the only basis supporting Plaintiff's claim of retaliation. Moreover, in other lawsuits Plaintiff has claimed that Defendant Nephew took adverse actions that preceded the protected conduct (filing Nephew I asserted here). See, e.g., Nephew I, Dkt. No. 1. Thus, an inference of retaliation does not arise.
The Second Circuit routinely cites employment cases when discussing retaliation in the prison civil rights context. See e.g. Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). Thus, it is appropriate to apply the Slattery rule here.
Defendants would be entitled to summary judgment even if Plaintiff had raised a triable issue of fact regarding a causal connection. When a plaintiff successfully raises a triable issue that an adverse action is causally connected to protected conduct:
[t]he burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation. The defendant can meet this burden by demonstrating that there is no dispute that the plaintiff committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report.Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (citations and internal quotation marks omitted). Here, the misbehavior report charged Plaintiff with refusing to obey a direct order and violating rules about inmate movement. (Dkt. No. 54-13 at 8.) Plaintiff admits that he refused to go to the mandatory call-out. (Dkt. No. 5 at 4.) Thus, there is no dispute that Plaintiff committed the prohibited conduct charged in the misbehavior report. Therefore, I recommend that the Court grant Defendants' motion for summary judgment.
B. Request for Attorney's Fees
Defendants request $11,925 in attorney's fees pursuant to 42 U.S.C. § 1988 and "this Court's inherent authority to supervise and control its own proceedings." (Dkt. No. 54-2 at 22.) Defendants argue that this litigation is vexatious and frivolous and that, accordingly, they are entitled to fees for defending against it. Id. at 22-23.
Citations to page numbers in Defendants' memorandum of law refer to the page numbers in the original document rather than to the page numbers assigned by the Court's electronic filing system.
42 U.S.C. § 1988 allows the award of reasonable attorney's fees to the prevailing party in actions brought under 42 U.S.C. § 1983. Section 1988 "authorizes a district court to award attorney's fees to a defendant 'upon a finding that the plaintiff's action was frivolous, unreasonable, or without foundation.'" Fox v. Vice, ___ U.S. ___, 131 S.Ct. 2205, 2213 (2011) (quoting Christianburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)). This standard is quite stringent. Specifically:
[t]he fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees . . . . [A] plaintiff should not be assessed his opponent's attorney's fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so . . . . These limitations apply with special force in actions initiated by uncounseled prisoners. Faithful adherence to the principles of Haines v. Kerner[, 404 U.S. 519, 92 S. Ct. 594, 30 L.Ed.2d 652 (1972)] dictates that attorney's fees should rarely be awarded against such plaintiffs. The fact that a prisoner's complaint, even when liberally construed, cannot survive a motion to dismiss does not, without more, entitle the defendant to attorney's fees. An unrepresented litigant should not be punished for his failure to recognize subtle factual or legal deficiencies in his claims . . . . [E]ven if the law or the facts are somewhat questionable or unfavorable at the outset of litigation, a party may have an entirely reasonable ground for bringing suit.Hughes v. Rowe, 449 U.S. 5, 14-15 (1980) (internal quotation marks omitted). "Though a showing that the plaintiff acted in bad faith will further support an award under section 1988, the determination generally turns on whether the claim itself is clearly meritless." Rounseville v. Zahl, 13 F.3d 625, 632 (2d Cir. 1994). The Second Circuit is "hesitant to award attorney's fees to victorious defendants in section 1983 actions." Id.
Here, although Plaintiff does have a history of litigating claims against Defendant Nephew that are ultimately dismissed, the Court is cognizant of the stringent standard the Supreme Court has imposed on awards of attorney's fees to defendants and the Second Circuit's hesitation to award such fees. Plaintiff's retaliation claim was not "clearly meritless," as evidenced by the fact that it survived the Court's thorough initial review. (Dkt. No. 7.) Defendants will likely not face further litigation from Plaintiff, as he has been released. If he is someday re-incarcerated, Defendants may possibly find protection in the three-strikes provision of 28 U.S.C. § 1915(g). Accordingly, I recommend that the Court exercise its discretion to deny Defendants' request for attorney's fees.
The Court expresses no opinion as to whether Plaintiff has incurred three strikes.
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ACCORDINGLY, it is
RECOMMENDED that Defendants' motion for summary judgment (Dkt. No. 54) be GRANTED , and it is further
RECOMMENDED that Defendants' request for attorney's fees (Dkt. No. 54) be DENIED ; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of Anderson v. Leghorn, Civ. No. 9:07-CV-1184 (DNH/RFT), 2011 U.S. Dist. LEXIS 16587, 2011 WL 691658 (N.D.N.Y. Jan. 24, 2011).
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, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: January 28, 2015
Syracuse, New York
/s/_________
Tnérèse Wiley Dancks
United States Magistrate Judge