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finding that "defendants have submitted undisputed affidavits explaining that Plaintiff's cell was searched based on a tip that it contained contraband. Because defendants have carried their burden of demonstrating that the search would have been conducted in the absence of any retaliatory motive, and Battice has failed to put forth any evidence to dispute those assertions, summary judgment with respect to this claim is proper."
Summary of this case from Lebron v. SelskyOpinion
Case No. CV-04-669 (FB)(LB).
August 2, 2006
LESTER BATTICE, Pro Se Auburn Correctional Facility Auburn, NY For the Plaintiff.
ELIOT SPITZER Attorney General of the State of New York, By: JULIA LEE Assistant Attorney General New York, NY For the Defendant.
MEMORANDUM AND ORDER
Plaintiff Lester Battice ("Battice"), proceeding pro se, filed suit against defendants R. Phillip ("Phillip"), a corrections officer at Arthur Kill Correctional Facility ("Arthur Kill"), and Dennis Breslin ("Breslin"), the Superintendent of Arthur Kill (collectively "defendants"), in their individual and official capacities pursuant to 42 U.S.C. §§ and 1985. Battice's complaint alleges that while he was incarcerated at Arthur Kill, Phillip violated his First Amendment rights by opening and reading Battice's legal mail, and by taking various actions in retaliation for grievances filed by Battice against Phillip. In particular, Battice alleges that Phillip retaliated against him by (1) making fun of his disability "in violation of Title II of the Americans with Disabilities Act" ("ADA"), Compl. ¶ 16; (2) endangering his life by informing other prisoners that he had filed grievances against Phillip; (3) searching Battice's cell and filing a misbehavior report against him; (4) withholding Battice's mail; and (5) altering Battice's work assignment. Battice's complaint also alleges that Breslin was deliberately indifferent to Phillip's violation of Battice's constitutional rights, and violated state law and Department of Correctional Services ("DOCS") regulations by making fun of Battice's hearing disability. Battice seeks compensatory and punitive damages and an injunction preventing defendants from taking further retaliatory actions against him.
On July 26, 2005, following completion of discovery, Magistrate Judge Bloom held a telephone conference in which Battice refused to participate. Defendants subsequently moved for summary judgment and served Battice with the notice to pro se litigants required by Local Rule 56.2. Following Battice's failure to submit a response to defendants' summary judgment motion, the Court issued an order on January 4, 2006, affording him an opportunity to serve his responsive papers by January 13, 2006. After Battice failed to do so, Magistrate Judge Bloom issued a second order, on June 30, 2006, stating that Battice would be given a final opportunity to file his response by July 31, 2006, and that failure to comply would result in the motion being considered unopposed; no response from Battice was received. For the reasons set forth below, defendants' motion for summary judgment is granted in its entirety.
Although Battice has failed to respond to defendants' motion, he has continued to submit letters to the Court complaining of continuing harassment at Auburn Correctional Facility, where Battice is currently incarcerated. Despite Magistrate Judge Bloom's issuance of an order on August 30, 2005, directing Battice that he should not be submitting such documents to the Court, and that discipline imposed upon him at the Auburn Correctional Facility is irrelevant to the present case, the Court received another such letter from Battice on April 13, 2006.
I.
The following background is taken from Battice's complaint and documents attached thereto; defendants' Statement of Undisputed Material Facts, see Local Rule 56.1(a); sworn deposition testimony; defendants' affidavits; and other supporting documents. In all material respects they are undisputed.
Battice was an inmate at Arthur Kill Correctional Facility at all relevant times. While incarcerated at Arthur Kill, Battice, who suffers from a hearing impairment, was housed for a period of time in unit F-2, where he was assigned work as a porter. During this period, Battice filed a number of administrative grievances against Phillip, the corrections officer ("CO") assigned to the 3 to 11 p.m. shift in Battice's unit, which Battice's complaint alleges precipitated various retaliatory actions by Phillip.
