Opinion
19-CV-3347 (LJL) (JLC)
01-14-2022
ALEXANDER WILLIAMS JR., Plaintiff, v. THE CITY OF NEW YORK et al ., Defendants.
Honorable Lewis J. Liman, United States District Judge:
REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
Table of Contents
I. BACKGROUND ....................................................................................................... 2
A. Factual Background ..................................................................................... 2
1. Williams is a pretrial detainee on lockdown status ....................................... 2
2. Williams reports mistreatment ....................................................................... 5
a. Mail interference and tampering ................................................................... 5
i. Alexander reads outgoing mail (January-February 2019). . .................... 5
ii. MDC staff interfere with Williams' mail (March-April 2019; April 2020) ................................................................................................................. 6
iii. Deputy Rivera holds outgoing legal mail (June-July 2019). . ............... 8
iv. Williams has trouble sending mail and accessing social services (Sept.-Dec. 2019; Jan.-Aug. 2020) ................................................................. 9
v. Incoming packages are opened outside of Williams' presence. . .......... 11
b. Denial of access to the law library and to lawyers ...................................... 12
i. Williams is allegedly denied contact with his criminal defense attorneys. . ...................................................................................................... 12
ii. Williams is unable to use the law library ................................................ 14
iii. Miscellaneous access to court issues .................................................... 15
c. Retaliation ..................................................................................................... 15
d. April 2020 Use of Force incident .................................................................. 18
3. CLO 104/19 found not in compliance with Minimum Standards ................ 21
4. Williams files civil lawsuits in federal and state courts. . ............................ 22
B. Procedural History ..................................................................................... 22
II. DISCUSSION ........................................................................................................ 24
A. Legal Standards ........................................................................................... 24
1. Summary Judgment ...................................................................................... 24
2. Cross-Motions for Summary Judgment ........................................................ 27
3. Pro Se Litigants ............................................................................................. 27
B. The Parties' Submissions Pursuant to Local Rule 56.1 ...................... 28
C. Analysis ......................................................................................................... 31
1. Mail Interference and Free Speech ............................................................... 31
a. Alexander is not liable for reading Williams' outgoing mail. . ..................... 33
b. Alexander is entitled to qualified immunity ................................................ 35
c. Williams has not established a cognizable claim of mail interference. . ...... 36
2. Denial of Access to the Courts ...................................................................... 38
a. Mail tampering as claimed here did not prevent access to courts. . ............ 40
b. The lack of access to the law library and instances in which Williams could not speak with his attorneys did not prevent access to the courts. . ..... 42
c. Williams does not have a claim based on his grievances not being processed. . ......................................................................................................... 46
3. Retaliation ..................................................................................................... 48
a. Williams faced adverse action ...................................................................... 49
b. Causal connection between protected acts and adverse action exists ........ 52
4. Excessive Force and Deliberate Indifference ............................................... 53
a. Defendant Gorritz did not use excessive force. . ........................................... 54
b. Defendants were not deliberately indifferent to Williams' medical needs. 57
5. Derivative Claims .......................................................................................... 59
III. CONCLUSION .................................................................................................... 61
Plaintiff Alexander Williams Jr., proceeding pro se, brings this Section 1983 action against the City of New York and 16 individual defendants from the New York City Department of Corrections (“DOC”) in their personal and official capacities, including Deputy Rivera, Correctional Officer Alexander, Captain Bernard Mathis, Correctional Officer Ramirez, M.D.C. Civilian Grievance Supervisor A. Padillo, Correctional Officer Martinez (Shield #1769), Mailroom Civilian T. Green, Captain John Hernandez, Deputy Shannon, ADW Harvey, Warden B.B. Suarez, C.O. Wells, Dep. Galloway, Dep. Warden Bailey, C.O. Sandra Espinoza, and Captain Goritz (collectively, “Defendants”). Williams alleges that Defendants violated his constitutional rights under the First and Fourteenth Amendments during his pretrial incarceration at the Manhattan Detention Complex. Specifically, Williams alleges mail tampering or interference, denial of access to the courts, retaliation, excessive force, and deliberate indifference to medical needs.
Defendant names are listed and spelled as provided in Williams' pleadings, with the exception of Correction Officer Ramirez, who was added as a defendant by court order at Dkt. No. 16. Williams did not identify all defendants by full names. Defendants spell Officer Goritz as Officer “Gorritz” throughout their filings; as such, that is the spelling used by the Court in this Report.
Before the Court are Williams' motion for summary judgment and Defendants' cross-motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons discussed below, I recommend that Williams' motion be denied in its entirety and Defendants' cross-motion be granted, except as to the retaliation claims against defendants Mathis and Wells.
I. BACKGROUND
A. Factual Background
The following facts are taken from Defendants' Local Civil Rule 56.1 Statement, the pleadings, as well as the affidavits, declarations, exhibits, and supporting materials submitted by the parties. The pleadings in this case include complaints filed by Williams in two other lawsuits later consolidated into the current action before the Court. The operative complaint in the first case, Case No. 19-CV-3347, is the amended complaint, filed on May 24, 2019 (“Compl. 1”). Williams filed the complaint in the second case, Case No. 19-CV-8737, on September 20, 2019 (“Compl. 2”). In the third case, Case No. 20-CV-3992, a second amended complaint was filed on July 21, 2020 (“Compl. 3”). The facts are undisputed except as noted.
The details of this consolidation are described in the Procedural History section below. See also Dkt. Nos. 58, 88.
1. Williams is a pretrial detainee on lockdown status
Williams is a pretrial detainee at the Manhattan Detention Complex (“MDC”). He was designated as an “intended contraband recipient” (“ICR”) from January 18, 2019 through February 7, 2020, and was re-designated as such in June 2020. Defendants' Local Rule 56.1 Statement (“Rule 56.1”), Dkt. No. 158, ¶¶ 2-3. ICR is a security classification used to identify inmates who have “participated in the promotion of prison contraband.” Declaration of Qiana Smith-Williams dated February 26, 2021 (“Smith-Williams Decl.”), Dkt. No. 160, Exh. J. Inmates identified as ICR receive “special attention” during scheduled and non-scheduled searches; while “excessive and/or unauthorized property” is to be confiscated, inmates are to be provided with an appropriate receipt. Id.
Defendants filed the Declaration of Qiana Smith-Williams in Support of Defendants' Motion for Summary Judgment twice. At Dkt. No. 159, they attached Exhibits A-H, and at Dkt. No. 160, they attached Exhibits I-P.
Williams has been housed in Unit 9 North since January 18, 2019, pursuant to two different lockdown orders. Although undated in the record, the parties agree that the first order is from January 2019. Plaintiff's Memorandum of Law (“Pl. Mem.”), Dkt. No. 148, Exh. B; Smith-Williams Decl., ¶ 10 and Exh. I. The second order was issued on January 22, 2020. Smith-Williams Decl., ¶ 4 and Exh. C. The state court issued these lockdown orders after being “presented with clear and convincing evidence that [Williams] ha[d] solicited the aid of other persons to threaten, intimidate, and cause serious physical injury or death to witnesses, ” and because he “pose[d] a continuing, significant risk to the safety of persons whom he perceives as being potential witnesses against him.” Smith-Williams Decl., Exh. C.; Pl. Mem. Exh. B.
Williams' memorandum of law, Dkt. No. 148, includes Exhibits A-C, and the four attachments to his memorandum of law, Dkt Nos. 148-1 through 148-4, contain Exhibits D-P.
According to the lockdown orders, Williams was to be “housed in a highly secure area, ” “preferably the lockdown area, ” and was to be “separated from all other inmates . . . to prevent him, to the extent possible, from communicating with or passing material to other inmates.” Pl. Mem. Exh. B; Rule 56.1 ¶ 8. Williams' first lockdown order in January 2019 barred him from visits other than with his criminal defense attorney, Jeffrey Chabrowe, and precluded him from any telephone calls other than to his attorney. Pl. Mem. Exh. B. His second lockdown order allowed contact with private investigators, and certain named attorneys and investigators, including Julie Clark, Kevin Hinckson, and David Barrett. Smith-Williams Decl. Exh. C. The court orders did not specifically limit Williams' “access to legal research, the law library or anything related to research. His access to a tablet for the sole purpose of legal research would be permissible [according to the language of the order], provided the tablet does not have access to dialing out or email.” Dkt. No. 148-1 at 1 (Pl. Mem. Exh. C) (Email from Assistant District Attorney Ernest Chin (“ADA Chin”) to the NYC Board of Corrections and Williams' criminal defense attorneys, October 22, 2020).
The MDC promulgated Command Level Order 104/19 (“CLO 104/19”) concerning various procedures for inmates on lockdown status, effective April 12, 2019. Dkt. No. 148 (Pl. Mem. Exh. A). Although a NYC Department of Corrections 2009 policy provides that “[o]utgoing inmate privileged correspondence shall not be opened or read except pursuant to a lawful search warrant, ” Pl. Mem. Exh. D, CLO 104/19 states in relevant part:
• “[T]he Manhattan Detention Complex [will] comply with the mandates of all Court Orders dealing with inmates housed in this facility”;
• “[T]he restrictions imposed on ‘Lockdown Status' inmates by the Court supersedes any rights these inmates may ordinarily have under the Minimum Standards”;
• “Inmates will make all requests for Law Library materials in writing. These requests will be forward[ed] to the security office who will obtain copies of the requested materials and place [them] in the inmates blue storage bin”;
• “The assigned Captain will collect all letters written by the inmate. The Captain will turn the mail over to the security office. Under no circumstances will any inmate in Court Ordered Lockdown status be permitted to send out any written correspondence or any other type of communication”;
• “The court ordered inmates are barred from Visits and Telephone calls to anyone other than their attorney of record. The Correction Officer . . . shall make the telephone call using a P.I.N. number [not known to inmates]”;
• “Inmates will be afforded a ten minute shower, three (3) times per week”;
• “Any incoming mail for the inmates housed in court ordered areas will be forwarded to the MDC Security Office. No mail shall be forwarded to these inmates until approved by the Commanding Officer.”Dkt. No. 148 at 30-34 (Pl. Mem. Exh. A).
2. Williams reports mistreatment
Between January 2019 and July 2020, Williams claims to have experienced (1) mail interference and tampering; (2) denial of access to the law library and to his lawyers; (3) retaliation; (4) excessive force; and (5) deliberate indifference to his medical needs stemming from a use of force incident in April 2020. Each of these claims will be discussed in turn.
a. Mail interference and tampering
i. Alexander reads outgoing mail (January-February 2019).
On January 21, 2019, Williams claims he observed Correctional Officer Alexander (“Alexander”), the recall officer for 9 North, reading his outgoing legal mail. Compl. 1 at p. 4; Rule 56.1, ¶¶ 36-37. Alexander told Williams to place his open mail in his cell slot, and after he collected it, Alexander sat at a desk in the housing unit, read it, gave it back to Williams to be closed, then took it to be mailed. Rule 56.1, ¶ 37. Williams alleges Alexander read either 85 or 86 letters, 64 of which were “privileged” (including being addressed to Williams' lawyers, doctors, private investigators, banks, credit reporting agencies, and the DOC). Pl. Mem. At ¶ 22; Rule 56.1, ¶ 40. Williams contends that he confronted Alexander about reading his mail a few times. On one occasion, Williams claims, he inquired as to why his mail was handled differently from other detainees, to which Alexander responded that his supervisors Deputy Rivera (“Rivera”) and Captain Mathis (“Mathis”) told him that a court order required this treatment. Compl. 1 p. 4. After March 2019, Alexander was no longer the recall officer responsible for Williams' mail, and Defendants contend his mail was no longer read. Rule 56.1, ¶ 44. According to Williams himself, Alexander was the only officer who read his outgoing legal mail; he does not allege specific instances of any officers besides Alexander reading his mail. See Compl. 1 p. 4.
