Opinion
03-CV-6577.
August 1, 2006
For plaintiff: Anthony Bennett, pro se, Coxsackie Correctional Facility, West Coxsackie, NY.
For defendants: Emil J. Bove, Jr., A.A.G., New York State Attorney General's Office, Rochester, NY.
DECISION and ORDER
INTRODUCTION
This prisoner civil rights case, brought pursuant to 42 U.S.C. § 1983 (2003). The matter is now before the Court on defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the reasons stated below, the motion is granted.
BACKGROUND
In his complaint filed on November 12, 2003, plaintiff claims that defendants retaliated against him because of his pending litigation. He alleges that defendant Sheila Hoffman ("Hoffman"), a cook at Groveland Correctional Facility ("Groveland"), was ordered by an official to write a false misbehavior report, alleging 101.10 (solicitation of sexual acts), 107.11 (harassment) and 102.10 (threats) against him to aid officials of the facility to further their retaliation against plaintiff for his ongoing litigation against Commissioner Glen Goord ("Goord") and other correctional staff. (Compl. at 6.) According to plaintiff, as a direct result of the allegedly false misbehavior report, he was transferred from Groveland to Southport Correctional Facility. The ongoing litigation, which he maintains is the reason for defendants' retaliatory action, was commenced in June 1998, and subsequently dismissed by the district court. (Compl. at 4.) However, plaintiff filed an appeal and served his appellate brief on the defendants in that case on October 9, 2001. (Pacer docket for Second Circuit Court of Appeals No. 01-0184). The misbehavior report submitted by Hoffman was filed on October 17, 2001. (Compl. at 6.) One of the defendants in the appellate case was Goord.Plaintiff asserts that Groveland Superintendent Timothy Murray ("Murray") knew that Hoffman had falsely accused several other inmates of misbehavior. ( Id.) Nevertheless, plaintiff states that Murray conducted merely a mock investigation of the complaints against her ( id.), and that concluded that plaintiff was guilty on charges of 107.11 (harassment), 101.10 (solicitation of sexual acts) and 102.10 (threats). (DOCS Disciplinary Hearing Disposition attached to Court Ordered Discovery (# 31), at 111.) Plaintiff contends that Commissioner Goord ignored plaintiff's correspondence and his appeal from the guilty finding based on Hoffman's misbehavior report. (Compl. at 6.) As a result of the guilty finding against him, plaintiff was put into a Special Housing Unit, lost good time, and had packages and phone privileges temporarily revoked. (Compl. at 9.) On appeal, Donald Selsky, Director of Special Housing and Inmate Discipline, dismissed the harassment and solicitation of sexual acts charges stating that "the description of incident fails to support [the] charge[s]." (Superintendent's Hearing attached to Court Ordered Discovery at 53.)
In moving for summary judgment, defendants argue that: (1) prison inmates have no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which may result in the deprivation of a protected liberty interest; (2) retaliation was not a substantial motivating factor for the misbehavior report because Hoffman had no knowledge of the pending litigation, the report lacked temporal proximity to the pending litigation, and the hearing transcript proved a proper basis for the misbehavior report; (3) the claims against defendants Goord and Murray should be dismissed because they had no personal involvement; and (4) as a result of 42 U.S.C. § 1997e(e) plaintiff is not entitled to his claimed mental distress damages because he did not allege actual physical injury. (Defs.' Mem. of Law (# 64), at 2-7.)
STANDARDS OF LAW
Summary Judgment Standard
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). "[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied." 11 MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). That is, the burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. See Amaker v. Foley, 274 F.3d 677 (2d Cir. 2001); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893 (3d Cir. 1987) ( en banc). Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once that burden has been met, the burden then shifts to the non-moving party to demonstrate that, as to a material fact, a genuine issue exists. FED. R. CIV. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A fact is "material" only if the fact has some affect on the outcome of the suit. Catanzaro v. Weiden, 140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether a genuine issue exists as to a material fact, the court must view underlying facts contained in affidavits, attached exhibits, and depositions in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). Moreover, the court must draw all reasonable inferences and resolve all ambiguities in favor of the non-moving party. Leon v. Murphy, 988 F.2d 303, 308 (2d Cir. 1993); Anderson, 477 U.S. at 248-49; Doe v. Dep't of Pub. Safety ex rel. Lee, 271 F.3d 38, 47 (2d Cir. 2001), rev'd on other grounds Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1, 123 S.Ct. 1160 (2003); International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946 (3d Cir. 1990). However, a summary judgment motion will not be defeated on the basis of conjecture or surmise or merely upon a "metaphysical doubt" concerning the facts. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)); Knight v. United States Fire Ins. Co., 804 F.2d 9 (2d Cir. 1986). Rather, evidentiary proof in admissible form is required. FED. R. CIV.P. 56(e). Furthermore, the party opposing summary judgment "may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony." Hayes v. New York City, Department of Corrections, 84 F.3d 614, 619 (2d Cir. 1996).