Battice filed his initial grievance against Phillip on August 15, 2002, alleging that Phillip, without authorization, read certain court documents mailed to Battice that were marked "confidential." On October 18, 2002, following an investigation, this grievance was accepted and the prison's Deputy Superintent of Security, Robert Morton ("Morton"), instructed Phillip regarding proper search procedures for inmate mail. On September 17, 2002, Battice filed a second grievance against Phillip, alleging that as a result of his initial grievance, Phillip had informed Battice and two other inmates that he was placing the F-2 housing unit on the "burn"; during this conversation Phillip also allegedly mocked Battice's disability and stated that he intended to inform the unit's other inmates that he was placing the unit on the "burn" in retaliation for grievances filed by the three inmates. A September 16, 2002 memo from the Inmate Liaison Committee Executive Board to Morton contains similar allegations. Battice's second grievance was denied on October 25, 2002, on the ground that the allegations of alleged misconduct could not be substantiated.
According to Battice's deposition, this meant that "there [wouldn't] be [any] rec[reation] or things of that nature." Aff. of Julia H. Lee, Ex. B at 45-6. However, Battice also testified that he was not aware that any of the inmates' privileges were ever suspended by Phillip.
On the same day that Battice filed his second grievance, Battice's cell was one of three in his unit selected for a search. According to Breslin's affidavit and supporting documents, Arthur Kill conducts a daily search of the living quarters of a certain number of inmates in each housing unit in order to confiscate contraband. The list of cells to be searched each day is randomly generated by computer, and the searches are generally conducted by the unit's corrections officer during the 3 to 11 p.m. shift. According to the affidavits of Phillip and Morton, on September 17, 2002, pursuant to this procedure, Phillip received an order from Lieutenant Sweetman to search three cubicles, one of which belonged to Battice. Battice testified during his deposition that another inmate's cell had been selected for the search but that Phillip searched his cell instead; however, Battice did not explain how he knew which cells had been selected for search or how he would have become aware of which inmates' cells had been selected prior to the search.
Although Phillip's affidavit states that the search occurred on September 19, 2002, this appears to be erroneous; the administrative form completed by Phillip in connection with the search is dated September 17, 2002.
During the search of Battice's cell, Phillip discovered several items of contraband, including a bottle of glass cleaner, which prison regulations classified as a flammable substance. Phillip issued a misbehavior report alleging that in addition to possessing contraband, Battice had been uncooperative during the search. A disciplinary hearing was held on September 25, 2002, during which Battice admitted to possession of the contraband, but explained that they had been given to him by other inmates. Battice was found guilty of possession of the contraband but not guilty of the allegations of uncooperative conduct during the search; although Battice appealed the hearing officer's decision on the ground that glass cleaner did not qualify as a flammable substance, his appeal was denied. Battice was not punished nor did he suffer a loss of any privileges as a result of the infraction; however, the hearing officer counseled him against keeping flammable materials in his cell.
In addition to the glass cleaner, the following items of contraband were discovered in Battice's cell: excess paper towels, excess toilet paper, excess toothpaste, and excess shirts and gloves.
On March 5, 2003, Battice filed a third grievance against Phillip, alleging that Phillip had failed to distribute a piece of incoming mail addressed to Battice. According to Phillip's grievance, a second CO discovered the mail in a desk drawer on February 28, 2003, two days after it had been delivered to Battice's unit, and turned it over to Battice. Battice's grievance was accepted in part after investigation revealed that the mail was found in the desk at the beginning of the following shift, but Phillip's actions in failing to deliver the mail were determined to be unintentional.
