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granting summary judgment where the plaintiff failed to proffer any evidence that the defendants retaliated against him for a grievance in which they were not named and where the only evidence of retaliatory motive was temporal proximity
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13 Civ. 2848 (LTS) (AJP)
02-23-2015
MIGUEL TIRADO, Plaintiff, v. SERGEANT BRIAN SHUTT; CORRECTION OFFICER STEVEN HOLLIDAY; CORRECTION OFFICER RODNEY LASSITER; CORRECTION OFFICER KYLE JACKSON; and LIEUTENANT STACY DOMINIC, Defendants.
REPORT AND RECOMMENDATION ANDREW J. PECK, United States Magistrate Judge :
To the Honorable Laura T. Swain, United States District Judge:
Plaintiff Miguel Tirado, an inmate currently incarcerated by the the New York State Department of Corrections and Community Supervision ("DOCCS") at Sing Sing Correctional Facility, brings this action (represented by pro bono counsel) against DOCCS Sergeant Brian Shutt, Correction Officers Steven Holliday, Rodney Lassiter and Kyle Jackson, and Lieutenant Stacy Dominic. (Dkt. No. 80: Am. Compl.) Tirado alleges, inter alia, that defendants retaliated against him for exercising his constitutional rights by assaulting him on April 19, 2012, filing false misbehavior reports against him, transferring him to other prison facilities against his will and threatening him and his family. (See generally Am. Compl.)
Presently before the Court is defendants' motion for partial summary judgment. (Dkt. No. 100.) For the reasons set for below, defendants' motion should be DENIED with respect to Tirado's claim that defendants retaliated against him for requesting to speak to a sergeant on April 19, 2012 by assaulting him and issuing a false misbehavior report, and his claim that they planted contraband in his cell as further retaliation, but GRANTED in all other respects. As a result, Lieutenant Dominic and C.O. Jackson should be DISMISSED as defendants in this case. The Pretrial Order is due March 20, 2015.
FACTS
Tirado's January 2012 Grievance
In January 2012, two correctional officers conducted a search of Tirado's cell in Sing Sing. (Dkt. No. 101: Defs. 56.1 Stmt. ¶ 7; Dkt. No. 105: Tirado 56.1 Stmt. ¶ 7.) During the search, Tirado became sick and had to lie down on the floor. (Defs. & Tirado 56.1 Stmts. ¶ 7.) Tirado claims that he was dragged out of his cell and down two flights of stairs to the infirmary. (Id.) The prison nurse found nothing wrong with Tirado, and the officers escorted him back to his cell. (Id.) Neither the officers nor the nurse involved in this incident are defendants in this case. (Id.) Tirado filed an inmate grievance, alleging staff misconduct and harassment. (Id.) Tirado also filed a complaint with the Westchester County District Attorney's Office. (Dkt. No. 106: Kremer Aff. ¶ 3 & Ex. B: 1/26/12 DA Letter.) After an investigation, on February 3, 2012 Sing Sing's superintendent denied Tirado's grievance. (Defs. & Tirado 56.1 Stmts. ¶¶ 8-9.) Tirado appealed to the Central Officer Review Committee, which upheld the denial. (Id.)
All of the defendants deny that they were aware of Tirado's January 2012 grievance or his complaint to the Westchester County District Attorney's office when the incidents that give rise to this case occurred. (Dkt. No.102: Shutt Aff. ¶ 11; Dkt. No.102: Jackson Aff. ¶ 7; Dkt. No.102: Holliday Aff. ¶ 6; Dkt. No.102: Lassiter Aff. ¶ 6; Dkt. No.102: Dominic Aff. ¶ 5.) The April 19 , 2012 Use of Force Incident And Resulting Inmate Misbehavior Report
Tirado alleges that on April 19, 2012 at about 1:50 p.m., Correction Officers Steven Holliday and Rodney Lassiter assaulted him by pinning him to a wall, punching him in the face, throwing him to the ground, kneeling on his back, and kicking him while Sergeant Brian Shutt failed to intervene. (Dkt. No. 101: Defs. 56.1 Stmt. ¶ 10; Dkt. No. 105: Tirado 56.1 Stmt. ¶ 10.) Specifically, Tirado claims that Officer Holliday, who was on duty on Tirado's cell block along with Officer Lassiter, unfairly denied Tirado access to the recreation yard. (Dkt. No. 104: Tirado Br. at 3-4; Dkt. No. 106: Kremer Aff. Ex. C: Tirado Dep. at 40.) Tirado, who was locked in his cell at this point, asked to speak to a seargeant. (Tirado. Br. at 3-4; Tirado Dep. at 40; see also Kremer Aff. Ex. D: Holliday Dep. at 108 (Tirado was "screaming 'I want to speak to a sergeant.'").)
Tirado claims that after he requested to speak with a sergeant, Officer Holliday approached his cell and told Officer Lassiter to unlock it. (Tirado Br. at 4; Tirado Dep. at 40; Kremer Aff. Ex. E: Cassidy Dep. at 18.) Three other inmates--Anthony Cassidy, Elias Otero and Kelvin Vazquez-- testified that they saw Officer Holliday approach Tirado while Tirado was locked in his cell, asking to speak with a sergeant. (Cassidy Dep. at 4, 17-18; Kremer Aff. Ex. I: Vazquez Dep. at 10; Kremer Aff. Ex. J: Otero Dep. at 15, 25.)
Officer Holliday allegedly directed Tirado to walk down to the center gate area of the gallery where Tirado would be able to speak to a sergeant. (Tirado Dep. at 40; Cassidy Dep. at 7, 18, 20; Vazquez Dep. at 6-7.) Officer Holliday admits that he had no idea whether the sergeant was near the gate but believed that no cameras or inmates could see what went on in that area. (Holliday Dep. at 110-11, 144-45.)
According to inmates Vazquez and Cassidy, Officer Holliday assaulted Tirado without provocation by pushing him and striking him. (Cassidy Dep. at 7, 20-21; Vazquez Dep. at 6-7, 12-13.) According to Tirado, Officer Holliday pinned him to the wall, and Officer Lassiter repeatedly punched him in the face. (Tirado Dep. at 40, 43-45, 87.) Tirado claims that he heard Sergeant Shutt approaching to ask what was happening, and Officer Lassiter replied that Tirado had been "disrespecting Holliday" by demanding to speak to a sergeant. (Tirado Dep. at 44, 46-47, 87.) Inmate Otero testified that prior to removing Tirado from his cell, Officer Holliday told inmates who were calling for a sergeant to "be quiet." (Otero Dep. at 33-34.) Inmate Otero further testified that Officer Holliday stated "'I don't give a fuck about Lieutenants or Deps. I run shit here and if you don't do what I say I'll write you up every day I work.'" (Otero Dep. at 32-33.)
Defendants concede that Officers Holliday and Lassiter subjected Tirado to the use of force (see Defs. 56.1 Statement ¶ 12), but present a very different account of the incident. Officer Holliday claims that on April 19, 2012, he saw "Tirado . . . standing in the open doorway of his cell, yelling that he wanted to see a sergeant" (Dkt. No. 102: Holliday Aff. ¶ 3). According to Officer Holliday, Tirado walked out of his cell, became agitated, ignored a direct order to get against the wall for a pat frisk, and punched Officer Holliday in the face, leading Officer Holliday to push Tirado back against the wall and strike him two or three times before placing him in a bear hug. (Holliday Aff. ¶ 4.) Officer Holliday testified that he "was scared for [his] life" during the fight. (Holliday Dep. at 127.) Officer Lassiter arrived at the scene, saw the struggle and handcuffed Tirado. (Holliday Aff. ¶ 4; Dkt. No. 102: Lassiter Aff. ¶ 3.)
Following the officers' use of force, Sergeant Shutt sent Tirado and the officers to different parts of the medical department to be assessed for injuries. (Defs. & Tirado 56.1 Stmts. ¶ 12.) After speaking with Tirado about his version of events, Sergeant Shutt had him escorted to the secure housing unit ("SHU"). (Id.) By the time Tirado was sent to the SHU, it was approximately 3:00 p.m., and the 3:00 p.m. to 11 p.m. shift had begun. (Defs. & Tirado 56.1 Stmts. ¶ 13.)
Tirado initially claimed that Lieutenant Dominic "confronted" him in the medical facility and threatened him with further assault. (Dkt. No. 80: Am. Comp. ¶ 35.) Tirado's deposition clarified that Lieutenant Dominic did no more than make a vague threat and that a different correction officer said "hold it down," which Tirado understood to mean that he should not tell anyone that he had been assaulted. (Tirado Dep. at 51.) According to Tirado, that threat deterred him from making any oral complaints about the assault while he was receiving medical treatment. (Tirado Dep. at 55-56.) Tirado admits that none of the defendants were present in the infirmary when this threat allegedly occurred. (Tirado Dep. at 56.)
