Opinion
97 Civ. 1265 (JSM).
December 20, 2000.
OPINION and ORDER
Inmate Andre Smith ("Plaintiff") brings this action pursuant to § 1983 claiming that Officer Jay Deckelbaum ("Deckelbaum") issued a false misbehavior report against Plaintiff in retaliation for a complaint that Plaintiff filed against Deckelbaum, and claiming that Captain Terrence McElroy ("McElroy") removed Plaintiff from his job in order to further Deckelbaum's scheme of retaliation. The defendants move for summary judgment. For the reasons set forth below, the defendants' motion is granted.
Plaintiff's claim against Deputy Superintendent was dismissed in an earlier opinion of this court.
I. BACKGROUND
In September 1996, Plaintiff was employed as "feed up captain" in the Housing Block-A Mess Hall at Sing Sing Correctional Facility. In this job, Plaintiff was released early in the morning to prepare food trays for the inmates in keep-lock. Plaintiff's immediate supervisor was Deckelbaum. In April 1996, Deckelbaum had issued an Inmate Counseling Notification ("Form 101") recommending that Plaintiff be removed from his job because he was often late, had a confrontational attitude and poor work performance, and lacked cooperation. (Deckelbaum Aff. Ex. C.) Plaintiff alleges that he and Deckelbaum had an arrangement in which Plaintiff would sneak food out of the mess hall to sell to inmates in exchange for cartons of cigarettes ("ten-packs"). Plaintiff would then share the ten-packs with Deckelbaum. Exactly when this scheme originated or how often it was executed is unclear, and Deckelbaum of course denies any such scheme.
The precise chronology of events is something of a muddle, due in part to Plaintiff's confusing deposition testimony.
On September 5 and 6, 1996, Plaintiff did not report for work because he tore a muscle in his right arm. Plaintiff claims that he received a medical release excusing him from work for one to two weeks. Plaintiff alleges the following: Despite the fact that Plaintiff's medical release was posted on the board, Deckelbaum came to his cell on September 8th and asked why Plaintiff had not been at work. Deckelbaum told Plaintiff that he did not care that Plaintiff was injured, and that he should report back to work. Deckelbaum's concern apparently stemmed from Plaintiff's inability to procure ten-packs when he was not at work, although whether this inability to obtain the ten-packs occurred at this time or sometime later is unclear. Deckelbaum thereafter came to see Plaintiff two or three more times and told him to report to work. Deckelbaum, on the other hand, claims that Plaintiff reported to work on September 7th, at which time Deckelbaum told him that in the future he should let Deckelbaum know if he could not come to work. On September 7th or 8th, Deckelbaum filled out a Form 101 and an Inmate Misbehavior Report, apparently because Plaintiff was absent without a medical pass. Neither Plaintiff's medical pass nor these disciplinary forms have been produced for the Court.
On September 9, 1996, Plaintiff filed a complaint against Deckelbaum for harassment. (Smith Dep. Ex. B.) The complaint does not mention anything about the ten-pack scheme, focusing instead on Deckelbaum's refusal to acknowledge that Plaintiff had been excused from work for medical reasons. Plaintiff notes in his deposition that corrections officers typically receive copies of inmate complaints within one to three days, and claims that on September 10 or 11, 1996, Deckelbaum said to him something like "you want to write grievance" or "you like to write reports." (Smith Aff. at 2; Smith Dep. at 70.) Plaintiff translates this statement at his deposition to mean: "You like to write reports? You pay the price." (Smith Dep. at 70-73.) Plaintiff also alleges that sometime between September 5th and November 30th, Deckelbaum told him that he was going to replace him. (Smith Dep. at 60.) On September 25, 1996, Deckelbaum responded in writing to Plaintiff's complaint, giving the version of events described above. (Deckelbaum Aff. Ex. A.).