Approximately five months after filing this last grievance, Battice, along with a number of other inmates, who are not identified by Battice, were transferred from the F-2 unit to a different housing unit of the same level of security. Battice was given a different assignment as a porter in his new unit and allegedly received less pay in this new assignment. Following this transfer, Battice filed a fourth grievance against Phillip, alleging that Phillip had secured the transfer and associated change in work assignment and pay in retaliation for the grievances he had filed against Phillip. In support of this allegation, Battice's administrative complaint states that on July 30, 2003, Phillip
had a [l]ist of [n]ames that I had observed. This [l]ist . . . contained [a]ll [t]he [n]ames [o]f [t]he [i]nmates [i]n [t]he [d]orm [t]hat [h]ad [f]iled [g]rievances [a]gainst [h]im. I then observed that . . . Phillip had a [s]econd [l]ist of [i]nmates['] [n]ames that were [b]eing [m]oved [o]ff [o]ff [o]f Housing Unit F-2, I was one of those inmates included in this [m]ove [o]ff [o]f [unit] F-2.
Aff. of Dennis Breslin, Ex. D at 2. Battice's grievance also alleged that other inmates who had filed grievances against Phillip had been the target of assaults and the subjects of misbehavior reports, but did not allege that any other inmates were transferred out of the housing unit as a result of having filed grievances against Phillip.
Battice's fourth grievance was denied on the ground that the allegations of misconduct could not be substantiated; it was "also noted that it was an administrative decision to move grievant off unit." Aff. of Dennis Breslin, Ex. D at 6. Defendants do not dispute that Battice was transferred and given a new work assignment that resulted in a reduction in pay, but provide no particular explanation for why these actions were taken. However, according to Breslin's affidavit and supporting documentation, corrections officers such as Phillip have "no discretion in the removal or transfer of inmates from their assigned programs," and the prison's Program Committee Chairperson, under the direction of the Deputy Superintendent of Programs, is responsible for coordinating program placements, including "acting upon all program assignment and change requests submitted by staff members." Aff. of Dennis Breslin, ¶ 11.
Breslin's affidavit further explains that his office receives hundreds of letters every year from inmates; one of Breslin's secretaries, or sometimes Breslin himself, will read the letters and determine the appropriate official to whom they should be forwarded for proper resolution. Id. ¶ 4. Breslin's affidavit also states that he has been advised by his staff that Battice had filed a number of grievances, but that those grievances were forwarded to other officials for proper resolution, and that Breslin did not personally respond to or investigate any grievances from Battice. Id. ¶ 6.
Although Battice's complaint alleges that Breslin violated the ADA by making fun of his hearing disability, Battice does not explain when or where this event allegedly occurred, or provide any detail regarding this allegation.
II.
A. Summary Judgment Standard
A Court may grant a motion for summary judgment when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where, as here, the non-moving party bears the burden of proof at trial, the moving party need only "show — that is, point out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (citation omitted). Upon such a showing, "the non-moving party must respond with `specific facts showing that there is a genuine issue for trial,'" Golden Pac Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004) (quoting Fed.R.Civ.P. 56(e)); conclusory statements, conjecture and other types of unsupported assertions are not sufficient. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
On a motion for summary judgment, the Court draws all justifiable inferences in the nonmoving party's favor. See Graham v. Hendersen, 89 F.3d 75, 79 (2d Cir. 1996) (citing Andersen, 477 U.S. at 255). However, "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is merely colorable, . . . or is not sufficiently probative . . . summary judgment may be granted." Andersen, 477 U.S. at 249-50 (citations omitted). Finally, because Battice did not file any response to defendants' motion, the assertions contained in defendants' Statement of Material Facts and buttressed by defendants' sworn affidavits will be accepted as true, see Local Rule 56.1; however, where a motion for summary judgment is unopposed, the Court "may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial." Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citation and quotation marks omitted).
Although a verified complaint may be treated as an affidavit if it meets the requirements of Fed.R.Civ.P. 56(e) and is of sufficient factual specificity, see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), Battice's complaint is not verified and the Court will not give any evidentiary weight to its allegations.