"The Court recognizes that it must `extend extra consideration' to pro se plaintiffs" and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F. Supp. 526, 535 (S.D.N.Y. 1998) (Rakoff, D.J. Peck, M.J.) (citations internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "`to raise the strongest arguments that they suggest'"). Moreover, the pro se party must be given express notice of the consequences of failing to respond appropriately to a motion for summary judgment. See, e.g., Irby v. New York City Transit Auth., 262 F.3d 412, 413-14 (2d Cir. 2001) ("[W]e remind the district courts of this circuit, as well as summary judgment movants, of the necessity that pro se litigants have actual notice, provided in an accessible manner, of the consequences of the pro se litigant's failure to comply with the requirements of Rule 56. . . . [E]ither the district court or the moving party is to supply the pro se litigant with notice of the requirements of Rule 56. . . . In the absence of such notice or a clear understanding by the pro se litigant of the consequences of failing to comply with Rule 56, vacatur of the summary judgment is virtually automatic."); McPherson v. Coombe, 174 F.3d at 280-81 ("`The failure of a district court to apprise pro se litigants of the consequences of failing to respond to a motion for summary judgment is ordinarily grounds for reversal.'") (citations omitted).
"Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's `bald assertion,' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Cole v. Artuz, 1999 U.S. Dist. LEXIS 16832, 93 Civ. 5981, 1999 WL 983876 at *3 (S.D.N.Y. Oct. 28, 1999) (citing cases); see also, e.g., Viruet v. Citizen Advice Bureau, 2002 U.S. Dist. LEXIS 15045, 01 Civ. 4594, 2002 WL 1880731 at *9 (S.D.N.Y. Aug. 15, 2002) (Peck, M.J.); Smith v. Planas, 975 F. Supp. 303, 305 n. 2 (S.D.N.Y. 1997).
Section 1983
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. In order to state a claim under § 1983, plaintiff must allege (1) that the challenged conduct was attributable at least in part to a person acting under color of state law, and (2) that such conduct deprived plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States. Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993).
Retaliation Standard
An allegation that a prison official filed false disciplinary charges in retaliation for the exercise of a constitutionally protected right, such as the filing of a grievance, states a claim under § 1983. Franco v. Kelly, 854 F.2d 584, 589-90 (2d Cir. 1988). A plaintiff alleging retaliatory punishment "bears the burden of showing that the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). The burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation. Id. at 80. The defendant can meet this burden by demonstrating that there is no dispute that the plaintiff "committed the most serious, if not all, of the prohibited conduct charged in the misbehavior report." Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir.) (per curiam), cert. denied, 525 U.S. 907 (1998); see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994) (holding that the defendants met their burden when "it was undisputed that [the plaintiff] had in fact committed the prohibited conduct").
Personal Involvement of Supervisory Officials
For a claim against state officials in their personal capacity to survive, a plaintiff must demonstrate "personal involvement of defendants in alleged constitutional deprivations. . . ." Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citation omitted); see also Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973) ("The rule in this circuit is that when monetary damages are sought under § 1983, the general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.").
Personal involvement of a supervisory official may be established "by evidence that: (1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring'." Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 254 (2d Cir. 2001) (alterations in original) (quoting Colon, 58 F.3d at 873).