For all references to page numbers in complaints, the page number cited refers to the ECF filing number.
ii. MDC staff interfere with Williams' mail (March-April 2019; April 2020).
Williams filed four grievances between March 20 and 22, 2019 concerning various mail interference issues, including that his mail was “pre-screened” before being sent out, that his mail was being turned over to security, and that Mathis informed him he was not allowed to receive his incoming mail until it was “logged.” Compl. 1 Exhs. B, C. Williams further alleged that on March 25, 2019, one correction officer refused to take his mail to the mailroom, though he was eventually able to mail the documents. Rule 56.1, ¶¶ 54-55.
The Office of Constituent and Grievance Services (“OCGS”) at DOC resolved one of the March 2019 grievances Williams filed, responding that
Based on [Williams'] Court Order and the Department[‘]s Guidelines in the handling of inmates Correspondence[, ] although there [aren't] any listed restrictions to whom [Williams] can send or receive mail/correspondence[, ] the information in [Williams'] court order specifies a risk of compromising the security and/or the safety of any person or persons outside the facility. Based on these findings the reading of [Williams'] Correspondence/Mail is deemed appropriate.Compl. 1 Exh. B; Dkt. No. 148-1 at 30 (Pl. Mem. Exh. E). In another grievance response in March 2019, OCGS further wrote that
Williams' housing area is designated Court Order Lock Down and there is a procedure put in place to [handle] the incoming and outgoing mail. This command level order specifies that the receiving or sending of all outgoing and incoming correspondence shall be based upon the content of the inmate's order and collected by the 9 North Captain and turned over to the Security Office.Compl. 1 Exh. C. The record is not clear as to what “command level order” OCGS referred, as CLO 104/19 was promulgated in April 2019, a month after this response.
On March 26, 2019, Williams attempted to call the internal reporting line, 311, to determine if there was any available information through that mechanism regarding his mail tampering grievances. Dkt. No. 148-3, Pl. Mem. Exh. O. However, he was denied the ability to do so, id., pursuant to the court order limiting his phone calls to his criminal defense attorney. Pl. Mem. Exh. B.
Williams contended in an April 26, 2019 grievance that on that day, “no one from security came upstairs to deliver and/or take out mail, ” and he was informed that documents sent to federal courthouses were not received. Dkt. No. 148-3, Pl. Mem. Exh. M. Williams filed another grievance on April 29, 2019, complaining that on April 25, 2019, he had been denied the right to send out mail. Id.
Finally, Williams reported another incident a year later, in April 2020. Compl. 3, ¶ 3. At that time, Williams had mailed to his home a large yellow envelope with mixed legal and financial records; but it arrived at its destination with a sticker notifying the recipient that the package had been opened. Id. Williams does not allege which individual opened the envelope. Id.
iii. Deputy Rivera holds outgoing legal mail (June-July 2019).
On June 25, 2019, Williams alleges that he attempted to mail four envelopes, each containing a summons and complaint to serve defendants in a New York state court lawsuit. Compl. 2, ¶ 5. He submitted the envelopes to the recall officer to be mailed pursuant to policy and was approved for the release of inmate funds to purchase the necessary certified return receipts. Compl. 2, ¶¶ 5-6 and Exh. C. On July 2, 2019, he discovered that the outgoing mail was taken to Deputy Rivera instead of being sent out. Compl. 2, ¶ 8. On that day, Assistant Deputy Warden Peoples informed Williams that Rivera had directed her to package his mail with two other envelopes being sent to the New York City Comptroller's office. Compl. 2, ¶ 19. All six envelopes containing outgoing legal mail were returned to Williams, who noticed one of them had been opened and closed with scotch tape. Compl. 2, ¶¶ 20-23.
Williams then successfully mailed the documents to his wife, who was able to serve them on the defendants in his state court case. Compl. 2, ¶¶ 29-30. He filed two grievances regarding this mail being held, on July 2 and July 9, 2019, respectively. Compl. 2, ¶¶ 25-26, Exhs. F, G. Williams filed another grievance on August 5, 2019, about his mail having been held, and subsequently two Freedom of Information Law (“FOIL”) requests seeking information about the July mail incident. Compl. 2, Exhs. L, Q.
iv. Williams has trouble sending mail and accessing social services (Sept.-Dec. 2019; Jan.-Aug. 2020).
Williams reported that on or about September 3, 2019, legal mail he sent out in July 2019 from MDC had been returned to him marked as “refuse[d].” Compl. 2, ¶¶ 39-45. In a September 14, 2019 grievance, Williams noted that legal mail he had sent in August 2019 arrived back to him, stamped “return to sender.” Pl. Mem. Exh. L. Williams further tried to send out approximately 19 pieces of mail to “various banking institutions concerning matters for him and his wife, ” which he later referred to as “19 pieces of outgoing legal mail, ” all of which were returned to him without being allowed to be sent out. Compl. 2, ¶¶ 42-44; Rule 56.1 ¶ 47. His mail was subsequently collected. Rule 56.1, ¶ 47. Williams alleged in a September 10, 2019 grievance that Mailroom Officer Martinez “refused to allow mail out because it has [officer] names on it.” Compl. 2, Exh. X. On September 18, 2019, Williams filed a grievance because CO Billie had allegedly spread out his mail and copied addresses off of it, leaving it out for other officers to copy as well. Id.
On November 2, 2019, Williams sent outgoing legal mail to the personnel office at MDC, but according to the grievance he filed, “Mailroom Civilian T Green and CO Espino[s]a refused it stating that they are not accepting the mail knowing that it must be lawsuits inside.” Pl. Mem. Exh. M.
Williams contends that on about November 5, 2019, he learned from a Department of Social Services (“DSS”) worker that DSS would no longer come to the 9-North unit to pick up certified mail due to Command Order 104/19, and that security would take over collecting the mail. Compl. 3, ¶ 9. Williams was concerned that the security staff would have access to personal information and obstruct outgoing legal mail. Compl. 3, ¶ 9. Since that time, Williams claims that he had problems accessing his funds required to send certified mail. Pl. Mem. at ¶¶ 58-60.
On December 24, 2019, Mathis allegedly threatened Williams, as described in more detail below. In the one or two months following this purported threat, Williams reported that “it was hell [to] send[] mail out.” Rule 56.1, ¶ 49. Despite Mathis' threat, all of the mail purportedly obstructed was eventually sent out, and none of it led to any missed court deadlines. Rule 56.1, ¶¶ 51-52.
In January 2020, Williams reported that no social services request forms (necessary for accessing funds to send certified mail) were available in his unit, despite Deputy Galloway stating that a box to collect these forms would be placed there. Rule 56.1, ¶¶ 61-62; Pl. Mem. Exh. N. In August 2020, Williams again reported that his unit did not have a social service box so he had no means to get this request to the right staff. Pl. Mem. Exh. N. Any mail held in the mailroom waiting for financial approval was ultimately sent out, however, and Williams never had a case dismissed due to mail sitting in the mailroom waiting to be sent as certified mail. Rule 56.1, ¶¶ 63-64.
v. Incoming packages are opened outside of Williams' presence.
Williams claims that Officer Sandra Espinosa (“Espinosa”) had an “unwritten policy that packages and anything that has a tracking number” be opened in the mailroom and delivered to the inmate in a brown paper bag. Compl. 3, ¶18. On January 29, 2020, Williams received mail sent certified by his wife, delivered to him in a package pursuant to this alleged unwritten policy. Id. He remembers documents were missing from the package. Id.; Pl. Mem. at ¶ 51. Williams filed a grievance about this issue in late January 2020. Pl. Mem. Exh. N. In August 2020, Williams received packages the contents of which were first logged by Officer Perez, Pl. Mem. Exh. K, purportedly outside of Williams' presence. Pl. Mem. at ¶ 53.
Defendants note that the policy for emptying the contents of all packages into brown paper bags is applicable to all inmates housed at the MDC. Rule 56.1, ¶ 66; Smith-Williams Decl. Exh. H at IV.13 (“The contents of all acceptable packages and all acceptable items shall be transferred to brown kraft bags which shall be properly marked and closed to ensure that each inmate receives his/her respective goods without loss of permissible items.”). That policy also directs that “sealed correspondence, enclosed in packages opened for inspection, shall not be opened except in the presence of the intended inmate or pursuant to a lawful search warrant or the warden's written order . . .” Smith-Williams Decl. Exh. H at IV.9.
Defendants cite this statement as “Ex. H section IV.B.13., ” but there is no “B” under Section IV on the Exhibit in question. Rule 56.1, ¶ 66.
b. Denial of access to the law library and to lawyers
i. Williams is allegedly denied contact with his criminal defense attorneys.
Under the lockdown order, Williams is allowed two calls a day, but can only call individuals identified in the order, and the officer on duty dials the number to be called. Rule 56.1, ¶¶ 68-71. Citing to Williams' deposition, Defendants note that there were “two or three occasions on which he was unable to call his criminal defense attorney, ” but that he “cannot identify the individual who prevented him from doing so.” Rule 56.1, ¶ 72. In his papers, however, Williams describes four incidents during which he claims he was denied the ability to speak with his lawyers. First, on March 22, 2019, he was not permitted to make a phone call to Jeffrey Chabrowe, the criminal defense attorney listed on his lockdown order at the time. Pl. Mem. Exhs. B, O. Following a grievance complaint, OCGS confirmed on March 25, 2019 that it had been in contact with MDC Security, and Williams would subsequently be permitted to contact his attorney. Pl. Mem. Exh. O. Second, on July 2, 2019, Williams reported in a grievance that an officer not named as a defendant in this case, Officer Bethea, “stood in front of [Williams]' cell and denied [him] from calling [his] lawyer. Compl. 2, Exh. F.
Third, in early 2020, MDC staff did not permit Williams to contact his criminal defense attorney Julie Clark. On January 22, 2020, the state court issued the aforementioned second lockdown order, which noted that Williams was barred from visits or phone calls with anyone other than his attorneys or investigators, including Clark. Smith-Williams Decl., ¶ 4 and Exh. C. Clark remained unable to speak with Williams for weeks after that order was issued, however. Pl. Mem. Exh. P. Williams first filed a grievance about this issue on January 25, 2020. Pl. Mem. Exh. P. On January 31, 2020, Clark reported to ADA Chin in an email that she was “frustrated” that she was still unable to speak with Williams by telephone. Pl. Mem. Exh. P. According to Williams, on February 4, 2020, Security Captain John Hernandez spoke with Williams about his call list not yet including Clark, and Hernandez said to him: “I will update your list after they give you life N[****].” Pl. Mem. Exh. P (sworn affidavit). Williams filed an Article 78 proceeding in New York State Supreme Court on February 28, 2020, after which time Clark was eventually added to his call list. Pl. Mem. at ¶ 63; Pl. Mem. Exh. P.
Fourth, in early July 2020, Williams reported in a grievance that he was unable to call his attorney due to a problem with the PIN required for calling out. Compl. 3, Exh. B.
Williams testified at his deposition that he was generally unable to help his attorney marshal his defense when he was denied these calls, but that these incidents “did not cause him to miss any deadlines in his criminal matter.” Rule 56.1, ¶¶ 73-74.
Similarly, Williams claims he was denied in-person visits with his criminal defense attorney up to five times, in which the attorney arrived and Williams was notified he had a counsel visit, but an escort never came to take him to the meeting. Rule 56.1, ¶ 75. Williams does not know who was responsible for this denial. Rule 56.1, ¶ 77. According to Williams, these incidents delayed some court proceedings, but ultimately did not cause him to miss any deadlines or otherwise negatively impact his criminal matter. Rule 56.1, ¶ 78.
ii. Williams is unable to use the law library.
