Opinion
Civil Action No. 9:13-CV-0748 (TJM/DEP)
05-19-2016
JAMES W. NICHOLSON, Plaintiff, v. M. HAMMOND, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: JAMES W. NICHOLSON, Pro Se 1311 3rd Street Rensselear, NY 12144 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: LOUIS JIM, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: JAMES W. NICHOLSON, Pro Se
1311 3rd Street
Rensselear, NY 12144 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: LOUIS JIM, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff James W. Nicholson has commenced this action asserting claims arising out of his confinement in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his civil rights by destroying his legal mail, retaliating against him, and denying him equal protection, in violation of his rights under the First and Fourteenth Amendments.
Currently pending before the court are cross-motions for summary judgment. For the reasons set forth below, I recommend that plaintiff's motion for summary judgment be denied and that defendants' motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court. Ordinarily, when a motion for summary judgment is made, the record before the court is construed with all inferences drawn and ambiguities resolved in non-moving party's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). In this case, in light of the parties' cross-motions for summary judgment, the court draws "all factual inferences . . . against the party whose motion is under consideration." Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (quotation marks omitted).
A. Underlying Facts
From January 24, 2013 through July 23, 2014, plaintiff was a prison inmate held in DOCCS custody at the Greene Correctional Facility ("Greene"). Dkt. No. 69-5 at 2. At the relevant times, defendant Marie Hammond ("Hammond") was the Deputy Superintendent for Program Services at Greene. Dkt. No. 69-2 at 1. Hammond was responsible for investigating and responding to inmate complaints related to the mailroom. Id. Defendants Captain Linda Goppert ("Goppert") and Corrections Officer Snide ("Snide") were also employed at Greene. Dkt. No. 69-3; Dkt. No. 69-4.
In July 2014, plaintiff was released from DOCCS custody. Dkt. No. 69-5 at 2. In October 2014, he was incarcerated due to a parole violation. Dkt. No. 69-8 at 13. On October 20, 2015, plaintiff was again released from DOCCS custody. See http://nysdoccslookup.doccs.ny.gov (last visited May 9, 2016).
Citations to page numbers refer to the pagination generated by CM/ECF, not the page numbers generated by the parties.
Prior to his incarceration at Greene, plaintiff was confined at the Bare Hill Correctional Facility ("Bare Hill"). Dkt. No. 69-8 at 22-23. While confined at Bare Hill, plaintiff filed a grievance against Sgt. Miller ("Miller"), an officer at that facility. Id. at 22. Plaintiff did not come into contact with Hammond or Goppert while he was incarcerated at Bare Hill. Dkt. No. 69-8 at 24. Plaintiff never encountered Miller while he was incarcerated at Greene. Id. at 28.
On March 12, 2013, plaintiff filed a complaint in the United States District Court for the Northern District of New York against Miller. Nicholson v. Miller, No. 9:13-CV-0277 (LEK/ATB) ("Nicholson I"). In Nicholson I, plaintiff alleged that Miller threatened him, retaliated against him and used excessive force. Dkt. No. 1 at 4, 6; Nicholson I, Dkt. Nos. 1, 11.
The court may properly rely upon the Nicholson I docket because docket sheets are public records, "of which the court could take judicial notice." Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (citations omitted).
On or about March 27, 2013, plaintiff received a letter from his attorney, Eugene Grimmick, Esq. ("Grimmick"). Dkt. No. 69-8 at 35; Dkt. No. 1-1 at 7-8. In the letter, Grimmick indicated that he enclosed copies of plaintiff's "Appellant's Brief and Appendix" and plaintiff's "Record on Appeal." Dkt. No. 1-1 at 7. Plaintiff, however, did not receive the referenced enclosures. Dkt. No. 69-8 at 36-37. Plaintiff did not see Hammond or Goppert destroy his legal mail, nor was he told that Hammond or Goppert had destroyed his legal mail. Id. at 25.
Grimmick is not a defendant in this action.