B. Section 1983 Claims
1. Interference with Mail
Defendants are entitled to summary judgment on Battice's claim that Phillip interfered with Battice's right to receive mail when on one occasion he opened legal documents marked "confidential." Interference with legal mail implicates a prisoner's right of access to the courts and right of free speech under the First and Fourteenth Amendments. See Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). "To state a claim for denial of access to the courts [through interference with legal mail] a plaintiff must allege that the defendant `took or was responsible for actions that hindered [a plaintiff's] efforts to pursue a legal claim'"; the plaintiff must demonstrate that the actions resulted in actual injury. Id. In order to state a claim for violation of a prisoner's First Amendment right to send and receive mail, "the inmate must show that prison officials `regularly and unjustifiably interfered with . . . [a prisoner's] mail."' Id.
Battice has failed to state a claim under either theory. With respect to Battice's first theory, that Phillip's opening of his legal correspondence denied his access to the courts, Battice has not alleged, must less presented evidence to demonstrate, that he suffered any actual injury as a result of Phillip opening his legal correspondence. "Mere delay in being able to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation." Id. (citations and quotation marks omitted). Battice also fails to state a claim under his second theory, that defendants violated his rights to send and receive legal mail, because he cites to only one instance of mail tampering, which did not result in any actual harm, and does not allege — nor present any evidence in support of such an allegation — that Arthur Kill officials established an ongoing practice of interfering with his mail.
2. First Amendment Retaliation
Phillip is also entitled to summary judgment on Battice's First Amendment retaliation claims. In order to sustain such claim, a prisoner must demonstrate "`(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'" Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (quoting Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)). "The causal connection must be sufficient to support the inference `that the speech played a substantial part'" in the adverse action. Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000) (quoting Ezekwo v. NYC Health Hosps. Corps., 940 F.2d 775, 780-81 (2d Cir. 1991). Evidence that can lead to an inference of a causal connection includes (1) the temporal proximity between the protected conduct and the alleged retaliatory act; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant regarding his motives. See Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995). The Second Circuit has been willing to draw an inference of causation where circumstantial evidence, such as temporal proximity, is combined with allegations that a defendant expressed an intent to retaliate. See, e.g., Colon, 58 F.3d at 872-73 (noting that if circumstantial evidence of temporal proximity between an inmate's lawsuit and disciplinary action and evidence of plaintiff's past good behavior "represented the sum total of [plaintiff's] proof, we might be inclined to affirm the grant of summary judgment based on the weakness of [plaintiff's] case," but concluding that this circumstantial evidence, in combination with direct evidence in the form of allegations regarding defendant's admission of a retaliatory scheme, would be sufficient to defeat a motion for summary judgment).
Nonetheless, prisoner retaliation claims are generally viewed "with skepticism and particular care" because "virtually any adverse action taken against a prisoner by a prison official — even those not otherwise rising to the level of a constitutional violation — can be characterized as a constitutionally proscribed retaliatory act." Dawes, 239 F.3d at 492. The Second Circuit has established a "presumption that a prison official's acts to maintain order are done for a proper purpose," explaining that" the conclusion that the state action would have been taken in the absence of improper motives is readily drawn in the context of prison administration where we have been cautioned to recognize that prison officials have broad administrative and discretionary authority over the institutions they manage." Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998). A "[p]laintiff has the initial burden of showing that an improper motive played a substantial part in the defendant's action. The burden then shifts to the defendant to show it would have taken exactly the same action absent the improper motive." Scott v. Coughlin, 344 F.3d 282, 288 (2d Cir. 2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). If the defendant meets this burden, summary judgment is appropriate. See Davidson v. Chestnut, 193 F.3d 144, 149 (2d Cir. 1999). See also Flaherty v. Couglin, 713 F.2d 10, 13 (2d Cir. 1983) ("[I]f the production of all relevant documents fails to add substance to the allegations and if the relevant officials submit affidavits explaining their reasons for the challenged actions, summary judgment dismissing the complaint may be granted. . . .").