Williams claims that he was not allowed to visit the law library on multiple occasions. Between March 16, 2019 and the filing of his first lawsuit on April 15, 2019, Williams regularly requested to visit the law library to research case law concerning his criminal case, and was able to physically go to the MDC law library “once or twice, ” but was otherwise told to use the law library request form instead. Rule 56.1, ¶¶ 30-33; Compl. 1, p. 5. According to Williams, in using a request form, he was only able to request copies of particular cases, but was unable to conduct research and shepardize cases. Compl. 1, p. 5. Additionally, a language barrier allegedly existed between Williams and the legal coordinator. Compl. 1, p. 5, Exh. J. Williams alleges three incidents during this time period:
1) In late March 2019, Williams asked Mathis to escort him to the law library, and Mathis directed him to fill out a request form. Compl. 1, p. 5 (indicating this incident occurred on March 29, 2019); Compl. 1, Exh. J (indicating in a grievance that this incident occurred on March 27, 2019).
2) On April 4, 2019, Williams filed a grievance stating that he needed time in the law library or kiosk but was not allowed. Compl. 1, Exh. J.
3) On April 6, 2019, Williams filed a grievance stating that he requested to be escorted to the law library and was told by an Officer “Deleroasa” that detainees in 9-North are not allowed access to the law library. Compl. 1 Exh. I.
Williams contends that on April 23, 2020, ADW Harvey ordered the housing unit captain not to allow him to use the law library in order to prevent him from using the typewriter. Compl. 3, ¶ 47. On October 26, 2020, the NYC Board of Corrections (“BOC”) responded to an appeal Williams filed, recommending that the DOC grant his request for a tablet with Lexis Nexis capabilities in his housing area or access to the MDC law library. Pl. Mem. Exh. Q.
iii. Miscellaneous access to court issues
Separately, Williams contends that he was not permitted to watch and study discovery tapes sent to him to prepare for trial, first in May 2020 and then again in July 2020. Compl. 3, Exhs. A, B.
c. Retaliation
Following the initial grievances regarding mail tampering in early 2019, fellow inmate Samuel Ceruti attested in a signed declaration to the fact that on March 26, 2019, Mathis came to the unit with other officers in an “aggressive manner, ” and told Williams “if he kept b[****]ing about his mail that he would stop all of his mail.” Compl. 1 Exh. F. Then, on April 13, 2019, Williams claimed that Officer “Festa” [name unclear] made a sexual advance, which resulted in an investigation. Compl. 2, Exh. R.
In the months following the July 2019 incident in which his envelopes were held at the MDC, Williams reports a number of experiences he believes were retaliatory. First, he believes certain grievances which he filed after July 2, 2019 were not properly collected, and contends that he never received a response for others - he specifically alleges that Supervisor Padillo (“Padillo”) failed to answer a grievance. Compl. 2, ¶¶ 32-34, Exhs. M, N, O. Second, Williams reports that on August 6, 2019 a cell search occurred during which a correctional officer not named as an individual defendant in this lawsuit, “Louis, ” told Williams he was looking for information on the lawsuit. Compl. 2, ¶ 35, Exh. P. When the cell search ended and the team left, Williams discovered he was missing legal documents related to a complaint on which he was working. Id. Third, Williams reports three distinct incidents during the summer of 2019 with another officer, Bethea:
Williams did not name Officer Bethea as an individual defendant in this lawsuit. He filed a state court complaint against Bethea, and requests in his pleadings that the Court “convert” his state complaint to be included in this federal lawsuit. Compl. 2 p. 12. The relevant state court complaint is attached as an exhibit to his federal court complaint, so the Court has a record of the allegations. Compl. 2, Exh. Y. Typically, a plaintiff seeks to add a defendant through the amendment process set forth in Federal Rule of Civil Procedure 15(c). That is not the case here, as Williams made this request in the pleading itself. While the constructive notice doctrine provides that the Court may impute knowledge of the suit to a new defendant through his attorney if the attorney also represented the officials originally sued “so long as there is some showing that the attorney[] knew that the additional defendant[] would be added, ” Abdell v. City of New York, 759 F.Supp.2d 450, 455 (S.D.N.Y. 2010) (cleaned up), that doctrine is not applicable here. Williams has not moved to amend any of the numerous complaints he has filed in this Court for the purposes of adding a defendant, as occurred in Abdell. He could have named Bethea when he filed his complaint originally, but chose not to do so. Defendants do not refer to Bethea in any of their motion papers. Thus, neither Bethea nor Defendants' attorneys were constructively on notice that he might be included, and to do so at the summary judgment stage - without offering Bethea a chance to answer the complaints against him or choose to be included in the current defense - would offend notions of fair play. Thus, in the interest of justice, the Court considers the state court complaint as an exhibit duly provided for purposes of the motion, but does not believe that Officer Bethea should be added as a named defendant at this stage of the proceedings.
1) On July 2, 2019, while discussing why his mail was held, Bethea allegedly told him: “You do have a fat ass” and something to the effect of “I couldn't allow you to serve my [officers]” or “I can't allow you to sen[d] that [mail] out against my officer.” Compl. 2, Exhs. F, R, Y (Sub-Exhibits A-C). Bethea then “stood in front of [Williams'] cell and denied [him] from calling [his] lawyer. . .” Compl. 2, Exh. Y at ¶¶ 25-30, Exh. E.
2) On July 8, 2019, Williams claims that Bethea “stuck out his middle finger to him, ” and stated that he “could do whatever he wanted.” Compl. 2, Exh. Y ¶ 42.
3) On August 26, 2019, Bethea allegedly began to “antagonize” and “threaten” Williams. Compl. 2, ¶38; See Compl. 2, Exhs. S, T. He reportedly said to Williams either “N[****] Dep Rivera is my peoples and I could f[***] with your mail any day that I want, ” or “Dep. Rivera is my people I will f[***] with your mail all day boy.” Compl. 2, Exhs. S, T. Bethea reportedly followed that up with “I have a baby on the way that is the only reason why I didn't f[***] your a[**] up but if you don't drop your complaint I am going to make sure that none of your mail leaves this building.” Compl. 2, Exhs. S, T.
Williams noted in a grievance he filed that on July 8, 2019, Mathis told him he was “upset” because of a FOIL submission Williams had made. Pl. Mem. Exh. M.
On September 20, 2019, Williams contends that C.O. Wells and C.O. Mason searched Williams' cell and took legal documents needed for ongoing civil litigation. Pl. Mem. Exh. L. He claims that these are the same officers that attempted to attack him in July 2019 when he requested that his mail be returned. Pl. Mem. Exh. L.
Williams reported that on December 24, 2019, Mathis came to his housing area and threatened him, saying that “if he didn't take him out of [civil complaint No. 19-CV-3347] that he was going to make his stay at MDC hard and that he would no longer send and/or receive mail, ” after which he called for a probe team that ultimately did not arrive. Smith-Williams Decl. Exh. B, 46: 8-25; Compl. 3, ¶ 12. According to Williams, he dismissed the complaint against Mathis following this encounter, “even though that was not what he really wanted.” Compl. 3, ¶ 13. Then again in January 2020, Williams contends Mathis returned to his housing unit to do a cell search “of just him, ” while threatening him about the lawsuit and ordering the officer conducting the search to seize any legal papers with Mathis' name on it. Compl. 3, ¶ 21.
Finally, Williams alleges that his cell was searched on April 22, 2020 while he was being seen by doctors. Compl. 3, ¶ 42. He contends that during this search, financial documents and legal papers were taken from his cell. Compl. 3, ¶ 42. Williams alleges that the next day, on April 23, 2020, ADW Harvey ordered the housing unit captain not to allow him to use the law library in order to prevent him from using the typewriter as a deterrent to typing any form of complaint or grievance. Compl. 3, ¶ 47.
d. April 2020 Use of Force incident
On April 22, 2020, Williams engaged in a conversation with a number of officers, including Captain Gorritz, regarding his lawyer not being listed as an approved phone call, and mail being opened outside of his presence. Compl. 3, ¶¶ 24-28; Rule 56.1, ¶ 79. Defendants contend that Williams was “gesturing with his hands in an aggressive manner.” Rule 56.1, ¶ 80. Gorritz removed her personal chemical agent - the pepper spray she kept on her person - and spoke to Williams. Rule 56.1, ¶ 81; see Def. Mem. at 19. Williams contends that Gorritz stated: “you must be dumb, ” and informed Williams that the staff was tired of his complaints and suits, and ordered an Officer “Colleymore” to tackle Williams. Compl. 3, ¶¶ 28-21. Defendants claim that Williams “pulled an object out of his pants, ” backed away from the officers aggressively, and ran to the janitor's closet where he had access to brooms, mops, water, and a dust pan. Rule 56.1, ¶¶ 82-83. According to Williams, he was afraid he was in danger, and so he ran away, the closest place being the supply closet, which he left upon realizing his cell door may be open and he could try to safely run there. Compl. 3, ¶ 32. At this point, the parties agree that four correctional officers moved in front of Williams when he opened the door to the supply closet to leave. Compl. 3, ¶ 33.; Rule 56.1, ¶ 84.
Williams alleges that Captain Gorritz was behind the four by at least two feet, from which position she began to spray her chemical agent, hitting Williams “and each of the four officers.” Compl. 3, ¶ 33. Williams alleges that he felt the spray being deployed against him for 15 seconds. Compl. 3, ¶ 34. Defendants allege that Gorritz, as the fifth officer, “moved to the front of the group of officers and sprayed a single, two-second burst of chemical agent towards [Williams'] face.” Rule 56.1, ¶ 85. Defendants note that Williams “dodged” some of the spray by lowering his head. Rule 56.1, ¶ 86.
The parties agree that after Gorritz deployed the chemical agent, Williams ran in the direction of his cell, and officers cuffed him. Compl. 3, ¶ 35; Rule 56.1 ¶ 86. Williams claims he overheard Captain Gorritz yell: “I…gotta figure a way to write myself out of this whenever I order you to take a n[****] down that's what y'all do.” Compl. 3, ¶ 35. Defendants contend that Williams was not shoved into a wall by the non-defendant officers who handcuffed him. Rule 56.1, ¶ 91.
Williams was taken down to the intake area of the facility and placed in a shower. Compl. 3, ¶36; Rule 56.1, ¶¶ 93-94. Williams contends that once in the shower, he was not allowed to wash his body and decontaminate himself because the shower head was capped off, blocking water or solution from coming out. Compl. 3, ¶ 36. He claims Captain Gorritz as intake captain had knowledge of the lack of water. Compl. 3, ¶ 36. He also claims that he was in the intake area until 3:15 p.m. without being able to decontaminate himself, and that his first shower after the chemical agent was deployed against him was eight hours later. Compl. 3, ¶¶ 39, 45. During this time, according to Williams, ADW Harvey said to him: “I don't care if you die, you[‘ve] been suing my staff so if you sue me make sure you spell my name correctly because I have 30 years in so I will retire before anything, ” and that she would “continue to order her officers to f*** with the plaintiff[‘s] legal mail until they make sure the plaintiff gets life.” Compl. 3, ¶ 38.
Defendants contend that Williams “did not exhibit any signs that he was suffering any of the commonly known effects of [a] chemical agent during the twelve consecutive minutes that he is on video after he was sprayed.” Rule 56.1, ¶ 96. Williams was treated at the medical clinic approximately two hours after the chemical agent was used. Rule 56.1, ¶ 97. Williams alleges that he informed the doctors that his “left eye vision was not the same as it was before being sprayed, ” and that his left shoulder and wrist were in pain. Compl. 3, ¶ 39. Defendants note that Williams “did not complain of an asthma attack, ” and “denied having a headache, blurry vision, [or] dizziness.” Rule 56.1, ¶¶ 97-98. Defendants further observe that the medical record demonstrates Williams had no respiratory distress, and that he only complained of left shoulder and wrist pain. Rule 56.1, ¶¶ 99-100. An x-ray revealed no fractures or dislocation were present in Williams' shoulder and wrist, Rule 56.1, ¶¶ 101-02, and the doctors prescribed aspirin. Compl. 3, ¶ 39.