B. Grievance Related to Legal Mail
On June 18, 2013, plaintiff filed a grievance (GNE-7830-13) claiming that his legal mail was "destroyed" or "not given to [him] for some reason." Dkt. No. 69-9 at 6-8. Plaintiff alleged that his mail was destroyed in "retaliation for filing a federal lawsuit against Sgt. Miller." Id. at 8. Plaintiff did not name or identify Hammond or Goppert in the grievance. Dkt. No. 69-8 at 28; Dkt. No. 69-9 at 6-8.
During his deposition, plaintiff testified that his legal mail was destroyed on April 2, 2013, April 3, 2013 and April 12, 2013. Dkt. No. 69-8 at 20-21.
On July 8, 2013, Mr. Black, the Inmate Grievance Program ("IGP") Supervisor, forwarded a memorandum to plaintiff advising that an investigation into plaintiff's grievance was ongoing. Dkt. No. 69-9 at 13. Hammond conducted the investigation and determined that a package was received from Grimmick on April 3, 2013 and April 12, 2013, but that plaintiff did not sign for the legal mail. Id. at 14. Hammond concluded that plaintiff's mail was lost and that his grievance "has merit." Id.
Mr. Black is not a defendant in this action.
On July 31, 2013, the Inmate Grievance Review Committee ("IGRC") issued a response accepting the grievance, in part. Dkt. No. 69-9 at 10. The committee found that packages were received from plaintiff's attorney on April 3, 2013 and April 12, 2013. Id. However, plaintiff did not sign for any legal mail on, or immediately after, those dates. The committee concluded that plaintiff's mail was lost. Id.
On August 14, 2013, plaintiff appealed the IGRC decision to the superintendent. Dkt. No. 69-9 at 10. Plaintiff did not mention Hammond or Goppert in that appeal. Dkt. No. 69-8 at 31. On August 15, 2013, Acting Superintendent Arthur Dirie ("Dirie"), issued a decision accepting the grievance, to the extent that plaintiff's mail was lost. Dkt. No. 69-9 at 9.
Dirie is not a defendant herein.
On August 19, 2013, plaintiff appealed the superintendent's decision to the Central Office Review Committee ("CORC"). Dkt. No. 69-9 at 9. Plaintiff did not mention Hammond or Goppert in the appeal. Dkt. No. 69-8 at 33. On January 15, 2014, the CORC upheld the superintendent's decision. Dkt. No. 69-9 at 3. The committee determined that plaintiff did not present sufficient evidence to substantiate retaliation or malfeasance by staff. Id.
C. Grievance Related to Freedom of Information Law ("FOIL") Request
On July 11, 2013, plaintiff filed a grievance (GNE 7846-13) regarding a "FOIL Issue." Dkt. No. 69-10 at 12. Plaintiff complained that he did not receive a response to his June 16, 2013 FOIL request seeking the names of individuals who signed for packages containing his legal documents. Id.; Dkt. No. 74 at 2. On August 15, 2013, Dirie accepted plaintiff's grievance "in part" and concluded that while plaintiff did not receive the requested items pursuant to FOIL, copies of plaintiff's request "have since been forwarded to him." Id. Plaintiff was directed to submit future FOIL requests to the facility FOIL officer, T. Johnson, in community supervision, and not to administrative staff, to avoid potential delays. Dkt. No 69-10 at 12.
On August 19, 2013, plaintiff appealed the superintendent's decision to the CORC. Dkt. No. 69-10 at 12. On January 2, 2014, the CORC upheld Dirie's decision, finding that on July 22, 2013, plaintiff received copies of the log book for "4/4/13 - 4/20/13." Dkt. No. 69-10 at 24.
D. Grievance Related to Snide
On July 24, 2013, plaintiff was summoned to the grievance office. Dkt. No. 1 at 6; Dkt. No. 69-10 at 8. Snide was present and asked plaintiff what he "would like to do with GNE 7830-13." Id. Plaintiff responded that the grievance should have been appealed to the superintendent in accordance with grievance time limits. Id. at 9. Snide threatened plaintiff with confinement at a "max prison" and directed plaintiff to "stop filing grievances." Id.
