Opinion
94-CV-0843E(Sr)
February 18, 2003.
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff commenced this action against several correctional officers at the Attica Correctional Facility ("Attica") — Patrick Foley, Dennis Fleckenstein, Thomas Monin, George Struebel and Robert Connors — asserting, inter alia, violations of 42 U.S.C. § 1981, 1983, 1985 and 1986 and the First and Fourteenth Amendments to the Constitution. Defendants move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing all of plaintiff's claims. In opposition, plaintiff has filed a motion for additional discovery pursuant to FRCvP 56(f). For the reasons stated hereinbelow, defendants' motion will be granted and plaintiff's motion will be denied.
This motion comes before the Court following a remand from the Second Circuit Court of Appeals. On December 5, 2000 this Court granted defendants' motion for summary judgment because plaintiff had failed to file any opposition to such motion — despite repeated warnings of such a disposition and several extensions granted to plaintiff — by a court-imposed deadline. Plaintiff appealed the decision to the Second Circuit and, on December 17, 2000, the Court of Appeals vacated the order and remanded for further proceedings. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001). In vacating, the Court of Appeals reasoned that this Court's decision to grant defendants' summary judgment motion was erroneous because such decision had improperly relieved defendants of their initial burden under FRCvP 56 to show the absence of any genuine issue of material fact. Id. at 681.
Plaintiff's claims are based on events that occurred while he was incarcerated at Attica from September of 1992 to November of 1994. Plaintiff, an African-American, alleges that defendants discriminated against him because of his race, conspired to deprive him of his constitutional rights, harassed and intimidated him and retaliated against him for filing a grievance. Pl.'s Mem. Law Opp'n Defs.' Mot. Summ. J., p. 1. Plaintiff alleges that the majority of such conduct had occurred while he was working as a law library clerk in the prison library from August to November of 1994. Specifically, plaintiff contends that, during the week of September 12, 1994, he was denied the opportunity to work his afternoon shifts at the law library by Foley and Fleckerstein. Amaker Aff. ¶ 8. Plaintiff also alleges that, on September 19, 1994, Foley — working in concert with Fleckerstein — had entered his cell and took two envelopes of legal mail. Compl. ¶ 5. Next, plaintiff avers that, during a September 21, 1994 search of his cell, Foley had confiscated various items from his cell — items that plaintiff claims he had lawfully possessed.
While he merely alleged in his complaint that Foley had stolen "two envelopes of legal mail," he later identified twelve specific documents that had allegedly been taken. See Amaker Aff. ¶ 9.
Foley has submitted an affidavit declaring that, among the confiscated items, was "19 ounces of suspected flammable liquid." Foley Aff. ¶ 5. Defendants have also offered the Contraband Receipt form which indicates that "19 ounces of flammable liquid" had been confiscated from plaintiff's cell. Id., Ex. A. Plaintiff claims that the confiscated items were bottles of dye that he used for "hobby shop" and that such dyes were not contraband. Pl.'s Statement Undisputed Facts, Ex. B, ¶ 4.
Plaintiff also contends that defendants retaliated against him for filing a grievance. On September 25, 1994, plaintiff filed a grievance against Foley, pursuant to the Inmate Grievance Program, complaining about Foley's conduct in taking his legal mail and confiscating the items from his cell. Monin, a supervisor at Attica in 1994, investigated plaintiff's grievance and concluded that his grievance was unfounded. Monin Aff. ¶ 3. Plaintiff further claims that he filed other grievances with Struebel, an Inmate Grievance Supervisor at Attica in 1994, but that, instead of filing them, Struebel was "throwing them out." Amaker Aff. ¶ 2. Plaintiff also alleges a conspiracy among Foley, Fleckerstein and Monin to deny him access to the courts and that Foley and Fleckerstein repeatedly harassed him by directing "demeaning racial slurs" at him almost daily. Amaker Aff. ¶ 11.
As part of his investigation, Monin directed Connors to test the liquid that had been confiscated from plaintiff's cell. Connors tested the liquid and, having found it to be flammable, he filed a Misbehavior Report against plaintiff. Connors Aff. ¶¶ 3-4.
Plaintiff contends that many of the acts described above were done in retaliation for a complaint that he had made with regard to homosexual advances made by defendants. Compl. ¶ 13. Plaintiff also asserts a claim of race discrimination inasmuch as white prisoners at Attica were treated more favorably than himself — to wit, that white prisoners were not harassed or denied work in the law library and they were always given the best clerk positions. Amaker Aff. ¶ 18.
