Opinion
01CV499 Consent.
February 25, 2005
Decision Order
Before the Court is the defendant's motion for summary judgment (Docket No. 32).
Background
Plaintiff, Louis Spies ("Spies") brought this action while an inmate at the Gowanda Correctional Facility ("GCF"). The plaintiff filed several amended complaints in this case alleging various claims and conspiracies. In a February 22, 2002 Decision and Order, Judge Charles J. Siragusa dismissed all claims and defendants, with the exception of two claims asserted against defendant Patrick Kelleher: (1) a claim that Kelleher wrote a poor review of Spies' participation in a DWI counseling class in retaliation for Spies' filing of a grievance; and (2) that Kelleher impermissibly read Spies outgoing mail, including his legal mail. (Docket No. 13).
Discussion
Standard of ReviewSummary judgment is appropriate where there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law. See Trans Sport, Inc. v. Starter Sportswear, Inc., 964 F. 2d 186, 188 (2nd Cir. 1992) citingBryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). The court must draw all reasonable inferences in favor of the nonmoving party and grant summary judgment only if no reasonable trier of fact could find in favor of the nonmoving party. See Taggart v. Time Inc., 924 F.2d 43, 46 (2d Cir. 1991); Howley v. Town of Stratford, 217 F.3d 141 (2nd Cir. 2000). However, the nonmoving party must, "demonstrate to the court the existence of a genuine issue of material fact." Lendino v. Trans Union Credit Information, Co., 970 F.2d 1110, 1112 (2nd Cir. 1992), citingCelotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A fact is material:
when its resolution would "affect the outcome of the suit under the governing law" and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."General Electric Company v. New York State Department of Labor, 936 F.2d 1448, 1452 (2nd Cir. 1991), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "The nonmoving party must come forward with enough evidence to support a jury verdict . . . and the . . . motion will not be defeated merely . . . on the basis of conjecture or surmise." Trans Sport, supra, 964 F.2d at 188, quoting Bryant v. Maffucci, supra. If undisputed material facts are properly placed before the court by the moving party, those facts will be deemed admitted, unless they are properly controverted by the nonmoving party." Glazer v. Formica Corp., 964 F.2d 149, 154 (2nd Cir. 1992), citing Dusanenko v. Maloney, 726 F.2d 82 (2nd Cir. 1984). The Court's responsibility in addressing a summary judgment motion is identifying factual issues, not resolving them. See Burger King Corp. v. Horn Hardart Co., 893 F.2d 525, 528 (2nd Cir. 1990). However, summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Nippon Fire Marine Ins. Co., Ltd. v. Skyway Freight Systems, Inc., 235 F.3d 53 (2nd Cir. 2000) quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Legal Mail Claim
In his February 26, 2002 Decision, Judge Siragusa allowed the plaintiff's claim that Kelleher read his outgoing legal mail to go forward, "despite the Court's uncertainty that the plaintiff will prevail on the claim." (Docket No. 13 at page 18). It appears that the plaintiff has abandoned this claim. During his deposition, the plaintiff was asked about this claim directly:
Q: Okay, All right. Now, I think there was also something you complained about, Kelleher reading your mail?
A: That was an issue in the Article 78 that I filed in Erie County.
Q: Okay. I read it as a complaint in this case. Are you suing him for reading your legal mail?
A. No.
Q. Okay. So that's in the complaint and you're withdrawing that?
A. Yeah, that's not really an issue.
Q. Okay. So you're not suing Kelleher for reading your legal mail?
A. No.
(Docket No. 38 at page 2; see deposition transcript attached as Exhibit A to Docket No. 35, pages 30-31).
In his papers in response to the instant motion, the plaintiff does not refute the contention that he has abandoned this claim. Based on the above, the defendant's motion for summary judgment is granted as to this claim.