Later that same day, Officer Holliday filed an inmate misbehavior report charging Tirado with assault on a correction officer, violent conduct, refusing direct orders and refusing a search or frisk. (Kremer Aff. Ex. M: 4/19/12 Officer Holliday Inmate Misbehavior Report.) The Search of Tirado's Cell And Resulting Inmate Misbehavior Report
After Tirado was sent to the SHU, Sergeant Shutt directed Officer Jackson to search Tirado's cell and pack his property for transfer to the SHU. (Dkt. No. 101: Defs. 56.1 Stmt. ¶ 14; Dkt. No. 105: Tirado 56.1 Stmt. ¶ 14.) Around 5:30 p.m. on April 19, 2012, Officer Jackson searched Tirado's cell and found a metal ice pick-like weapon made from a tweezer broken in two and taped together and two other altered items -- a toothbrush and a pen each with a metal tip added. (Defs. & Tirado 56.1 Stmt. ¶ 16.) After completing the cell search, Officer Jackson issued Tirado an inmate misbehavior report for possessing one weapon and two altered items. (Defs. & Tirado 56.1 Stmt. ¶ 17; Shevlin Aff. Ex. B: 4/19/12 Officer Jackson Inmate Misbehavior Report.)
Defendants maintain that "[w]hen an inmate is sent to SHU, his property is packed as soon as possible" and sent to SHU to be inventoried in front of the inmate. (Defs. 56.1 Statement ¶ 14; Dkt. No. 102: Shutt Aff. ¶ 8.) Tirado disputes this on the ground that DOCCS Directive 4910 requires "'[a]n unscheduled search of the living quarters of an inmate shall be conducted only when there is a reasonable suspicion that contraband is contained in the housing unit.'" (Tirado 56.1 Stmt. ¶ 14; Dkt. No. 102: Shevlin Aff. Ex. G: DOCCS Directive 4910.) According to Tirado, "[n]either DOCCS Directive 4910 nor DOCCS Directive 4944 (Use of Physical Force) specifies that an inmate's cell is to be searched for contraband following a use of force incident." (Tirado 56.1 Stmt. ¶ 14; see generally DOCCS Directive 4910; Dkt. No. 106: Kremer Aff. Ex. Z: DOCCS Directive 4944.)
Defendants further claim that under DOCCS protocol, Tirado was not permitted to return from SHU to witness the search of his cell because he had been deemed a security risk as a result of being accused of assaulting staff. (Defs. 56.1 Statement ¶ 15.) Tirado disputes whether the DOCCS directive which states that an inmate shall be present when his cell is searched unless security staff believes he presents a danger to the safety and security of the facility was applicable to him because Officer Lassiter testified that once handcuffed, Tirado was "compliant" and "not combative in any way." (Tirado 56.1 Stmt. ¶ 15; Kremer Aff. Ex. G: Lassiter Dep. at 140-41.)
Tirado denies that the contraband found in his cell belonged to him or that he left the items in his cell, instead maintaining that they were planted by defendants as retaliation. (Tirado 56.1 Stmt. ¶ 16; Dkt. No. 102: Shevlin Aff. Ex. E: Disciplinary Hearing Tr. at 6-8; Kremer Aff. Ex. C: Tirado Dep. at 61-62.) Tirado points to testimony by Lieutenant Dominic that officers frequently confiscate similar items (Kremer Aff. Ex. T: Dominic Dep. at 188), as well as testimony by inmate Vazquez that he feared that if he spoke up about the assault on Tirado, officers would put a knife in his cell and "justify a search" in order to have him sent to SHU (Kremer Aff. Ex. I: Vazquez Dep. at 26-27). Logs from the months prior to April 2012 show three separate searches of Tirado's cell which did not result in officers finding weapons or similar modified items (see Kremer Aff. Ex. U: Cell Search Logs), although Tirado admitted to possessing such contraband items in the past to use to clean his typewriter and radio (Shevlin Aff. Ex. E: Disciplinary Hearing Transcript at 31).
Officer Holliday testified that Tirado's cell was open during and after the altercation and he does not know when it was locked. (Kremer Aff. Ex. D: Holliday Dep. at 181.) Both Officers Holliday and Lassiter possessed keys that could open Tirado's cell. (Holliday Dep. at 176.) Officer Holliday returned to Tirado's gallery after his shift ended, although he maintains that he simply retrieved his bag and left without passing Tirado's cell. (Holliday Dep. at 180.) Sergeant Shutt and Officer Lassiter both also remained in Sing Sing after their shifts ended at 3:00 p.m. (Kremer Aff. Ex. F: Shutt Dep. at 189; Lassiter Dep. at 163.) Tirado's Disciplinary Hearing Results
At his disciplinary hearing on April 30, 2012, Tirado initially pled "[g]uilty with an explanation" to the charges in Officer Jackson's misbehavior report and only changed his plea to "not guilty" after the hearing officer informed him that DOCCS does not recognize a plea of "guilty with an explanation." (Dkt. No. 102: Shevlin Aff. Ex. E: Disciplinary Hearing Tr. at 5-6.) At the hearing, and again in his deposition, Tirado testified that the three contraband items found in his cell were not his. (Disciplinary Hearing Tr. at 8; Shevlin Aff. Ex. F: 5/3/12 Disciplinary Hearing Disposition; Dkt. No. 106: Kremer Aff. Ex. C: Tirado Dep. at 61-62; Dkt. No. 105: Tirado 56.1 Stmt. ¶ 16.) Tirado also testified that although he believed the contraband had been placed as retaliation by Officer Holliday, he did not believe Officer Jackson had any part in the alleged retaliation. (Discplinary Hearing Tr. at 7-8, 14, 19, 26-27.) Tirado was found guilty of the weapon and altered item charges alleged in Officer Jackson's Inmate Misbehavior Report. (Dkt. No. 101: Defs. 56.1 Statement ¶ 18; Tirado 56.1 Stmt. ¶ 18; 5/3/12 Disciplinary Hearing Disposition.)
Tirado was found not guilty of all four counts contained in Officer Holliday's inmate misbehavior report. (Defs. & Tirado 56.1 Stmts. ¶ 18; Kremer Aff. Ex. M: 5/8/12 Disciplinary Hearing Disposition.) The hearing officer found that "[t]estimony from witnesses did not support the charges in the misbehavior report." (5/8/12 Disciplinary Hearing Disposition.) The hearing officer reported his findings to the DOCCS Office of the Inspector General, stating that "[a]ny reasonable person who understands how this process works can see the officers are lying." (Kremer Aff. Ex. N: 6/15/12 Keyser Email.) Tirado's Subsequent Facility Transfers and Further Misbehavior Reports
The Office of the Inspector General conducted an investigation of the April 19, 2012 incident based on the hearing officer's conclusions and a grievance filed by Tirado. (Kremer Aff. Ex. O: 8/21/12 Inspector General Report.) On August 21, 2012, the Office of the Inspector General issued a report substantiating Tirado's account and recommending that the case be forwarded to the Bureau of Labor Relations. (See generally 8/21/12 Inspector General Report.) On August 31, 2012, the Bureau of Labor relations issued Notices of Discipline to Officers Holliday and Lassiter. (Kremer Aff. Ex. P: Notices of Discipline.) On October 29, 2013, however, the Notices of Discipline were withdrawn. (Kremer Aff. Ex. Q: Hopkins Memo that staff misconduct claim was "weak"; Kremer Aff. Ex. R: Withdrawal of Notice of Discipline.)
Because Tirado received a sentence of ninety days in SHU as a result of being found guilty of Officer Jackson's inmate misbehavior report, Tirado was transferred out of Sing Sing to Mid-State Correctional Facility on May 4, 2012. (Dkt. No. 101: Defs. 56.1 Stmt. ¶ 24; Dkt. No. 105: Tirado 56.1 Stmt. ¶ 24.) After completing his SHU term at Mid-State, Tirado was transferred to Auburn Correctional Facility on August 1, 2012 and back to Sing Sing on February 10, 2014. (Defs. & Tirado 56.1 Stmts. ¶¶ 25, 26.)
In April 2013, Tirado filed a pro se complaint in this Court alleging deprivations of his constitutional rights by Sergeant Shutt, Officer Holliday and Officer Lassiter. (Dkt. No. 2: Comp.) On June 12, 2013 Auburn Correction Officer Steven Slivinski, who is not a defendant in this case, filed a misbehavior report against Tirado, which Tirado alleges was in retaliation for his suing defendants. (Dkt. No. 80: Am. Comp. ¶¶ 69-70; Dkt. No. 103: Defs. Br. at 19.) Tirado was found guilty of several of the charges in Officer Slivinski's misbehavior report, and those determinations were upheld on appeal. (Am. Comp. ¶¶ 71-72; Defs. Br. at 19.)
On March 17, 2014, after Tirado returned to Sing Sing, Officer Holliday issued him another inmate misbehavior report alleging harassment and violent conduct in a facility emergency room on March 16. (Dkt. No. 106: Kremer Aff. Ex. V: 3/17/14 Inmate Misbehavior Report.) Tirado testified that on March 16, Officer Holliday harassed him in relation to this lawsuit. (Kremer Aff. Ex. C: Tirado Dep. at 110 ("He's in front of me and he's talking to me about this case and why I'm doing it and all this other stuff and I'm not basically paying him no mind.").) Tirado was found guilty of all charges in this misbehavior report. (Kremer Aff. Ex. V: 4/11/14 Disciplinary Hearing Disposition.) Tirado further alleges that on March 23, 2014, Officer Holliday intimidated and menaced Tirado and his parents in Sing Sing's visiting room by pacing behind Tirado's father and glaring at Tirado. (Am. Compl. ¶ 81; Tirado Dep. at 91.)