DISCUSSION
Defendants argue that plaintiff's complaint fails to show that Goord and Murray had personal responsibility for the alleged retaliatory disciplinary actions. As discussed above, there are five different ways to show defendant's personal involvement. First, plaintiff may demonstrate personal involvement by establishing that defendants participated directly in the alleged retaliation with regard to plaintiff's federal litigation involving Goord and others not named as defendants in the case at bar. Johnson, 239 F.3d at 254. Here, plaintiff attempts to show that Murray and Goord directly participated in the alleged retaliation by claiming that Murray had knowledge of the on-going litigation and that Goord had knowledge of the alleged retaliation. Plaintiff attempts to tie Murray into the alleged retaliation by stating, "[t]he whole time I was executing my appeal going back and forth to the law library and [sic] the entire staff at Groveland's facility was fully aware of my litigation and legal work coming from the court on [sic] legal mail." (Pl.'s Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. ("Pl.' Mem in Opp'n") (#70) at 4.) Under plaintiff's scenario, Murray would be implicated because he is the Superintendent of Groveland. However, plaintiff does not contend that the staff at Groveland knew of the exact contents of the legal mail, nor does plaintiff assert that the outside of the envelopes had enough information to let Groveland staff know that the contents concerned litigation against Goord. Furthermore, Murray asserts that he "lacked the required motivation as he had no knowledge of any litigation plaintiff had brought." (Defs.' Mem. of Law at 5.) Plaintiff has, therefore, failed to meet his burden to raise a material issue of fact regarding Murray's personal involvement.
Plaintiff also attempts to tie Goord into the alleged retaliation. He contends that he "can prove by documents that are dated 10/26/2001 and 10/29/2001 that the Commissioner handle[d] this case and had correspondence with the executive chamber concerning the things plaintiff was saying as happening in Groveland. . . . The Comissioner was directly involved and allowed his subordinates to create their own policies." (Pl.'s Mem in Opp'n at 9.) However, nowhere does plaintiff present evidentiary proof of a causal connection between his on-going litigation against Goord and Hoffman's misbehavior report, such as an order from Goord to Hoffman directing her to file false charges against plaintiff. Plaintiff has included in his response a letter from Ryan T. McAllister at the New York Executive Chamber acknowledging plaintiff's request under the Freedom of Information Law for letters dated October 26 and October 29, 2001. (Pl.'s Affirmation in Supp. of Mem. of Law ("Pl.'s Affirmation") (# 70) at 11-13.) Although two letters follow in his response, plaintiff cannot establish that these letters came from the Executive Chamber. The two letters are from Goord to Lucien Leclaire and Charles Devane, concerning plaintiff's appeal of his Tier III hearing held on October 29, 2001. ( Id.) Furthermore, it is unclear to the Court what the significance is if Goord did have a "correspondence with the executive chamber" as plaintiff alleges. Furthermore, Goord asserts that he "did not participate in the October 2001 circumstances," which gave rise to this action. (Defs.' Mem. of Law at 6.) Consequently, with respect to Goord, plaintiff has not raised a material issue of fact as to whether Goord participated in the retaliation.
Second, plaintiff may demonstrate personal involvement by establishing that defendants, after being informed of the retaliation through a report or appeal, failed to remedy the wrong. Johnson, 239 F.3d at 254. However, here, plaintiff presents no evidence that Murray knew of plaintiff's federal lawsuit against Goord and no evidence Goord knew of Hoffman's alleged retaliation.
Third, plaintiff may demonstrate personal involvement by establishing that defendants created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom. Id. In that regard, plaintiff contends that Goord allowed his subordinates "to create their own policies." (Pl.' Mem in Opp'n at 9). However, plaintiff neither states what the policies are, nor does he provide any evidence supporting his assertion that Goord allowed any policy or custom under which unconstitutional practice occurred to continue.
Fourth, plaintiff may demonstrate personal involvement by establishing that the defendants were grossly negligent in supervising subordinates who committed the wrongful acts. Johnson, 239 F.3d at 254. Here, plaintiff does not present any evidence suggesting that either Murray or Goord was grossly negligent.
Fifth, a plaintiff may demonstrate personal involvement by establishing that defendants exhibited deliberate indifference to the rights of others by failing to act on information indicating that a retaliation was occurring. Id. Here, plaintiff does not show that Goord knew of the retaliation, or that Murray knew of the pending litigation against Goord.
