Opinion
Civil Action No. 9:12-CV-1720 (NAM/DEP)
02-24-2015
ANTHONY BROWN, Plaintiff, v. S. MEINECKE, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: ANTHONY BROWN, Pro Se 56283-019 Big Sandy U.S. Penitentiary P.O. Box 2068 Inez, KY 41224 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: GREGORY J. RODRIGUEZ, ESQ. Assistant Attorney General
APPEARANCES:
FOR PLAINTIFF: ANTHONY BROWN, Pro Se
56283-019
Big Sandy U.S. Penitentiary
P.O. Box 2068
Inez, KY 41224
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL:
GREGORY J. RODRIGUEZ, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Plaintiff Anthony Brown, a former New York State prison inmate who is proceeding pro se and in forma pauperis, commenced this action against three employees of the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging the deprivation of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. Since the commencement of this action, plaintiff's claims have been narrowed to include a (1) First Amendment retaliation claim against defendant Lisa Andersen, and (2) First Amendment free expression claim against defendants Andersen, Suzanne Meinecke, and James Wilson.
Plaintiff's complaint identifies the second-listed defendant as "Ms. Anderson." Dkt. No. 1 at 2. Defendants' motion papers, however, reveal that the correct spelling of this individual's name is "Lisa Andersen." See, e.g., Dkt. No. 69-6. Accordingly the clerk is respectfully requested to adjust the court's records to reflect the correct spelling of defendant Andersen's name.
Plaintiff's complaint identifies the first defendant as "Ms. S. Meineck." Dkt. No. 1 at 1. Defendants' motion papers, however, reveal that the correct spelling of this individual's last name is "Meinecke." See, e.g., Dkt. No. 69-7. Accordingly, the clerk is respectfully directed to adjust the court's records to reflect the correct spelling of defendant Meinecke's name.
Currently pending before the court is defendants' motion for summary judgment seeking dismissal of plaintiff's complaint based on their contentions that (1) plaintiff failed to exhaust administrative remedies before commencing suit; (2) no reasonable factfinder could conclude, based on the record evidence, that defendants' actions were not prompted by a legitimate penological concern; and (3) all three defendants are entitled to qualified immunity from suit. For the reasons set forth below, I recommend that defendants' motion for summary judgment be granted and plaintiff's complaint be dismissed in its entirety. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Plaintiff is a prison inmate currently entrusted to the care and custody of the Federal Bureau of Prisons, a division of the United States Department of Justice. Dkt. No. 79. At the time of the events detailed in his complaint, plaintiff was a New York State prisoner designated to the Eastern Correctional Facility ("Eastern"), located in Napanoch, New York, and operated by the DOCCS. See generally Dkt. No. 1.
The events giving rise to plaintiff's claims are not materially disputed between the parties. Compare Dkt. No. 69-1 with Dkt. No. 75 at 5-11. On August 5, 2012, in the course of unpacking plaintiff's personal property in the property room of the facility's special housing unit ("SHU"), defendant Meinecke, a corrections officer, confiscated approximately 1,300 pages of plaintiff's personal documents. Dkt. No. 1 at 5, Dkt. No. 69-7 at 2. According to defendant Meinecke, she "found a drawing [in plaintiff's collection of papers] of a crown and the words 'Mail Call Kings,' which led [her] to suspect" plaintiff was connected with a gang called The Latin Kings. Dkt. No. 69-7 at 2. Defendant Meinecke also suspected, based on her review of the papers, that plaintiff was forming a business while incarcerated. Id. Based on her suspicions, she gave plaintiff's documents to defendant Andersen, a corrections sergeant at the time, "for a more thorough review." Id. According to plaintiff, he was not issued a contraband receipt. Dkt. No. 1 at 7; Dkt. No. 75 at 2.
According to plaintiff, the seized materials included "three (3) original manuscripts, seven (7) original episodes of a television sitcom, an original screenplay, entrepreneurial plans and related correspondence." Dkt. No. 1 at 5.
