Opinion
95 Civ. 8581 (MBM)
August 21, 2002
ABDVJLLAH Y. SALAHUDDIN, (Plaintiff pro se) 78-A-1148 Attica Correctional Facility, Attica, N.Y.
ELIOT L. SPITZER, ESQ., Attorney General of the State of New York BRUCE BROWN, ESQ., Assistant Attorney General (Attorneys for Defendants) New York, N.Y.
OPINION AND ORDER
Plaintiff Abdullah Salahuddin, an inmate at the Attica Correctional Facility, filed this § 1983 action pro se against defendants Sergeant Mead, Superintendent Robert Kuhlman, and Commissioner Philip Coombe of the Department of Correctional Facilities. Salahuddin claims that defendants violated his right to the free exercise of religion guaranteed by the First and Fourteenth Amendments of the U.S. Constitution and by New York law, and that defendant Mead retaliated against him for the exercise of his First Amendment right to file grievances against prison officials. In an earlier opinion, familiarity with which is assumed, I granted defendants' motion to dismiss the free exercise claim for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Salahuddin v. Mead, 95 Civ. 8581, 2000 WL 335552 (S.D.N.Y. Mar. 30, 2000). Defendant Mead now moves to dismiss the retaliation claim on the pleadings under Fed.R.Civ.P. 12(c). For the reasons set forth below, defendant's motion is granted, and plaintiff's complaint is dismissed.
I.
The facts alleged in plaintiff's pleadings, accepted as true for the purposes of this motion, are as follows: At the time of the events at issue, plaintiff was an inmate at the Sullivan Correctional Facility. (Am. Compl. ¶ 4) In December 1994, plaintiff was placed on "call-out" status by the facility's Muslim clergyman, Chaplain Muhammed. (Id. ¶ 14) This entitled plaintiff to be excused from supervised activity at the chaplain's request in order to prepare for plaintiff's upcoming marriage. (Id.) Upon receiving a call from the clergyman who would perform the wedding, Chaplain Muhammad was to call plaintiff to his office. (Id.) Shortly thereafter, while at his work assignment, plaintiff's work supervisor informed him that the chaplain had called for him. (Id. ¶ 15) However, when Sergeant Mead learned of plaintiff's call-out, Mead, who was responsible for investigating a separate grievance made by plaintiff regarding his diet, ordered plaintiff to return to his work assignment without seeing the chaplain. (Id. ¶ 16) Mead then instructed plaintiff's work supervisor not to issue a call-out pass to plaintiff unless there was an emergency. (Id. ¶ 17).
Although a court generally may not look beyond the pleadings when reviewing a Rule 12(c) motion, Fed.R.Civ.P. 10(c) authorizes the court to consider any exhibits mentioned in and attached to the pleadinqs. See Fed.R.Civ.P. 10(c) ("A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes."); Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985). Here, plaintiff has attached 13 exhibits to his complaint. These exhibits will be treated as part of plaintiff's pleadings for the purposes of this motion.
In a second incident, on or about January 12, 1995, plaintiff learned that his daughter was "seriously hospitalized," and sought permission to visit Chaplain Muhammad in order to call her. (Id. ¶ 18) At that point, plaintiff was still on the prison's approved call-out list, but his work supervisor told him that Sergeant Mead had said not to issue plaintiff any call-out passes absent an emergency. (Id. ¶ 20) Plaintiff called Chaplain Muhammad, who in turn called the work supervisor and asked that he send plaintiff to see the chaplain. (Id.) Before the supervisor could issue a pass, however, the area officer called a "noon count," for which all inmates had to return to their housing units. (Id.) At the end of the noon count, Chaplain Muhammed called plaintiff's housing unit officer, and instructed the officer to issue a pass to plaintiff. (Id. ¶ 21) The officer issued the pass. (Id.) Before plaintiff could use the pass, however, Sergeant Mead entered plaintiff's housing unit and inquired why plaintiff had been issued a pass. (Id.) The unit officer told Mead about Chaplain Muhammad's telephone call, but Mead ordered the officer to cancel the pass, reminding plaintiff that, under facility regulations, the only reason an inmate could leave his job assignment was for religious services. (Id. ¶ 22) When plaintiff informed Mead about his daughter's hospitalization, Mead responded that plaintiff's family problem was not classified as an emergency under facility policy. (Id.) Plaintiff then protested that Mead was violating his religious rights. Mead replied that plaintiff's problem did not merit a call-out, and that plaintiff had to return to his work assignment. (Id. ¶ 23).