On August 1, 2013, plaintiff filed a grievance (GNE-7857-13) related to Snide's threats. Dkt. No. 69-10 at 7-9. Plaintiff also complained that his prior grievance was not timely processed and that he suffered from "violation[s] of grievance procedure[s]." Id. at 8.
On August 23, 2013, the superintendent issued a decision denying the grievance. Dkt. No. 69-10 at 10. The superintendent noted that Snide denied making any threats to plaintiff. Id. at 10, 15.
The name of the superintendent who issued that decision is not legible.
On August 27, 2013, plaintiff appealed the superintendent's decision to the CORC. Dkt. No. 69-10 at 10. On January 15, 2014, the CORC upheld the superintendent's decision. Dkt. No. 69-10 at 3. The committee determined that plaintiff did not present sufficient evidence to substantiate retaliation or malfeasance by staff. Id.
II. PROCEDURAL HISTORY
Plaintiff commenced this action with the filing of a complaint and an accompanying application to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2. Following an initial review of the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A, Senior District Judge Thomas J. McAvoy issued an order granting plaintiff's IFP application and approving the filing of his complaint subject to dismissal of all claims asserted against Dirie. See generally Dkt. No. 11.
On July 24, 2015, defendants filed a motion for summary judgment seeking dismissal of the complaint on multiple grounds, including (1) the lack of personal involvement of defendants Hammond and Goppert; (2) the lack of record evidence to give rise to a genuine dispute of material fact regarding whether Snide retaliated against plaintiff in violation of his First Amendment constitutional right; (3) Eleventh Amendment immunity; and (4) qualified immunity. See generally Dkt. No. 69. Plaintiff responded with the filing of his response in opposition to the defendants' motion and a cross-motion for summary judgment. Dkt. No. 74. Defendants have submitted a reply in further support of their motion. Dkt. No. 77. The parties' cross-motions, which are now fully briefed and ripe for determination, have been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3( c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Legal Standard Governing Motions for Summary Judgment
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Eleventh Amendment Immunity
Defendants maintain that, to the extent that plaintiff has sued them for damages in their official capacities, his complaint is subject to dismissal. Dkt. No. 69-12 at 11. Plaintiff has not responded to defendants' argument.
The Eleventh Amendment protects a state against suits brought in federal court by "private parties seeking to impose a liability which must be paid from public funds in the state treasury." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Cory v. White, 457 U.S. 85, 90-91 (1982); Ying Jing Gan v. City of N.Y., 996 F.2d 522, 529 (2d Cir. 1993). This absolute immunity, which states enjoy under the Eleventh Amendment, extends to both state agencies and state officials sued for damages in their official capacities when the essence of the plaintiff's claim seeks recovery from the state as the real party in interest. See, e.g., Daisernia v. State of N.Y., 582 F. Supp. 792, 798-99 (N.D.N.Y. 1984) (McCurn, J.) ("[A] suit which seeks a money judgment 'which must be paid from the state treasury is barred by the Eleventh Amendment,' even though it is nominally asserted against an individual official." (quoting Edelman, 415 U.S. at 663)); see also Richards v. State of N.Y.App. Div., Second Dep't, 597 F. Supp. 689, 691 (E.D.N.Y. 1984) (citing, inter alia, Cory v. White, 457 U.S. 85, 89-91, (1982)). "To the extent that a state official is sued for damages in his official capacity, such a suit is deemed to be a suit against the state, and the official is entitled to invoke the Eleventh Amendment immunity belonging to the state." Ying Jing Gan, 996 F.2d at 529; see also Hafer v. Melo, 502 U.S. 21, 25 (1991) ("Suits against state officials in their official capacity therefore should be treated as suits against the State.").
Plaintiff's damage claims in this action asserted against the named defendants in their official capacities are, in reality, claims against the State of New York, and therefore are subject to dismissal. Daisernia, 582 F. Supp. at 798-99. Accordingly, I recommend that, to the extent that the damage claims raised in plaintiff's complaint are asserted against any of the named defendants in their official capacities, those claims be dismissed.