a. Withholding Mail, Making Fun of Battice's Hearing Disability, and Informing Other Inmates of Battice's Grievance
Defendants do not dispute that Battice's filing of a grievance qualifies as a constitutionally protected activity, and Battice has therefore satisfied the first element of a First Amendment retaliation claim. See Graham, 89 F.3d at 80 ("a retaliation against a prisoner for pursuing a grievance violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments"). However, Battice's allegations that Phillip withheld his mail, made fun of his disability, and informed other inmates that he was placing the housing unit on "the burn" because of Battice's grievance, even if true, do not constitute adverse actions. "Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation." Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (citing Dawes, 239 F.3d at 493). Furthermore, "[p]risoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before [retaliatory] action taken against them is considered adverse." Thaddeus-X v. Blatter, 175 F.3d 378, 394 (2d Cir. 1999).
Phillip's failure to deliver Battice's mail on one occasion does not constitute the type of conduct that would deter an ordinary individual from exercising his constitutional rights. Phillip does not allege, much less present any evidence to show, that he suffered any injury as a result of the minor delay in receiving one piece of mail. Even if intentional, this isolated incident is "simply de minimis and therefore outside the ambit of constitutional protection." Dawes, 239 F.3d at 493. As the present suit demonstrates, the incident did not deter Battice from continuing to use the mails to correspond with the Court, nor did it deter him from filing additional grievances against Phillip. Not only was this action not sufficiently serious enough to deter an individual of ordinary firmness from exercising his constitutional rights, but it clearly did not deter Battice from doing so.
Phillip's statement to Battice that he intended to inform other prisoners that he had filed a grievance also does not constitute an adverse action. The Second Circuit has held that a prisoner alleging that a prison official's comments incited other inmates must make some "factual showing that the comments . . . actually risked inciting other inmates against" the prisoner, and has been "unwilling simply to assume that prison inmates would be incited, without more, to attack `one of their own' who was labeled an `informant' and a `rat.'" Dawes, 239 F.3d at 493 (holding that prisoner's allegation that prison official referred to prisoner as an "informant" and a "rat" in discussions with other inmates, and that this opened him up to assault by fellow inmates, did not amount to an adverse action). See also Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002) (holding that plaintiff's allegation that defendant called him a "stoolie" in front of other inmates did not sufficiently plead an adverse action). Even if the Court could take the allegations of Battice's unverified complaint as true for purposes of the present motion, the complaint alleges only that Phillip threatened to tell other inmates about the grievance, and then conclusorily states that this created resentment against Battice and "endanger[ed] [his] life." Compl. ¶ 11. However, Battice does not allege that he ever suffered any adverse reactions from other inmates, and he admitted at his deposition that he was not aware that his unit ever suffered any loss of privileges. Because Battice has failed to make any factual showing that Phillip actually made any inflammatory comments to other inmates, or that those comments actually risked inciting other inmates against him, Phillip is entitled to summary judgment on this claim.
Finally, the allegation that Phillip retaliated against Battice by making fun of his disability on one occasion, even if true, also does not amount to an adverse action. The Second Circuit has held that "[i]nsulting or disrespectful comments directed at an inmate" generally do not rise to the level of conduct that would deter an individual from exercising his or her constitutional rights. Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003). See also Dawes, 239 F.3d 489 ("Certain means of `retaliation' may be so de minimis as not to inhibit or punish an inmate's right of free speech. Many verbal responses by officials of resentment or even ridicule would fall into this safe harbor of permitted responses.'" (citing Riley v. Coutu, 172 F.R.D. 228, 235 (E.D. Mich. 1997)); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam) (affirming dismissal of retaliation claim based on allegations that prison guard called inmate names). Phillip is therefore entitled to summary judgment on this claim.