For the reasons stated above, therefore, plaintiff has failed to show personal involvement by either Goord or Murray through any of the five avenues available. Accordingly, his § 1983 claims against them are dismissed, leaving Hoffman as the only remaining defendant.
Turning now to Hoffman, in order to prevail on his retaliation claim against her, plaintiff bears the burden of showing, first, that he engaged in constitutionally protected conduct and, second, that the protected conduct was a substantial or motivating factor for the adverse actions taken by Hoffman. See Gayle v. Gonyea, 313 F.3d 677 (2d Cir. 2002) (alleging false disciplinary report); Hendricks v. Coughlin, 114 F.3d 390 (2d Cir. 1997) (alleging retaliatory transfers). If plaintiff makes these showings, Hoffman may avoid liability if she demonstrates that plaintiff would have been disciplined or transferred "`even in the absence of the protected conduct.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (quoting Mount Healthy Sch. Dist. V. Doyle, 429 U.S. 274, 287 (1977)). Since Hoffman does not dispute that the filing of an appeal is a constitutionally-protected activity, the first element is not at issue. Hoffman, however, contests the existence of a casual connection between the protected activity and the disciplinary action, i.e., the transfer to Southport Correctional Facility.
As to his claim against Hoffman, plaintiff appears to argue that circumstantial evidence establishes that retaliation was a substantial factor in his disciplinary transfer. First, he points to the temporal proximity between service of plaintiff's appellate brief on Goord and Hoffman's allegedly false misbehavior report. See Gayle, 313 F.3d at 683 (noting that "the temporal proximity of an allegedly retaliatory misbehavior report to a grievance may serve as circumstantial evidence of retaliation") (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)). In that regard, plaintiff served his appellate brief on defendant Goord on October 9, 2001, and Hoffman's misbehavior report was filed October 17, 2001. Plaintiff also alleges Hoffman knew of the on-going litigation with Goord: "[T]he entire staff at Groveland's facility was fully aware of my litigation and legal work coming from the court on legal mail, even Shelia Hoffman by way of her inmate informants working for her and her co. [sic] gunslingers and blackmailers." (Pl.' Mem in Opp'n at 4.) Furthermore, plaintiff contends that "Hoffman testifyed [sic] that she would not have written me up if she was not told to do it." (Pl.'s Affirmation at 4.) Additionally, plaintiff relies on the fact that two of the three charges resulting from Hoffman's misbehavior report were eventually dismissed on the basis that the description of the incident failed to support them. See Gayle, 313 F.3d at 683. Finally, plaintiff points out that on a previous occasion, in which an inmate accused Hoffman of filing a false misbehavior report, the subsequent investigation concluded that "a review of facility documentation resulted in negative findings for said misbehavior report." (Defs.' Resp. for Produc. at 12.)
Defendants counter that plaintiff has failed to produce evidentiary proof that his Second Circuit litigation was the substantial motivating factor for Hoffman's misbehavior report, since Hoffman had no previous knowledge of the circuit court appeal. Moreover, defendants maintain that Hoffman's misbehavior report was issued for proper reasons.
This Court finds that plaintiff has failed to establish that retaliation was a substantial factor in his discipline. Although there is a temporal proximity between the service of the appellate brief on Goord and the filing of the misbehavior report by Hoffman, nowhere does plaintiff provide evidence establishing that Hoffman knew of the litigation or that she was acting at the direction of someone who did. Plaintiff does allege that Hoffman would not have written the misbehavior report if she was not ordered to by superior officers (Pl.' Mem in Opp'n at 6.):
In plaintiff's hearing transcripts on page 27 Hoffman admits that she would [have] only written a report if she was advised to do so. She was ask [sic] had no one talked to her about the situation would she have written a report? Her repile [sic] was I don't know, I didn't know what kind of report to write.
( Id. at 6.) However, when taken in context with the rest of the transcript of plaintiff's disciplinary hearing, it is clear that Hoffman was not talked into writing the report:
H/O: I have maybe one or two more questions. At what point during the conversation or after the conversation did you decide it was appropriate for a misbehavior report to be written?
HOFFMAN: I waited for Sgt. Layman to come. When he came in I started to tell him what had happened and he called Lt. Robinson. Lt. Robinson wanted me to write a To-From. I wrote the To-From. The next day the Lt. came in and wanted me to write a ticket. He did not actually touch me, make advances towards me, so I needed to know from somebody what to do.