Finally, in August 2014, Officer Holliday issued Tirado another inmate misbehavior report charging him with making threats, harassing a correction officer, and violating visiting procedures. (Kremer Aff. Ex. W: 8/2/14 Inmate Misbehavior Report.) Following a hearing, Tirado was found guilty only of the visiting violation. (Kremer Aff. Ex. W: 8/8/14 Disciplinary Hearing Disposition.) The hearing officer found that Officer Holliday's testimony "failed to corroborate" the other charges. (8/8/14 Disciplinary Hearing Disposition.) At deposition, Officer Holliday admitted that he issued Tirado the August 2014 misbehavior report because of this lawsuit. (Kremer Aff. Ex. D: Holliday Dep. at 201 ("Oh, I had to protect my interests, my job.").) Tirado has not filed a grievance in connection with this misbehavior report. (Dkt. No. 113: Shevlin Aff Ex.: Quick Aff. ¶ 3.) Defendants' Motion for Partial Summary Judgment
In August 2014, represented by pro bono counsel, Tirado filed an amended complaint. (Dkt. No. 80: Am. Comp.) On December 29, 2014, defendants moved for partial summary judgment on Tirado's claims that: (a) any of the events of April 19, 2012 were in retaliation for his January 2012 grievance, (b) Officer Slivinski, who was not named as a defendant, issued a false misbehavior report to Tirado on June 12, 2013 in retaliation for his January 2012 grievance and the filing of this lawsuit, (c) Lieutenant Dominic threatened Tirado while he was in the medical facility, and (d) Tirado's transfers between correctional facilities were intended to impair his ability to prosecute his grievances and lawsuit. (Dkt. No. 100: Defs. Summary Judgment Motion; Dkt. No 103: Defs. Br. at 2.) Defendants did not move for summary judgment with respect to Tirado's claim that he was subjected to excessive force on April 19, 2012 or his claim that Officer Holliday's March 16, 2014 inmate misbehavior report was retaliatory. (Defs. Br. at 2 n.1.) In response to Tirado's opposition brief, which argued that defendants retaliated against Tirado by causing another correction officer to threaten Tirado with further assaults and emphasized Tirado's allegations that the April 19, 2012 incident was in retaliation for Tirado's request to speak with Officer Holliday's sergeant (Dkt. No. 104: Tirado Br. at 3), defendants also seek summary judgment on those claims (Dkt. No. 112: Defs. Reply Br. at 2, 7-8).
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides that the "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509-10 (1986); Humphreys v. Cablevision Sys. Corp., 533 F. App'x 13, 14 (2d Cir. 2014); Connolly v. Calvanese, 515 F. App'x 62, 62 (2d Cir. 2013); Lang v. Ret. Living Publ'g Co., 949 F.2d 576, 580 (2d Cir. 1991).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970); Alzawahra v. Albany Med. Ctr., 546 F. App'x 53, 54 (2d Cir. 2013); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S. Ct. at 2552-53; Dolan v. Cassella, 543 F. App'x 90, 90 (2d Cir. 2013).
To defeat a summary judgment motion, the non-moving party "'must do more than simply show that there is some metaphysical doubt as to the material facts.'" Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986)). Instead, the non-moving party must "cit[e] to particular parts of materials in the record" to show that "a fact . . . is genuinely disputed." Fed. R. Civ. P. 56(c)(1); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S. Ct. at 1356; Alzawahra v. Albany Med. Ctr., 2013 WL 6284286 at *1; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (at summary judgment, "[t]he time has come . . . 'to put up or shut up'"), cert. denied, 540 U.S. 811, 124 S. Ct. 53 (2003).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S. Ct. at 2513. The Court draws all inferences in favor of the non-moving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S. Ct. 489 (1987). "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 37.
See also, e.g., Crown Castle NG E. Inc. v. Town of Greenburgh, N.Y., 552 F. App'x 47, 49 (2d Cir. 2014); Alzawahra v. Albany Med. Ctr., 2013 WL 6284286 at *1; Feingold v. New York, 366 F.3d 138, 148 (2d Cir. 2004); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 36; Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d at 1223.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S. Ct. 1570 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S. Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S. Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.
II. CLAIMS TIRADO CONCEDES
Tirado's response to defendants' motion for summary judgment concedes that several of his claims should be dismissed.
A. Claims Against Lieutenant Dominic
Following his altercation with Officers Holliday and Lassiter, Tirado was taken to the prison infirmary. (See page 4 above.) Tirado's amended complaint alleged that Lieutenant Dominic "confronted" him in the infirmary and threatened him with further assault. (See pages 4-5 above.) Tirado now concedes that he has not raised any genuine issues of material fact with respect to Lieutenant Dominic. (Dkt. No. 104: Tirado Br. at 3 ("Tirado does not contend that there is a genuine issue of material fact regarding Defendant Dominic's liability in this case").) Defendants therefore should be granted summary judgment on this claim. Because no claims against Lt. Dominic remain, he should be dismissed as a defendant in this case.
B. Claims Involving Officer Slivinksi
Similarly, Tirado's amended complaint alleged that Officer Slivinski's June 12, 2013 Inmate Misbehavior Report was retaliatory. (See page 8 above.) Officers Slivinski is not a defendant in this case, and Tirado now acknowledges that he "does not contend that there is a genuine issue of material fact regarding Defendants' responsibility for the misbehavior report filed by non-party Steven Slivinski." (Dkt. No. 104: Tirado Br. at 3.) Defendants therefore should be granted summary judgment on this claim.
C. Claims Relating To Tirado's Transfers Between Correctional Facilities
Finally, DOCCS transferred Tirado from Sing Sing to Mid-State to Auburn and back to Sing Sing. (See page 8 above.) Although Tirado initially alleged that defendants transferred him in order to impair his ability to pursue his grievance and this lawsuit (Am. Compl. ¶¶ 58, 65), he now "does not contend that there is a genuine issue of material fact regarding Defendants' liability for Mr. Tirado's transfers between correctional facilities" (Dkt. No. 104: Tirado Br. at 3). Accordingly, defendants should be granted summary judgment with respect to Tirado's claims arising from his transfers.
III. TIRADO'S REMAINING FIRST AMENDMENT RETALIATION CLAIMS
A. First Amendment Retaliation Standard
To prove a First Amendment retaliation claim, "a prisoner must show . . . '(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.'" Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009).
Accord, e.g., Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014); Kotler v. Donelli, 382 F. App'x 56, 57 (2d Cir. 2010); Allah-Kasiem v. Sidorowicz, 09 Civ. 9665, 2012 WL 2912930 at *8 (S.D.N.Y. July 15, 2012); Spavone v. Fischer, 10 Civ. 9427, 2012 WL 360289 at *3 (S.D.N.Y. Feb. 3, 2012); Henderson v. Sommer, 08 Civ. 3440, 09 Civ. 611, 2011 WL 1346818 at *5 (S.D.N.Y. Apr. 1, 2011); Bilal v. N.Y.S. Dep't of Corr., 09 Civ. 8433, 2010 WL 2506988 at *14 (S.D.N.Y. June 21, 2010) (Peck, M.J.), aff'd, 494 F. App'x 143 (2d Cir. 2012); Garcia v. Watts, 08 Civ. 7778, 2009 WL 2777085 at *9 (S.D.N.Y. Sept. 1, 2009).
For the second prong, adverse action, the plaintiff must show that the defendant's "retaliatory conduct . . . would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights . . . . Otherwise, the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection." Dawes v. Walker, 239 F.3d 489, 492-93 (2d Cir. 2001) (citations omitted), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992 (2002).
Accord, e.g., Dorsey v. Fisher, 468 F. App'x 25, 27 (2d Cir. 2012); Zherka v. Amicone, 634 F.3d 642, 644-45 (2d Cir. 2011); Davidson v. Chestnut, 193 F.3d 144, 150 (2d Cir. 1999); Thaddeus-X v. Blatter, 175 F.3d 378, 396-98 (6th Cir. 1999) (to be actionable, retaliation against a prisoner must be likely to "chill a person of ordinary firmness from continuing to engage" in activity protected by the First Amendment); Williams v. King, 11 Civ. 1863, 2014 WL 3925230 at *6 (S.D.N.Y. Aug. 11, 2014); Turner v. Sidorowicz, 12 Civ. 7048, 2014 WL 641454 at *10 (S.D.N.Y. Feb. 18, 2014); Liner v. Fischer, 11 Civ. 6711, 2013 WL 4405539 at *23 (S.D.N.Y. Aug. 7, 2013); Henderson v. Sommer, 2011 WL 1346818 at *5; Bilal v. N.Y.S. Dep't of Corr., 2010 WL 2506988 at *14; Mateo v. Fischer, 682 F. Supp. 2d 423, 433 (S.D.N.Y. 2010); Walker v. Keyser, 98 Civ. 5217, 2001 WL 1160588 at *6 (S.D.N.Y. Oct. 2, 2001), aff'd, 131 F. App'x 775 (2d Cir. 2005); Wagnoon v. Gatson, 00 Civ. 3722, 99 Civ. 5872, 2001 WL 709276 at *6 (S.D.N.Y. June 25, 2001); Rivera v. Goord, 119 F. Supp. 2d 327, 340 (S.D.N.Y. 2000).