The next day, plaintiff wrote to Superintendent Kuhlman about the incidents involving Sergeant Mead. (Compl. Ex. 7) Approximately two days later, due to recent violence at the facility, a general cell facility search was conducted for the purpose of finding contraband. (Am. Compl. ¶ 24) During this general search, Sergeant Mead, allegedly in retaliation for the plaintiff's complaint to Kuhlmann about Mead's conduct, told another officer, "I want Salahuddin's cell searched with a fine tooth comb. Anything found that look [sic] like contraband, bring it to me. I'll show this cock sucker, he's just an ordinary inmate, and whose [sic] boss." (Compl. Ex. 8) As a result of the search, plaintiff was forced to send home, at his own expense, books that he had previously been allowed to keep in the cell notwithstanding the 25-book limit imposed by the facility. (Compl. Exs. 8, 10) Plaintiff responded to the search by filing a formal complaint against Mead with Superintendant Kuhlmann. (Compl. Ex. 8) In this complaint, plaintiff alleged that officer Fisher, in addition to conducting a search that "deviated from policy," mishandled plaintiff's Quran and threw it on the floor. (Id.) After writing a follow-up letter to Kuhlmann (Compl. Ex. 10), plaintiff filed a formal complaint with Commissioner Coombe, who informed plaintiff that he had to comply with facility policies regarding call-outs. (Am. Compl. ¶¶ 26-28).
After receiving Coomb's answer, plaintiff commenced this lawsuit pursuant to 42 U.S.C. § 1983, alleging a violation of his rights under the First and Fourteenth Amendments of the U.S. Constitution. I dismissed the case initially on the ground that plaintiff had not exhausted state administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"). Salahuddin v. Mead, No. 95 Civ. 8581, 1997 WL 357980 (S.D.N.Y. June 26, 1997). However, the Court of Appeals held that because the PLRA did not apply retroactively, plaintiff was not required to exhaust state remedies before pursuing remedial measures in court. Salahuddin v. Mead, 174 F.3d 271 (2d Cir. 1999). Defendants then filed an amended motion to dismiss on three remaining grounds: failure to state a claim, failure to allege personal involvement of two of the defendants, and qualified immunity. With respect to the free exercise claim, I granted the motion to dismiss on all three grounds. Salahuddin v. Mead, No. 95 Civ. 8581, 2000 WL 335552 (S.D.N.Y. Mar. 20, 2000). However, I reserved judgment on the retaliation claim against defendant Mead, which was not addressed by defendants' amended motion to dismiss.
II.
Defendant Mead moves to dismiss Salahuddin's complaint under Fed.R.Civ.P. 12(c), which provides for judgment on the pleadings "where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings." Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). The Rule 12(c) standard is the same as that applied under Rule 12(b)(6). Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Thus, as with Rule 12(b)(6) motions, although the court must construe the claims of a pro se plaintiff generously, see Haines v. Kerner, 404 U.S. 519, 520 (1972), a court may dismiss an action where "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
The Second Circuit has emphasized that retaliation claims by prisoners must be treated with skepticism. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). This skepticism is warranted because prisoners can claim retaliation for every decision they dislike. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Accordingly, a complaint of retaliation must not be "wholly conclusory," see Graham, 89 F.3d at 79, and must include highly detailed factual allegations. Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987).
To survive a Rule 12(c) motion in a First Amendment retaliation case, a plaintiff must make non-conclusory allegations establishing: (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 speech and the adverse action. See, e.g., Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001); Thaddeus-X v. Blatter, 175 F.3d 378, 386-87 (6th Cir. 1999) (en banc) (per curiam).
III.
Plaintiff alleges that defendant Mead retaliated against him for filing a formal complaint with Superintendant Kuhlman. Filing a grievance against a prison officer is protected by the First and Fourteenth Amendments of the U.S. Constitution. See United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 217, 222 (1967) ("[T]he right to . . . petition for a redress of grievances [is] among the most precious of the liberties safeguarded by the Bill of Rights."). Because filing a grievance is constitutionally protected, retaliation against prisoners who file grievances is actionable under § 1983. See Graham, 89 F.3d at 80.
In his Responsive Statement, plaintiff also alleges, for the first time, that defendant Mead's refusal to permit plaintiff to leave his assigned work program to see Chaplain Muhammed was itself motivated by the dietary grievance that Mead was investigating. Although plaintiff does not identify the substance of his "food problem grievance" (Am. Compl. ¶ 15), his right to file a grievance about prison food is also protected by the First and Fourteenth Amendments of the U.S. Constitution. See United Mine Workers, 389 U.S. at 222.