3. CLO 104/19 found not in compliance with Minimum Standards
As briefly mentioned above, on October 26, 2020, the BOC responded to an appeal Williams filed, recommending that the DOC grant his request for a tablet with Lexis Nexis capabilities in his housing area or access to the MDC law library. Pl. Mem. Exh. Q. Specifically, the BOC found that requiring Williams to request specific materials he wanted rather than allowing him to visit the law library violated BOC Minimum Standard 1-08, and his court order would permit access to a tablet for the sole purpose of legal research. Further, the BOC noted that DOC Minimum Standards 1-03(b)(1) require that the DOC provide daily showers to inmates, and the CLO only permits three showers per week. Pl. Mem. Exh. Q.
While 1-08 was suspended following the COVID-19 Emergency Executive Order, many of Williams' limitations predate this March 16, 2020 order. Pl. Mem. Exh. Q.
In its decision, the BOC recommended that the DOC “rescind” CLO 104/19 for violating BOC Minimum Standards, because “[w]hile DOC must limit conditions of confinement in response to a court order, DOC must comply with all Minimum Standards that are not limited by such order . . . in this case, it appears DOC has placed blanket restrictions on each person in [Williams'] housing area without regard to [their] specific court order.” Pl. Mem. Exh. Q; see Pl. Mem. Exh. A.
4. Williams files civil lawsuits in federal and state courts.
In addition to the three federal lawsuits consolidated into this case, Williams filed two other federal civil cases related to his treatment while in detention, Case Nos. 19-CV-9528 and 20-CV-0516. Rule 56.1, ¶ 19. Likewise, Williams has also filed three state court civil actions pertaining to his mistreatment during detention, bearing index numbers 2019/101616, 2019/100910, 2020/100314. Rule 56.1, ¶ 20. In Case No. 2019/100910, Williams had to serve three defendants and the New York City Law Department; they were timely served and as of the filing of defendants' moving papers, the case was still pending. Rule 56.1, ¶¶ 22-26.
A search of the New York State Unified Court System at https://iapps.courts.state.ny.us/webcivil/FCASSearch does not result in any mention of the three cases Defendants identify. However, Williams filed two additional cases against the City of New York: 100412/2020 and 100981/2020.
B. Procedural History
Williams filed a complaint against Alexander, Mathis, Rivera, and the DOC on April 15, 2019. Dkt. No. 2. He amended his complaint on May 24, 2019. Dkt. No. 9. On July 24, 2019, the Court dismissed the DOC as a defendant and added the City of New York and Correctional Officer Ramirez as defendants. Dkt. No. 16.
Williams brought a second federal lawsuit against the City of New York, T. Green, Martinez, and A. Padillo on September 20, 2019. Case No. 19-CV-8737 at Dkt. No. 2. On March 24, 2020, the Court consolidated the two lawsuits into a single action. Dkt. No. 58.
On May 21, 2020, Williams brought a third federal lawsuit against Deputy Warden Bailey, Deputy Galloway, the City of New York, Sandra Espinosa, Captain Gorritz, ADW Harvey, Captain Hernandez, Mathis, Deputy Shannon, B.B. Suarez, and C.O. Wells. Case No. 20-CV-3992 at Dkt. No. 2. In this third lawsuit, Williams filed an amended complaint on June 16, 2020, and a second amended complaint on July 21, 2020. Case No. 20-CV-3992 at Dkt. Nos. 8, 12. On August 27, 2020, the Court consolidated this third lawsuit into the current case. Dkt. No. 88.
On February 5, 2021, Williams moved for summary judgment on all claims. On April 5, 2021, Defendants filed opposition papers. Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Summary Judgment (“Def. Opp.”), Dkt. No. 173. Williams filed reply papers on April 19, 2021. Plaintiff's Response to Defendants' Memorandum Opposing His Summary Judgment Motion (“Pl. Rep.”), Dkt. No. 176.
On February 26, 2021, Defendants cross-moved for summary judgment on all claims. Motion for Summary Judgment, Dkt. No. 156; Notice to Pro Se Litigant Pursuant to Local Rule 56.2, Dkt. No. 157; Rule 56.1; Smith-Williams Decl.; Defendants' Memorandum of Law (“Def. Mem.”), Dkt. No. 161. On March 22, 2021, Williams filed opposition papers. Plaintiff's Opposition to Defendant's Motion for Summary Judgment (“Pl. Opp.”), Dkt. No. 168. Defendants filed reply papers on April 26, 2021. Defendants' Reply Memorandum of Law (“Def. Rep.”), Dkt. No. 179.
Williams also submitted letters dated May 3 and 12, 2021 (Dkt. Nos. 181 and 182) responding to Defendants' reply papers. Such submissions are properly characterized as sur-replies, which are generally disfavored. See, e.g., Soto v. Wright, No. 11-CV-2289 (PAC) (JLC), 2012 WL 265962, at *2 n.3 (S.D.N.Y. Jan. 26, 2012) (quotation omitted) (sur-replies generally not permitted because “such a procedure has the potential for placing a court in the position of refereeing an endless volley of briefs”), adopted by 2012 WL 639166 (Feb. 28, 2012). The Court, however, has reviewed these submissions as well in light of Williams' pro se status.
This case has been referred to me for both general pretrial supervision and to provide reports and recommendations on any dispositive motions, such as the current motions. Dkt. Nos. 18, 110.
II. DISCUSSION
A. Legal Standards
1. Summary Judgment
Pursuant to Rule 56 of the Federal Rule of Civil Procedure, a 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). “A fact is ‘material' if it ‘might affect the outcome of the suit under the governing law,' and is genuinely in dispute ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'” Liverpool v. Davis, 442 F.Supp.3d 714, 722 (S.D.N.Y. 2020) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “‘Factual disputes that are irrelevant or unnecessary' are not material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-5486 (VB), 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). Summary judgment may only be granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that the moving party is entitled to a judgment as a matter of law.” Ford v. Phillips, No. 05-CV-6646 (NRB), 2007 WL 946703 at *4 (S.D.N.Y. Mar. 27, 2007) (cleaned up).
On a summary judgment motion, the court's responsibility is “not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). “[W]here there is an absence of sufficient proof as to one essential element of a claim, any factual disputes with respect to other elements of the claim are immaterial.” Bellotto v. Cty. of Orange, 248 Fed.Appx. 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006)).
“It is the movant's burden to show that no genuine factual dispute exists.” Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). Once the movant has met its burden, the non-movant “must come forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 2020 WL 917294, at * 4 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The court must “resolve all ambiguities and draw all reasonable inferences in the non-movant's favor.” Vermont Teddy Bear Co., 373 F.3d at 244 (citing Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003)). “In applying this standard, the court should not weigh evidence or assess the credibility of witnesses. These determinations are within the sole province of the jury.” Frost v. New York City Police Dep't, 980 F.3d 231, 242 (2d Cir. 2020) (quoting Hayes v. New York City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996)).
At the same time, “[t]he mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. “[T]he non-movant ‘must do more than simply show that there is some metaphysical doubt as to the material facts.'” Vidal v. Valentin, No. 16-CV-5745 (CS), 2019 WL 3219442, at *5 (S.D.N.Y. July 17, 2019) (quoting Matsushita Elec. Indus. Co., 475 U.S. at586). Moreover, “[t]he mere existence of some alleged factual dispute between the parties” is not sufficient to defeat an “otherwise properly supported motion for summary judgment.” Anderson, 477 U.S. at 247-48. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (internal citations omitted).
Finally, no party may prove a fact by relying on “conclusory allegations or unsubstantiated speculation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001). “Where . . . a plaintiff's case depends in part on his own statements and observations, such statements must ‘be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.'” Bartley v. Collins, No. 95-CV-10161 (RJH), 2006 WL 1289256, at *3 (S.D.N.Y. May 10, 2006) (quoting Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004); Fed.R.Civ.P. 56(e))). “Thus, hearsay statements that would be inadmissible at trial, conclusory assertions, and mere denials contained in those affidavits are insufficient to create a genuine issue of material fact.” Id. (cleaned up).
2. Cross-Motions for Summary Judgment
These standards also apply to cross-motions for summary judgment. Gilani v. Teneo, Inc., No. 20-CV-1785 (CS), 2021 WL 3501330, at *10 (S.D.N.Y. Aug. 4, 2021) (citing Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d Cir. 2001)); C & A Carbone, Inc. v. Cty. of Rockland, N.Y., No. 08-CV-6459 (ER), 2014 WL 1202699, at *5 (S.D.N.Y. Mar. 24, 2014). “Generally, in deciding cross-motions for summary judgment, ‘each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.'” Id. (quoting Morales, 249 F.3d at 121; see Chartis Seguros Mex., S.A. de C.V. v. HLI Rail & Rigging, LLC, 3 F.Supp.3d 171, 179 (S.D.N.Y. 2014)). However, where the motion and cross-motion “seek a determination of the same issues, ” as is the case here, the court considers them together. Id.
3. Pro Se Litigants
In the Second Circuit, “when a court considers a motion for summary judgment, ‘special solicitude' should be afforded a pro se litigant.” Falls v. (Police Officer) Detective Michael Pitt, No. 16-CV-8863 (KMK), 2021 WL 1164185, at *10 (S.D.N.Y. Mar. 26, 2021) (collecting cases). The submissions of the pro se litigant should be construed liberally and interpreted to raise the strongest arguments they suggest. Id. (citing Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). “[T]he submissions of a pro se plaintiff are held to a less stringent standard than those drafted by an attorney and must be liberally construed for the benefit of the plaintiff.” Ford, 2007 WL 946703, at *4 (cleaned up). At the same time, “proceeding pro se does not relieve a litigant from the usual requirements of summary judgment.” Best v. Drugs, No. 14-CV-2648 (CM), 2017 WL 218251, at *3 (S.D.N.Y. Jan. 11, 2017).
B. The Parties' Submissions Pursuant to Local Rule 56.1
As an initial matter, Defendants argue that the facts set forth in their Statement of Material Facts pursuant to Local Civil Rule 56.1(c) should be deemed admitted because Plaintiff failed to submit a response as required by Rule 56.1. Def. Rep. at 2.
Local Civil Rule 56.1 requires any motion for summary judgment to be accompanied by a statement of material facts itemized into numbered paragraphs followed by a citation to the evidence in support of those facts that would be admissible. Local Civ. R. 56.1(a) & (d). The rule provides that “[e]ach numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.” Local Civ. R. 56.1(c). Therefore, a party's failure to comply with Local Rule 56.1 “is grounds for deeming admitted the facts contained in [the opposing party's] Rule 56.1 statement.” Prunella v. Carlshire Tenants, Inc., 94 F.Supp.2d 512, 513 n.1 (S.D.N.Y. 2000). Further, “[a] party who declines to respond to a Rule 56.1 statement in the proper form eschews its right to have the Court search the record to determine whether the allegedly undisputed fact is in fact disputed.” Keawsri v. Ramen-Ya Inc., No. 17-CV-2406 (LJL), 2021 WL 3540671, at *3 (S.D.N.Y. Aug. 10, 2021) (citing Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)).
Here, both Williams' motion and his opposition papers are procedurally defective, because he has not supported them with a Local Rule 56.1 Statement, and “‘[f]ailure to submit such a statement may constitute grounds for denial of the motion.'” Suares v. Cityscape Tours, Inc., No. 11-CV-5650 (AJN), 2014 WL 969661, at *5 (S.D.N.Y. Mar. 12, 2014) (quoting Local Civil Rule 56.1(a)). “Without proper factual support, [plaintiff] cannot demonstrate there are no genuine issues of material facts, or that [he] is entitled to judgment as a matter of law.” Id.