Plaintiff filed a grievance on August 10, 2012, demanding a contraband receipt and return of his property. Dkt. No. 1 at 7; Dkt. No. 75 at 79-80. On August 13, 2012, plaintiff received a contraband receipt for his property following his refusal of all meals and mandatory visits with the prison psychiatrist. Dkt. No. 1 at 8; Dkt. No. 75 at 38. Plaintiff then wrote a letter to the Deputy Superintendent for Security complaining about the confiscation of his property. Dkt. No. 75 at 40-42. According to plaintiff, on August 15, 2012, his grievance was denied based on a memorandum from defendant Andersen to the grievance director. Dkt. No. 1 at 9, 14. In that memorandum, plaintiff was advised that a misbehavior report had been issued and he could voice his concerns regarding the "disposal of the paperwork deemed contraband" with the disciplinary hearing officer. Id. Plaintiff did not appeal that denial. Dkt. No. 75 at 3.
On August 16, 2012, plaintiff received a misbehavior report authored by defendant Andersen. Dkt. No. 1 at 9; Dkt. No. 75 at 50. Defendant Wilson, a corrections lieutenant at the time, presided over a disciplinary hearing conducted in connection with the misbehavior report on August 26, 2012, and found plaintiff not guilty of possessing contraband or gang material, but guilty of soliciting and violating facility correspondence rules. Dkt. No. 1 at 9; Dkt. No. 69-4 at 50; Dkt. No. 75 at 70, 86. Plaintiff conceded his guilt of the latter two charges, noting he had misinterpreted a memorandum from Deputy Commissioner Lucien LeClaire regarding those practices. Dkt. No. 75 at 3. Defendant Wilson ordered that the property be "mailed home, donated, or destroyed." Dkt. No. 69-4 at 50; Dkt. No. 75 at 70, 86. Plaintiff mailed the papers to an acquaintance, who later informed him that "there were a number of pages missing." Dkt. No. 1 at 9-10; Dkt. No. 75 at 4, 48.
Defendant Wilson also sentenced plaintiff to thirty days of disciplinary special housing unit confinement and a corresponding loss of privileges. Dkt. No. 69-4 at 50; Dkt. No. 75 at 70, 86. These aspects of plaintiff's sentence were deferred for ninety days. Id.
Specifically, the recipient of plaintiff's documents advised that they "were in an organized condition, but there was [sic] pages missing according to the number sequences." Dkt. No. 75 at 48.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on November 21, 2012, by the filing of a complaint and application to proceed in forma pauperis ("IFP"). Dkt. No. 1. Named as defendants in plaintiff's complaint are (1) Suzanne Meinecke, a Corrections Officer at Eastern, (2) Lisa Andersen, a former Corrections Sergeant and now Corrections Lieutenant at Eastern; and (3) James Wilson, a former Corrections Lieutenant at Eastern. Id. Plaintiff's complaint asserts four causes of action, alleging violations of the First, Eighth, and Fourteenth Amendments. Id.
In a decision and order issued by Senior District Judge Norman A. Mordue on April 11, 2013, plaintiff was granted leave to proceed IFP, and two of plaintiff's claims were dismissed, sua sponte, for failure to state a claim upon which relief may be granted in accordance with 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b). See generally Dkt. No. 12. The claims that remain in the action consist of (1) a First Amendment retaliation claim asserted against defendant Andersen, and (2) a First Amendment free expression claim asserted against defendants Meinecke, Andersen, and Wilson. Id.
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material facts and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Andersen v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Andersen, 477 U.S. at 248; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Andersen, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue, and the failure to meet this burden warrants denial of the motion. Andersen, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Andersen, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the nonmoving party. Andersen, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Andersen, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's Retaliation Claim
In support of their motion, defendants seek dismissal of plaintiff's retaliation claim asserted against defendant Andersen based on Brown's failure to exhaust available administrative remedies prior to filing this lawsuit. Dkt. No. 69-9 at 4-9.
Defendants do not contend that plaintiff failed to exhaust administrative remedies in connection with the free expression claims.