C. Personal Involvement
Plaintiff alleges that defendants Hammond and Goppert are responsible for his lost or destroyed legal mail because, as commanding officers, they had knowledge of the illegal actions of their subordinates and failed to address the violations. Dkt. No. 74 at 2, 8. Defendants Hammond and Goppert argue that the record before the court fails to establish their involvement in any alleged constitutional violations.
"Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [42 U.S.C.] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977). As the Supreme Court has noted, a defendant may only be held accountable for his own actions under section 1983. See Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009) ("[P]etitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic."). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show "a tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). "To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law." Hendrickson v. U.S. Attorney Gen., No. 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994).
All unreported cases cited to in this decision have been appended to this report for the convenience of the pro se plaintiff.
With respect to individuals who, like defendants Hammond and Goppert, are sued in their capacities as supervisors, it is well-established that they cannot be liable for damages under section 1983 solely by virtue of being a supervisor. See Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003) ("[L]iability . . . cannot rest on respondeat superior."); Wright, 21 F.3d at 501. To establish responsibility on the part of a supervisory official for a civil rights violation, a plaintiff must demonstrate that the individual (1) directly participated in the challenged conduct; (2) after learning of the violation through a report or appeal, failed to remedy the wrong; (3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; (4) was grossly negligent in managing the subordinates who caused the unlawful event; or (5) failed to act on information indicating that unconstitutional acts were occurring. Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007), see also Richardson, 347 F.3d at 435; Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); Wright, 21 F.3d at 501.
The record before the court firmly establishes that Goppert was not involved in any of the alleged constitutional violations. Plaintiff did not observe Goppert tamper or otherwise interfere with plaintiff's legal mail, and concedes that he was never told that Goppert interfered with his mail. Dkt. No. 69-8 at 25. Plaintiff admitted that he never encountered Goppert while he was confined at Bare Hill. Id. at 23. Plaintiff testified that he identified Goppert in his complaint because "officers" told him that Goppert was in charge of the mailroom. Id. at 33-34. This notwithstanding, the record does not support that assertion. In support of defendants' summary judgment motion, Goppert has provided a declaration in which she avers that her responsibilities included supervising lieutenants, sergeants, and officers, and serving as a hearing officer. Dkt. No. 69-3 at 1. Goppert was not responsible for the handling of incoming or outgoing mail, and the record lacks any evidence suggesting that Goppert participated in the investigation related to plaintiff's grievance regarding the mail issue. Id.
In opposition to defendants' motion, plaintiff contends that he did not receive a response to his FOIL request seeking the names of the individuals who "signed for" the package containing his legal documents. Dkt. No. 74 at 2. The undisputed record does not support this claim. On June 16, 2013, plaintiff submitted the FOIL request to administrative staff. Dkt. No. 69-10 at 12, 24. On July 22, 2013, plaintiff received a copy of the log book for April 4, 2013 through April 20, 2013. Dkt. No. 69-10 at 24. Any delay in receiving the requested information was due to plaintiff's error in submitting the FOIL request to administrative staff rather than the facility FOIL officer. Id.
In sum, I find that plaintiff has failed to establish a basis for finding personal involvement on the part of Goppert for the alleged constitutional deprivations. Accordingly, I recommend that this portion of defendants' motion seeking dismissal of plaintiff's claims against defendant Goppert's be granted.
The court reaches a different conclusion with respect to defendant Hammond. In July 2013, Hammond conducted an investigation of plaintiff's grievance related to his legal mail. Dkt. No. 69-9 at 14. The participation of Hammond in the administrative grievance process sufficiently implicates her personal involvement in the constitutional violations alleged to survive summary judgment. See Keitt v. NYS Dep't of Corrs. and Cmty. Supervision, No. 11-CV-0855, 2015 WL 2383687, at *15 (W.D.N.Y. May 19, 2015) (finding sufficient personal involvement where the defendant investigated the plaintiff's claims) (citing Watson v. Wright, 2013 WL 1791079, *9 (W.D.N.Y. 2013), adopted 2013 WL 1789578 (Arcara, J.) ("A supervisor's detailed, specific response to a plaintiff's complaint may suffice to establish personal involvement.")). The facts before the court disclose the existence of a genuine, triable issue of material fact surrounding Hammond's personal involvement with plaintiff's legal mail.