However, “[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules” and may instead “opt to conduct an assiduous review of the record even where one of the parties has failed to file such a [Rule 56.1] statement.” Holtz, 258 F.3d at 73 (quoting Monahan v. New York City Dep't of Corr., 214 F.3d 275, 292 (2d Cir. 2000)) (internal quotation marks omitted and further citation omitted). “[T]he court can also disregard legal conclusions or unsubstantiated opinions in a Local Rule 56.1 statement.” Weider Health & Fitness v. AusTex Oil Ltd., No. 17-CV-2089 (RMB) (OTW), 2018 WL 8579820, at *2 (S.D.N.Y. Dec. 19, 2018), adopted by 2019 WL 1324049 (Mar. 25, 2019). Further, “where a pro se plaintiff fails to submit a proper Rule 56.1 statement in opposition to a summary judgment motion, the Court retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions.” Wali v. One Source Co., 678 F.Supp.2d 170, 178 (S.D.N.Y. 2009) (cleaned up). In Wali, for example, plaintiff submitted opposition papers containing a “host of materials” but no 56.1 statement. Wali, 678 F.Supp.2d at 178. So too in this case did Defendants properly follow Local Rule 56.1, and Williams responded with voluminous opposition papers and materials but with no Rule 56.1 statement. “The court is not obligated, however, to accept a pro se litigant's factual assertions where they contradict his own previous statements or are otherwise “beyond belief.” Adeniji v. New York State Off. of State Comptroller, No. 18-CV-761 (PAE) (BCM), 2021 WL 3911373, at *17 (S.D.N.Y. Aug. 31, 2021) (quoting Shabazz v. Pico, 994 F.Supp. 460, 470 (N.D.N.Y. 1998)), vacated on other grounds by Reynoso v. Harrison, 205 F.3d 1324 (2d Cir. 2000)).
Given the foregoing, as in Wali, “in light of the [plaintiff's] pro se status, the Court [will conduct] an independent review of all of the evidence submitted by both parties, so as to ascertain whether the record actually reveals any material, disputed issues of fact.” Wali, 678 F.Supp.2d at 178.
C. Analysis
The parties cross-move for summary judgment on all of Williams' claims, which are brought under 42 U.S.C. § 1983. See Pl. Mem. at 17 and Def. Mem. at 1. Section 1983 provides redress for the deprivation of federally protected rights by persons acting under color of state law. To prevail on a Section 1983 claim, a plaintiff must establish (1) the violation of a right, privilege, or immunity secured by the Constitution or laws of the United States (2) by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155 (1978). Williams contends that Defendants violated his rights under the First and Fourteenth Amendments through the following claims, which will be discussed in turn: (1) mail tampering and interference; (2) denial of access to the courts; (3) retaliation; (4) excessive force; and (5) deliberate indifference to medical needs.
1. Mail Interference and Free Speech
“Interference with legal mail implicates a prison inmate's rights to access to the courts and free speech as guaranteed by the First and Fourteenth Amendments to the U.S. Constitution.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). Prisoners have the right to be present when legal mail is opened. Id. Here, Williams' mail interference complaints can be read to assert both a First Amendment free speech claim, and a separate access to courts claim. The latter will be discussed in the next section of the Report.
A prisoner's “right to the free flow of incoming and outgoing mail is protected by the First Amendment.” Id. Outgoing legal mail is “subject to greater constitutional protection [than other forms of mail] because of the lesser security concerns presented.” Id. at 352 (cleaned up). “To show this right is violated, a ‘prisoner must show that the interference with his mail was both regular and unjustified.'” Genao v. City of New York, No. 20-CV-2441 (LJL), 2021 WL 2111817, at *5 (S.D.N.Y. May 25, 2021) (quoting Antrobus v. City of New York, No. 11-CV-2524 (RA), 2014 WL 1285648, at *4 (S.D.N.Y. Mar. 27, 2014)). “The First Amendment protects prisoners' access to mail directly, unlike the right of access to courts, which protects prisoners' access to mail only derivatively and with respect to given claims.” Bellezza v. Holland, No. 09-CV-8434 (RWS), 2011 WL 2848141, at *6 (S.D.N.Y. Jul. 12, 2011). Although one isolated instance of mail tampering does not amount to a constitutional violation, “as few as two [such] incidents . . . could constitute an actionable violation.” Davis, 320 F.3d at 351 . That said, “district courts have generally required specific allegations of invidious intent or of actual harm where the incidents of tampering are few and thus the implication of an actionable violation is not obvious on its face.” Washington v. Falco, No. 20-CV-3009 (VB), 2021 WL 797658, at *10 (S.D.N.Y. Mar. 1, 2021) (citing Davis, 320 F.3d at 351).
Williams contends that Defendants restricted his right to the free flow of incoming and outgoing mail, see Pl. Mem. at ¶¶ 2, 4, 6, which the Court construes to include not only when Alexander read Williams' outgoing mail, but also the numerous other incoming and outgoing mail problems that Williams reported.
a. Alexander is not liable for reading Williams' outgoing mail.
On January 21, 2019, Williams observed Alexander reading his outgoing legal mail. Compl. 1 p. 4; Rule 56.1, ¶¶ 36-37. Alexander told Williams to place his open mail in his cell slot, and after he collected it, Alexander sat at a desk in the housing unit, read it, gave it back to Williams to be closed, then took it to be mailed. Rule 56.1, ¶ 37. Williams alleges Alexander read either 85 or 86 letters, 64 of which were “privileged” (including being addressed to plaintiff's lawyers, doctors, private investigators, banks, credit reporting agencies, and the NYC Department of Corrections). Pl. Mem. at ¶ 22; Rule 56.1, ¶ 40. In his deposition testimony, Williams described Alexander's practice in reviewing mail as follows:
Anyone who had sent out mail, he would tell you to leave the mail in your slot . . . in an [open envelope], he sits down at the desk, he reads it, gives it back to you and then allows you to close it, and then he takes the mail wherever he takes the mail to. That went on [from January 21, 2019] until I believe February 13th . . . he read everybody's mail that was going out . . . [on] February 1, 2019 probably a piece of my mail was read.”Smith-Williams Decl., Exh. A, at 52: 14-20, 56: 3-4, 74: 21-22.
The crux of this dispute pertains to both how many times Alexander read Williams' outgoing legal mail, and the reasonableness of his actions. On the former issue, the only relevant evidence is Williams', as Defendants never offer their own evidence for the Court to consider concerning Alexander's practices or views at the time in question. Defendants do not counter Williams' factual assertions. They provide no evidence to demonstrate that Alexander did not read Williams' mail, or that he believed his actions were pursuant to court order. Rather, they contend that the record does not provide sufficient evidence that Alexander “regularly and unjustifiably” read Williams' mail. Def. Mem. at 15. They argue that Alexander did not concede to reading all of Williams' mail, and Williams did not witness him reading all of the mail he logged in the mailbook, meaning there is no evidence of this practice occurring regularly. Def. Rep. at 2-3; Rule 56.1, ¶¶ 40-42. Further, they contend arguendo that even if he did open and read the mail regularly, Alexander did not do so unjustifiably, because he did so pursuant to a court lockdown order that found Williams to “pose a continuing, significant risk to the safety of persons whom he perceives as being potential witnesses against him.” Def. Rep, at 4; Rule 56.1.
Defendants' arguments have merit. Not only does Williams fail to provide evidence of more than one specific incident of Alexander reading his mail, it is not clear from the record whether that mail was even legal mail. Further, “[n]otwithstanding [legal mail] protection[s], ‘interception of [an inmate's] prison correspondence does not violate that individual's First or Fourth Amendment rights if prison officials had ‘good' or ‘reasonable' cause to inspect the mail.'” Acevedo v. Fisher, No. 12-CV-6866 (RA) (AJP), 2015 WL 7769486, at *6 (S.D.N.Y. Dec. 2, 2015) (quoting United States v. Felipe, 148 F.3d 101, 108 (2d Cir. 1998)), adopted by 2016 WL 884909 (Mar. 2, 2016). As Defendants argue, the language of the January 2019 lockdown order, finding that Williams “solicited the aid of other persons to threaten intimidate and cause serious physical injury or death to witnesses” and “pose[d] a continuing significant risk to the safety of persons whom he perceives as being potential witnesses against him, ” is such that a reasonable officer in Alexander's position could conclude that the court order established good cause to intercept and read Williams' mail. Def. Rep. at 5; Rule 56.1 ¶ 7.
b. Alexander is entitled to qualified immunity.
Even if the language of the lockdown order did not constitute good cause to inspect the mail, Alexander is entitled to qualified immunity from suit. A government official may be entitled to immunity if (1) his conduct “did not violate clearly established law, ” or (2) it was “objectively reasonable” for that official to believe that the action he took did not violate the law. Naumovski v. Norris, 934 F.3d 200, 210 (2d Cir. 2019). Not only could a reasonable officer conclude that the lockdown order established good cause to inspect the mail, but as the court in Acevedo further observed, “there is no clearly established law in the Second Circuit as to what constitutes good cause to intercept and read inmate non-legal mail.” Acevedo, 2015 WL 7769486, at *7.
Williams argues that Defendants' reliance on Acevedo is misplaced because one of the Defendants was denied summary judgment as to the plaintiff's legal mail claim. Pl. Opp. at 16. It is true that the Acevedo court was “hard pressed to understand the substantial government interest served by monitoring [his] outgoing legal mail.” Acevedo, 2015 WL 7769486, at *10 (emphasis added). The same is true here - sending mail to one's attorney or government agencies is not likely to pose a significant risk to the safety of potential witnesses. See id. Even though the question in Acevedo concerned a mail watch instituted by the facility and the question before this Court relates to the decision of one officer, the analysis in Acevedo is persuasive, and demonstrates that qualified immunity is appropriate for defendants like Alexander who raise it as a defense. Just as “an officer of reasonable competence could [conclude] that it was constitutionally permissible for a mail watch to extend to an inmate's legal mail, ” so too could an officer of reasonable competence conclude that the court's lockdown order here necessitated a review of Williams' outgoing mail, regardless of its status. Id.
Because Alexander is not liable for reading Williams' mail and, alternatively, is entitled to qualified immunity, summary judgment should be granted to Defendants on this claim.
c. Williams has not established a cognizable claim of mail interference.
Defendants are likewise entitled to summary judgment on the remainder of Williams' First Amendment mail tampering claims. Success on a Section 1983 claim requires that “the defendant was personally involved in alleged deprivation of his constitutional rights.” Genao, 2021 WL 2111817, at *7 (citing Zamakshari v. Dvoskin, 899 F.Supp. 1097, 1109 (S.D.N.Y. 1995)). Any claims related to mail interference incidents in which Williams did not name an individual defendant in this case are not cognizable. However, Mathis, Green, Espinosa, Martinez, and Rivera are all named explicitly in the record as defendants involved in mail tampering. Compl. 1, Exhs. B, C, F; Compl. 2, ¶ 8, Exh. X; Pl. Mem. Exh. M.
On September 18, 2019, Williams filed a grievance alleging that C.O. Billie had spread out Williams' mail and copied addresses off of it, while leaving the mail out for other officers to copy as well. Compl. 2, Exh. X. However, C.O. Billie is not a named defendant in this case.