HOFFMAN: Yes.
H/O: Were you talked into writing a report?
HOFFMAN: No.
H/O: Would you have written a report on your own if no one had come to you?
HOFFMAN: If someone advised me to yes.
H/O: If no one had talked to you about this situation at all, would you have written the report?
HOFFMAN: I don't know. I did tell somebody so . . . I didn't know what kind of report to write.
Stephen Kruppner, Hearing Officer ("H/O")
Presumably Hoffman was referring to plaintiff, not the lieutenant.
(Defs' Resp. for Produc. at 85-86.) While Hoffman's testimony shows that she was unsure of what charges applied to plaintiff's behavior, it does not demonstrate that she was coerced into making a false report. As for plaintiff's conclusory assertion "that inmate informants working for her and her co. [sic] gunslingers and blackmailers" (Pl.'s Affirmation at 4) had told Hoffman about Goord's litigation, nowhere does plaintiff present any evidence to support this statement.
Even though two of the three charges against plaintiff were dismissed, the serious threat charge was sustained on appeal. Furthermore, Hoffman's prior history is not, in and of itself, sufficient to support plaintiff's contention that she wrote a misbehavior report as a retaliatory action.
Contrary to plaintiff's assertions, it is clear from Hoffman's account of how the decision was made to issue the misbehavior report, that she filed it for proper reasons. This Court finds that the transcript of the Tier III hearing conducted by Groveland Correctional Facility Deputy Superintendent Kruppner confirms there was a proper basis for the charge of 102.10 (threats).
H/O: Ok [sic], Ms. Hoffman, you've been asked to appear at this hearing as a witness on my behalf as the Hearing Officer related to a misbehavior report which you issued on inmate Bennett on 10/16/01. Do you recall that report?
HOFFMAN: Yes.
H/O: OK. I'd like you to, in your words, to tell me what happened on the day in question.
HOFFMAN: Inmate Bennett came to the office saying he needed to speak to me privately . . .
H/O: OK, this is what date and time again?
HOFFMAN: It was last Tuesday.
H/O: OK, the 16th. Was it the afternoon? Or the morning?
HOFFMAN: Approximately 2:30 or 3:00 in the afternoon.
H/O: OK, he came to you and asked to speak to you privately?
HOFFMAN: Yes. He came into the office and said I need to talk to you privately. I don't want you to get into any trouble. He went on to tell me there was an investigation going on about a sex ring and drug ring — drugs being sold out of the Mess Hall.
H/O: And what did you say when he started telling you that?
HOFFMAN: I was doing paperwork and just continued to do so. He told me I could trust him, that I shouldn't go to the cops. He could protect me better than the cops could.
H/O: What did you think about that statement?
HOFFMAN: It started making me nervous. He continued on to say he would like me to trust him to be in the elevator. That if I needed anything downstairs I could trust him to go with me.
H/O: So did you terminate the conversation or did it just naturally end?
HOFFMAN: Nope, he finished his conversation and got up and left.
H/O: What did you make of that conversation?
HOFFMAN: Well, after he left I thought about it a little bit. What I thought about it was Mr. Bennett wanted me to take him in the elevator.
H/O: Is that something you ever thought about doing?
HOFFMAN: No. He works in the butcher shop with Martin. I never took either one of them downstairs. There's a few cooks in there that I take down.
H/O: Did you ever think about terminating your conversation? Did you get nervous about this conversation?
HOFFMAN: Well, I had two new officers on and no regular officers there. I just waited for him to finish, get up and walk out the door then I talked to the Sgt.
H/O: You know anything about a sex ring in the Mess Hall?
HOFFMAN: No.
H/O: You know anything about drugs being sold in the Mess Hall?
HOFFMAN: No.
H/O: Did you state anything to the inmate in the course of his conversation with you?
HOFFMAN: No.
H/O: So, the conversation was completely one-sided?
HOFFMAN: Basically, yes.
H/O: In your report, you state to the effect that inmate Bennett said that I should watch what I'm doing or I could lose my job. Do you recall that?
HOFFMAN: Yes, I do.
H/O: What was he referring to? Do you know?
HOFFMAN: He said I shouldn't play with inmate Atkins too much because somebody might try to break him down and I might lose my job.