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983."). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In the event the defendant establishes that the inmate plaintiff failed "to fully complete[] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
While placing prison officials on notice of a grievance through less formal channels may constitute claim exhaustion "'in a substantive sense,'" an inmate plaintiff nonetheless must meet the procedural requirement of exhausting his available administrative remedies within the appropriate grievance construct in order to satisfy the PLRA. Macias, 495 F.3d at 43 (quoting Johnson v. Testman, 380 F.3d 691, 697-98 (2d Cir. 2004) (emphasis omitted)).
The DOCCS has instituted a grievance procedure, referred to as the Inmate Grievance Program ("IGP"), and made it available to its inmates. The IGP is comprised of three steps that inmates must satisfy when they have a grievance regarding prison conditions. 7 N.Y.C.R.R. § 701.5; Mingues v. Nelson, No. 96-CV-5396, 2004 WL 234898, at *4 (S.D.N.Y. Feb. 20, 2004). Embodied in 7 N.Y.C.R.R. § 701, the IGP requires that an inmate first file a complaint with the facility's IGP clerk within twenty-one days of the alleged occurrence. 7 N.Y.C.R.R. § 701.5(a)(1). If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. Id. A representative of the facility's inmate grievance resolution committee ("IGRC") has up to sixteen days after the grievance is filed to informally resolve the issue. Id. at § 701.5(b)(1). If there is no such informal resolution, then the full IGRC conducts a hearing within sixteen days after receipt of the grievance. Id. at § 701.5(b)(2).
A grievant may then appeal the IGRC's decision to the facility's superintendent within seven days after receipt of the IGRC's written decision. Id. at § 701.5(c). The superintendent must issue a written decision within a certain number of days after receipt of the grievant's appeal. Id. at § 701.5(c)(i), (ii).
Depending on the type of matter complained of by the grievant, the superintendent has either seven or twenty days after receipt of the grievant's appeal to issue a decision. Id. at § 701.5(c)(i), (ii).
The third and final step of the IGP involves an appeal to the DOCCS Central Office Review Committee ("CORC"), which must be taken within seven days after receipt of the superintendent's written decision. Id. at § 701.5(d)(1)(i). The CORC is required to render a written decision within thirty days of receipt of the appeal. Id. at § 701.5(d)(2)(i).
As can been seen, at each step of the IGP process, a decision must be rendered within a specified time period. Significantly, "[a]ny failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can - and must - be appealed to the next level, including CORC, to complete the grievance process." Murray v. Palmer, No. 03-CV-1010, 2010 WL 1235591, at *2 (N.D.N.Y. Mar. 31, 2010) (Hurd, J., adopting report and recommendation by Lowe, M.J.) (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)(2)). Generally, if a plaintiff fails to follow each of the required three steps of the above-described procedure prior to commencing litigation, he has failed to exhaust his administrative remedies. See Ruggerio v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) ("[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." (quotation marks omitted)).
In this case, although plaintiff's complaint alleges that he filed and appealed two grievances regarding the confiscation and alleged destruction of his property, both defendants' submissions in support of their motion and plaintiff's own admissions demonstrate that he failed to file a grievance accusing defendant Andersen of retaliation. Plaintiff alleges he submitted a grievance "to the IGRC in addition to a hunger strike to protest what [he] viewed as a capricious confiscation." Dkt. No. 75 at 2, 79-80; see also Dkt. No. 1 at 7. A review of that grievance, however, reveals that Brown did not complain of retaliation by defendant Andersen. Dkt. No. 75 at 79-80. A second potentially relevant grievance was allegedly filed by plaintiff while confined in the Cayuga Correctional Facility ("Cayuga") on September 24, 2012. Dkt. No. 1 at 10. Thomas Napoli, the Inmate Grievance Supervisor at Cayuga, however, states that "[t]here is no record that Brown filed a grievance on September 24, 2012[.]" Dkt. No. 69-8 at 3. The absence of this grievance is explained by plaintiff, who, in his response to defendants' motion, states that, as a result of being "mentally stressed and frustrated, [he] neglected to sign the grievance," and it was consequently "procedurally dismissed[.]" Dkt. No. 75 at 4. Accordingly, there appears to be no dispute among the parties that plaintiff failed to file a grievance with respect to his retaliation claim against defendant Andersen.