For the third prong, causal connection between the protected speech and the adverse action, a court may consider a number of factors, including "any statements made by the defendant concerning his motivation" and "the temporal proximity between the protected activity and the defendant's adverse action." Williams v. Muller, 98 Civ. 5204, 2001 WL 936297 at *3 (S.D.N.Y. Aug. 17, 2001); see, e.g., Espinal v. Goord, 558 F.3d at 129; Turner v. Sidorowicz, 2014 WL 641454 at *10; Moore v. Cajigas, 12 Civ. 4120, 2013 WL 4734829 at *6 (S.D.N.Y. Aug. 20, 2013). In the context of retaliatory false misbehavior reports, a court may also consider the plaintiff's prior good disciplinary record and whether he was vindicated at the subsequent disciplinary hearing. See, e.g., Turner v. Sidorowicz, 2014 WL 641454 at *10-12; Jones v. Marshall, 08 Civ. 0562, 2010 WL 234990 at *4 (S.D.N.Y. Jan. 19, 2010); Brown v. Brown, No. 08-CV-0209, 2010 WL 1186569 at *6 (N.D.N.Y. Jan. 19, 2010), report & rec. adopted, 2010 WL 1186566 (N.D.N.Y. Mar. 24, 2010); Burton v. Lynch, 664 F. Supp. 2d 349, 367 (S.D.N.Y. 2009); Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002).
See also, e.g., Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 at *15 (S.D.N.Y. June 22, 2012) (Peck, M.J.), report & rec. adopted, 2012 WL 3822224 (S.D.N.Y. Sept. 4, 2012); Gill v. Jones, 95 Civ. 9031, 2001 WL 1346012 at *6 (S.D.N.Y. Nov. 1, 2001); Walker v. Keyser, 2001 WL 1160588 at *6; Rivera v. Goord, 119 F. Supp. 2d at 339.
If the plaintiff satisfies his burden,
the defendants must show by a preponderance of the evidence that they would have disciplined the plaintiff "even in the absence of the protected conduct." Thus, if taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone.Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted).
See, e.g., Murray v. Hulihan, 436 F. App'x 22, 23 (2d Cir. 2011); Bilal v. White, 494 F. App'x 143, 146 (2d Cir. 2010); Gill v. Tuttle, 93 F. App'x 301, 303 (2d Cir. 2004); Bennett v. Goord, 343 F.3d 133, 137 (2d. Cir. 2003); Ebron v. CTO Huria, No. 99-0087, 205 F.3d 1322 (table), 2000 WL 241576 at *1 (2d Cir. Feb. 1, 2000); Davidson v. Chestnut, 193 F.3d at 148-49; Duamutef v. Hollins, No. 97-2692, 159 F.3d 1346 (table), 1998 WL 537838 at *1 (2d Cir. July 7, 1998); Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir.), cert. denied, 525 U.S. 907, 119 S. Ct. 246 (1998); Davidson v. Kelly, No. 96-2066, 131 F.3d 130 (table), 1997 WL 738109 at *3 (2d Cir. Nov. 24, 1997); Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994); Sher v. Coughlin, 739 F.2d 77, 82 (2d Cir. 1984); see also, e.g., Allah-Kasiem v. Sidorowicz, 2012 WL 2912930 at *9; Spavone v. Fischer, 2012 WL 360289 at *3; Hare v. Hayden, 09 Civ. 3135, 2011 WL 1453789 at *4 (S.D.N.Y. Apr. 14, 2011); Walker v. Keyser, 2001 WL 1160588 at *6; Williams v. Muller, 98 Civ. 5204, 2001 WL 936297 at *3 (S.D.N.Y. Aug. 17, 2001); Jackson v. Johnson, 15 F. Supp. 2d 341, 363-64 (S.D.N.Y. 1998) (Kaplan, D.J. & Peck, M.J.); Campbell v. Kuhlmann, 91 Civ. 6766, 1998 WL 249196 at *4 (S.D.N.Y. May 15,1998).
Prisoners' claims of retaliation, of course, must be examined with skepticism and particular care because they are "'prone to abuse' since prisoners can claim retaliation for every decision they dislike." Graham v. Henderson, 89 F.3d at 79 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)); accord, e.g., Dorsey v. Fisher, 468 F. App'x at 27; Gill v. Pidlypchak, 389 F.3d 379, 385 (2d Cir. 2004); Bennett v. Goord, 343 F.3d at 137; Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003); Dawes v. Walker, 239 F.3d at 491.
See also, e.g., Williams v. King, 2014 WL 3925230 at *6; Liner v. Fischer, 2013 WL 4405539 at *22; Jackson v. Johnson, 15 F. Supp. 2d at 364 (& cases cited therein).
B. Tirado Engaged In Protected Speech
Tirado alleges that defendants retaliated against him for three different instances of protected speech: First, Tirado alleges that defendants retaliated against him for filing his January 2012 grievance and the related complaint to the Westchester County District Attorney's Office. (Dkt. No. 104: Tirado Br. at 10.) Second, Tirado alleges that defendants retaliated against him for his request on April 19, 2012 to be let out of his cell to speak to a sergeant regarding the loss of his recreation time. (Tirado Br. at 10-12.) Third, Tirado alleges that defendants retaliated against him for filing this lawsuit. (Tirado Br. at 12.)
In alleging that defendants retaliated against him for filing a prison grievance, Tirado has met the first prong of the First Amendment retaliation analysis requiring that the speech or conduct at issue was protected. "It is well settled that the filing of a prison grievance is a protected activity." Mateo v. Fischer, 682 F. Supp. 2d 423, 433 (S.D.N.Y. 2010). Similarly, the filing of a lawsuit is a protected activity. See, e.g., Espinal v. Goord 558 F.3d 119, 128-29 (2d Cir. 2009) ("There is no dispute that [plaintiff's] earlier federal lawsuit . . . was a protected activity."); Liner v. Fischer, 11 Civ. 6711, 2013 WL 4405539 at *23 (S.D.N.Y. Aug. 7, 2013) ("[F]iling prison grievances and lawsuits are constitutionally protected activities."); Jean-Laurent v. Lane, No. 11-CV-186, 2013 WL 600213 at *8 (N.D.N.Y. Jan. 24, 2013) ("The filing of lawsuits . . . is constitutionally protected activity for retaliation purposes."), report & rec. adopted, 2013 WL 599893 (N.D.N.Y. Feb. 15, 2013); Spavone v. Fischer, 10 Civ. 9427, 2012 WL 360289 at *4 (S.D.N.Y. Feb. 2012) ("There is no dispute that plaintiff's earlier lawsuit against defendants . . . was protected conduct . . . .").
See, e.g., Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) ("The [defendants] concede that filing an inmate grievance constitutes protected conduct . . . ."); Johnson v. Burge, 506 F. App'x 10, 12 (2d Cir. 2012) ("Undoubtedly, 'filing a grievance is protected activity.'"); Bilal v. White, 494 F. App'x 143, 146-47 (2d Cir. 2012) ("[T]he State ofNew York does not dispute that [plaintiff's] filing of an inmate grievance qualifies as protected activity for First Amendment purposes."); Kotler v. Donelli, 382 F. App'x 56, 57 (2d Cir. 2010) ("There is no dispute that [plaintiff's] activities on the grievance committee were protected."); Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (Plaintiff "has sufficiently alleged . . . participation in protected activity: the use of the prison grievance system."); Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001) (filing of internal prison complaint against a correction officer is protected by the First Amendment), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992 (2002); Ricket v. Orsino, 10 Civ. 5152, 2013 WL 1176059 at *18 (S.D.N.Y. Feb. 20, 2013) ("protected activity includes the filing of grievances"), report & rec. adopted, 2013 WL 1155354 (S.D.N.Y. Mar. 21, 2013); Inesti v. Hicks, 11 Civ. 2596, 2012 WL 2362626 at *16 (S.D.N.Y. June 22, 2012) (Peck, M.J.), report & rec. adopted, 2012 WL 3822224 (S.D.N.Y. Sept. 4, 2012); Edwards v. Horn, 10 Civ. 6194, 2012 WL 760172 at *14 (S.D.N.Y. Mar. 8, 2012) ("It is well-established that 'retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances'. . . ." ); Ayers v. Roberts, No. 05-CV-889, 2008 WL 2079921 at *6 (W.D.N.Y. May 15, 2008) ("The filing of formal prisoner grievances is among the conduct protected by the First Amendment and thus actionable under § 1983."); Smith v. Woods, No. 03-CV-480, 2006 WL 1133247 at *10 (N.D.N.Y. Apr. 24, 2006) (extending First Amendment protection to prisoner plaintiff's oral complaints to correction officers), aff'd, 219 F. App'x 110 (2d Cir. 2007), cert. denied, 522 U.S. 1248, 128 S. Ct. 1485 (2008).
