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holding that no adverse action was present even though the inmate alleged the defendant made threats of misbehavior reports and SHU confinement
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No. 99 Civ. 2167 (LTS)(THK).
March 31, 2005
JAMES PLEDGER, Wyoming Correctional Facility, Attica, New York, Plaintiff Pro Se.
ELIOT SPITZER, Attorney General of the State of New York, John Knudsen, Esq., New York, New York, Attorney for Defendants.
MEMORANDUM OPINION AND ORDER
Pro se Plaintiff James Pledger (also known as Abdul Jalil Al-Amin), a New York State inmate who was at all relevant times incarcerated at Fishkill Correctional Facility in Beacon, New York, brings this action seeking declaratory and injunctive relief and damages, alleging that the Defendant correction officers' alleged conduct violated his rights under the First, Ninth and Fourteenth Amendments to the Constitution of the United States. Plaintiff seeks relief against the Defendants in their personal capacities only. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343.
See infra n. 4.
In his Complaint, Plaintiff alleges that, in retaliation for a grievance he filed concerning the failure of Defendant Correction Officer Darlene Hudson ("Defendant Hudson" or "Hudson") to evaluate Plaintiff's performance in a prison work program, Hudson gave Plaintiff a negative evaluation, sought his dismissal from that program, threatened to write him up for misbehavior so that he would be removed from a voluntary prison work assignment and put in segregation, wrote up such a misbehavior report, and continued to threaten him with words and gestures. Plaintiff further alleges that Defendant Sergeant R. Ray ("Defendant Ray" or "Ray") knowingly signed Hudson's retaliatory misbehavior report against Plaintiff, communicated threats of retaliation in connection with the grievances Plaintiff filed against Hudson, and failed to prevent Hudson's allegedly retaliatory actions.
Defendants have moved for summary judgment following discovery. Their motion is supported by documents, Plaintiff's deposition transcript and affidavits. Defendants served on Plaintiff the Notice to Pro Se Litigants Opposing Motion for Summary Judgment, as required by the Local Rules of this Court. Plaintiff responded to the motion with an affirmation and legal argumentation. The Court has carefully reviewed all of the parties' submissions and, for the following reasons, Defendants' motion for summary judgment is granted.
FACTS
The following material facts are undisputed unless characterized as claims or allegations.
Plaintiff was the inmate Director of the Fishkill facility's Youth Assistance Program ("YAP") from at least February 1998 through August 1998. YAP is an inmate-run program in which inmates discuss the consequences of criminal behavior with young people from the community. Defendant Hudson was the Staff Advisor to the program during the period when Plaintiff was the Director. (Dep. of James Pledger (Ex. A to Decl. of John Knudsen) at 37; Aff. of Darlene Hudson ¶ 4.) Hudson was expected to evaluate Plaintiff every 90 days. Hudson gave Plaintiff favorable written evaluations in October 1997 and February 1998. Hudson did not issue a written evaluation of Plaintiff for several months after February 1998. During that period, Plaintiff and Hudson argued over the management of the YAP, including the degree to which inmates should take aggressive stances with the participating youths. Hudson also complained about Pledger's body odor and directed him to bathe. (E.g., Pledger Dep. at 45-50, 52-53, 64-66.)
Plaintiff alleges that Hudson refused to issue an evaluation despite Plaintiff's requests. Hudson alleges that she held off on the written evaluation because she had hoped to resolve the issues with Plaintiff informally, and that she was not aware of a requirement that evaluations be prepared every 90 days. (Hudson Aff. ¶ 12.) Plaintiff claims that, in August 1998, he informed the Assistant Deputy Superintendent of Programs of Hudson's failure to issue the evaluations, and that official directed Hudson to issue the evaluation, but Hudson once again failed to do so. (Pledger Dep. at 53-54.) On or about August 26, 1998, Plaintiff filed a written grievance with the Inmate Grievance Resolution Committee, seeking the evaluation and the removal of Hudson from her position as Staff Advisor to YAP.
Plaintiff alleges that, on September 1, 1998, Hudson confronted Plaintiff about the grievance and threatened to retaliate against him by placing him in the Special Housing Unit ("SHU"), commonly referred to as "The Box," where her husband worked. (Id. at 78.) On or about September 2, 1998, Hudson issued an unfavorable evaluation of Plaintiff, citing Plaintiff's body odor and argumentative attitude, and requesting that Plaintiff be removed from the YAP. Although Plaintiff admits both that he had strong body odor on at least one occasion and that he argued with Hudson regarding the program, Plaintiff alleges that Hudson issued the poor evaluation in response to his grievance against her in retaliation for the filing of the grievance. At about the same time Hudson issued the negative evaluation, Plaintiff resigned from YAP. (Pledger Dep. at 88, 92.) Pledger asserts that he resigned because he felt that the evaluation would distract him and because "other officers," whose names he claims he cannot remember, "had told [Plaintiff] that [Hudson] was out to get [him]." (Id.) Plaintiff filed another grievance against Hudson, alleging that Hudson had threatened him in connection with the evaluation-related grievance. (Ex. D to Knudsen Decl.)