FRCvP 56(c) provides that summary judgment shall be entered where the movant demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." A genuine issue of fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary judgment is appropriate this Court must draw all factual inferences in favor of the non-moving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
Nevertheless, the non-moving party must rebut the motion for summary judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("Conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact"). Furthermore, summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
Initially, the Court must decide whether to grant plaintiff's FRCvP 56(f) motion for additional discovery. To justify the need for additional discovery, plaintiff must submit an affidavit that shows "(1) what facts are sought to resist the motion and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort [the] affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts." Gurary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (quotations and citations omitted). Plaintiff has failed to show the need for additional discovery. While somewhat ambiguous, plaintiff's chief argument is that defendants' responses to his interrogatories are incomplete and evasive and that his ability to conduct discovery in this case has been impaired by two attorneys who had previously worked on this case. However, plaintiff's assertion that the defendants are in possession of facts and evidence that might help his case is insufficient to support a FRCvP 56(f) motion. See Contemporary Mission, Inc. v. U.S. Postal Service, 648 F.2d 97, 107 (2d Cir. 1981) ("A `bare assertion' that the evidence supporting a plaintiff's allegation is in the hands of the defendant is insufficient to justify a denial of a motion for summary judgment under Rule 56(f)."). In addition, plaintiff has not shown that additional discovery could reasonably be expected to create a genuine issue of material fact with regard to his claims and, further, the information he seeks to obtain is based purely on speculation. Such reasons are fatal to plaintiff's FRCvP 56(f) motion. See Paddington Partners v. Bouchard, 34 F.3d 1132, 1138 (2d Cir. 1994) (holding that it is within the district court's discretion to deny a FRCvP 56(f) motion when the motion is based on "speculation as to what potentially could be discovered"). Plaintiff has had ample opportunity to conduct discovery and he has failed to show justification for anything additional; plaintiff's FRCvP 56(f) motion will therefore be denied.
Plaintiff alleges that defendants' previous counsel — Assistant District Attorney General Jerry McGrier — repeatedly disrupted his discovery efforts by, inter alia, canceling numerous telephone calls and misrepresenting to the Court that plaintiff had refused a conference call. Pl.'s Mem. L. Opp'n D. Mot. Sum. J., pp. 9-11. Plaintiff also argues that he has not been able to complete discovery in this case because he has been "abandoned by [his] prior counsel." Ibid.
For instance, plaintiff states that Connors has failed to "name any witnesses who could confirm he tested any alleged flammable liquid" and that his failure to do so amounts to a "pretextual cover-up." Amaker Rule 56(f) Aff. ¶ 4. As discussed herein, whether or not anyone witnessed Connors actually perform such a test does nothing to raise issues of fact as to his constitutional claims and even if the report was false, that fact would not give rise to a constitutional violation. Furthermore, plaintiff's argument that the defendants failed to provide the names of potential witnesses in this case reflects the speculative nature of his FRCvP 56(f) motion.
The Court now turns to the merits of defendants' motion. Defendants first argue that plaintiff has not shown any issues of material fact regarding his retaliation claims. The Court agrees.
To establish a claim for retaliation, plaintiff has the initial burden of showing that (1) he engaged in constitutionally protected conduct and (2) the protected conduct was a substantial or motivating factor in the defendants' actions against the plaintiff. Davidson v. Chestnut, 193 F.3d 144, 148 (2d Cir. 1999). If plaintiff succeeds, then the burden shifts to defendants to show that they would have taken the same action without the retaliatory motivation. Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002); Davidson, at 148-149.
Although plaintiff has alleged several instances of retaliation, only one such allegation — that defendants filed a false Misbehavior Report in retaliation for his filing of a grievance — is supported with any quantum of evidence. Plaintiff has satisfied the first prong of his retaliation claim because he has alleged that defendants retaliated against him for engaging in his constitutionally protected right to file a grievance. See Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (holding that an inmate's filing of a grievance is constitutionally protected conduct). Plaintiff has also met his burden under the second prong by presenting some evidence of a retaliatory motive inasmuch as the Report had been completed on the same day that plaintiff filed his grievance. See Gayle, at 683 ("[T]he temporal proximity of an allegedly retaliatory misbehavior report to a grievance may serve as circumstantial evidence of retaliation"). Nonetheless, assuming arguendo that plaintiff has satisfied his initial burden, defendants have met their burden in showing that they would have taken the same action despite plaintiff's grievances.