Defendants do not appear to dispute whether Tirado's verbal complaints to Officer Holliday on April 19, 2012 were protected speech. (See Dkt. No. 112: Defs. Reply Br. at 4.) In any event, case law in this Circuit indicates that a prisoner's oral complaints to a correction officer may serve as the basis for a First Amendment retaliation claim. See, e.g., Lunney v. Brureton, 04 Civ. 2438, 2007 WL 1544629 at *24 & n.10 (S.D.N.Y. May 29, 2007) (defendant correction officers not entitled to summary judgment where inmate alleged they assaulted him after he made an oral complaint), report & rec. adopted 2007 WL 2050301 at *1 (S.D.N.Y. July 17, 2007); Smith v. Woods, 2006 WL 1133247 at *10 & n.69 (inmate's verbal complaint to a correction officer may serve as the basis for a First Amendment retaliation claim), aff'd 219 F. App'x 110 (2d Cir. 2007); Gill v. Riddick, No. 03-CV-1456, 2005 WL 755745 at *10 (N.D.N.Y. 2005) (inmate's oral complaints "clearly protected").
C. Claims Where Defendants Are Entitled To Summary Judgment
1. Tirado Has Failed To Show A Causal Connection Between His January 2012 Grievance And Defendants' Alleged Retaliatory Conduct
Defendants argue that Tirado has presented no evidence that his January 2012 grievance has any causal connection to the events of April 2012 because "[t]hese complaints were made three months earlier, the grievance submitted by [Tirado] was ultimately denied, the grievance/complaints did not name any of the defendants, and these defendants have affirmatively stated that they were unaware of these complaints prior to April 19, 2012." (Dkt. No. 103: Defs. Br. at 12-13.)
Defendants uniformly have denied that they were aware of Tirado's January 2012 grievance or his related complaint to the Westchester District Attorney's Office. (See page 2 above.) Tirado has presented no countervailing evidence. Absent evidence that any defendant knew about his January 2012 grievance, Tirado has failed to provide any basis to believe that they retaliated against him for a grievance in which they were not named. See, e.g., Faulk v. Fisher, 545 F. App'x 56, 59 (2d Cir. 2013) (summary judgment in favor of correction officers proper where inmate plaintiff failed to provide evidence that officers who wrote the allegedly retaliatory misbehavior reports were motivated by, named in, or even aware of the earlier grievance); Toliver v. Fischer, No. 12-CV-77, 2015 WL 403133 at *19 (N.D.N.Y. Jan. 29, 2015) ("[A] summary judgment motion might clarify who was named in plaintiff's first grievances and persuade the court that no rational fact finder would conclude that correction officers not implicated in the grievances had any cause to retaliate against plaintiff."); Jones v. Fischer, No. 10-cv-1331, 2013 WL 5441353 at *21 (N.D.N.Y. Sept. 27, 2013) ("Retaliation claims have been dismissed when they are supported only by conclusory allegations that the retaliation was based upon complaints against another officer."); Perez v. Keysor, No. 10-CV-518, 2013 WL 5493932 at *15 (N.D.N.Y. Sept. 30, 2013) (inmate claims alleging retaliation "'against other prison employees elsewhere in the New York penal system,' without providing additional factual allegations establishing knowledge and involvement are insufficient to state a claim"); Roseboro v. Gillespie, 791 F. Supp. 2d 353, 369 (S.D.N.Y. 2011) (Peck, M.J.) (plaintiff failed to provide any basis to believe that a corrections counselor would retaliate for a grievance in which the counselor was not named and of which he was unaware).
See also, e.g., Hare v. Hayden, 09 Civ. 3135, 2011 WL 1453789 at *4 (S.D.N.Y. Apr. 14, 2011) ("As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant."); Bryant v. Goord, 99 Civ. 9442, 2002 WL 553556 at *2 (S.D.N.Y. Apr. 12, 2002) ("The grievances that Plaintiff filed prior to the disciplinary proceedings at issue here did not involve any of these Defendants, therefore, there is no basis to assume that these Defendants instituted disciplinary proceedings against Plaintiff to retaliate for his filing grievances against other corrections officers."); Williams v. Goord, 111 F. Supp. 2d 280, 290 (S.D.N.Y. 2000) ("[P]laintiff has not sufficiently alleged that the conduct of [the defendants] was motivated by plaintiff's activities. Plaintiff fails to plead specific facts or to assert any causal connection between his filing of grievances against [one defendant] and his alleged denial of exercise by" the other defendants.).
In Espinal v. Goord, however, the Second Circuit found summary judgment inappropriate after finding a "legitimate inference" that a defendant correction officer participated in a retaliatory beating of an inmate because of the inmate's prior lawsuit against other correction officers, even though the defendant was not named in the suit. Espinal v. Goord, 558 F.3d 119, 129-30 (2d Cir. 2009). Espinal is distinguishable because, unlike the current case, the officers involved in the beating told the plaintiff that "'this is what happens to [i]nmates when they submit law suits against us.'" Espinal v. Goord, 558 F.3d at 122. Without such a statement evincing retaliatory intent, there is no "legitimate inference" here that defendants retaliated for a grievance in which they were not named and were unaware of.
Direct evidence is not required where "circumstantial evidence of a retaliatory motive is sufficiently compelling." Bennett v. Goord, 343 F.3d 133, 138-39 (2d Cir. 2003). Here, the only circumstantial evidence of retaliation based on Tirado's January 2012 grievance is that the April 19, 2012 use of force occurred within three months. (See pages 2-3 above.) To be sure, a "plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action." Espinal v. Goord, 558 at 129. Such circumstantial evidence of retaliation, however, without more, is insufficient to survive summary judgment -- especially here where defendants were unaware of Tirado's grievance. See, e.g., Faulk v. Fisher, 545 F. App'x at 58-59 (temporal proximity of the allegedly retaliatory misbehavior reports to plaintiff's filing of grievances and plaintiff's excellent prior disciplinary history were insufficient to avoid summary judgment where there was no additional evidence, and neither officer was involved in plaintiff's successful grievance); Ayers v. Stewart, No. 96-2013, 101 F.3d 687 (table), 1996 WL 346049 at *1 (2d Cir. June 25, 1996) (Plaintiff's "reliance on circumstantial evidence of retaliation-namely, the proximity of the disciplinary action to his complaint where no misbehavior reports were previously filed against him-does not suffice to defeat summary judgment."); Guillory v. Ellis, No. 11-CV-600, 2014 WL 4365274 at *14 (N.D.N.Y. Aug. 29, 2014) (quoting Roseboro v. Gillespie, 791 F. Supp. 2d at 370); Brown v. Graham, No. 07-CV-1353, 2010 WL 6428251 at *19 (N.D.N.Y. Mar. 30, 2010) ("[T]emporal proximity is the only fact that might give rise to a determination by a reasonable factfinder that the misbehavior report was issued in retaliation for plaintiff's grievance activity. However, that link is insufficient when considered in light of the present record. There is no evidence that [defendant] was aware of plaintiff's grievance activity . . . ."), report & rec. adopted, 2011 WL 1213482 (N.D.N.Y. Mar. 31, 2011); Williams v. Goord, 111 F. Supp. 2d at 290 ("Although the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment."); Gill v. DeFrank, 98 Civ. 7851, 2000 WL 270854 at *16 (S.D.N.Y. Mar. 9, 2000) (Peck, M.J.) ("While the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment."), report & rec. adopted as modified, 2000 WL 897152 (S.D.N.Y. July 6, 2000); cf. Blue v. Koren, 72 F.3d 1075, 1085 (2d Cir. 1995) ("a temporal sequence may fuel . . . suspicions, [but] it does not suffice to satisfy the heightened evidentiary standard").
Compare, e.g., Bennett v. Goord, 343 F.3d at 138 (summary judgment precluded where plaintiff's allegations were supported by the temporal proximity of settling of his lawsuit and the alleged retaliation and where "all relevant adverse actions by DOCS officials were subsequently found to have been unjustified."); Jones v. Coughlin, 45 F.3d 677, 680 (2d Cir. 1995) (plaintiff's testimony that retaliatory threats had been made, together with sequence of events, made summary judgment inappropriate); Smith v. City of N.Y., 03 Civ. 7576, 2005 WL 1026551 at *4 (S.D.N.Y. May 3, 2005) ("However, when this alleged statement [i.e., "'I don't like you, I'm pretty sure you know why'"] is combined with circumstantial evidence regarding the timing of the incident, plaintiff has established genuine issues of material fact regarding the reason for the destruction of his property.").
Viewing Tirado's retaliation claims with the appropriate skepticism (see cases cited on page 16 above), Tirado has failed to provide sufficient evidence to establish a causal connection between his January 2012 grievance and any defendant in this case. Defendants should be granted summary judgment on this claim.