On November 30, 1996, Deckelbaum filed an Inmate Misbehavior Report against Plaintiff ("November 30th Report"). (Deckelbaum Aff. Ex. D.) Both gentlemen agree that on that day, Deckelbaum had removed Plaintiff from his position as feed-up captain and assigned him to a food deliver position, and had changed the 4:30 a.m. list of inmates who are eligible for work release to reflect this change. Deckelbaum alleges that he made this change because Plaintiff attempted to orchestrate a work slow-down by telling other inmates not to report to work without checking with Plaintiff first. After Deckelbaum changed his job duties, Plaintiff allegedly took the 4:30 a.m. list from the J-N Gallery Office and told the inmate who replaced him as feed-up captain not to get involved. Although Plaintiff denies that these events occurred, he admits that Deckelbaum asked him whether he had a copy of the list.
The November 30th Report charged Plaintiff with leading or organizing other inmates to participate in a work stoppage, interference with an employee, and false statements. In response to Plaintiff's verbal complaint, Block Sergeant McNamara ("McNamara"), Deckelbaum's supervisor, allegedly told Plaintiff that it was his decision whether Plaintiff would be removed, and not Deckelbaum's. Plaintiff was put in keep-lock from November 30th to December 5th as a result of the Report.
On December 2, 1996, Deputy Superintendent of Security Robert Healey ("Healey") wrote to Plaintiff in response to his September 9th complaint. (Deckelbaum Aff. Ex. I.) While Healey noted that there was no medical documentation authorizing Plaintiff's absences on September 5th, 6th, and 7th, and that Deckelbaum was therefore correct to write a misbehavior report at that time, he stated that Plaintiff could keep his job.
At a December 5, 1996, hearing, Lieutenant Niles ("Niles") found Plaintiff not guilty of the charges in the November 30th Report and allowed Plaintiff to keep his job. (Deckelbaum Aff. Ex. F.) The reasons stated for the finding of not guilty are the testimony of Plaintiff and McNamara and Plaintiff's excellent disciplinary record.
On December 11, 1996, Plaintiff wrote to Healey in response to Healey's letter of December 2nd. (Smith Dep. Ex.) Plaintiff complains in that letter that Deckelbaum was continuing to harass him. On December 13, 1996, Deckelbaum wrote a Form 101 stating that Plaintiff had not shown up for work since November 30th and asked that Plaintiff be directed to report to work. (Deckelbaum Aff. Ex. G.) Of course, Plaintiff was in keep-lock from November 30th to December 5th. In addition, Plaintiff admits that he "was off for a little while" considering a suggestion by McNamara that Plaintiff agree to an alteration of his job duties that would bring him into less contact with Deckelbaum. (Smith Dep. at 84.) A copy of the log-book submitted by Plaintiff indicates that he was prevented from going to work from December 6th through December 10th. (Smith Aff. Ex. A).
Several documents attached to Plaintiff's deposition have not been marked as exhibits.
Plaintiff agreed to the change of his job duties, although his title remained feed-up captain. Plaintiff alleges that Deckelbaum was angered by the agreement between Plaintiff and McNamara and by the fact that Plaintiff "beat" the November 30th charges, and told Plaintiff "you won't be around for long." (Smith Dep. at 85-86.) Plaintiff also alleges that at about this time, Deckelbaum asked Captain McElroy to remove Plaintiff from his job. On December 18, 1996, Plaintiff lodged another complaint against Deckelbaum for harassment, (Smith Dep. Ex. D), which apparently stemmed from Plaintiff's inability to procure ten-packs from inmates because the inmates had no money to buy them. (Smith Dep. at 53.) In that complaint, Plaintiff claims that the November 30th Report was written in retaliation for Plaintiff's inability to procure a ten-pack.
On December 20, 1996, Deckelbaum filled out a Recommendation for Program Review ("Form 102") requesting that Plaintiff be removed from his job for repeatedly refusing to report to work. (Deckelbaum Aff. Ex. H.) The Area Supervisor, who appears to be Lieutenant Rhodes, made a notation on the form approving the request. The notation confusingly notes that Plaintiff has been working on A Block, and that Plaintiff and McNamara request that Plaintiff be reassigned to "A" Block. Plaintiff states in his deposition that this means that he had agreed to the modification of his job duties on A Block.