In addition to alleging that Phillip retaliated against him by making fun of his hearing disability "in violation of the Americans with Disabilities Act," Compl. ¶ 19, Battice's complaint also appears to assert a separate claim for violation of Title II of the ADA based upon the same alleged incident. See Compl. ¶ 16 (alleging that Phillip "mocked the plaintiff's disability in violation of Title II of the Americans with Disabilities Act"). To the extent that Battice is suing defendants in their personal capacities for violations of the ADA, this claim is not cognizable. See Gill v. Calescibetta, 157 Fed. Appx. 395, 396 n. 2 (2d Cir. 2005) (unpublished) (citing S.U.N.Y. Health Sci. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (affirming grant of summary judgment in suit filed by prisoner against prison official alleging violations of the ADA because "while state prisons fall squarely within the definition of a public entity for ADA purposes, . . . the ADA does not protect [plaintiffs] from the actions of state officials undertaken in their individual capacities"). Furthermore, although suits against state officials in their official capacity are deemed to be suits against the state, see Ying Jing Gan v. City of New York, 996 F.2d 522, 529 (2d Cir. 1993), there is no liability against the state for this particular claim because Battice does not allege that he was denied the benefit of any public services, programs, or activities by reason of his disability, see 42 U.S.C. § 12132, but alleges only that state officials made fun of his disability.
b. Cell Search and Misbehavior Report
Defendants are also entitled to summary judgment on Battice's allegation that Phillip searched his cell and filed a false misbehavior report against Battice in retaliation for filing grievances against him. The Second Circuit has not addressed whether a cell search can constitute an adverse action for purposes of a First Amendment retaliation claim; however, many district courts in this circuit have concluded that it does not. See, e.g., Rodriguez v. McClenning, 399 F. Supp. 2d 228, 239 (S.D.N.Y. 2005); Freeman v. Goord, 2005 WL 3333465 at *5 (S.D.N.Y. Dec. 7, 2005); Salahuddin v. Mead, 2002 WL 1968329 at * 5 (S.D.N.Y. Aug. 26, 2002); Walker v. Keyser, 2001 WL 1160588, at *9 (S.D.N.Y. Oct. 2, 2001); Walker v. Goord, 2000 WL 297249 at *4 (S.D.N.Y. Mar. 22, 2000); Bey v. Eggleton, 1998 WL 118158 at *4 (S.D.N.Y. Mar. 17, 1998); Gadson v. Goord, 1997 WL 714878 at *7 (S.D.N.Y. Nov. 17, 1997). They have reasoned that under Hudson v. Palmer, 468 U.S. 517 (1984), a prisoner has no reasonable expectation of privacy in his or her prison cell; therefore, a search of an inmate's cell, even for retaliatory reasons, therefore does not implicate a constitutional right.
In Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996), the Second Circuit upheld the dismissal of a retaliatory cell search claim on the ground that the defendant was not personally involved in the search; however, the court did not address whether a cell search can constitute a retaliatory action.
Even assuming that a retaliatory cell search may form the basis for a retaliation claim, Battice does not provide any evidentiary support for his conclusory allegation that his cell was searched in place of a third cell selected at random by prison administrators. Moreover, although the search occurred on the same day or soon after Battice filed his second grievance against Phillip, and such close temporal proximity between a prisoner's exercise of a constitutional right and an adverse action may present circumstantial evidence of a causal connection between the two, see, e.g., Bennett v. Goord, 343 F.3d 133, 138 (2d Cir. 2003) (finding circumstantial evidence of retaliation where adverse actions occurred within days of protected activity), defendants have submitted undisputed affidavits explaining that pursuant to established prison practice, Battice's cell was selected at random. Because defendants have carried their burden of demonstrating that the search would have been conducted in the absence of any retaliatory motive, and Battice has failed to put forth any evidence to dispute those assertions, summary judgment with respect to this claim is proper. See Flaherty 713 F.2d at 13 ("[I]f the production of all relevant documents fails to add substance to the allegations and if the relevant officials submit affidavits explaining their reasons for the challenged actions, summary judgment dismissing the complaint may be granted. . . .").