Mathis is alleged to have specifically threatened Williams, after which time Williams had problems sending out mail. In March 2019, he allegedly told Williams that his mail was only allowed to be given to him after being “logged, ” Compl. 1 Exhs. B, C, and allegedly threatened him on March 26, 2019 that “if he kept b[****]ing abut his mail that he would stop all of his mail.” Compl. 1, Exh. F. On December 24, 2019, Mathis allegedly threatened Williams again, and in the one or two months following this threat, Williams testified at his deposition that “it was hell [to] send[] mail out.” Rule 56.1, ¶ 49; Smith-Williams Decl., Exh. B at 48:25-49:5.
These incidents with Mathis do not constitute a cognizable mail interference claim. Williams does not provide any factual basis to explain what he meant by “it was hell [to] send[] mail out.”. There is nothing in the record to describe if any mail was lost, or read, or otherwise interefered with, if there was in fact an instance of mail tampering and if so, if Mathis was responsible for it.
The claims against Green, Espinosa, Martinez, and Rivera similarly do not constitute cognizable claims for mail tampering. On November 2, 2019, Williams claimed that he tried to send outgoing legal mail to the personnel office at the facility, but Green and Espinosa refused it, “stating that they are not accepting the mail knowing that it must be lawsuits inside.” Pl. Mem. Exh. M. The only other mail tampering claim involving either of these two defendants concerns the policy to open packages in the mailroom and deliver them in brown paper bags. On January 29, 2020, Williams claims that he received mail sent certified by his wife, but documents were missing from the package. Compl. 3, ¶18; Pl. Mem. at ¶ 51. However, Williams does not claim that Espinosa was responsible for any alleged missing documents. Williams further claimed in a September 10, 2019 grievance that Mailroom Officer Martinez “refused to allow mail out because it has [officer] names on it.” Compl. 2, Exh. X.
Finally, in July 2019, Rivera is alleged to have directed Peoples to hold onto outgoing legal mail Williams was attempting to send in order to serve defendants in a state court lawsuit. Compl. 2, ¶ 8. Williams alleges that six envelopes containing outgoing legal mail, including one envelope that had been opened and closed with scotch tape, were returned to him, but does not allege that Rivera was responsible for the opened envelope. Compl. 2, ¶¶ 20-23.
Because one instance of mail tampering, as is the allegation against each of these individual defendants read in its best light, generally does not amount to a constitutional violation, Williams cannot succeed on a mail tampering claim against any of them. See Davis, 320 F.3d at 351.
For these reasons, Defendants are entitled to summary judgment on Williams' First Amendment mail tampering claims.
2. Denial of Access to the Courts
Individuals in detention “have a constitutional right of access to the courts, ” Gunn v. Malani, No. 20-CV-2681 (KMK), 2021 WL 5507057, at *5 (S.D.N.Y. Nov. 23, 2021) (quoting Bourdon v. Loughren, 386 F.3d 88, 92 (2d Cir. 2004)). The Second Circuit has explained that “[t]he constitutional right of access to the courts assures that prisoners, including pretrial detainees, have the tools they need in order to defend against criminal charges, attack their convictions and sentences (directly or collaterally), and bring civil rights claims challenging the conditions of their confinement.” Bourdon, 386 F.3d at 89 n.1.
However, a right of court access claim based on interference with mail requires that the incidents either: 1) “suggest an ongoing practice of censorship unjustified by a substantial government interest” or 2) “have unjustifiably chilled the prisoner's right of access to the court or impaired his legal representation.” Fredricks v. Parilla, No. 21-CV-1893 (LTS), 2021 WL 2227095, at *2 (S.D.N.Y. Jun. 1, 2021) (citing Davis, 320 F.3d at 351). “To succeed on an access to courts claim, a plaintiff must show that the defendant caused the plaintiff injury or, put less succinctly, that the defendant took or was responsible for actions that had the actual effect of frustrating the plaintiff's effort to pursue a legal claim.” Oliva v. Town of Greece, 630 Fed.Appx. 43, 45 (2d Cir. 2015) (collecting cases). A “hypothetical injury” is not sufficient on a claim for a violation of access to the courts. Amaker v. Haponik, No. 98-CV-2663 (JGK), 1999 WL 76798, at *3 (S.D.N.Y. Feb. 17, 1999) (denial of access to the courts claim dismissed because inmate suffered no actual injury). Rather, the plaintiff must demonstrate that defendants actually hindered his efforts to pursue a nonfrivolous legal claim. Penz v. Fields, No. 21-CV-005 (VB), 2021 WL 5507249, at *3 (S.D.N.Y. Nov. 23, 2021). “For example, a plaintiff might allege ‘the loss or inadequate settlement of a meritorious case, or the loss of an opportunity to seek some particular order of relief.'” Id. (citing Christopher v. Harbury, 536 U.S. 403, 413-14 (2002)).
Williams argues that his constitutional right of access to the courts was denied as a result of the following: 1) mail tampering and interference; 2) denial of the ability to marshal a legal defense through access to the law library and phone calls and visits with his lawyer; and 3) denial of the right to exhaust administrative remedies by the failure to process grievances. As discussed below, Defendants have demonstrated that Williams was not hindered in any meaningful way in pursuing litigation, and have established that any alleged denial of access did not result in an actual injury to Williams.
a. Mail tampering as claimed here did not prevent access to courts.
First, Williams contends that the interference with his legal mail rose to the level of a constitutional violation of his right of access to the courts and to marshal a defense. To succeed on a claim that interference with legal mail denied a plaintiff the right of access to the courts, the defendant's conduct must 1) be deliberate and malicious, and 2) as discussed above, result in actual injury to the plaintiff “such as the dismissal of an otherwise meritorious legal claim.” Davis, 320 F.3d at 351 (citing Cancel v. Goord, No. 00-CV-2042 (LMM), 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001)) (cleaned up); see also Bellezza v. Holland, 730 F.Supp.2d 311, 314 (S.D.N.Y. 2010). Actual injury requires: (1) a valid underlying cause of action separate from the right-of-access claim; and (2) frustration or hindrance of the litigation caused by the defendant's actions. Fredricks, 2021 WL 2227095, at *2 (citing Christopher, 536 U.S. at 415).
Here, the record demonstrates any alleged mail tampering did not result in actual injury to Williams, as none of his litigation has been frustrated or hindered. In Davis v. Goord, the court dismissed the plaintiff's constitutional claim for violating his right to send and receive legal mail because the plaintiff failed to allege either an ongoing policy or any harm suffered from the tampering. Davis, 320 F.3d at 346. Likewise, Williams does not provide evidence of any actual harm suffered from the tampering, as he was “ultimately able to send [and receive his] intended mail” despite the challenges he described. Def. Mem. at 10; Rule 56.1, ¶¶ 24, 51, 53, and 63. While Williams sought an extension in one case, a “delay in being able to . . . communicate with the courts does not rise to the level of a constitutional violation.” Jermosen v. Coughlin, 877 F.Supp. 864, 871 (S.D.N.Y. 1995) (citing Jones v. Smith, 784 F.2d 149, 151-52 (2d Cir. 1986)); Rule 56.1 ¶ 78. Further, the record is clear that Williams has filed and continued to litigate five actions in federal court and three in state court, without any missed deadlines. Rule 56.1, ¶¶ 19-20; see Fredricks, 2021 WL 2227095, at *2 (“A review of the dockets in those cases shows that Plaintiff is apparently receiving court mail on a regular basis and timely responding to orders and other submissions in those matters. In light of this litigation history and ongoing filing activity, Plaintiff will be hard-pressed to show a violation of his constitutional right to either access the courts or to the free flow of legal mail.”).
Because Williams has not shown that he “missed any deadlines or faced any other, specific legal injuries as a result of the alleged interference, ” and because Defendants have demonstrated that in fact he has not faced any legal injuries in his access to courts, summary judgment should be granted in favor of Defendants on the issue of denial of access to the courts based on mail tampering. See, e.g. Ford, 2007 WL 946703, at *13 (denying plaintiff's motion and granting defendants' motion on denial of court access claim).
b. The lack of access to the law library and instances in which Williams could not speak with his attorneys did not prevent access to the courts.
Next, Williams contends that he was denied access to the courts when he was unable to use the law library or a kiosk to conduct research because the alternative provided to him was unacceptable, and also on account of the times he was denied the chance to speak with his lawyers. As an initial matter, “[a] state is not constitutionally obligated to provide a pretrial detainee with additional legal resources, such as a law library, when that detainee is already represented by counsel.” Hayes v. County of Sullivan, 853 F.Supp.2d 400, 436 (S.D.N.Y. Mar. 30, 2012) (quoting Kowalyshyn v. Willett, No. 10-CV-752 (SRU), 2011 WL 1793257, at *4 (D. Conn. May 11, 2011)) (cleaned up). Williams has been represented by attorneys throughout the period of his incarceration, and as such can be considered to have full access to courts for the purpose of marshaling his defense. See Rule 56.1, ¶ 12.
Moreover, the Supreme Court has required actual injury in regard to the use of law libraries:
[A]n inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is subpar in some theoretical sense . . . [rather, he must] demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim. He might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison's legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.Lewis v. Casey, 518 U.S. 343, 351 (1996).
None of those circumstances applies here. Williams describes having regularly requested to visit the law library to research case law concerning his ongoing criminal case, and reports that he was able to physically go to the MDC law library “once or twice, ” but was otherwise told to use the law library request form instead to request case law. Rule 56.1, ¶¶ 30-33; Compl. 1, p. 5.
Williams argues that using the law library request form is not an adequate substitute for visiting the law library or using a Lexis Nexis kiosk to conduct his own research. Compl. 1, p. 5. While that may be true, it is not material to the constitutional claim at hand. Like the plaintiff in Washington v. Falco, Williams is discontented with a law library substitute for legal research. Washington, 2021 WL 797658, at *8 (dismissing denial of access to the courts claim). In that case, the prison switched from a traditional law library to kiosk units, which the plaintiff alleged were “overcrowded and difficult to access.” Id. The kiosks were “constantly in use” for various activities unrelated to legal research, and because of this the prison was denied him his right to a law library. Id. at *1, *8. Here, Williams complains the switch from a traditional law library to his required use of a law library request form is not appropriate as he does not feel safe discussing his legal matters with anyone at the MDC, and the request form is not a useful substitute for research without prior knowledge of what he needs.
While the purported deficiency with the law library substitute in the two cases is different, the material fact on which both of these cases turn is the same: in each, the plaintiff “fails to allege he suffered any actual injury during his pursuit of legal relief.” Washington, 2021 WL 797658, at *8. In Washington v. Falco, the plaintiff did not “allege which specific, nonfrivolous legal challenges were affected by his inability to access the kiosks; which particular deadlines, if any, he missed due to such actions; or what specific documents, such as motions or pleadings, he was prevented from filing.” Id. Similarly, Williams neither alleges nor provides evidence of any legal challenges affected by his inability to properly use a law library substation, deadlines missed, or papers he was prevented from filing. Thus, judgment as a matter of law is appropriate here, just as dismissal was appropropriate in Washington.
Williams holds out the BOC's recommendation in October 2020 as evidence of Defendants' violations of rights conferred upon him by the BOC Minimum Standards guidance via their issuance and compliance with CLO 104/19. Pl. Opp. ¶ 11; Smith-Williams Decl., Exh A, p. 14; Pl. Mem. Exh. Q. However, such an allegation does not independently amount to a cognizable claim under Section 1983 to be vindicated in federal court. “[A]n official's failure to follow a prison directive does not constitute a violation of a prisoner's federal constitutional rights.” Kruppenbacher v. Annucci, No. 20-CV-0110 (LLS), 2021 WL 412281, at *3 (S.D.N.Y. Feb. 3, 2021) (citing Holcomb v. Lykens, 337 F.3d 217, 224 (2d Cir. 2013)); see also Rivera v. Wohlrab, 232 F.Supp.2d 117, 123 (S.D.N.Y. Nov. 6, 2002) (“Regardless of any alleged violations of internal regulations, the law is settled that the failure to follow a DOCS Directive or prison regulation does not give rise to a federal constitutional claim”). This contention is more appropriately litigated, if at all, in state court.