2. Alleged April 19 , 2012 Threats By An Unidentified Officer
Tirado previously claimed that Lieutenant Dominic threatened further retaliation if Tirado spoke about the alleged assault. (See pages 4-5 above.) Having since conceded that there is no genuine issue regarding Lieutenant Dominic's liability (see pages 12-13 above), Tirado now argues that "there is at least a genuine issue of material fact as to whether Defendants retaliated against [him] by causing another correction officer to threaten [him] with additional assaults and to order him to 'hold it down.'" (Dkt. No. 104: Tirado Br. at 3.) Tirado testified that while he was in Sing Sing's medical facility following the alleged assault, a non-defendant correction officer told him to "hold it down," which Tirado understood to mean that he should not tell anyone that he had been assaulted or why. (See page 5 above.)
Vague threats like "hold it down," however, do not constitute an adverse action for purposes of a First Amendment retaliation claim because they are insufficiently specific to deter an inmate from exercising his First Amendment rights. See, e.g., Figueroa v. Holmes, No. 13-CV-48, 2013 WL 5702269 at *6 (N.D.N.Y. Oct. 18, 2013) (verbal threat did not rise to the level of an adverse action); Phelan v. Zenzen, No. 10-CV-6704, 2012 WL 5420423 at *7 (W.D.N.Y. Nov. 6, 2012) ("[V]ague intimations of some unspecified harm generally will not rise to the level of adverse action for the purpose of a First Amendment retaliation claim."); Barrington v. N.Y., 806 F. Supp. 2d 730, 746 (S.D.N.Y. 2011) ("[C]ourts in this district have dismissed and/or granted summary judgment with respect to retaliation claims based on general threats."); Royster v. Spitzer, 05 Civ. 6635, 2011 WL 2020442 at *4 (S.D.N.Y. Mar. 28, 2011) ("[T]hreats, without any subsequent injury, do not constitute an adverse action."), report & rec. adopted, 2011 WL 2020267 (S.D.N.Y. May 23, 2011); Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) ("The less direct and specific a threat, the less likely it will deter an inmate from exercising his First Amendment rights."); Bartley v. Collins, 95 Civ. 10161, 2006 WL 1289256 at *6 (S.D.N.Y. May 10, 2006) ("verbal threats such as 'we going to get you, you better drop the suit,' do not rise to the level of adverse action" (fn. omitted)).
In addition, despite discovery taken by Tirado's counsel, there is no evidence to connect the unidentified officer's alleged statement to any defendant. See, e.g., Rosales v. Fischer, 07 Civ. 10554, 2011 WL 253392 at *10 (S.D.N.Y. Jan. 24, 2011) (inmate failed to establish defendant's role in any alleged retaliation where defendant denied any involvement and plaintiff "pointed to no record evidence to the contrary").
See also, e.g., Ayers v. Stewart, No. 96-2013, 101 F.3d 687 (table), 1996 WL 346049 at *1 (2d Cir. June 25, 1996) (following extensive discovery, plaintiff's "allegation that a meeting had transpired among the defendants, during which they allegedly agreed to confine [plaintiff], is conclusory and is totally unsupported by the record. As such, it cannot defeat summary judgment."); Roseboro v. Gillespie, 791 F. Supp. 2d 353, 368-69 (S.D.N.Y. 2011) (Peck, M.J.) (summary judgment for defendant correction officer; while plaintiff claimed that defendant retaliated against him by discussing his grievance with other defendants, plaintiff has "not provided any evidence that such a discussion ever took place").
Defendants should be granted summary judgment on this claim.
3. Menacing And Intimidation By Officer Holliday In Response To The Filing Of This Lawsuit
Tirado claims that he "has raised a triable issue of fact as to whether Defendant Holliday has retaliated against [him] for filing this case" based on Holliday's "intimidation and menacing of Mr. Tirado and his parents since 2012." (Dkt. No. 104: Tirado Br. at 12, 15-16.) To establish that a defendant took an adverse action, a plaintiff must show that the defendant's "retaliatory conduct . . . would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights . . . . Otherwise, the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection." Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001) (citations omitted), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992 (2002); see also cases cited at page 14 above.
Tirado does not allege that Officer Holliday actually made any threats to him or his family, but merely alleges that Officer Holliday paced behind them in Sing Sing's visiting room and glared. (See page 9 above.) Although a pattern of harassment and vague threats potentially could constitute adverse action, see, e.g., Ford v. Palmer, 539 F. App'x 5, 7 & n.2 (2d Cir. 2013) (considered in context of multiple instances of correction officer denying plaintiff hot water for retaliatory reasons, correction officer's vague threat to poison plaintiff by putting an unidentified substance into plaintiff's water constituted adverse action); Dabney v. Maddock, No. 10-CV-519, 2011 WL 7479164 at *4 (N.D.N.Y. Nov. 29, 2011) (isolated actions that do not rise to the level of adverse actions on their own may "collectively . . . suffice to constitute adverse action"), report & rec. adopted, 2012 WL 760748 (N.D.N.Y. Mar. 7, 2012); Shariff v. Poole, 689 F. Supp. 2d 470, 478-79 (W.D.N.Y. 2010) (plaintiff satisfied adverse action requirement by showing "an excessive number of cell searches, false misbehavior reports, confiscation of legal documents, and verbal threats followed by excessive pat frisking and searching"), Tirado's allegation of a single instance of vague conduct does not meet that standard.
Defendants should be granted summary judgment on this claim.
D. Claims Where Defendants Are Not Entitled To Summary Judgment
Tirado has met his burden to survive summary judgment with respect to several of his claims. If "there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); see cases cited at pages 11-12 above. Here, Tirado has produced evidence from which a reasonable inference could be drawn that Officer Holliday assaulted him on April 19, 2012 and filed a false misbehavior report against him in retaliation for Tirado's requesting to speak to a sergeant. The record also contains evidence, including testimony from Tirado, another inmate and defendants, from which a reasonable inference could be drawn that defendants retaliated by planting contraband in Tirado's cell prior to Officer Jackson searching it.
1. The April 19 , 2012 Assault and Officer Holliday's Subsequent False Misbehavior Report
Defendants argue that "[i]n an effort to bypass the lack of evidence for the allegedly retaliatory nature of the April 2012 use of force, [Tirado] now argues, for the first time, that the alleged assault was also in retaliation for his having asked Officer Holliday to speak with a Sergeant and for 'disrespecting' that Officer" and that Tirado never asserted this claim prior to filing his opposition brief. (Dkt. No. 112: Defs. Reply Br. at 4.) Defendants view this as an impermissible attempt to amend the complaint through opposition papers. (Defs. Reply Br. at 4.)
Tirado's amended complaint does assert that his retaliation claims are based in part on his conversation with Officer Holliday immediately prior to defendants' use of force. Tirado's third cause of action, for retaliation, incorporates by reference all of Tirado's prior factual allegations and specifically alleges that defendants retaliated against Tirado on the basis of the conduct described in all of them. (Dkt. No. 80: Am. Comp. ¶¶ 103-04.) This includes Tirado's allegations about requesting to speak to a sergeant and Officer Lassiter telling Tirado that he was "'disrespecting'" Holliday. (Am. Comp. ¶¶ 18-19, 22-24, 30.) Defendants' argument that it is "inapposite" for Tirado to "cite[] to the Third cause of action in the Complaint for [this] claim" because "that cause of action focuses exclusively on the January 2012 complaints" (Defs. Reply Br. at 4) therefore is incorrect.
In support of his claim that the officers' use of force and Officer Holliday's subsequent false misbehavior report were retaliatory, Tirado has produced sufficient evidence, both direct and circumstantial, to allow a jury to find causal connections between his request to speak to a sergeant and those events.
The officers' use of force against Tirado and Officer Holliday's subsequent false misbehavior report occurred immediately after Tirado complained to Officer Holliday that he wanted to speak to a sergeant. (See pages 3, 5 above.) Tirado's subsequent vindication at his disciplinary hearing supports Tirado's account of the incident, as do the results of the investigation into the incident by the DOCCS Inspector General. (See pages 7-8 above.) In addition, other inmates who witnessed the altercation testified that, contrary to defendants' account, Officer Holliday approached Tirado in his cell, directed Tirado to leave the cell and walk toward the center gate area of the galley, and together with Officer Lassiter attacked Tirado without provocation. (See page 3 above.) Officer Holliday admitted that he believed the center gate area was outside the view of inmates and the cameras. (See page 3 above.)
Tirado also has presented direct evidence of defendants' retaliatory motive. Officer Lassiter told Sergeant Shutt, with Tirado present, that Tirado was "disrespecting Holliday" by demanding to speak to a sergeant. (See pages 3-4 above.) Tirado's testimony is corroborated by another inmate who testified that Officer Holliday was telling inmates who were calling for a sergeant to "be quiet" and "assertively" claimed that "I don't give a fuck about Lieutenants or Deps. I run shit here and if you don't do what I say I'll write you up every day I work." (See page 4 above.)