As for the misbehavior report, although the filing of a false misbehavior report can constitute an adverse action, see Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988), and while the close temporal proximity between Battice's grievance and the filing of the misbehavior report might be sufficient, standing alone, to justify an inference of causal connection, defendants have put forth uncontradicted evidence that the misbehavior report would have been filed in the absence of any alleged retaliatory motive because Battice admittedly violated prison policy by storing contraband in his cell. See Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (holding that defendants had met their burden of showing that they would have disciplined the plaintiff even in the absence of the protected conduct because "it was undisputed that [plaintiff] had in fact committed the prohibited conduct" which led to issuance of a misbehavior report); Hynes, 143 F.3d at 657 (holding that defendants met their burden of proof that they would have taken disciplinary action on valid basis alone where the evidence demonstrated that plaintiff had committed" the most serious, if not all, of the prohibited conduct").
c. Transfer and Change in Work Assignment
Prisoners in New York have no liberty interest in being housed at a particular facility or maintaining a particular work assignment. See Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987) ("New York law does not give a prisoner `any statutory, regulatory or precedential right to his prison job."); however, they do have a right not to be subject to retaliatory job transfers intended to "punish and harass." Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987).
Although Battice was transferred to a unit of the same level of security, and his conditions of confinement do not appear to have been altered by the transfer, if he earned less in his new assignment this would constitute an adverse action. See Walker v. Pataro, 2002 WL 664040 at *8 (S.D.N.Y. Apr. 23, 2002) (finding adverse action where, "[a]s a result of his transfer out of [one building, prisoner] lost a job that paid twenty-five cents an hour and was given a job that paid ten cents an hour"); Van Pelt v. Finn, 1993 WL 265297 at *4-5 (S.D.N.Y. Nov. 12, 1993) (denying summary judgment where prisoner was "transfer[red] from porter to clerk to recreational supervisor, and [suffered] . . . corresponding decreases in pay"); cf. Baker v. Zlochowon, 741 F. Supp. 436, 439-40 (S.D.N.Y. 1990) denying summary judgment where plaintiff alleged that he was transferred to a lower-paying job after filing an Article 78 proceeding challenging prison officials' actions).
However, Battice's transfer and claimed loss of salary took place nearly five months after Battice had filed his most recent grievance against Phillip. Courts have held that "a time lapse of over four months . . . standing alone, is insufficient to justify an inference of causal connection." See, e.g., Freeman v. Goord, 2005 WL 3333465 at *7 (S.D.N.Y. Dec. 7, 2005) (citing Cobian v. New York City, 2000 WL 1782744 at *18 (S.D.N.Y. Dec. 6, 2000) (collecting cases). See also Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) ("the four month time lag between [plaintiff's] participation in protected activity and his termination by itself would not be sufficient to justify an inference of causation") (cited with approval in Morris v. Lindau, 196 F.3d 102, 113 (2d Cir. 1999)).
Notwithstanding this lapse of time, Battice's last administrative grievance contains other allegations that Battice claims supports an inference of retaliation; he alleges that on July 30, 2003, he observed Phillip with a list of inmates, including Battice, who were being transferred from his unit and that he then observed "that . . . Phillip had a [s]econd [l]ist of [i]nmates['] [n]ames that were [b]eing [m]oved [o]ff [o]f Housing Unit F-2. . . ." Aff. of Dennis Breslin, Ex. D at 2. These circumstances would not be sufficient to establish the requisite causal connection for a claimed retaliation occurring almost five months thereafter.