"Responsive-Statement" refers to plaintiff's "Statement of Facts and Response to Defendant's Summary Judgment Motion" filed December 28, 2000.
IV.
Although filing grievances is constitutionally protected, plaintiff's pleadings do not adequately allege unlawful retaliation under the second prong of the retaliation standard, because Sergeant Mead's statements and conduct with respect to the search of plaintiff's cell do not rise to the level of actionable retaliation. The Second Circuit has held that "[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Dawes, 239 F.3d at 493; see also Thaddeus X 175 F.3d at 397 (holding that retaliatory acts that do not chill constitutionally protected activity are not actionable); Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996) (en banc) (holding that a retaliation claim requires "some de minimis showing of injury"), vacated on other grounds, 523 U.S. 574 (1998); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982) (Posner, J.) ("It would trivialize the First Amendment to hold that harassment for exercising the right of free speech was always actionable no matter how unlikely to deter a person of ordinary firmness from that exercise."). When retaliatory conduct does not chill the exercise of constitutional rights, the conduct is de minimis, and is "outside the ambit of constitutional protection." Dawes, 239 F.3d at 493; Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (per curiam).
To determine whether or not alleged retaliatory acts are de minimis, the court must tailor its inquiry to the specific context in which the alleged acts took place, in this case a state prison. See Dawes, 239 F.3d at 492; see also Thaddeus X, 175 F.3d at 398 ("Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before an action taken against them is considered adverse."). Thus, in retaliation actions by prisoners, courts have found that a range of potentially retaliatory acts by prison officers are legally insufficient to state a retaliation claim. See, e.g., Morales v. Mackalm, 278 F.3d 126, 131-32 (2d Cir. 2002) (finding that an officer's reference to plaintiff as a "stoolie," intended to stigmatize plaintiff as an informant, was insufficient to support a claim for retaliation); Dawes, 239 F.3d at 493 (concluding that an officer's references to plaintiff as a "rat" and an "informant," combined with plaintiff's conclusory allegations that the references exposed him to assault from other inmates, were insufficient to support a claim for retaliation); ACLU of Md. v. Wicomico County, 999 F.2d 780, 786 n. 6 (4th Cir. 1993) (holding that termination of an ACLU paralegal's privileges to visit with inmates resulted in "no more than a de minimis inconvenience that, on the facts of the case, did not constitute cognizable retaliation under the First Amendment"); Rivera v. Goord, 119 F. Supp.2d 327, 340 (S.D.N.Y. 2000) (dismissing retaliation claim against defendant who "shoved" an inmate on the ground that the harm was de minimis).
Here, plaintiff alleges that, before a general facility search, defendant Mead instructed a subordinate to pay special attention to plaintiff's cell, and that, when books were found in the cell that were, as plaintiff concedes (see Compl. Ex. 10), beyond the 25-book limit set by the facility, plaintiff was forced to send those books home. To the extent that any retaliatory act took place, therefore, it amounted to an especially thorough search of plaintiff's cell followed by the enforcement of a preexisting regulation.
Although plaintiff also alleges that Fisher, who searched the cell, mishandled plaintiff's Quran (Compl. Ex. 8), Fisher is not a defendant in this action. Moreover, Mead cannot be liable for any mishandling of the Quran because he was not personally involved in the search and, even under the facts presented by plaintiff, did not instruct Fisher to do anything more than search Salahuddin's cell for contraband.See Champion v. Artuz, 76 F.3d 483, 486-87 (2d Cir. 1996) (affirming dismissal of retaliation action because defendants had no personal involvement in the alleged retaliatory conduct); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (noting that personal involvement by the defendant is essential to a § 1983 action, and laying out the factors to be considered in determining whether a defendant was personally involved).