Finally, there are no material facts in dispute concerning the instances in which Williams was denied the right to speak with his attorneys via telephone or in person. The parties agree that Williams believes he was denied in-person visits with his attorney up to five times, but that he does not identify the individual responsible. Rule 56.1, ¶ 75. Whether there were “two or three” - Rule 56.1, ¶ 72 - or up to four incidents during which he was denied the right to speak with his attorney on the phone - Compl. 2, Exh. F; Pl. Mem. Exhs. B, O; Compl. 2, Exh. F; Pl. Mem. Exh. P; Compl. 3, Exh. B - no injury occurred as required to state a claim for relief. Williams conceded at his deposition that there were no deadlines missed in his criminal case due to missing a visit with his attorney, and that even though some proceedings took place later than they might have, nothing was missed in his criminal case as a result of the allegedly denied meetings. Smith-Williams Decl. Exh. B at 19:17-20:7. When his attorney Julie Clark was not added to his call list as required by the January 22, 2020 lockdown order, she was eventually added to his call list after Williams filed an Article 78 proceeding in state court, thus rectifying the situation. Pl. Mem. at ¶ 63; Pl. Mem. Exh. P. In general, Williams claims he was unable to help his attorney marshal his defense when he was denied these calls, but these incidents “did not cause him to miss any deadlines in his criminal matter.” Rule 56.1, ¶¶ 73-74; Smith-Williams Decl. Exh. B at 16: 6-11.
Because Williams incurred no injury on account of any of the aforementioned denials, he cannot succeed as a matter of law and therefore summary judgment for Defendants is appropriate on this claim as well.
c. Williams does not have a claim based on his grievances not being processed.
Williams contends that he “never received a response on the appeal request [of his grievances, which] prevent[ed] him from appealing the grievances to C.O.R.C. . . . ultimately prevent[ing] him access to the court due to lack of exhaustion.” Pl. Mem. at ¶¶ 4, 47. Additionally, according to Williams, grievances he placed in the grievance box on July 2 and 9, 2019, were not collected. Rule 56.1 ¶ 29; Smith-Williams Decl. Exh. B at 21: 17-25. Even if true, Williams does not have a legitimate theory of recovery based on such facts, and summary judgment should also be granted for Defendants on this claim.
The First Amendment protects a prisoner's right to petition the government for the redress of grievances. Harris v. Westchester Cty. Dep't. of Corr., No. 06-CV-2011 (RJS), 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008). When a prisoner submits a grievance to a correctional officer who never files it, an administrative remedy is unavailable if the regulations “do not adequately outline the process to appeal or otherwise exhaust administrative remedies.” Ford v. Aramark, No. 18-CV-2696 (NSR), 2020 WL 377882, at *4 (S.D.N.Y. Jan. 23, 2020) (quoting Williams v. Corr. Officer Priatno, 829 F.3d 118, 124 (2d Cir. 2016)). However, the Fourteenth Amendment does “not provide . . . a constitutionally protected right to file a grievance or receive process with respect to a filed grievance.” Kruppenbacher, 2021 WL 412281, at 4. Access to administrative remedies is therefore not a constitutionally-protected right, and a violation of prison grievance procedure is not a cognizable Section 1983 claim. See, e.g. George v. Cty. of Westchester, No. 20-CV-1723 (KMK), 2021 WL 4392485, at *4 (S.D.N.Y. Sept. 24, 2021) (collecting cases); see also Harris, 2008 WL 953616, at *5 (inmate grievance programs created by state law are not required by the Constitution; therefore, allegations that prison officials violated those procedures do not give rise to a cognizable Section 1983 claim).
Rather, “in the event that prison officials ignore a grievance that raises constitutional claims, the proper avenue to seek relief is . . . directly petitioning the government for redress of his claims.” Id. Williams therefore cannot bring an independent claim that he was denied the right to petition the government for redress, as that is “belied by the fact of his bringing this lawsuit.” Crispin v. Westchester Cty., No. 18-CV-7561 (VB), 2019 WL 2419661, at *4 (S.D.N.Y. Jun. 10, 2019) (citing Harris, 2008 WL 953616, at *5).
Distinct from Williams' First Amendment right vindicated based on his filing a federal lawsuit, the Prison Litigation Reform Act (“PLRA”) mandates that prisoners exhaust administrative remedies before bringing an action related to prison life in federal court. See, e.g., Williams v. King, 56 F.Supp.3d 308, 320-21 (S.D.N.Y. 2014). The failure to exhaust administrative remedies is an affirmative defense created by the PLRA. See, e.g. id. at 321. Williams claims that Defendants made the argument that he failed to exhaust all of his remedies before initiating civil litigation. Pl. Mem. at ¶ 48. However, upon review of the record, Defendants have not raised an affirmative defense to this effect.
For these reasons, summary judgment should be granted to Defendants on this claim.
3. Retaliation
Williams' complaints can be read to allege a number of retaliation claims, including cell searches, mail tampering, and threats. To succeed on a First Amendment retaliation claim, a plaintiff “must establish (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 [conduct] and the adverse action.” Vasquez v. Cty. of Rockland, No. 13-CV-3652 (SLC), 2020 WL 883514, at *7 (S.D.N.Y. Feb. 24, 2020) (cleaned up). Courts should “approach prisoner retaliation claims with skepticism and particular care, 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.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (internal quotation marks omitted).
Williams contends that officers retaliated against him for filing grievances and lawsuits against the officers at the MDC. Pl. Mem. at ¶ 6. As an initial matter, many of the incidents Williams alleges as retaliation do not involve named defendants in this case, and as such are not properly considered in this lawsuit. Similarly, the retaliation complaints against Padillo and others for not responding to grievances are not cognizable claims as discussed above.
For example, the incidents involving Bethea in July and August of 2019, Compl. 2, Exhs. S, T, and Y, and the cell search by officer “Louis, ” Compl. 2, ¶ 35, Exh. P, do not give rise to cognizable claims for retaliation as neither is a named defendant.
Regarding the remaining claims, it is settled law that the filing of grievances is a constitutionally protected act. See, e.g., Vidal, 2019 WL 3219442, at *7 (collecting cases). Thus, the first prong is met, and the issues to be decided are whether any triable issue of fact exists with regards to the second and third prongs - whether any named defendants took adverse actions against Williams, and if so, whether a causal connection existed between the conduct and that action.
a. Williams faced adverse action.
In the prison context, an adverse action is any “retaliatory conduct ‘that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.'” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004); (quoting Davis, 320 F.3d at 353.). A plaintiff can demonstrate that retaliatory conduct meets that standard either by alleging that “he has been chilled from engaging in the First Amendment activities that triggered the retaliation, ” or alleging “a serious injury that is independent of a possible First Amendment chill.” Smith v. Maypes-Rhynders, No. 07-CV-11241 (PAC)(MHD), 2009 WL 874439, at *4 (S.D.N.Y. Mar. 31, 2009). Whether an action is “sufficiently adverse to deter someone of ordinary firmness from exercising his rights is a question of fact.” Id. (cleaned up) (for pleading purposes, filing of false disciplinary charges resulting in sanctions, “wonton destruction” of personal property, and stealing legal and personal papers are sufficiently adverse).
First, although Williams argues that a number of cell searches are properly characterized as retaliatory actions, in only two are specific defendants identified. According to a signed declaration by fellow inmate Samuel Ceruti, on March 26, 2019, after a discussion about “many issues” with the mail, Mathis told Williams that “if he kept b[****]ing about his mail that he would stop all of his mail.” Compl. 1, Exh. F. A few days later, Ceruti saw Mathis standing in front of Williams' cell in an “aggressive manner” while Williams complained about how personal photos were handled by officers searching his cell. Id. Next, on September 20, 2019, Williams contends that C.O. Wells and non-named defendant C.O. Mason searched Williams' cell and took legal documents needed for ongoing civil litigation. Pl. Mem. Exh. L. He contends that these are the same officers who attempted to attack him in July 2019 when he requested his mail be returned. Pl. Mem. Exh. L.
While cell searches alone often do not rise to the level of an adverse action, they may be actionable if combined with other “wrongful conduct” such as destruction of property. See, e.g., Stewart v. Richardson, No. 15-CV-9034 (VB), 2016 WL 7441708, at *5 (S.D.N.Y. Dec. 27, 2016). Likewise, “allegations that a defendant confiscated personal property and/or legal papers during the course of a cell search have been found sufficient to deter an inmate of ordinary firmness form exercising his constitutional rights.” Hammock v. Pierce, No. 15-CV-9052 (NSR), 2018 WL 2108244, at *7 (S.D.N.Y. May 7, 2018) (cleaned up) (collecting cases) (denying defendants' motion for summary judgment on retaliation claim related to cell search and confiscation of property). As in Hammock, where the court found that confiscating legal documents during a cell search constituted a triable issue of fact, so too is the purported confiscation of Williams' documents during the cell search he describes.
Second, according to Williams, on December 24, 2019 Mathis came to his housing area and threatened him, saying that “if he didn't take him out of [civil complaint No. 19-CV-3347] that he was going to make his [stay] at MDC hard and that he would no longer send and/or receive mail. . .” Smith-Williams Decl. Exh. B at 46: 10-13. “Verbal threats may constitute adverse action, though whether they constitute adverse action seems to depend on their specificity and the context in which they are uttered.” Lunney v. Brureton, No. 04-CV-2438 (LAK) (GWG), 2007 WL 1544629, at *23 (S.D.N.Y. May 29, 2007), adopted by 2007 WL 2050301 (Jul. 18, 2007). Defendants argue the alleged threats Mathis made to Williams are not adverse actions. Def. Mem. at 18. However, the cases on which they principally rely are not analogous. In Bartley, for example, the defendants' threats against the plaintiff were found not to be an adverse action. Bartley, 2006 WL 1289256, at *6. In that case, the plaintiff's deposition testimony that multiple defendants threatened him and “encouraged him to abandon his lawsuit” was “conclusory” due to insufficient specificity with regard to the identification of any one defendant and the allegation not providing the time, date, place, or circumstances of the alleged remarks. Id. Further, the statements in plaintiff's complaint in Bartley, while more particularized, were unsworn and thus could not be relied upon for a summary judgment motion. Id. at *7. Likewise, in Hofelich v. Ercole, the determination that threats against a prisoner were not adverse actions turned in part on the fact that the plaintiff could not come forward with evidence of the threat beyond the allegation in the Amended Complaint. Hofelich v. Ercole, No. 06-CV-13697 (PKC), 2010 WL 1459740, at *2 (S.D.N.Y. Apr. 8, 2010). The plaintiff there could not set forth an approximate date, month, or season of the year when the threat was made, and nothing in his deposition filled in those gaps. Id. The context is different here. During a sworn deposition, Williams, unlike Bartley or Hofelich, specifically identified Mathis as the one threatening him, and his allegations are detailed as to the date, time, and place. These verbal threats may well rise to the level of an adverse action, and whether these threats are sufficiently detailed and specific to rise to the level of an adverse action are triable issues for a jury.
b. Causal connection between protected acts and adverse action exists.
Finally, the Court considers the issue of causal connection. “In considering whether a causal connection exists, a court may infer an improper or retaliatory motive in the adverse action from: (1) the temporal proximity of the filing to the grievance and the disciplinary action; (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 the plaintiff.” Thomas v. DeCastro, No. 14-CV-6409 (KMK), 2019 WL 1428365, at *9 (S.D.N.Y. Mar. 29, 2019) (citation and quotation marks omitted).