Finally, Officer Holliday's subsequent testimony that in issuing Tirado a disciplinary report in August 2014 he had to protect his interests and job (see page 9 above) provides further circumstantial evidence of a retaliatory motive. Defendants are correct that Tirado cannot advance a retaliation claim based on the August 2014 report because he has not exhausted his administrative remedies with respect to any such claim. (Dkt. No. 112: Defs. Reply Br. at 8, citing Jones v. Brock, 549 US. 199, 218, 127 S. Ct. 910, 922-23 (2000); see page 9 above.) Tirado, however, argues that the August 2014 misbehavior report is one component of a disciplinary record that, as a whole, "reflects Defendants' persistent retaliatory motive." (Dkt. No. 104: Tirado Br. at 18). Other parts of that disciplinary record support Tirado's argument. Tirado was found not guilty of assaulting Officer Holliday during the April 2012 incident (see page 7 above), and a superintendent's investigation of Officer Holliday's August 2014 report reached a similar conclusion; although Officer Holliday alleged that Tirado assaulted him, Tirado again was vindicated on that charge (see page 9 above). Officer Holliday twice filed false misbehavior reports alleging that Tirado assaulted him; a jury reasonably could infer from his statement admitting a retaliatory motive for the latter report that he had a similar motive for the prior one. (See pages 7, 9 above.)
Defendants should be denied summary judgment with respect to whether their use of force against Tirado on April 19, 2012, and Officer Holliday's subsequent false misbehavior report, were in retaliation for Tirado's verbal complaints to Officer Holliday immediately prior to the incident.
2. Tirado's Claim That Defendants Planted Contraband Found During Officer Jackson's April 19 , 2012 Cell Search
Defendants argue that, as a matter of law, Tirado cannot establish a retaliation claim based on Officer Jackson's cell search. (See Dkt. Not. 103: Defs. Br. at 13-14.) "[W]hile the Second Circuit has not addressed whether a cell search can constitute an adverse action for purposes of a First Amendment retaliation claim, many district courts in this circuit have concluded that a cell search cannot support such a claim." Shannon v. Venettozzi, 13 Civ. 4530, 2015 WL 114179 at *7 n.4 (S.D.N.Y. Jan. 8, 2015); accord, e.g., Mateo v. Alexander 10 Civ. 8427, 2012 WL 864805 at *4 (S.D.N.Y. Mar. 14, 2012) ("The Second Circuit has not addressed whether a cell search can constitute an adverse action for purposes of a First Amendment retaliation claim. Nevertheless, many district courts in this circuit have concluded that a cell search is insufficient to support such a claim. These courts have reasoned . . . that a search of an inmate's cell, even for retaliatory reasons, does not implicate a constitutional right, because a prisoner has no reasonable expectation of privacy in his or her prison cell." (fn. & citations omitted)); Salahuddin v. Mead, 95 Civ. 8581, 2002 WL 1968329 at *5 (S.D.N.Y. Aug. 26, 2002) ("Many courts in this district have concluded that a retaliatory cell search is insufficient to support a First Amendment retaliation claim."). Defendants also argue that "a prison inmate has no general Constitutional right to be free from being falsely accused in a misbehavior report. There must be more, such as retaliation against the prisoner for exercising a constitutional right." (Defs. Br. at 15, citing Boddie v. Schneider, 105 F.3d 857, 862 (2d Cir. 1997); see also Dkt. No. 112: Defs. Reply Br. at 5 n.2.)
Retaliation for exercising a constitutional right is, however, the basis for Tirado's claim that "[t]here is at least a genuine issue of material fact as to whether the misbehavior report issued as a result of the cell search was retaliatory because it was based on planted evidence" (Dkt. No. 104: Tirado Br. at 2), not the simple fact that the Officer Jackson searched Tirado's cell or that the resulting misbehavior report allegedly was false. Tirado supports his claim that the contraband was planted with his own testimony, evidence from prior searches of his cell, testimony from another inmate that retaliation by weapon-planting was a concern for inmates at Sing Sing, and evidence that a jury could find shows that defendants had the motive and means to plant the contraband in Tirado's cell. (See Tirado Br. at 2; see pages 4-8 above.)
Defendants do not dispute that the planting of weapons or other contraband in an inmate's cell can support a First Amendment retaliation claim. (See Dkt. No. 112: Defs. Reply Br. at 5-7.) Instead, defendants argue that Tirado "has not 'adduced' any 'evidence' that any of the defendants retaliated against him by planting contraband in his cell," that his claims are merely "conjecture and supposition," and that Tirado's argument that his evidence shows defendants had the motive, means, and opportunity to plant the contraband is "irrelevant . . . as that does not constitute evidence that any of them actually did plant contraband." (Defs. Reply Br. at 5-6.)
Taken as a whole, Tirado's evidence is the sort of circumstantial evidence from which a jury reasonably could infer that the contraband was planted. See, e.g., Kotler v. Donelli, 382 F. App'x 56, 58 (2d Cir. 2010) ("Viewing the evidence in the light most favorable to [plaintiff], as we must, a reasonable jury could return a verdict for [plaintiff]. [Plaintiff] disavows ownership of the weapon, defendants' testimony is inconsistent on how and where the prison officials found the weapon, and there is evidence that at least one defendant wished to remove [plaintiff] from the grievance committee. This combined with the rest of the circumstantial evidence [plaintiff] alleges is sufficient to raise a genuine issue of fact as to whether one or more of the defendants retaliated against [plaintiff] for his protected activities."); Bennett v. Goord, 343 F.3d 133, 136-39 (2d Cir. 2003) (inmate's circumstantial evidence of retaliation "sufficiently compelling" to survive summary judgment; defendants filed disciplinary charge involving allegedly planted weapon mere days after inmate filed grievance and inmate was subsequently vindicated on administrative appeal); Jackson v. Goord, No. 06-CV-6172, 2013 WL 1560204 at *1-2 (W.D.N.Y. Apr. 10, 2013); Higgins v. Artuz, 94 Civ. 4810, 1997 WL 466505 at *5 (S.D.N.Y. Aug. 14, 1997) (Sotomayor, D.J.) (defendants not entitled to summary judgment on inmate's claim of retaliatory false misbehavior reports alleging possession of contraband; temporal proximity to inmate's grievances and activist role on grievance committee combined with inmate's vindication in resulting disciplinary hearings and status as honor block inmate created factual dispute).
First, Tirado consistently testified at his disciplinary hearing and at deposition that the three contraband items recovered from his cell were not his. (See page 6 above.) Search logs for Tirado's cell show that three searches of his cell in the prior three months found no contraband similar to that recovered on April 19, 2012. (See page 6 above.)
Tirado argues that planting weapons in his cell would undermine his credibility and substantiate Officer Holliday's claim to have been fearful when he used force on Tirado (Tirado Br. at 14), and he has introduced evidence from which a jury could infer that this gave at least Officer Holliday motive to plant the contraband. Officer Holliday testified that he was scared for his life when, according to his version of events, Tirado assaulted him (see page 4 above), and the subsequent disposition of his disciplinary report against Tirado, which included a finding that Tirado was not guilty, that Officer Holliday was not credible, and that resulted in now-rescinded disciplinary actions against both Officers Holliday and Lassiter by the Officer of the Inspector General, demonstrate why a jury could find that Officer Holliday would want to bolster his credibility (see pages 7-8 above). Furthermore, inmate Kelvin Vazquez testified that he feared that if he spoke up about the April 19, 2012 assault on Tirado, officers would put a knife in his cell and "justify a search" in order to have him sent to SHU. (See page 6 above.)
Tirado's evidence supports his argument that defendants had the means of acquiring, and therefore the means to plant, the contraband found in his cell because "altered items are rife at Sing Sing and correction officers confiscate them easily and regularly." (Tirado Br. at 14.) Defendants claim that this is "mere speculation as [Tirado] presents no evidence that any of these defendants possessed such items." (Defs. Reply Br. at 6.) Lieutenant Dominic's and inmate Vazquez' testimony confirmed that contraband such as altered tweezers is common at Sing Sing and found by guards on a regular basis. (See page 6 above.)
Tirado notes that defendants had the opportunity to plant the contraband since Officer Jackson did not perform the search until 5:30 p.m., two and a half hours after Tirado was taken to the medical facility and SHU. (Tirado Br. at 14-15; see pages 4-6 above.) Tirado's cell may have been open for some of that time, and both Officers Holliday and Lassiter had keys to open it. (See page 6 above.) In addition, Officer Holliday testified that he returned to Tirado's gallery after Tirado was taken to the medical facility. (See page 7 above.) Similarly, both Sergeant Shutt and Officer Lassiter testified that they stayed at work on April 19, 2012 after their shifts' scheduled end at 3:00 p.m. (See page 7 above.) Thus, Tirado has presented evidence that "[d]efendants had a clear opportunity to engage in this misconduct while [he] was locked away in SHU following the assault." (Tirado Br. at 14.)