The Retaliation Claim
The plaintiff asserts that on October 18, 2000 Kelleher wrote a poor review of the plaintiff's participation in a DWI counseling class in retaliation for his filing of a grievance on October 11, 2000 claiming that "the institution" was reading his legal mail. (See Grievance attached to Amended Complaint, Docket No. 12.) Spies also alleges that Kelleher wrote the poor review to prevent him from being granted parole.
The October 18, 2000 report stated that Spies "has displayed a negative attitude, does not participate during DWI groups, attempts to offer legal advice to peers during groups" and that Spies "has not focused on himself or his treatment goals and objectives." (See Memorandum attached to Amended Complaint, Docket No. 12).
It is well established that prison officials may not retaliate against inmates for exercising their constitutional rights.Colon v. Coughlln, 58 F.3d 865, 872 (2d Cir. 1995); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). However, as a threshold matter, the Second Circuit has stated that the courts must approach prisoner claims of retaliation with skepticism and particular care. Dawes v. Walker, 239 F.3d 489, 491-492 (2d. Cir. 2001) citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). The Court in Dawes stated that "this 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, 239 F.3d. at 491; citing Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988).
To survive summary dismissal, a plaintiff asserting retaliation claims must advance non-conclusory allegations establishing: (1) that the conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected conduct and the adverse action. Dawes, 239 F.3d. at 492; Thaddeus-X v. Blatter, 175 F.3d 378, 386-87 (6th Cir. 1999) (en banc) (per curiam); Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000). As to the second prong, a prisoner alleging retaliation must show that the protected conduct was "a substantial or motivating factor" behind the alleged retaliatory conduct. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Evidence that can lead to an inference of improper motive includes: (1) the temporal proximity of the filing of a grievance and the alleged retaliatory act; (2) the inmate*s prior good disciplinary record; (3)vindication at a hearing on the matter; and (4) statements by the defendant regarding his motive for disciplining plaintiff. Colon, 58 F.3d at 872-73.
Moreover, only those retaliatory acts that are likely to "chill a person of ordinary firmness from continuing to engage" in protected activity are actionable under § 1983; in other words, allegations of de minimis acts of retaliation do not state a claim under § 1983. Thaddeus-X, 175 F.3d at 397; cited with approval in Dawes, 239 F.3d at 492. See also Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999) (on remand, district court to consider the "serious question" of "whether the alleged acts of retaliation . . . were more than de minimis" in deciding summary judgment motion). A de minimis retaliatory act is outside the ambit of constitutional protection. Dawes, 239 F.3d at 492. "This objective inquiry is `not static across contexts,' but rather must be `tailored to the different circumstances in which retaliation claims arise." Id.
In the instant case, other than the proximity in time, the plaintiff has come forward with no evidence that the October 18, 2000 memorandum was written by Kelleher in retaliation for his filing of the grievance relating to the reading of his outgoing mail. The Court notes that the grievance does not name Kelleher as the individual who was allegedly reading the plaintiff's legal mail. Further, as discussed above, Spies has abandoned any claim that Kelleher read his legal mail. More significantly, however, is the undisputed fact that Kelleher had consistently written poor reviews of Spies participation in the DWI counseling sessions long before his October 10, 2000 grievance. Kelleher's progress notes reflect that during the group session on July 21, 2000 Spies "displayed inappropriate behavior." (Docket No. 37 at page 0086). Similarly, Kelleher's progress notes reflect the following: on July 28, 2000 Kelleher noted that Spies "participated only when staff prompted"; on August 11, 2000 Kelleher reported that Spies "did not participate in group discussion related to video "How to Sabotage Your Treatment"; on August 25, 2000 Kelleher noted that Spies "has been present for groups, does not verbally participate, when questioned about lack of effort stated `I don't have nothing to say'"; on September 1, 2000 Kelleher stated that Spies "did not verbally participate in group discussion, when called upon he only gives short, curt evasive answers. [Spies] displays an attitude that is close to being openly hostile"; on September 8, 2000 Kelleher noted that Spies "received an UNSATISFACTORY evaluation for the month of August (emphasis in original); on September 13, 2000 Kelleher noted that Spies "did not participate in group discussion"; on September 20, 2000 Kelleher stated that Spies continues "no participation in group discussions. [He] presents indifferent attitude toward group processes as exhibited by constant looking around the room, out the window or toward the floor during presentations and discussions"; on September 29, 2000 Kelleher again stated that Spies "did not participate in any group discussion"; on October 5, 2000 Kelleher's progress notes reflect that Spies "received an UNSAT EVAL for the month of September" (emphasis in original); on October 10, 2000 Kelleher noted that Spies "did participate once, during group discussions after receiving his UNSAT EVAL continues [an] indifferent attitude during all group processes." (Docket No. 37 at pages 0086-0087). The progress notes conclude with statement on October 18, 2000 that Spies was seen by the "DWI Review Committee" for his "poor evals" and that removal was recommended. The notes reflect that Spies "demonstrated very little insight, refusal of responsibility, and does not appear willing to work on himself (not blame others)." (Docket No. 37 at page 0087). Spies was advised that he could reapply to the program in 30 days. Id.