According to plaintiff, he was transferred from Eastern to Cayuga on August 31, 2012. Dkt. No. 75 at 4.
While the record firmly establishes that plaintiff did not fulfill his obligation to exhaust available administrative remedies, this fact alone does not warrant dismissal of plaintiff's complaint without further inquiry. In a series of decisions rendered since enactment of the PLRA, the Second Circuit has prescribed a three-part test for determining whether dismissal of an inmate plaintiff's complaint is warranted for failure to satisfy the PLRA's exhaustion requirement. See, e.g, Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004); see also Macias v. Zenk, 495 F.3d 37, 41 (2d Cir. 2007). Those decisions instruct that, before dismissing an action as a result of a plaintiff's failure to exhaust, a court must first determine whether the administrative remedies were available to the plaintiff at the relevant times. Macias, 495 F.3d at 41; Hemphill, 380 F.3d at 686. In the event of a finding that a remedy existed and was available, the court must next examine whether the defendant has forfeited the affirmative defense of non-exhaustion by failing to properly raise or preserve it, or whether, through his own actions preventing the exhaustion of plaintiff's remedies, he should be estopped from asserting failure to exhaust as a defense. Id. In the event the exhaustion defense survives these first two levels of scrutiny, the court must examine whether the plaintiff has plausibly alleged special circumstances to justify his failure to comply with the applicable administrative procedure requirements.
In this instance, there is no record evidence to suggest that the IGP was not fully available to the plaintiff in this matter. Indeed, the copies of plaintiff's grievances and the records attached to the declaration submitted by Jeffrey Hale, the DOCCS Assistant Director of the IGP, demonstrate that, during his custody by the DOCCS, the IGP was available to plaintiff and he accessed the grievance process on at least one other occasion. Dkt. No. 75 at 79-80, 99-100; Dkt. No. 69-5 at 7. Turning to the second inquiry, there is no record evidence that suggests defendants forfeited the exhaustion defense, and plaintiff has not alleged as much. Finally, nothing in the record suggests that special circumstances exist that could justify plaintiff's failure to exhaust the available administrative remedies. Accordingly, because I find no reason to conclude that plaintiff should be excused from the exhaustion requirement, I recommend that his retaliation claim be dismissed on this procedural ground.
Defendants asserted the exhaustion defense in their answer. Dkt. No. 36 at 3.
C. Qualified Immunity
In their motion, defendants argue that even if plaintiff's claims have merit, which they do not concede, defendants are entitled to qualified immunity and the claims asserted against them should be dismissed on that basis.
"Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct." Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); see also Pearson v. Callahan, 555 U.S. 223, 231 (2009); Sudler v. City of New York, 689 F.3d 159, 174 (2d Cir. 2012). The law of qualified immunity seeks to strike a balance between "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson, 555 U.S. at 231. Government officials are shielded from liability by qualified immunity when making "reasonable mistakes" concerning the lawfulness of their conduct. Sudler, 689 F.3d at 174 (citing Saucier v. Katz, 533 U.S. 194, 206 (2001), abrogated on other grounds by Pearson, 555 U.S. 223 (2009)).
Because qualified immunity is "an immunity from suit rather than a mere defense to liability," Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the Supreme Court has "repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in the litigation," Pearson, 555 U.S. at 231 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
The determination of whether a government official is immune from suit is informed by two factors. Doninger v. Niehoff, 642 F.3d 334, 345 (2d Cir. 2011). Specifically, the inquiry turns on whether the facts alleged, taken in a light most favorable to the plaintiff, show that the conduct at issue violated a constitutional right, and if so, "whether that right was 'clearly established' at the time of the events at issue." Nagle v. Marron, 663 F.3d 100, 114 (2d Cir. 2011); Tolan v. Cotton, 134 S. Ct. 1861, 1865-66 (2014) (citing Saucier, 533 U.S. at 201). The Supreme Court has said that an officer's "conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right." Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks and alterations omitted). However, "[e]ven where the law is 'clearly established' and the scope of an official's permissible conduct is 'clearly defined,' the qualified immunity defense also protects an official if it was 'objectively reasonable' for him at the time of the challenged action to believe his acts were lawful." Higazy v. Templeton, 505 F.3d 161, 169-70 (2d Cir. 2007) (citations omitted). This "objective reasonableness" part of the test is met if "officers of reasonable competence could disagree on [the legality of the defendant's actions]." Malley v. Briggs, 475 U.S. 335, 341 (1986).