On December 21, 1996, McElroy allegedly sent for an inmate named Walsh and asked him what was going on between Plaintiff and Deckelbaum. On December 24, 1996, Deckelbaum responded in writing to Plaintiff's December 18th complaint, claiming once again that Plaintiff had not reported to work since November 30th. (Deckelbaum Aff. Ex. E.) On December 25, 1996, McElroy removed Plaintiff from his job. On December 31, 1996, Healey responded to Plaintiff's December 18th complaint, stating that there was no evidence of the alleged ten-pack scheme. (Smith Dep. Ex.)
Plaintiff alleges in this action that Deckelbaum filed the November 30th Report in retaliation for the complaint Plaintiff filed on September 9th, 1996, and in retaliation for Plaintiff's inability to procure ten-packs. (Smith Dep. at 49-51.) Plaintiff also alleges that McElroy improperly removed Plaintiff from his post as feed-up captain because Deckelbaum asked him to, and that this action was in violation of the December 2nd letter from Healey and the December 5th findings of Niles which stated that Plaintiff should keep his job.
Plaintiff does not challenge the December 13th Inmate Misbehavior Report filed by Deckelbaum, nor the December 20th Form 102 in which Deckelbaum requested that Plaintiff be removed from his job, both of which followed two days on the heels of complaints filed by Plaintiff.
II. DISCUSSION A. Retaliatory Misbehavior Report
A claim for retaliation is cognizable under § 1983 where "otherwise routine administrative decisions are made in retaliation for the exercise of constitutionally protected rights." Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986)). The plaintiff must establish that the protected conduct "was a substantial or motivating" force behind the administrative action. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Once a plaintiff makes this showing, the burden shifts to the defendant to show that the action would have been taken even in the absence of the improper motive. See id.Plaintiff engaged in constitutionally protected activity when he filed the September 9th complaint against Deckelbaum. See id. at 80 (citing Franco v. Kelly, 854 F.2d 584 (2d Cir. 1988)). However, Plaintiff has no constitutional right to smuggle food out of the mess hall in exchange for ten-packs. Thus, Plaintiff's claim against Deckelbaum can only be grounded in a theory of retaliation for the September 9th complaint. In order to survive the defendants' motion for summary judgment, Plaintiff must also demonstrate a genuine issue of material fact as to whether or not his complaint was a substantial or motivating reason for the November 30th Report. See id.
Plaintiff provides no direct evidence of a connection between the November 30th Report and his September 9th complaint. Plaintiff also vacillates between whether the November 30th Report was in retaliation for the complaint or for his inability to procure the coveted ten-packs. (Smith Dep. at 49-50, 58.) In meeting his burden of proof, Plaintiff chooses to rely on the inferences raised in his complaint: the fact that he was cleared of the charges; his good disciplinary record; and temporal proximity. Although each of these elements of proof can lead to an inference of pretext, the Second Circuit Court of Appeals has indicated that a plaintiff must submit more than circumstantial evidence of retaliation in order to survive a motion for summary judgment. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
Plaintiff's theory of cause-and-effect appears to go something like this: because he was injured in early September, he was unable to procure ten-packs. This caused Deckelbaum to harass Plaintiff to come back to work despite Plaintiff's alleged medical pass. This harassment in turn caused Plaintiff to file the September complaint. Thus, when Plaintiff states that if he had been able to procure ten-packs we would not be here today, (Smith Dep. at 50), he apparently means that Deckelbaum would have had no motive to harass him, and thus Plaintiff would never have written the complaint.