Plaintiff also worked as a volunteer in Fishkill's "Sesame Street" Program, as a caregiver for children visiting the prison. Plaintiff alleges that, on September 13, 1998, Hudson threatened to remove him from the Sesame Street program and have him confined to the SHU. (Pledger Dep. at 90-93.) On that same day, Hudson issued a misbehavior report accusing Plaintiff of violating Department of Corrections Disciplinary Rules by calling inmates over to the entrance of the Sesame Street program area who did not have children in the program and were not allowed to be there, and having extended conversations with those inmates. (Hudson Aff. ¶ 20; Ex. E to Knudsen Decl.) She alleges that she had observed similar conduct on Plaintiff's part the week before, and issued a misbehavior report on September 13th because Plaintiff had already been reprimanded for the previous conduct. (Id.) Ray endorsed the inmate misbehavior report, but according to Ray, "endorsement" of such a report is not affirmation of its contents. (Ex. E to Knudsen Decl.; Aff. of Ronald Ray ¶ 2.) Ray denies that he had any personal knowledge of the information in the report. (Ray Aff. ¶ 2-3.)
A disciplinary hearing was held on September 18, 1998. Although Plaintiff now denies that he acted improperly, at the hearing he plead guilty to the charge of violating a direct order and admitted the allegations in the report. (Id. ¶ 2.; Ex. E to Knudsen Decl.) He was not, however, put in keeplock as a result of the violation. (Pledger Dep. at 112-13.) Plaintiff thereafter filed additional grievances against Defendant Hudson, alleging that she had threatened and harassed him. (Exs. F, G to Knudsen Decl.) Ray states that each grievance was investigated and that he was unable to substantiate any misconduct by Hudson. (Id.; Ray Aff. ¶ 5.) Plaintiff alleges that Hudson continued to threaten him, scrutinize him unfairly and make threatening gestures toward him. In his deposition, Plaintiff testified that his claims against Ray are based on his allegation that Ray was aware of Hudson's alleged conduct and did nothing to stop it. (Pledger Dep. at 104-109, 128-29.)
DISCUSSION
Under Federal Rule of Civil Procedure 56(c), summary judgment may be granted when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). In the summary judgment context, a fact is material "if it might affect the outcome of the suit under the governing law," and an issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller Co., 258 F.3d 62, 69 (2d Cir. 2001) (internal citation omitted). The Second Circuit has explained, however, that the "party against whom summary judgment is sought . . . `must do more than simply show that there is some metaphysical doubt as to the material facts. . . . The nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matshushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). A court must determine "whether the evidence presents sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251. "Mere conclusory allegations or denials" are insufficient to withstand a motion for summary judgment once the moving party has set forth a documentary case. SEC v. Research Automation Corp., 585 F.2d 31,33 (2d Cir. 1978). In considering pleadings from apro se litigant, the Court construes such submissions liberally and applies a more flexible standard than used for pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Platsky v. Central Intelligence Agency, 953 F.2d 26, 28-29 (2d Cir. 1991). First Amendment Retaliation ClaimRetaliation against a prisoner for pursuing a grievance is actionable under 42 U.S.C. section 1983. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). The Second Circuit has also recognized, however, the ease with which claims of retaliation by prisoners can be fabricated and has thus stated that prisoners' claims of retaliation must be examined with skepticism and particular care. See Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v. Sorema N.A. 534 U.S. 506 (2002).
In order to establish a prima facie case of retaliation, a plaintiff who is a prisoner generally must show: "(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." Dawes, 239 F.3d at 492; Gill v. Pidlypchack, 389 F.3d 379, 380 (2d Cir. 2004). An objective test is applied to determine whether an action is "adverse" within the meaning of this standard: the retaliatory action must be sufficient to "deter a similarly situated individual of ordinary firmness from exercising his or her constitutional right." Dawes, 239 F.3d at 493. Certain Second Circuit decisions can be read to indicate that a showing of actual chilling of First Amendment-protected conduct is both necessary and, combined with a showing of motivation of a governmental official to punish exercise of the protected interest, sufficient, to make out a retaliation claim. In such circumstances, it can be said that "it is the plaintiff's allegation of chilling that makes the [official's] action ostensibly `adverse' in the first place." See Gill, 389 F.3d at 382.
Plaintiff alleges that Hudson's threats, the negative evaluation he received, and the misbehavior report issued by Hudson, were all in retaliation for the grievances Plaintiff filed against Hudson, and therefore violated his constitutional rights. He alleges that Ray was aware of the improper nature of Hudson's alleged conduct and did nothing to prevent it. Defendants are entitled to summary judgment dismissing the Complaint because Plaintiff's allegations fail to demonstrate either that Defendants subjected him to actionable adverse action(s) or that his exercise of his First Amendment rights was actually chilled by the allegedly retaliatory conduct.