The Second Circuit has not enumerated a “bright line” test to determine the outer limits of a temporal relationship. Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). In Espinal, six months between the protected activity and the adverse action was “sufficient to support an inference of a causal connection.” Id. Here, Mathis initiated his threats eight months after the lawsuit was filed, but much closer in time to a number of grievances that Williams had filed, including one five months prior, on July 9, 2019, that referred to Mathis being upset that he had been named in a FOIL submission. Pl. Mem. Exh. M. Likewise, the cell search involving Wells was less than six months after Williams filed his initial lawsuit, and much closer in time to a number of other grievances. This temporal connection is sufficient to establish a causal connection, or at a minimum raises triable issues of fact
In light of the foregoing, on the retaliation issue, summary judgment for Williams should be denied, summary judgment for Mathis and Wells should also be denied, but summary judgment for all other Defendants should be granted.
In a footnote, Defendants argue that they are entitled to qualified immunity for Williams' retaliation claims. Def. Mem. at 26, n. 23. “It is generally inappropriate to make substantive arguments in footnotes.” In re MF Global Holdings Ltd. Inv. Litig., No. 11-CV-7866 (VM), 2014 WL 8184606, at *2 (S.D.N.Y. Mar. 11, 2014). Indeed, courts in this Circuit have made clear that arguments in footnotes are waived. See Skibniewski v. Commissioner, 2020 WL 5425343, at *3, n.1 (W.D.N.Y. Sept. 10, 2020) (collecting cases). In any event, qualified immunity is not appropriate on the current record given the factual issues presented.
4. Excessive Force and Deliberate Indifference
Williams brings an excessive force claim against Officer Gorritz for deploying a chemical agent against him on April 22, 2020. Compl. 3, ¶¶ 24-35. He also appears to bring a claim that certain officers are liable for deliberate indifference to his medical needs following that incident. See Compl. 3, ¶¶ 36-45; Def. Mem. at 22.
a. Defendant Gorritz did not use excessive force.
As a pretrial detainee, Williams' excessive force claim is analyzed under the Fourteenth Amendment. United States v. Walsh, 194 F.3d 37, 47 (2d Cir. 1999) (quoting Graham v. Connor, 490 U.S. 386, 392 n.6 (1989)) (“While the Eighth Amendment's protection does not apply ‘until after conviction and sentence,' the right of pretrial detainees to be free from excessive force amounting to punishment is protected by the Due Process Clause of the Fourteenth Amendment[.]”). To succeed on a constitutional claim of excessive force used against him, “a pretrial detainee must show only that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015); see also Darnell v. Pineiro, 849 F.3d 17, 21 (2d Cir. 2017). The Supreme Court in Kingsley provided a non-exhaustive list of factors to consider when determining reasonableness, including “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 U.S. at 397.
Taking these factors into consideration, the use of force was objectively reasonable in this instance, and therefore no triable issue of fact exists. Williams argues that the pepper spray was deployed for fifteen seconds; however, he presents no evidence to support that allegation. Compl. 3, ¶ 34. Defendants, on the other hand, dispute Williams' characterization and, relying on a video of the incident, maintain that Gorritz “sprayed a single, two-second burst of chemical agent towards [Williams'] face.” Rule 56.1, ¶ 85. When “the parties disagree as to the existence of a genuine dispute of a material fact, the Court may consult incontrovertible video evidence to determine whether summary judgment is nevertheless appropriate.” Davis v. Murphy, No. 12-CV-3297 (PGG), 2018 WL 10070524, at *8 (S.D.N.Y. Sept. 24, 2018) (cleaned up).
After reviewing the video, the Court concludes that no reasonable jury could find in favor of Williams on this claim. The time stamp on the video unequivocally demonstrates that Gorritz deployed her chemical agent from a short distance away from Williams, in one burst, which lasted for less than two full seconds. Smith-Williams Decl. Exh. D (Genetec Video, Angle 191.70, 12:19:13-16). Courts “must make [a] determination [of whether an incident was objectively reasonable] from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Kingsley, 576 U.S. at 397. Gorritz had just been engaged in a protracted discussion with an agitated Williams, who pulled an object out of his pants and then ran into the janitor's supply closet where he had access to a number of items that could be used as weapons. Rule 56.1, ¶ 83; Smith-Williams Decl. Exh. D (Genetec Video Angle 191.70, 12:17-19).
While a chemical agent, or pepper spray, “constitutes a significant degree of force” and its use can sometimes amount to a constitutional violation, “if the force was applied in a good-faith effort to maintain or restore discipline, it . . . will not amount to excessive force under Second Circuit law.” Quinones v. Rollison, No. 18-CV-1170 (AJN), 2020 WL 642018, at *4 (S.D.N.Y. Nov. 1, 2020) (internal citations omitted) (cleaned up). Williams produced no evidence to support his recounting of the events, in which Gorritz orders another officer to “tackle” Williams and Williams runs away out of fear. Compl. 3, ¶ 32. The security footage shows that the officers appear calm and not ready to attack. Genetec Video, Smith-Williams Decl. Exh. D Angle 191.70, 12:17-19. Even accepting Williams' allegations as true, Gorritz and the other officers still had a reasonable fear that Williams could become a threat given his sudden and unexpected “access to brooms, mops, water, and a dust pan.” Rule 56.1, ¶¶ 82-83. On the video, Gorritz is the officer who has her chemical agent removed and ready to use; her decision had to be made in less than the second it took Williams to step halfway through the door, as the officers were within feet of him. Rule 56.1, ¶ 81; Genetec Video, Smith-Williams Decl. Exh. D Angle 191.70, 12:19. Had he been armed, she would not have had time to issue a warning. Under the circumstances, Gorritz's deployment was reasonable.
This assessment is further bolstered by the fact that Williams did not experience significant injury. Rule 56.1, ¶ 96; Compl. 3, ¶ 39. The use of pepper spray is not an actionable constitutional violation when the resulting harm is de minimis, such as when the recipient suffers only the expected side effects. Williams v. City of New York, No. 05-CV-10230 (SAS), 2007 WL 2214390, at *12 (S.D.N.Y. Jul. 26, 2007). Video footage portrays Williams as he ducks his head and the majority of the spray hits his arm. Genetec Video, Smith-Williams Decl. Exh. D Angle 191.70, 12:19. As in Quinones, so too here the officer's “use of force was not gratuitous” and the “Plaintiff was not restrained, ” but rather able to immediately leave the scene. Quinones, 2020 WL 6420181, at *6 (emphasis omitted). Williams reported that he experienced pain in his left shoulder and wrist and noted that his left eye vision was different. Compl. 3, ¶ 39. However, an x-ray revealed no fractures or dislocation were present in Williams' shoulder and wrist, Rule 56.1, ¶¶ 101-02, and despite his asthma, the record indicates that he did not complain of an asthma attack or respiratory distress. Rule 56.1, ¶¶ 97-100.
For these reasons, summary judgment should be granted for Defendants on the excessive force claim.
b. Defendants were not deliberately indifferent to Williams' medical needs.
“‘[D]eliberate indifference to a prisoner's serious illness or injury states a cause of action under [§] 1983.'” Ross v. Willis, No. 16-CV-6704 (PAE) (KNF), 2021 WL 3500163, at *17 (S.D.N.Y. Aug. 9, 2021) (quoting Estelle v. Gamble, 429 U.S. 97, 105 (1976)). A two-pronged test applies to such claims. First, the injury or illness must constitute a “serious medical condition.” Ross, 2021 WL 3500163, at *17 (quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). A serious medical condition is understood to be “one that may produce death, degeneration, or extreme pain.” Id. (quoting Holmes v. City of New York, No. 17-CV-3874 (WHP), 2018 WL 4211311, at *6 (S.D.N.Y. Sept. 4, 2018)). The second prong is for the defendant to have “acted with deliberate indifference towards that medical condition, so as to either cause it or expose the plaintiff to risk from it.” Id. (citing Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003)). Mere negligence is insufficient under this standard; rather, the defendant must have acted intentionally or recklessly failed to act with reasonable care. Id. (internal citations omitted).
After Gorritz deployed the pepper spray, the parties agree that Williams was eventually cuffed and taken to a decontamination shower. Compl. 3, ¶36; Rule 56.1, ¶¶ 93-94. However, there is a dispute regarding what took place in that shower. Williams claims the shower head was capped off, blocking any water or solution from coming out to decontaminate him. Compl. 3, ¶ 36. He also alleges that Gorritz had knowledge of this lack of water as the intake captain, but in the absence of any facts other than that conclusory statement on the basis of her job title, that assertion is unsupported by the record. Compl. 3, ¶ 36. In response to Williams' “allegation that he was not afforded a decontamination shower, ” Def. Mem. at 22, Defendants repeat throughout their motion papers the fact that officers “escorted Plaintiff to the intake area decontamination showers” and “left Plaintiff in the intake area decontamination shower, ” though do not address what happened in the shower. Rule 56.1 ¶¶ 93-94. The video evidence Defendants provide does not clarify the issue, as the viewer can see Williams go into a stall but does not hear any water running. See Handheld Video, Smith-Williams Decl., Ex. L at 00:27-3:18. Williams claims that he was in the intake area until 3:15 p.m. without being able to decontaminate himself, and that his first shower after the chemical agent was deployed against him was eight hours later. Compl. 3, ¶¶ 39, 45. However, the resolution of this issue is not material to the ultimate decision, as there was no resulting injury sufficient to rise to the level of a serious medical condition.
The first prong of a resulting “serious medical condition” is therefore not met here, as Williams does not allege any serious injury, and the records (including medical reports and video of Williams following the chemical agent deployment), demonstrate that he was not suffering from physical ailments that may “produce death, degeneration, or extreme pain.” Id. Any “temporary discomfort caused by pepper spray or mace does not constitute a ‘sufficiently serious' injury within the meaning of deliberate indifference.” Id. at *18 (cleaned up).
Because the first prong is not met, the second need not be reached.
Thus, summary judgment should be granted for Defendants as to the claims concerning deliberate indifference to medical needs.
5. Derivative Claims
Williams alleges that the City of New York is liable for constitutional violations committed by the named defendants against him under a theory of municipal liability, including for mail tampering, not responding to his grievance appeal request, and denial of access to his attorneys. Pl. Mem. at ¶¶ 64-70. His pleadings can also be read to raise a claim of respondeat superior. Compl. 2, p. 12.
As an initial matter, a municipality cannot be held liable on a respondeat superior theory, nor “solely because it employs a tortfeasor, ” but rather only where the municipality itself was the “moving force” behind the deprivation of the plaintiff's rights. Bisignano v. Harrison Central School Dist., 113 F.Supp.2d 591, 601 (S.D.N.Y. 2000) (internal citation omitted). A municipality can only be held liable under Section 1983 if it is the “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy” which causes a constitutional deprivation. Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978). In order to hold a city liable under this theory, “a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007). A “causal connection” between the policy and deprivation of the plaintiff's rights must exist. Fernandez v. City of New York, 457 F.Supp.3d 364, 394 (S.D.N.Y. 2020) (citing Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)).
However, Monell “does not provide a separate cause of action, ” but rather it extends liability to a municipality where an underlying constitutional violation occurred. Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006). As discussed in this Report, the Court recommends granting summary judgment for Defendants on the mail tampering, denial of access to courts, excessive force, deliberate indifference to medical needs, and retaliation claims. For the remaining retaliation claims against Mathis and Wells, Williams has not alleged a municipal policy or custom. Therefore, the Court likewise recommends finding for Defendants as a matter of law on the derivative claims.
III. CONCLUSION
For the foregoing reasons, the Court recommends Williams' motion for summary judgment be denied, and Defendants' motion for summary judgment be granted, except as to the retaliation claims against defendants Mathis and Wells.
PROCEDURE FOR FILING OBJECTIONS
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 such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Lewis J. Liman, United States Courthouse, 500 Pearl Street, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Liman. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).