In summary, I recommend that defendants' motion for summary judgment on the basis of lack of personal involvement be granted with respect to defendant Goppert, but denied as it relates to defendant Hammond.
D. Merits of Plaintiff's Claims Against Defendant Hammond
Defendants moved for summary judgment on the basis of lack of personal involvement and did not address the merits of plaintiff's claims against Hammond. "Where it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court and those materials show that no material dispute of fact exists and that the other party is entitled to judgment as a matter of law, a district court does not err in sua sponte granting summary judgment against the plaintiff." Parks v. Town of Greenburgh, 344 F. App'x 654, 655 (2d Cir. 2009) (citing Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir.1996)). In this instance, plaintiff was given notice of the court's consideration of summary judgment and had the opportunity to submit evidence in opposition to defendants' motion. See Bridgeway Corp. v. Citibank, 201 F.3d 134, 140 (2d Cir. 2000). Plaintiff did not raise any notice objection, and has not only submitted opposition to the motion, but has gone further and filed a cross-motion for summary judgment in his favor, on the merits. Thus, the court will address the merits of plaintiff's claims against Hammond.
Plaintiff contends that, as a result of the destruction of his legal mail, he was denied access to courts and deprived of equal protection. Dkt. No. 69-1 at 1. Plaintiff also alleges that Hammond destroyed his legal mail in retaliation for plaintiff filing a lawsuit against Miller. Dkt. No. 69-8 at 27.
1. Access to Courts
Undeniably, prisoners have a constitutional right to meaningfully access the courts. Bounds v. Smith, 430 U.S. 817, 824 (1977); accord, Lewis v. Casey, 518 U.S. 343, 350 (1996) ("The right that Bounds acknowledged was the (already well-established) right of access to the courts." (emphasis in original)). This right is implicated when prison officials "actively interfer[e] with inmates' attempts to prepare legal documents, or file them[.]" Lewis, 518 U.S. at 350 (citations omitted). A plaintiff asserting a denial of access to courts claim must allege that the defendant was "responsible for actions that hindered his efforts to pursue a legal claim." Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (quotation marks omitted).
Plaintiff claims that he "missed court imposed deadlines" as a result of defendants' "failure to turn over [his] legal mail." Dkt. No. 1 at 8. Plaintiff has failed to offer any specifics regarding those claims and to adduce proof from which a reasonable factfinder could conclude that he did indeed experience prejudice by virtue of defendants' failure to provide him his legal materials, leaving instead only his conclusory allegations without underlying evidentiary support. Collins v. Goord, 438 F. Supp. 2d 399, 418 (S.D.N.Y. 2006) (holding that vague allegations do not "substitute for the required showing of an 'actual injury' in a specific legal action resulting from the alleged deprivation"). Moreover, the docket in Nicholson I belies plaintiff's claims. On April 1, 2013, plaintiff filed a motion for leave to proceed in forma pauperis and an inmate authorization form in Nicholson I. Dkt. No. 4. From June 2013 through July 2014, when he was transferred out of Greene, the records show that plaintiff actively litigated the case, including by filing motions for the appointment of counsel, motions to reconsider prior rulings, and various discovery motions. These submissions do not suggest that any defendant tampered with plaintiff's legal mail, on a continuous and regular basis, resulting in any prejudice or injury.
The record now before the court does not support plaintiff's claim that he was denied access to the courts, nor does it establish the existence of prejudice suffered as a result of any such deprivation, if indeed it did occur. Accordingly, I recommend dismissal of plaintiff's court access claims as a matter of law.