First, as the corrections officer assigned to the unit, it is logical that Phillip would have possessed a list of the names of inmates who were scheduled to be transferred from his unit. Even if, as Battice alleges, it was improper under prison regulations for Phillip to possess a list of the names of those inmates who had filed grievances against him, there is nothing in Battice's allegations regarding the lists to suggest that the two were related; Battice does not allege that Phillip was looking at the lists together, or comparing them in any manner that would suggest a connection between the names on one list and those on the other. Secondly, Battice does not allege that other inmates whose names appeared on the list of prisoners who had filed grievances were among those transferred to another housing unit; instead, Battice alleges that some inmates who had filed grievances against Phillip in the past had been subjected to other retaliatory acts, such as assaults and misbehavior reports. Finally, Phillip was allegedly seen with the two lists after the decision to transfer the inmates had been made; evidence that Phillip at some point possessed lists both of those inmates scheduled to be transferred and those who had filed grievances against him, even if true, at most allows only speculation that the transfer was ordered, or that Phillip had some role in securing that transfer, in retaliation for past grievances filed by Battice.
Because the Court concludes that the evidence put forth by Battice would be insufficient to allow a reasonable jury to return a verdict for Battice on this claim, there is no genuine issue for trial and summary judgment is appropriate. See Andersen, 477 U.S. at 249-50 (citations omitted) ("there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. . . . If the evidence is merely colorable, . . . or is not sufficiently probative . . . summary judgment may be granted.").
3. Liability of Breslin
Because Battice failed to present evidence sufficient to allow a reasonable jury to find that his constitutional rights were violated, the Court need not address Battice's claim that Breslin is liable for failing to prevent the alleged violations. In any event, Breslin would be entitled to summary judgment because Battice has failed to put forth any evidence to suggest that Breslin was personally involved in any deprivation of Battice's constitutional rights. Because there is no respondeat superior liability under § 1983, see Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003), "when a supervisor such as a prison superintendent is named as a defendant, that supervisor's involvement must be greater than `mere linkage in the prison chain of command' to give rise to § 1983 liability." Lipton v. County of Orange, New York, 315 F. Supp. 2d 434, 459 (S.D.N.Y. 2004) (quoting Richardson, 347 F.3d at 435). The Second Circuit has held that a supervisor who merely receives and forwards an inmate's complaints to other officials for resolution is not sufficiently personally involved to be held liable for alleged constitutional violations. See Sealy v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997). See also Rivera v. Goord, 119 F. Supp. 2d 327, 344 (S.D.N.Y. 2000) (plaintiff "merely asserts that he wrote to these [supervisory] defendants complaining about the conduct of various Medical and Correctional [d]efendants and that his complaints were ignored. These allegations are insufficient to hold these Official/Supervisory [d]efendants liable under § 1983").
Breslin has submitted an affidavit stating that, consistent with his general practice, he was not personally involved in investigating or responding to any grievances or letters from Battice, which he instead forwarded to the necessary officials for response or investigation. Because the evidence shows that Breslin handled his office's receipt of the complaints in an appropriate manner by forwarding them for investigation and resolution through the prison's administrative grievance system, and Battice has not submitted any evidence to contradict Breslin's affidavit, summary judgment dismissing the claims would be proper. See Davis v. Kelly, 160 F.3d 917, 921 (2d Cir. 1998) (stating that after "discovery, undisputed allegations that [a] supervisor lacked personal involvement will ultimately suffice to dismiss that official from the case").
C. Section 1985 Claims
Although Battice's complaint also alleges that defendants' actions violated 42 U.S.C. § 1985, it does not contain any allegations of a conspiracy motivated "by some racial or perhaps otherwise class-based invidious discriminatory action," Mian v. Donaldson, Lufkin Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993), and Battice has not adduced any evidence that would support such allegations. Defendants are therefore also entitled to summary judgment on Battice's conspiracy claims under § 1985.
III.
Defendant's motion for summary judgment dismissing plaintiff's federal claims is granted; the Court declines to exercise pendent jurisdiction over plaintiff's state law claims, which are dismissed without prejudice.
SO ORDERED.