Plaintiff's other allegations — which include his claims that (1) defendants conspired to harass and retaliate against him, (2) defendants' falsely accused him of setting fires and (3) defendants retaliated against him because of his complaints about their "homosexual advances and extortion," see Compl. ¶¶ 2-14 — are insufficient to defeat a motion for summary judgment. Plaintiff offers no specific facts to support any such claims and, as such, they cannot serve to raise issues of material fact regarding his retaliation claim. See Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (affirming district court's dismissal of plaintiff's retaliation claims based on "unsupported, speculative and conclusory" allegations).
Thus, while the filing of a false misbehavior report might not give rise to a per se constitutional violation, it does so if it was done in retaliation for Amaker's constitutional right to file a grievance. Moreover, if plaintiff had been deprived of a liberty interest in conjunction with the Misbehavior Report, he then would have had a due process right to a hearing. See Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). However, no such rights are implicated in this case because it is undisputed that the report did not result in any disciplinary confinement or become a part of plaintiff's permanent record. Defs.' Statement Undisputed Material Facts ¶ 22, Monin Aff. ¶ 12.
In order to rebut plaintiff's claim of retaliation, defendants must show that the Report would have been issued against plaintiff in the absence of any possible retaliatory motives. Such a showing is "readily drawn in the context of prison administration where [this Circuit has] been cautioned to recognize that prison officials have broad administrative and discretionary authority over the institutions they manage." Lowrance v. C.O.S. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (quotations and citations omitted). Consideration of such broad discretion easily leads the Court to conclude that the Report filed against plaintiff in this case was pursuant to defendants' administrative authority over Attica and that it would have been filed regardless of any retaliatory motives.
As part of his grievance, plaintiff alleged that the liquid that Foley had confiscated from his cell was not flammable and that it had been taken only to harass him. As a supervisor at ACF and according to "correctional facility policies and directives," Monin had a duty to investigate plaintiff's grievance. Monin Aff. ¶ 3. Necessitated by plaintiff's allegations, Monin had to determine whether the confiscated liquid was flammable. Consequently, his directive to Connors to conduct such a test and Connors's subsequent testing of the liquid — which had been done in "accordance with standard procedures" — and his completion of the Misbehavior Report — which had been done "pursuant to applicable directives" — were all a part of the investigation into plaintiff's grievance. Connors Aff. ¶ 5. Thus, regardless of any retaliatory motives, defendant has shown that it would have issued the Report in accordance with DOCS policy — such policy being a part of its broad administrative and discretionary authority over Attica. Because such action emanated from prison policies, it creates a presumption that defendant's actions were proper. See Rivera v. Senkowski, 62 F.3d 80, 86 (2d Cir. 1995) ("The district court should recognize that the presumption of proper purpose accorded the acts of prison officials is particularly strong when officials act pursuant to a duty imposed by a prison regulation which is observed in practice and is essential to prison discipline and order."). Moreover, such a presumption, coupled with the fact that plaintiff has offered nothing to show that the Report had been false, mandates summary judgment against plaintiff with regard to his retaliation claim. See Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998) (upholding district court's grant of summary judgment to defendants because the evidence had shown that the prisoner had committed the conduct that had been charged in a misbehavior report and that defendants had accordingly demonstrated a proper, non-retaliatory reason for filing such report); Lowrance, at 534-535 (upholding district court's dismissal of retaliation claim because defendants had met their burden in showing that the plaintiff had indeed committed the conduct reported in the misbehavior report). Thus, plaintiff's retaliation claim will be dismissed.
Plaintiff has provided nothing to rebut defendants' evidence that the confiscated liquid had been flammable. Significantly, the Central Office Review Committee of the Inmate Grievance Program concluded that plaintiff's grievance regarding the flammable liquid had been without merit. Monin Aff., Ex. A. Thus, the evidence overwhelmingly shows that the Misbehavior Report was accurate and plaintiff's bare allegations to the contrary are insufficient to raise an issue of material fact regarding such.