The record also reflects that Kelleher was not the only counselor to give Spies unsatisfactory evaluations based upon his performance in the DWI program. Spies reapplied for admission to the DWI program in January of 2001. Notes from the DWI Review Committee at GCF reflect as follows:
When asked by the committee why he wanted the program, Spies replied: `Because it will help me on parole.' He denied having a problem with alcohol, stating, `My alcohol problem was 10 years ago. I had 2 beers and got in an accident." Inmate Spies still takes no responsibility for his behavior or accepts his need for a recovery program. He continues to demonstrate an arrogant, negative attitude."
(Docket No. 37 at 0089). Based on the above, Spies was denied readmission to the DWI program at that time. Id. The record reflects that Spies was eventually readmitted to the program in February of 2001 and performed at a satisfactory level at that time. (Docket No. 37 at pages 0091-92).
As noted above, the plaintiff has come forward with no evidence, other than the temporal proximity, to establish a causal connection between his filing of the grievance and Kelleher's October 18, 2000 report. Similarly, he has demonstrated no evidence of motive on the part of Kelleher for such alleged retaliation. Kelleher's October 18, 2000 report is entirely consistent with every report written regarding the plaintiff's participation in the DWI program up to that date. Upon review of the record in this case, a reasonable trier of fact could not conclude that the October 18, 2000 report was issued in retaliation for Spies' exercise of his right to file a grievance. Spies has failed to set forth a prima facie case as a matter of law. Martin v. New York State Dept. of Correctional Services, 224 F.Supp.2d 434 (N.D.N.Y.,2002) (temporal proximity alone was insufficient where the adverse action occurred over an extensive period of progressive discipline); Nunez v. Goord, 172 F.Supp.2d 417, 432 (S.D.N.Y. 2001) (temporal proximity alone is insufficient to establish causation); Salahuddin v. Mead, 2002 WL 1968329, *6 (S.D.N.Y.,2002) (same); Harford v. County of Broome, 102 F.Supp.2d 85, 99-100 (N.D.N.Y.,2000) (temporal proximity alone ordinarily is insufficient to withstand summary judgment; citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000); Hafford v. Seidner, 183 F.3d 506, 515 (6th Cir. 1999); Butler v. City of Prairie Village, Kansas, 172 F.3d 736, 746 (10th Cir. 1999)).
In addition to the failure to demonstrate any causal connection between his asserted right (to file a grievance) and the October 18, 2000 report, the plaintiff has also failed to establish an injury relating to the issuance of Kelleher's report. Indeed, in response to the instant motion, Spies acknowledges that his "[d]enial of parole did not have anything to do with not finishing the ASAT/DWI program, [his] record of related offenses did." (Docket No. 40 at page 1).
In sum, because Spies has failed to establish a causal connection between his filing of a grievance and the issuance of the October 18, 2000 report, the plaintiff's retaliation claim fails as a matter of law.
Conclusion
Based on the above, the defendant's motion for Summary Judgment is granted in its entirety.
SO ORDERED.