With respect to the first inquiry, the Second Circuit has cautioned that courts "should define the constitutional right with some specificity." See Lewis v. Cowen, 165 F.3d 154, 167 (2d Cir. 1999) (concluding that the district court too broadly identified the right in question as "freedom of expression"). Mindful of this guidance, while the broader constitutional right at issue in this case is free expression under the First Amendment, for purposes of the present qualified immunity analysis, I have more narrowly construed the right at issue to be maintaining personal writings while incarcerated that are not incompatible with prison security.
Assuming this right was clearly established at the time of defendants' conduct in this case, under the circumstances, I conclude that it was objectively reasonable for them to believe their actions were lawful. Both defendants Meinecke and Andersen state it was their belief that plaintiff possessed gang-related material, posing a threat to the security of the prison, and violated prison rules regarding correspondence and solicitation. Dkt. No. 69-6 at 2; Dkt. No. 69-7 at 2, 3. In the end, they were correct that some of the materials violated prison regulations, and plaintiff admitted as much by pleading guilty to two of the charges lodged in defendant Andersen's misbehavior report. Dkt. No. 69-4 at 2, 13, 42-43. Accordingly, it was reasonable for defendants Meinecke and Andersen to believe their conduct did not violate plaintiff's rights.
As for defendant Wilson, he ordered plaintiff to discard or send home his personal writings, which Brown had admitted at the disciplinary hearing violated prison regulations. Dkt. No. 69-4 at 13, 42-43. Defendant Wilson believed that this disposition was authorized by state regulations, including 7 N.Y.C.R.R. § 254 and DOCCS Directive 4910A. Id. at 3. Defendant Wilson's assertion that his actions were in conformity with a state regulation may lend support to his claim that he acted reasonably with respect to plaintiff's constitutional rights. Green v. Bauvi, 46 F.3d 189, 195 (2d Cir. 1995). Section 254 permits a hearing officer to restrict an inmate's correspondence "where the inmate has been involved in improper conduct in connection with correspondence with [a particular person]." 7 N.Y.C.R.R. § 254(a)(1)(ii). DOCCS Direction 4910A authorizes a hearing officer to dispose of "'general' contraband pertinent to a disciplinary proceeding" at his discretion. Dkt. No. 69-4 at 3. Under these circumstances, where plaintiff had admitted his writings violated certain prison regulations and defendant Wilson was provided discretion with respect to the disciplinary hearing's disposition, it was reasonable for defendant Wilson to believe that he was not violating plaintiff's rights by instructing him to discard or send home his writings.
Because I find defendants Meinecke, Andersen, and Wilson are entitled to qualified immunity from suit, I recommend that plaintiff's First Amendment claims against each of them be dismissed.
IV. SUMMARY AND RECOMMENDATION
Now that discovery in this case is complete, defendants have moved for summary judgment in their favor. With regard to plaintiff's First Amendment retaliation claim, through his own admissions, it is clear that plaintiff failed to exhaust the administrative remedies available to him and, finding no basis to excuse that failure, I recommend that this claim be dismissed. Turning to plaintiff's First Amendment free expression claim, because it was reasonable for defendants to believe that they did not violate plaintiff's right to maintain his personal writings under the circumstances, I recommend a finding that they are entitled to qualified immunity from suit. Accordingly, it is hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 69) be GRANTED and all remaining claims set forth in plaintiff's complaint be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge
Dated: February 24, 2015
Syracuse, New York