These alleged harms are quite unlike the harms that courts in this circuit have identified as legally sufficient for retaliation actions.See, e.g., Morales, 278 F.3d at 131-32 (allegation that plaintiff was transferred to a psychiatric facility in retaliation for filing a sexual harassment grievance against defendant); Graham, 89 F.3d at 80-81 (allegation that defendants filed false misbehavior reports against plaintiff in retaliation for his leadership in filing a grievance to protest the removal of workshop showers); Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995) (allegation that defendant planted contraband in his cell in retaliation for plaintiff's filing two lawsuits against the facility); Jones v. Coughlin, 45 F.3d 677, 680 (2d Cir. 1995) (allegation that defendants, in retaliation for plaintiff's filing administrative complaint, filed a false misbehavior report that led to 120 days of punitive segregation); Ali v. Szabo, 81 F. Supp.2d 447, 468-69 (S.D.N.Y. 2000) (allegation that defendant instituted a new rule in the prison restricting the right to wear kuf is aimed specifically at plaintiff, who was the only inmate in possession of a kufi); Van Pelt v. Finn, 92 Civ. 2977, 1993 WL 465297, at *45 (S.D.N.Y. Nov. 12, 1993) (allegation that defendants, upon learning about letters written by plaintiff to defendant's supervisor, reassigned plaintiff to a less desirable job with lower pay).
In each of these cases, the alleged retaliatory conduct was specifically directed at plaintiffs and substantial enough to deter legitimate grievances against prison officers. In this case, on the other hand, plaintiff has alleged no special deprivation that would deter a prisoner, whose cell can be searched at any time, see Hudson v. Palmer, 468 U.S. 517, 527-28 (1984), and whose interactions with the outside world are subject to extensive regulation by prison authorities, see Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989), from continuing to file grievances against prison officials.
V.
Plaintiff also fails to meet the second prong of the retaliation test, i.e. the requirement that he be subjected to an adverse act, on an alternative ground. Many courts in this district have concluded that a retaliatory cell search is insufficient to support a First Amendment retaliation claim. See Walker v. Keyser, 98 Civ. 5217, 2001 WL 1160588, at *9 (S.D.N.Y. Oct. 2, 2001) ("[R]etaliatory searches are not actionable under § 1983."); Walker v. Goord, 98 Civ. 5217, 2000 WL 297249, at *4 (S.D.N.Y. Mar. 22, 2000) (same); Bey v. Eggleston, 96 Civ. 3302, 1998 WL 118158, at *4 (S.D.N.Y. Mar. 17, 1998) ("A search of an inmate — even for retaliatory reasons — does not implicate a constitutional right."); Gadson v. Goord, 96 Civ. 7544, 1997 WL 714878, *7 (S.D.N.Y. Nov. 17, 1997) ("[S]earches of cells implicate no constitutional rights, even if the search is arbitrary or retaliatory in nature."); Higgins v. Artuz, 94 Civ. 4810, 1997 WL 466505, at *4 (S.D.N.Y. Aug. 14, 1997) (same).
Plaintiff cites Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996) for the proposition that a retaliatory search of an inmate's cell is an actionable claim. (See Responsive Statement, at ¶ 28) However, Champion is inapposite. In that case, the retaliation claim was dismissed on the threshold ground that the defendants were not personally involved in the cell search. Champion, 76 F.3d at 486-87. The Second Circuit has not directly addressed the question of whether a retaliatory search can create an actionable claim.
In concluding that retaliatory cell searches are not actionable under § 1983, these courts have relied on Hudson v. Palmer, 468 U.S. 517 (1984), where the Supreme Court held that a prisoner has no reasonable expectation of privacy in his prison cell entitling him to the protection of the Fourth Amendment against unreasonable searches. Id. at 525-26. The Hudson court recognized that cell searches play a uniquely crucial role in prison administration, see id. at 527 ("[I]t would be literally impossible to accomplish the prison objectives . . . if inmates retained a right to privacy in their cells."), and that prison officials must have broad discretion in deciding when and why to search cells, see id. ("Unfettered access to these cells by prison officials . . . is imperative if drugs and contraband are to be ferreted out and sanitary surroundings are to be maintained.").
At the very least, Hudson supports the proposition that a cell search is different from the various administrative decisions that are actionable under § 1983 if they are retaliatory. Cf. Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (noting that "a claim for relief can be stated under section 1983 if otherwise routine administrative decisions are made in retaliation for the exercise of constitutionally protected rights"). Unlike prisoner job assignments, for example, cell searches are so fundamental to the effective administration of prisons and to the safety of prisoners and staff that the searches should not be second-guessed for motivation or arbitrariness.
Of course, precluding retaliation actions based on cell searches does not deprive inmates of all available remedies for egregious conduct by prison officers. Inmates still have a remedy under the Eighth Amendment, as well as state tort law, for deliberate harassment unrelated to prison needs. See Hudson, 468 U.S. at 530.