Finally, defendants' argument that "even if the Court were to determine that plaintiff has satisfied his burden of demonstrating that the defendants retaliated against him by conducting a cell search and issuing a misbehavior report to him, such claims should still be dismissed because such actions were motivated by legitimate penological interests" (Defs. Br. at 17) is without merit insofar as Tirado's claim is that the misbehavior report is based on defendants having planted contraband in his cell. Retaliatory contraband planting clearly serves no legitimate penological interest.
Drawing all reasonable inferences in Tirado's favor, there is sufficient evidence to raise a genuine factual dispute about whether Officer Holliday (and/or Officer Lassiter or Sergeant Shutt) planted contraband in Tirado's cell prior to Officer Jackson searching it on the evening of April 19, 2012.
Tirado, however, has presented no evidence that Officer Jackson knew about the alleged planting of the contraband, played any role in it, or otherwise engaged in any retaliatory conduct whatsoever and even testified that he does not believe Officer Jackson had any part in the alleged retaliation. (See pages 4-7 above.) Accordingly, Officer Jackson should be dismissed as a defendant in this case.
Defendants should be denied summary judgment on this claim.
IV. DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY
Defendants also argue that they are entitled to summary judgment on qualified immunity grounds. (See Dkt. No. 103: Defs. Br. at 24-25; Dkt. No. 112: Defs. Reply Br. at 9-10.) "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982)). When a government official charged with violating federal constitutional rights invokes qualified immunity to support a summary judgment motion, the Court considers, as a threshold matter, whether the facts when viewed in the light most favorable to the plaintiff show that the officer's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); accord, e.g., Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam). If the answer to this question is no, "there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. at 201, 121 S. Ct. at 2156; see also, e.g., X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 66 (2d Cir. 1999) (observing that resolution of this first question favorable to defendant "moots" further inquiry into qualified immunity). "The reason for this rule is that, where there is no viable constitutional claim, defendants have no need of an immunity shield." Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007).
See also, e.g., Farrell v. Burke, 449 F.3d 470, 499 n.14 (2d Cir. 2006) (Sotomayor, C.J.) ("Because we have found no cognizable violation of [plaintiff's] rights in this case, we need not reach the question of qualified immunity."); Holcomb v. Lykens, 337 F.3d 217, 223-25 (2d Cir. 2003) (declining to decide qualified immunity question and affirming summary judgment on ground that, as a matter of law, defendants did not violate plaintiff's due process rights); Muhammad v. Jenkins, 12 Civ. 8525, 2013 WL 5225573 at *8 (S.D.N.Y. Sept. 13, 2013) ("If the answer to [the first prong of Saucier] is no, the case is over—not because the defendant is entitled to qualified immunity, but because the defendant did nothing wrong.").
If, however, the answer to the first question is yes, the Court must decide whether "the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. at 232, 129 S. Ct. at 816 (citing Saucier v. Katz, 533 U.S. at 201, 121 S. Ct. at 2156). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. at 202, 121 S. Ct. at 2156; accord, e.g., Tolan v. Cotton, 134 S. Ct. at 1866. "[T]his question is not answered by reference to how courts or lawyers might have understood the state of the law." Walczyk v. Rio, 496 F.3d at 154. When the right at issue is not clearly established by then existing precedent, qualified immunity shields the defendant. Pearson v. Callahan, 555 U.S. at 243-45, 129 S. Ct. at 822-23; accord, e.g., Tolan v. Cotton, 134 S. Ct. at 1866 ("'[T]he salient question . . . is whether the state of the law' at the time of an incident provided 'fair warning' to the defendants 'that their alleged [conduct] was unconstitutional.'" (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2511 (2002))). "Even if the right at issue was clearly established in certain respects, however, an officer is still entitled to qualified immunity if 'officers of reasonable competence could disagree' on the legality of the action at issue in its particular factual context." Walczyk v. Rio, 496 F.3d at 154 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986)). "In this respect, the Supreme Court has observed that qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.'" Walczyk v. Rio, 496 F.3d at 154 (quoting Malley v. Briggs, 475 U.S. at 341, 106 S. Ct. at 1096.)
See also, e.g., Betts v. Shearman, 751 F.3d 78, 82-83 (2d Cir. 2014); Iqbal v. Hasty, 490 F.3d 143, 167 (2d Cir. 2007), rev'd on other grounds, 556 U.S. 662, 129 S. Ct. 1937 (2009); Cerrone v. Brown, 246 F.3d 194, 202 (2d Cir. 2001); Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995).
The Supreme Court clarified in Pearson that the rigid application of Saucier's two-step protocol is not appropriate in every qualified immunity case, but recognized that it:
"is often beneficial," such as where the analysis of the facts under clearly established law "make[s] it apparent that . . . the relevant facts do not make out a constitutional violation at all" and where the question presented does "not frequently arise in cases in which a qualified immunity defense is unavailable."Dean v. Blumenthal, 577 F.3d 60, 67 (2d Cir. 2009) (discussing Pearson's holding that Saucier's two-step framework is no longer mandatory), cert. denied, 559 U.S. 1058, 130 S. Ct. 2347 (2010); see also, e.g., Tolan v. Cotton, 134 S. Ct. at 1866 ("Courts have discretion to decide the order in which to engage these two prongs."); Pearson v. Callahan, 555 U.S. at 236, 129 S. Ct. at 818 (the "judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand").
Defendants are not entitled to summary judgment on qualified immunity grounds. The constitutional right that Tirado alleges they violated -- the right to be free from retaliation for the exercise of his First Amendment rights -- has long been clearly established. See, e.g., Faulk v. Fisher, 545February 23, 2015 F. App'x 56, 58 (2d Cir. 2013) ("The [defendants] concede that filing an inmate grievance constitutes protected conduct . . . ."); Johnson v. Burge, 506 F. App'x 10, 12 (2d Cir. 2012) ("Undoubtedly, 'filing a grievance is protected activity.'"); Bilal v. White, 494 F. App'x 143, 146-47 (2d Cir. 2012) ("[T]he State of New York does not dispute that [plaintiff's] filing of an inmate grievance qualifies as protected activity for First Amendment purposes."); Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) ("This court has held that retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments and is actionable under § 1983."); Edwards v. Horn, 10 Civ. 6194, 2012 WL 760172 at *14 (S.D.N.Y. Mar. 8, 2012). The very same factual disputes that make summary judgment on the merits improper in this case preclude summary judgment on qualified immunity grounds. See, e.g., Lore v. City of Syracuse, 670 F.3d 127, 162 (2d Cir. 2012); Bonilla v. U.S., 357 F. App'x 334, 335 (2d Cir. 2009) ("Although qualified immunity is a question of law for the Court, if there are factual disputes that bear directly upon whether it was objectively reasonable for an official to believe that he was acting lawfully, these disputes must be resolved by a jury before the legal question can be addressed."); Mills v. Fenger, 216 F. App'x 7, 9 (2d Cir. 2006) ("Because the parties' accounts differ on the important questions of whether [the plaintiff] resisted arrest and whether his actions threatened the officer or required the force used, summary judgment on qualified immunity is inappropriate."); Kerman v. City of New York, 261 F.3d 229, 240 (2d Cir. 2001) ("[T]he parties' versions of the facts differ markedly and '[s]ummary judgment on qualified immunity grounds is not appropriate when there are facts in dispute that are material to a determination of reasonabless.'" (quoting Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999)).
See also, e.g., Patterson v. Labella, No. 12-cv-1572, 2014 WL 4892895 at *11 (N.D.N.Y. Sept. 30, 2014) ("If there is no dispute as to any material fact, the issue of whether the official's conduct was objectively reasonable is an issue of law to be decided by the court. Any unresolved factual issues, however, must be resolved by the jury." (citations omitted)); Tompkins v. City of N.Y., 12 Civ. 7771, 2014 WL 4467814 at *6 (S.D.N.Y. Sept. 10, 2014); Okoroafor v. City of N.Y., 07 Civ. 9387, 2013 WL 5462284 at *4-5 (S.D.N.Y. Sept. 25, 2013); Searles v. Pompilio, 652 F. Supp. 2d 432, 446 (S.D.N.Y. 2009); Rivera v. Leto, No. 04 Civ. 7072, 2008 WL 5062103 at *7 (S.D.N.Y. Nov. 25, 2008).
CONCLUSION
For the reasons set forth above, defendants' motion for partial summary judgment (Dkt. No. 100) should be DENIED with respect to (i) Tirado's claim that defendants retaliated against him on April 19, 2012 for requesting to speak to a sergeant by assaulting him and issuing a false misbehavior report based on the assault, and (ii) his claim that they planted contraband in his cell as a further instance of retaliation, but GRANTED in all other respects. Lieutenant Dominic and Officer Jackson should be DISMISSED as defendants in this case.
The Pretrial Order is due March 20, 2015 (even if objections are filed to this Report and Recommendation).
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 500 Pearl Street, Room 1320, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Swain (with a courtesy copy to my chambers). Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); Ingram v. Herrick, 475 F. App'x 793, 793 (2d Cir. 2012); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York
February 23, 2015
Respectfully submitted,
/s/_________
Andrew J. Peck
United States Magistrate Judge Copies ECF to: All Counsel
Judge Laura Taylor Swain