2. Equal Protection
Plaintiff claims that he was treated differently from "other offenders who receive legal mail and of whom file grievances." Dkt. No. 1 at 8. The equal protection clause of the Fourteenth Amendment directs state actors to treat similarly situated people alike. City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To state a cognizable equal protection cause of action, a plaintiff must allege sufficient facts that plausibly suggest that he was treated differently than others similarly situated as a result of intentional or purposeful discrimination directed at an identifiable or suspect class. Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir.1995).
Plaintiff's complaint contains no specifics, nor does the record provide any amplification regarding this claim. Absent such specifics, I conclude that no reasonable factfinder could find that plaintiff was discriminated against on the basis of a suspect class or otherwise subject to invidious discrimination and therefore recommend dismissal of his equal protection claims. See Jackson v. Burke, 256 F.3d 93, 96-97 (2d Cir. 2001).
3. Retaliation
A cognizable section 1983 retaliation claim lies when prison officials take adverse action against an inmate, motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N .Y., 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). The Second Circuit has cautioned, however, that, because of "the ease with which claims of retaliation may be fabricated, courts should examine prisoners' claims of retaliation with skepticism and particular care." Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2013).
To establish a claim under section 1983 for unlawful retaliation, a plaintiff must prove that (1) he engaged in protected conduct, (2) the defendants took adverse action against him, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007). "[P]rison officials' conduct constitutes an 'adverse action' when it "would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights." Alicea v. Howell, 387 F. Supp. 2d 227, 237 (W.D.N.Y. 2005) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)).
As to the first element of the retaliation claim, it is well settled that the filing of grievances and lawsuits constitutes protected activity for purposes of a First Amendment retaliation analysis. See Johnson v. Eggersdorf, 8 F. App'x 140, 144 (2d Cir. 2001) ("It is undisputed that retaliation by prison officials against an inmate for the filing of a grievance can act as a deprivation of a constitutionally protected right."). Here, it is undisputed that plaintiff filed a grievance and lawsuit against Miller.
With respect to the second element, the undisputed record establishes that plaintiff's legal mail was "lost" on two occasions. As was discussed above, plaintiff failed to prove that he suffered any injury as a result of the tampering. Thus, plaintiff has failed to establish that the alleged conduct would deter an ordinary individual from exercising his constitutional rights. See Islam v. Goord, No. 05-CV-7502, 2006 WL 2819651, at *7 (S.D.N.Y. Sept. 29, 2006).
Even assuming that the loss of legal mail constitutes an adverse action, plaintiff must establish the third element of the retaliation analysis, causation. Here, plaintiff relies upon the temporal proximity between the protected conduct and the retaliatory act to establish this third required element. Dkt. No. 1 at 8. Several factors may be considered in determining whether a causal connection exists between the plaintiff's protected activity and a prison official's actions. In the case of an allegedly false, retaliatory misbehavior report issued to an inmate, the analysis is informed by such factors as (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation. Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing Colon, 58 F.3d at 872-73). In any case, the causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action. Baskerville, 224 F. Supp. 2d at 732.
In March 2013, plaintiff filed his complaint in Nicholson I. One month later, in April 2013, plaintiff's legal mail was lost. While the chronology of events favors a finding of causal connection, plaintiff may not rely upon temporal proximity alone to defeat summary judgment. Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (finding that temporal proximity between protected conduct and an adverse action constitutes circumstantial evidence of retaliation). To this end, plaintiff has not cited any evidence aside from temporal proximity that supports the requisite nexus. The record does not contain any proof from which a reasonable factfinder could conclude that any action by Hammond was motivated by plaintiff's filing of grievances or a lawsuit against Miller. Hammond is not named as a defendant in Nicholson I, and is not referenced anywhere in the complaint in that action. See Nicholson I (Dkt. No. 1). Plaintiff did not encounter Hammond while he was confined at Bare Hill. Dkt. No. 69-8 at 24. Similarly, plaintiff did not encounter Miller while he was confined at Greene. Dkt. No. 69-8 at 28. There is no evidence of any connection between Miller and Hammond and, indeed, no evidence that Hammond was even aware that plaintiff filed grievances or a lawsuit against Miller. Plaintiff did not mention Hammond or Miller in the June 2013 grievance. Dkt. No. 69-8 at 28. The evidence now in the record fails to establish a connection between Hammond and plaintiff's grievance and lawsuit against Miller. The record is barren of any evidence from which a reasonable factfinder could conclude that Hammond retaliated against plaintiff for grievances and a lawsuit against Miller. In view of these facts, I conclude that plaintiff has not shown a cognizable retaliation claim against Hammond.