Plaintiff attempts to shore up his claim by alleging that Deckelbaum hinted to him in early September that he would pay the price for writing a report, and that at least twice more during the remainder of 1996 Deckelbaum told Plaintiff that he wanted him replaced. While admissions of retaliation and concrete threats are direct evidence of retaliation, see Jones v. Coughlin, 45 F.3d 677, 680 (2d Cir. 1995), Deckelbaum's alleged statements do not directly link the September 9th complaint and the November 30th Report. Moreover, Plaintiff's September complaint charged that Deckelbuam was harassing Plaintiff to return to work despite the fact that Plaintiff had a medical pass; such a charge is not the sort of egregious accusation that would likely fuel an abiding desire to retaliate. In addition, Deckelbaum's ambiguous comment in early September that Plaintiff liked to write reports was made nearly three months before the November 30th Report was issued. These statements are thus either too far removed from the date of the Report or lack the specificity necessary to constitute direct evidence of retaliation.
There is little question that Plaintiff and Deckelbaum had a stormy relationship that disintegrated even further after the November 30th Report, and Plaintiff's allegations regarding the ten-pack scheme and Deckelbaum's harassment are certainly cause for concern. But this does not change the fact that Plaintiff has provided only circumstantial evidence of retaliation, and that this evidence considered together is too weak to raise a genuine issue of material fact as to whether the September 9th complaint was a substantial or motivating factor behind the November 30th Report. See Colon, 58 F.3d at 873.
B. Removal From Job
Plaintiff alleges that McElroy was directly involved in Deckelbaum's bid to retaliate against him. In order to hold McElroy liable for Plaintiff's removal from his job, Plaintiff must show that Deckelbaum requested Plaintiff's removal for retaliatory reasons and that McElroy actually removed Plaintiff in order to further those retaliatory motives. See Colon, 58 F.3d at 873.
Plaintiff does not directly allege other failings by McElroy, other than to suggest that he allowed Deckelbaum to continue his campaign of harassment. Because Plaintiff was cleared of the November 30th charges, and because each of his complaints was investigated and responded to in writing by Healey, Plaintiff has not established proof that McElroy was grossly negligent or deliberately indifferent to Deckelbaum's actions. In addition, Sergeant McNamara worked with Plaintiff to reach a compromise that would allow him to keep his job but avoid contact with Deckelbaum.
Plaintiff has submitted no proof that McElroy removed Plaintiff in order to further a scheme by Deckelbaum to retaliate against Plaintiff for the September 9th complaint. In fact, Plaintiff admits that he will never know why he was removed without some further documentation. (Smith Dep. at 101.) While Plaintiff claims that he has character witnesses who can testify that Deckelbaum went to McElroy because he was out to get Plaintiff, he has not provided any affidavits in opposition to Defendant's motion. Although Plaintiff claims that only the Program Committee and McNamara had the power to remove him, Plaintiff does not identify the members of the Program Committee or otherwise provide proof that McElroy did not have the authority to remove him. He also indicates that he does not think that McElroy was aware of the decisions of Healey and Niles that Plaintiff should keep his job. (Smith Dep. at 93.)
As to Deckelbaum's role, while Plaintiff alleges that Deckelbaum campaigned to have him removed from his job, which is evidenced by the misbehavior reports suggesting the very same, Plaintiff does not allege or provide proof that Deckelbaum was directly involved in the ultimate decision to remove him.
Moreover, the Area Supervisor noted on the December 20th Form 102 that Plaintiff had requested reassignment. Considering the ongoing problems between Plaintiff and Deckelbaum, Plaintiff's agreement to alter his job duties in order to avoid contact with Deckelbaum, and the notation on the Form 102, it is altogether reasonable to assume that Plaintiff was removed in order to remedy an increasingly hostile situation. See Graham, 89 F.3d at 79 (noting that sufficient permissible reasons to justify state action are "readily drawn in the context of prison administration") (quoting Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994)). Because Plaintiff offers no evidence to the contrary, the allegations against McElroy amount to nothing more than speculation. See Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987); see also Higgins v. Artuz, No. 94 Civ. 4810, 1997 WL 466505, at *3 (S.D.N.Y. Aug. 14, 1997) (noting that a pro se plaintiff's "bald assertion" is insufficient to overcome a motion for summary judgment).
III. CONCLUSION
For the foregoing reasons, the defendants' motion for summary judgment is granted.
SO ORDERED.