A prisoner's filing of an internal prison complaint against an officer is protected by the First Amendment; Plaintiff has therefore met the first prong of the prima facie case. See Dawes, 239 F.3d at 492. Plaintiff's evidence, even when construed liberally and read in the light most favorable to him, is, however, insufficient to support the second prong of his prima facie case, the adverse action element. His deposition testimony does not support the allegation in his Complaint that he was removed as YAP program Director in retaliation for filing his internal grievance against Hudson. Rather, Plaintiff admitted in his deposition that he left the YAP voluntarily and was not forcibly removed by, or at the behest of, Defendant Hudson. (Pledger Dep. at 92.) Furthermore, Plaintiff acknowledges the factual foundation of the criticisms Hudson made in the evaluation, i.e., that he had argued with her concerning the management of the program and that he had come to work with strong body odor. Under these circumstances, no rational fact finder could infer that a reasonable prisoner's exercise of First Amendment rights could or should have been chilled by Hudson's conduct.
See Ex. C to Knudsen Decl.; Pledger Dep. at 64-66.
Pledger Dep. at 52-53.
Nor do Plaintiff's allegations regarding Hudson's threats of misbehavior reports and SHU confinement meet the adverse action standard. Even assuming (for purposes of this analysis only) that Plaintiff's allegations are sufficient to show a causal connection between Plaintiff's grievances and Hudson's alleged threats, it is well settled that "not every unnecessary statement of a prison guard regarding an inmate's exercise of free speech violates the First Amendment." Dawes, 239 F.3d at 493. "Prisoners may be required to tolerate more than public employees, who may be required to tolerate more than average citizens, before a retaliatory action taken against them is considered adverse." Id. (citing Thaddeus-X v. Blatter, 175 F.3d 378, 398 (6th Cir. 1999)). Threats made to an inmate, without more, do not rise to the level of a constitutional violation. Id at 489. "Certain means of `retaliation' may be so de minimus as not to inhibit or punish an inmate's right to free speech." Id. Plaintiff has thus failed to raise a genuine issue of fact as to whether the alleged threats and harassment constituted adverse actions that rose to the level of a constitutional violation.
Plaintiff also alleges that the misbehavior report filed against him by Hudson and "endorsed" by Ray was retaliatory. Having admitted to the content of the report and plead guilty to one of the charges in it, Plaintiff cannot establish that the report constituted an adverse action. Compare Gill, 389 F.3d at 384 (allegation of "filing of false misbehavior reports against [plaintiff] and his sentence of three weeks in keeplock" sufficient to meet adverse action prong of prima facie case)with Graham, 89 F.3d at 81 (prisoner's version of events would be insufficient as a matter of law where, even if allegations of retaliatory motivation were true, there were proper, non-retaliatory reasons for complained-of punishment).
Because there is insufficient evidence to support Plaintiff's retaliation claim against Hudson, there similarly can be no sustainable claim against Sergeant Ray based on his failure to stop the alleged retaliation. Plaintiff also alleges in his Complaint that Ray threatened him in connection with the grievances filed against Hudson. See Compl. ¶¶ 20-21. As explained above, however, threats made to an inmate, without more, do not rise to the level of constitutional violation.Dawes, 239 F.3d at 489. These allegations against Ray are thus insufficient to support a claim that adverse action was taken. Nor does Plaintiff offer any evidence of actual chilling of the exercise of his First Amendment rights. Indeed, Plaintiff filed an additional grievance against Hudson following the negative evaluation and alleged threats, and filed two more grievances after his plea of guilty to the misbehavior report despite the allegedly continuing threats. (Exs. D, F, G to Knudsen Decl.)
To the extent that, by referring to the "Ninth" Amendment in his complaint, Plaintiff intends to assert an Eighth Amendment "failure to protect" claim, Plaintiff fails to proffer evidence sufficient to support such a cause of action. To sustain such a claim, "the deprivation alleged by the prisoner must be in objective terms sufficiently serious such that the deprivation den[ied] the minimal civilized measure of life's necessities — the objective element . . . Second, because only the unnecessary and wanton infliction of pain implicates the Eighth Amendment, the prisoner must assert facts indicating that the responsible prison official had a sufficiently culpable state of mind amounting to at least deliberate indifference — the subjective element." Dawes, 239 F.3d at 493-94 (internal quotations and citations omitted). Plaintiff's factual proffers are clearly insufficient to support either element.
Accordingly, no genuine issue of material fact remains for trial and Defendants are entitled to judgment as a matter of law on the merits of Plaintiff's claims.
Qualified Immunity
In light of the conclusions reached above, the Court need not address the argument that Sergeant Ray is entitled to qualified immunity.
CONCLUSION
For the foregoing reasons, Defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court is respectfully requested to enter judgment in their favor and close this case.SO ORDERED.