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holding that inmate had not met adverse action element of either First Amendment or ADA retaliation claim "[b]ecause the conditions in the . . . infirmary to which Warren was transferred, which constituted the alleged retaliation, were substantially similar to the conditions under which Warren was held prior to his transfer"
Summary of this case from Lenti v. ConnecticutOpinion
No. 06-3349-pr.
November 26, 2008.
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED that the judgment of the district court (Leslie G. Foschio, Magistrate Judge) is AFFIRMED.
Appearing for Appellant: Gregory Warren, Mohawk Correctional Facility, Rome, NY, pro se.
Appearing for Appellees: Andrew M. Cuomo, Attorney General for the State of New York, Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General (Martin A. Hotvet, of counsel), Albany, NY.
PRESENT: HON. CHESTER J. STRAUB, HON. ROBERT D. SACK HON. RICHARD C. WESLEY, Circuit Judges.
Appellant Gregory Warren, appearing pro se, appeals from the May 30, 2006, judgment of the United States District Court for the Western District of New York dismissing Warren's claims of discrimination under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a); First Amendment retaliation; and retaliation under Title V of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12203(a); and denying Warren leave to file a second amended complaint. The judgment followed a remand from this Court. See Warren v. Goord, 81 Fed. App'x 400 (2d Cir. 2003). We assume the parties' familiarity with the facts and procedural history of the case and the issues raised on appeal.
We review for abuse of discretion a determination of a district court to deny a party leave to amend a complaint.Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). "A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party." McCarthy v. Dun Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). The magistrate judge did not abuse his discretion in denying Warren leave to file a second amended complaint because (1) Warren waited until nearly five years after filing his first amended complaint (which was filed on November 18, 1999; the original complaint had been filed on April 28, 1999), and more than two years after the date of the latest alleged event that he sought to include in the second amended complaint, before seeking to file the second amended complaint; (2) his amendments would have prejudiced the defendants, in that the amendments sought to add additional defendants and events long after the occurrence of the events alleged; and (3) the proposed amendments were beyond the scope of this Court's remand order. See Zahra v. Town of Southold, 48 F.3d 674, 686 (2d Cir. 1995); Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985).
Although not explicitly stated by the magistrate judge, it seems clear that Warren's claims on remand were dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. We therefore review the magistrate judge's decision de novo, construing the complaint liberally, accepting all factual allegations as true, and drawing all reasonable inferences in Warren's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002).
The magistrate judge correctly concluded that Warren's claims under the Rehabilitation Act are barred by Eleventh Amendment immunity. During the time in question, it was understood that the Rehabilitation Act's abrogation of sovereign immunity for claims against the State under the Act was effective.See Kilcullen v. N.Y. State Dep't of Labor, 205 F.3d 77, 78-82 (2d Cir. 2000). The Supreme Court has since held, however, that the provision is unconstitutional.See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001); see also Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 113 n. 3 (2d Cir. 2001).
The question, then, is whether the State waived the sovereign immunity to which, it is now clear, it was entitled. Such a waiver is not effective unless it constitutes an "intentional relinquishment or abandonment of a known right or privilege."College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682 (1999) (internal quotation marks omitted). Here, there was no such "known right or privilege," because at the time in question, Congress had abrogated the state's sovereign immunity and it was not known that the abrogation was ineffective because it was unconstitutional. The state's actions in accepting federal funds therefore cannot be understood to have constituted a waiver of that immunity. See Garcia, 280 F.3d at 113-15.
Warren's First Amendment retaliation claim was correctly dismissed. In order to sustain a First Amendment retaliation claim, a plaintiff is required to show, inter alia, that he was subjected to an adverse action legally sufficient to support the claim. See Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 6 (2d Cir. 2006)cert. denied 127 S. Ct. 2062 (2007). Because the conditions in the four-man room at the Attica Correctional Facility infirmary to which Warren was transferred, which constituted the alleged retaliation, were substantially similar to the conditions under which Warren was held prior to his transfer, the magistrate judge was correct in concluding that the conditions did not constitute an adverse action.
Similarly, Warren failed to state a retaliation claim pursuant to Title V of the ADA, because, in order to state such a claim, a plaintiff must establish a "materially adverse" action that "well might have dissuaded a reasonable [person] from making or supporting a charge of discrimination." Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks omitted); see also Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001)("We analyze a retaliation claim under the ADA using the same framework employed in Title VII cases."). Because, as explained above, Warren's transfer to the Attica Correctional Facility did not constitute an adverse action, Warren's Title V retaliation claim, whether alleged against the defendants in their official or individual capacities, was properly dismissed.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.