E. Merits of Plaintiff's Claims Against Snide
Defendants move for summary judgment and dismissal of all claims against defendant Snide, arguing that plaintiff does not have a constitutional right to file grievances. Defendants also contend that plaintiff's retaliation claim is subject to dismissal because verbal threats do not constitute adverse actions. Dkt. No. 69-12 at 8-11. Plaintiff did not respond to defendants' arguments. See generally Dkt. No. 74.
1. Grievance Procedures
Prison inmates have no constitutionally protected right of access to an administrative grievance process at a prison facility. Rhodes v. Hoy, No. 05-CV-836, 2007 WL 1343649, at *6 (N.D.N.Y. May 5, 2007) (Scullin, J .) (noting that inmates have "no constitutional right of access to the established inmate grievance program"); Davis v. Buffardi, No. 01-CV-0285, 2005 WL 1174088, at *3 (N.D.N.Y. May 4, 2005) (Magnuson, J.) ("[P]articipation in an inmate grievance process is not a constitutionally protected right."). Claims that arise under state law and regulation are not cognizable under section 1983. Pollnow v. Glennon, 757 F.2d 496, 501 (2d Cir. 1985) ("[A] violation of state law is not cognizable under § 1983."). For this reason internal regulations governing prison grievance procedures do not give rise to federally protected liberty interests, and the alleged failure of prison officials to follow prescribed procedures associated with an established grievance process does not support a civil rights claim under section 1983, absent the independent deprivation of a right protected under the Constitution, or by federal statute. See Shell v. Brzezniak, 365 F. Supp. 2d 362, 370 (W.D.N.Y. 2005) ("[I]nmate grievance programs created by state law are not required by the Constitution and consequently allegations that prison officials violated those procedures does not give rise to a cognizable § 1983 claim."); Aho v. Hughes, No. 03-CV-1552, 2005 WL 2452573, at *7 (D.Conn. Sept. 30, 2005) (noting that the "failure of a correctional official to comply with the institutional grievance procedures is not cognizable in an action filed pursuant to 42 U.S.C. § 1983, unless the action caused the denial of a constitutionally or federally protected right"); Cancel v. Goord, No. 00-CV-2042, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001) ("While there is a First Amendment right of meaningful access to the courts and a right to petition the government for redress, inmate grievance procedures are not required by the Constitution and therefore a violation of such procedures does not give rise to a claim under § 1983.") (internal citations omitted); see also Hunnicutt v. Armstrong, 305 F. Supp. 2d 175, 188 (D. Conn. 2004), vacated on other grounds, 152 F. App'x 24 (2d Cir. 2005).
Accordingly, based upon my finding that plaintiff did not suffer a constitutional deprivation in this regard, I recommend that Snide's motion seeking dismissal of this claim be granted.
2. Retaliation Based Upon Verbal Harassment
Section 1983 was not designed to rectify harassment or verbal abuse. Alnutt v. Cleary, 913 F. Supp. 160, 165-66 (W.D.N.Y. 1996). As such, the mere allegation by a prison inmate that he or she has experienced verbal abuse from prison workers does not rise to the level of a constitutional violation, and is not independently cognizable under 42 U.S.C. § 1983. See Moncrieffe v. Witbeck, No. 97-CV-0253, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000) (Mordue, J.) (allegations that corrections officer laughed at inmate not actionable under section 1983); Carpio v. Walker, No. 95-CV-1502, 1997 WL 642543, at *6 (N.D.N.Y. Oct.15, 1997) (Pooler, J. & DiBianco, M.J.) ("Verbal harassment alone, unaccompanied by any injury, no matter how inappropriate, unprofessional, or reprehensible it might seem, does not rise to the level of an Eighth Amendment violation.").