Next, the Court examines plaintiff's claim that he was denied access to the courts by the defendant. To plead a violation of his right to access of the courts, plaintiff must demonstrate that he has suffered, or will suffer, actual injury because of defendant's conduct. Warburton v. Underwood, 2 F. Supp.2d 306, 312 (W.D.N.Y 1998) (citing Lewis v. Casey, 518 U.S. 343, 349 (1995)). For plaintiff to establish an injury, he must show "that a non-frivolous legal claim has been frustrated or was being impeded" due to defendants' action. Lewis, at 353. Plaintiff has not shown that defendants denied him access to the courts because he has failed to specify any legal injury. Plaintiff's Complaint merely alleges that Foley — acting in concert with Fleckerstein — "went into [his] cell and took two envelopes of legal mail addressed to the Federal Court and Corporation Counselor of New York City." Compl. ¶ 5. Plaintiff's sole allegation that could be construed as a legal injury is that he "was unable to file and/or timely file some or all of [the allegedly stolen legal mail]." Pl.'s Mem. Law Opp'n Def.'s Mot., p. 7. However, he does not identify a Court or a particular legal proceeding in which he had been unable to timely file such documents and he therefore cannot identify an impaired legal claim which may serve the basis for his constitutional claim. Moreover, "[t]he mere delay in serving some court documents does not state a constitutional claim." Warburton at 312. Defendant's motion for summary judgment with respect to plaintiff's claim of a denial of access to the courts will therefore be granted.
Plaintiff subsequently refined his allegations by identifying twelve additional documents that had allegedly been stolen in an affidavit submitted in opposition to defendant's motion for summary judgment. See Amaker Aff. ¶ 9.
Defendants also argue that plaintiff cannot maintain a claim under section 1983 based on threats, verbal abuse or racial slurs. This Court agrees because plaintiff has not alleged that he was ever physically threatened and, without more, his allegations of verbal threats, abusive language and racial epithets cannot from the basis of a section 1983 claim. See Jermosen v. Coughlin, 878 F. Supp. 444, 449 (N.D.N.Y. 1995) ("[V]erbal threats or abuse are not sufficient to state a constitutional violation cognizable under § 1983."); Keyes v. City of Albany, 594 F. Supp. 1147, 1155 (N.D.N.Y. 1984) (holding that abusive language by police officers — characterized by the court as vile and abusive racial epithets — could not form the basis of plaintiffs' section 1983 claim).
Plaintiff's claims under 42 U.S.C. § 1981, 1985 and 1986 must also be dismissed. Plaintiff's section 1981 claim is based on his theory that, as an employee in the prison law library, he was subjected to a hostile working environment based on alleged racial harassment. However, plaintiff cites no authority to support the proposition that a prisoner has standing to sue the facility in which he is incarcerated as his employer. See Reid v. N.Y. Dep't of Corr. Servs., 387 N.Y.S.2d 589 (4th Dept. 1976), appeal denied, 42 N.Y.2d 808 (1977) (holding that inmates could not sue for workers' compensation benefits because they were not considered employees of the State). In any event, plaintiff has failed to offer any evidence of racial discrimination other than his conclusory and unsupported allegations of racial slurs.
Plaintiff's allegation of disparate treatment based the fact that white prisoners were treated differently than him is also unsupported with any evidence.
Plaintiff has also failed to raise an issue of fact regarding his section 1985 claim because it is based solely on his bare allegation of a conspiracy by defendants to deprive him of his constitutional rights. Complaints containing only conclusory, vague or general allegations of a conspiracy to deprive a person of constitutional rights, such as the right to equal protection, do not state a claim for relief. Brown v. City of Oneonta, 106 F.3d 1125, 1133 (2d Cir. 1997); see Hunt v. Budd, 895 F. Supp. 35, 38 (N.D.N.Y. 1995) (holding that the Second Circuit "has repeatedly held that complaints relying on civil rights statutes are insufficient unless they contain some specific allegations of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning"). Plaintiff's allegations can only be characterized as conclusory and vague and he has presented no evidence from which the Court could reasonably infer that defendants conspired to deprive plaintiff of his constitutional rights.
Plaintiff's failure to raise an issue of fact regarding his section 1985(3) claim is fatal to his section 1986 claim. See Malsh v. Garcia, 971 F. Supp. 133, 139 (S.D.N.Y. 1997) (holding that plaintiff's failure to allege an actionable section 1985(3) rendered his section 1986 claim inactionable).
In sum, despite drawing all factual inferences in his favor, the Court finds that plaintiff has failed to raise any issues of material fact with regard to any of his claims. Plaintiff has presented the Court with only conclusory allegations that are unsupported by the evidence and he has offered no facts from which a reasonable trier of fact could find in favor; summary judgment is therefore mandated against plaintiff.
Accordingly, it is hereby ORDERED that plaintiff's motion for additional discovery is denied, that defendants' motion for summary judgment is granted and that the clerk of this Court shall close this case.