H/O: And inmate Atkins does work in the Mess Hall?
HOFFMAN: Yes, he's my cook.
H/O: Do you play with him?
HOFFMAN: Well, he's been there a couple years — not really playing — but I talk to him a lot — he does a lot of stuff for us — me and Schema both.
H/O: Is your relationship with inmate Atkins in any way of such a nature that other inmates might get jealous about it?
HOFFMAN; Not really. I don't think so. I speak to all inmates and treat them all the same.
H/O: Did Cook Schema ever talk to you about this situation?
HOFFMAN: I asked him about it on Saturday.
H/O: That would be after the conversation?
HOFFMAN: I guess inmate Bennett spoke to Schramm on Monday and Schramm is off Tuesday/Wednesday and I'm off Thursday/Friday so I talked to him Saturday. He said that basically the same thing I said that Bennett told him, back and forth on his story, he said he didn't think much of it and that Bennett had asked Schema to call me at home.
H/O: He didn't do that though, did he?
HOFFMAN: No.
H/O: All right, inmate Bennett does have the ability to ask some questions of you as a witness. I'm going to allow him to do so but Inmate Bennett, I would direct you to relay the questions to myself and then I will ask the witness.
INMATE: On more than one occasion have [sic] she been down in the basement with inmate Atkins.
H/O: Ms. Hoffman, on more than one occasion have you been in the basement with inmate Atkins?
H/O: Does he go down any more regularly than any of the rest?
HOFFMAN: No.
INMATE: The next one is Maggio is the officer that was still in the Mess Hall — he's the one who let me out of the Mess Hall when I left. He is the regular. She said there was [sic] no regulars — there was [sic] two officers — she said the officers that were there were not regulars, they were new, Mag was still there and so was Timothy King, my boss. They were still there because I left out through the back and they was [sic] out there smoking. I'm saying the regulars was [sic] there and, in my opinion, is [sic] a no nonsense officer. He's gentle, but . . . why did she not get up immediately and say I threatened her. She says [sic] I attempted to force her into a sexual act — that's what those charges state — and that I harassed her. Why'd she not get up and go and tell Maggio or one of the officers so they could apprehend me right then and there instead of that night.
H/O: I sort of have a suspicion but I will relay it the way Bennett is asking it. There were staff members there. He feels that Officer Maggio was around as well. Why didn't you get up and terminate the conversation if you felt threatened or especially if the charges that are included here — you know the harassment charges, sexual charges and threats?
HOFFMAN: Officer Maggio leaves at 2:00 in the afternoon; he was not there. Officer Maggio let you out the door to go to have something notarized and you came back to the Mess Hall.
H/O: So that was a different time period?
HOFFMAN: Yes.
H/O: OK, so let's go back to the question of . . .
HOFFMAN: I just want to finish, I just wanted to let him finish what he was saying and get up and leave. I didn't want to make a scene. I didn't want anything to happen. I just wanted him to get up and leave. He wasn't sitting close to me. I didn't feel threatened in any kind of way except for what he had said.
H/O: So, you say you didn't feel threatened . . .
HOFFMAN: If you could have heard the conversation . . . he started out with something then went back — went back and forth so you really — there's a lot more to that conversation that I didn't put down only because I couldn't remember all of it. And Schema says the same thing. He went back and forth like he didn't have a straight story. And Officer Maggio did know he wanted to talk to me. Officer Maggio left before he talked to me.
INMATE: Yes, I have one more. I would like the record to reflect that I left out the back. The first time I left to go get something notarized, Maggio let me out the front. After I got done talking to Ms. Hoffman, I left out the back and Maggio is the one who let me out because he was letting somebody . . . even Timmy King, the civilian, was still there. He normally leaves at 2:00 too because I helped stack the boxes and stuff in the basement for Mr. King with Jimmy, the old-timer Jimmy. My job was over and I did that as a favor to my boss. I want the record to reflect that I left out the back and Maggio was the one who let me out of the building. He was there. If I'm such a monster as she claims and we were sitting in the office — she was here and I was right here — I could do this and touch her that's how close we were sitting at the desk — because she had spoke [sic] for me to get the butcher job, I appreciated that. I had asked her when her birthday was and she said in the first 5-10 days of October. I had a birthday card made for her and inmate Reed and various other inmates know this. I came to her and told her would it be appropriate or inappropriate if I gave you this card. She said well I've had some real far fetched cards in the past. I said I'll show it to you before I give it to you. I showed it to her, she looked at it, approved of it, accepted it, and said throw it in the desk drawer. I gave her a bag of Jolly Ranchers. Ever since I've been in that Mess Hall I've always given her Jolly Ranchers which is her favorite candy so she says. So, now, if I done something wrong when I gave her that card, that should have been reported. Since she's writing all this other stuff into this, that should have been reported. I'm asking, did that happen? Did I give her a birthday card and a bag of Jolly Ranchers?