Here, plaintiff does not allege that he was singled out for a search, nor does plaintiff go beyond the bare assertion that "[m]y cell, I believe was search [sic] in a manner that deviated from policy." (Compl. Ex. 8) Ultimately, plaintiff alleges only that the search of his cell was conducted differently from other contemporaneous searches. In light of the principles laid out in Hudson and applied by courts in this district to prisoner retaliation cases, this harm cannot support a retaliation claim.
VI.
The existence of a causal connection between the cell search and Salahuddin's grievance against Mead is immaterial, because plaintiff has not adequately alleged an adverse action by Mead with respect to the search. Even if there is such a connection, the claim must be dismissed on the pleadings based on plaintiff's failure to establish that defendant took adverse action against him.
Had plaintiff adequately alleged an adverse action, plaintiff's allegation that Mead ordered the search of plaintiff's cell just a day after plaintiff filed his grievance probably would be sufficient to present a triable issue of fact on the question of causation. Although temporal proximity between constitutionally protected activity and potentially retaliatory activity generally will not, on its own, allow a plaintiff to withstand a motion to dismiss, see Nunez v. Goord, 172 F. Supp.2d 417, 432 (S.D.N.Y. 2001), the direct evidence of retaliation presented by plaintiff, i.e. defendant's statement to Fisher, combined with the temporal proximity between the parties' actions, would preclude the court from resolving the issue of causation on the pleadings alone. See Colon, 58 F.3d at 872-73 (plaintiff adequately alleged causation where direct evidence of defendant's motive was presented along with evidence of temporal proximity); see also Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (plaintiff adequately alleged causation where he alleged that defendant was personally involved in the decision to transfer plaintiff to psychiatric facility, soon after plaintiff filed sexual harassment grievance against defendant). Moreover, although, in the summary judgment context, defendant in a retaliation action can rebut plaintiff's prima facie case through a showing that an adverse action would have taken place even in the absence of the protected activity, see Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994), Mead has moved to dismiss the complaint on the pleadings and thus, only the prima facie case is relevant.
To dismiss plaintiff's remaining allegation, on the other hand, namely the allegation that Mead's refusal to allow Salahuddin to see Chaplain Muhammed was motivated by Salahuddin's dietary grievance against the prison, the extent of the harm to Salahuddin need not be measured. Whether or not Mead's decision to prevent plaintiff from seeing the chaplain resulted in a cognizable harm to Salahuddin, Salahuddin cannot establish the necessary causal link between his complaint about the prison food and Mead's application of the facility rules regarding call-outs. Aside from the apparent temporal proximity between the complaint and Mead's action, plaintiff has alleged no other facts to support the inference that Mead's application of the call-out rules was motivated by plaintiff's grievance about the food in the prison. See Nunez v. Goord, 172 F. Supp.2d 417, 432 (S.D.N.Y. 2001) (temporal proximity alone is insufficient to establish causation). Rather, plaintiff has merely juxtaposed the dietary grievance he filed with Mead's allegedly retaliatory act, and asserted that the former brought about the latter. Plaintiff's allegation that Mead retaliated against him for his dietary grievance, therefore, is "wholly conclusory," and is dismissed on the pleadings. See Graham, 89 F.3d at 79 (2d Cir. 1996) ("A complaint of retaliation that is `wholly conclusory' can be dismissed on the pleadings alone.").
There is also a sentence in plaintiff's Responsive Statement suggesting that, in refusing to allow plaintiff to see Chaplain Muhammed, Mead was motivated by plaintiff's "exercise of his religious rights" rather than the dietary grievance. See Responsive Statement at ¶ 26. Even if this allegation were not wholly conclusory, Mead's retaliatory conduct would not be actionable because plaintiff's "exercise of his religious rights" amounted to requests for individual counseling during the hours designated for the prison work program. This is not constitutionally protected activity. See Salahuddin v. Mead, 95 Civ. 8581, 2000 WL 335552, at *11 (S.D.N.Y. Mar. 30, 2000).
VII.
Because plaintiff has not made out a prima facie case of retaliation, I need not reach the issue of whether Mead is entitled to qualified immunity. See Kerman v. City of New York, 261 F.3d 229, 235 (2d Cir. 2001) ("`When determining whether qualified immunity protects an official, we must first determine whether the plaintiff has presented facts which, if proven, demonstrate that the defendant violated a constitutional right.'") (quoting Monday v. Oullette, 118 F.3d 1099, 1102 (6th Cir. 1997)).* * *
For the reasons stated above, defendant's motion for judgment on the pleadings is granted, and the complaint is dismissed.