Plaintiff's claims regarding verbal harassment extend beyond merely asserting that it represents a constitutional violation in and of itself. Plaintiff's claims against Snide are directly tied to grievances against his fellow workers. Plaintiff alleges, for example, that Snide verbally threatened him "in response to plaintiff's filing of grievances against Hammond and Goppert." Dkt. No. 69-1 at 3.
While in some instances verbal threats may suffice to constitute adverse action for purposes of a retaliation claim, whether they do in a particular case is dependent upon the specificity of the threat and the context in which it was made. Compare Hepworth v. Suffolk Cnty., No. 02-CV-6473, 2006 WL 2844408, at *8-9 (E.D.N.Y. Sept. 29, 2006) (numerous verbal threats that inmate "would receive another beating or be killed" was enough evidence that a "reasonable jury could find that the officers unconstitutionally retaliated against" inmate) with Bartley v. Collins, No. 05-CV-10161, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (threats such as "we going to get you, you better drop the suit," do not rise to the level of adverse action); Alicea, 387 F. Supp. 2d at 237 ("[Defendant's] alleged statements to plaintiff about there being 'no secrets in prison' and that plaintiff would 'have to pay the consequences' for filing a grievance against [defendant] do not give rise to a First Amendment retaliation claim," especially when the threat was never carried out).
Considered against this backdrop, I conclude that plaintiff's allegations against Snide, even if true, claim nothing more than simple verbal harassment which does not rise to a level of constitutional significance. Snide's alleged verbal threat never came to fruition and is patently insufficient to establish adverse action and support a plausible retaliation claim. Plaintiff's failure to allege any other specific adverse action taken by Snide is further fatal to this cause of action.
Because plaintiff has failed to adduce any evidence of adverse action taken against him by Snide as a result of the grievances he filed, I have concluded that he has failed to come forward with sufficient facts to support a plausible claim for retaliation, and I therefore recommend that defendants' motion for summary judgment dismissing that cause of action be granted.
IV. SUMMARY AND RECOMMENDATION
Neither plaintiff's complaint nor the record before the court discloses any basis for finding personal involvement on the part of Goppert in the constitutional deprivations alleged. Turning to the merits of the claims advanced by the plaintiff against Hammond, I conclude that plaintiff's complaint is deficient insofar as it alleges a denial of court access based upon the fact that plaintiff has not established the existence of any injury or prejudice resulting from the loss of his legal mail. I further find that no reasonable factfinder could return a verdict in plaintiff's favor with regard to his equal protection claim. I also find that the record lacks any evidence from which a reasonable factfinder could conclude that Hammond retaliated against plaintiff based upon the lack of showing of any connection between plaintiff's grievance and lawsuit against Miller and any action by Hammond. I also recommend dismissal of plaintiff's claims against Snide based upon plaintiff's failure to establish the existence of a federally protected right of access to the grievance process at Greene, and the lack of any evidence in the record to support a claim for retaliation. Finally, I find that all claims against the defendants for damages in their official capacities are subject to dismissal on the basis of the Eleventh Amendment.
In light of my recommendations that defendants' motion be granted in its entirety based on the merits, I find it unnecessary to address defendants' alternative qualified immunity argument.
It is therefore hereby respectfully
RECOMMENDED that plaintiff's motion for summary judgment (Dkt. No. 74) be DENIED; and it is further
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 69) dismissing all claims in this action be GRANTED, and judgment be entered dismissing plaintiff's complaint in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir.1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: May 19, 2016
Syracuse, New York
/s/_________
David E. Peebles
U.S. Magistrate Judge