H/O: OK, Cook Hoffman, did inmate Bennett give you a birthday card and bag of Jolly Ranchers?
HOFFMAN: Yes, I did receive a birthday card and it went directly into the garbage can and yes he brought Jolly Ranchers in and put them into the drawer where everybody ate them. He brought candy in for Schramm, put them in the drawer and everybody ate them.
H/O: Do you have anything else?
INMATE: Ask her . . .
HOFFMAN: Did I ask him to bring in anything? He just brought it in and put it in the desk.
H/O: I have maybe one or two more questions. At what point during the conversation or after the conversation did you decide it was appropriate for a misbehavior report to be written?
HOFFMAN: I waited for Sgt. Layman to come. When he came in I started to tell him what had happened and he called Lt. Robinson. Lt. Robinson wanted me to write a To-From. I wrote the To-From The next day the Lt. came in and wanted me to write a ticket. He did not actually touch me, make advances towards me, so I needed to know from somebody what to do.
H/O: So, if I said during the course of this conversation you felt uncomfortable but not yet so to terminate it, is that accurate?
HOFFMAN: Yes.
H/O: Were you talked into writing a report?
HOFFMAN: No.
H/O: Would you have written a report on your own if no one had come to you?
HOFFMAN: If someone advised me to yes.
H/O: If no one had talked to you about this situation at all, would you have written the report?
HOFFMAN: I don't know. I did tell somebody so . . . I didn't know what kind of report to write.
H/O: All right, I guess I don't have any more questions. One more chance, Mr. Bennett?
INMATE: Nothing.
(Groveland Tier III Hearing included in Defs' Resp. for Produc. at 81-86.)
Plaintiff did not dispute Hoffman's testimony of the actual content of the conversation he had with her, which establishes a basis for the threat charge. In that regard, rule 102.10 states, "inmates shall not, under any circumstances make any threat, spoken, in writing, or by gesture." ( Id. at 50.)
Plaintiff, in his response to defendant's motion for summary judgment, also alleges an alternative theory for retaliation not previously raised in his complaint. As stated above, plaintiff originally alleges the reason he was charged was because of his on-going litigation against Goord. However, in his response, plaintiff states that:
Plaintiff was being threatened and forced by civilian cook Shelia Hoffman by using inmate Atkins to relay all messages to him from her. That she wanted to obtain information from him [sic] as her snitch concerning an investigation being conducted by Inspector General['s] Office on inmates in the mess hall about officers and civilian staff dealing drugs and running a sex ring in the mess hall and facility.
Plaintiff did not want to be Hoffman's personal snitch on the promise of sex, so Hoffman falsely accused plaintiff of acts she knew to be untrue; she boldly stated that she had dealt with these people (officials) "Many times" and I [sic] know how to handle them, plus I've [sic] my contacts in Albany.
(Pl.'s Affirmation at 2.)
Though these paragraphs are ambiguous, it appears plaintiff now alleges that Hoffman filed her misbehavior report not because of plaintiff's on-going litigation against Goord, but rather because of an alternate reason. The Court cannot successfully surmise what plaintiff is attempting to allege here. However, if plaintiff is attempting to allege that defendant Hoffman asked him to be a "snitch" against the Inspector General's Office, this would not be a constitutionally-protected activity, thereby failing the first step of proving retaliation. See Gayle, 313 F.3d at 682.
CONCLUSION
For the reasons stated above, defendant's motion (# 58) is granted. The Clerk is directed to enter judgment for defendants and close this case.
IT IS SO ORDERED.