Opinion
Civil Action No. 9:12-CV-1019 (FJS/DEP)
01-05-2015
ERIC WELLINGTON, Plaintiff, v. B. LANGENDORF, Corrections Officer, Defendant.
APPEARANCES: FOR PLAINTIFF: ERIC WELLINGTON, Pro Se 09-A-0622 Attica Correctional Facility Box 149 Attica, NY 13118 FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: CHRISTOPHER W. HALL, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: ERIC WELLINGTON, Pro Se
09-A-0622
Attica Correctional Facility
Box 149
Attica, NY 13118
FOR DEFENDANT: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: CHRISTOPHER W. HALL, ESQ.
Assistant Attorney General
DAVID E. PEEBLES U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff Eric Wellington, a New York State prison inmate, commenced this action, pursuant to 42 U.S.C. § 1983, claiming that his civil rights were violated by a number of individuals. Through motion practice and the filing of an amended complaint, the sole surviving claim in the action stems from plaintiff's allegation that defendant B. Langendorf issued a misbehavior report to him in retaliation for his filing of grievances.
Currently pending before the court is defendant Langendorf's motion for summary judgment seeking dismissal of the remaining claim. For the reasons set forth below, I recommend that the motion be granted. 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 an inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 12. At the times relevant to his claims, he was confined at the Shawangunk Correctional Facility ("Shawangunk"), located in Wallkill, New York. Id.
On April 5, 2011, plaintiff asked defendant Langendorf, a corrections officer employed at the facility, why the guards had not released his cell door to permit him to attend a daily meal and programming. Dkt. No. 12 at 3. In response, defendant Langendorf stated, "The reason [w]hy I didn't let you go out for porter's and gang is because I wanted too [sic] see your[] Black Snake," interpreted by Wellington as a reference to his penis. Id. Later on that same day, plaintiff submitted a written complaint concerning the incident to Vernon Fonda, the DOCCS Chief of Investigations. Id. at 4; see also Dkt. No. 2 at 16-17.
Plaintiff's original complaint was accompanied by several attached exhibits. Dkt. No. 2 at 11-25. On July 2, 2012, Senior District Judge Frederick J. Scullin, Jr., ordered plaintiff to file an amended complaint curing deficiencies identified in the original complaint if he wished to pursue claims against certain defendants. Dkt. No. 8 at 10. That order notified plaintiff that any amended complaint "shall supersede and replace in its entirety the prior complaint[.]" Id. at 9. Plaintiff's amended complaint, which was timely filed and accepted for filing, incorporates by reference the same exhibits attached to his original complaint, but fails to actually attach them. Dkt. No. 12. Although it is well settled that an amended complaint supersedes a prior complaint in its entirety, it is clear to the court that plaintiff intended to attach the exhibits to his amended complaint. For the sake of efficiency, and mindful of my obligation to extend special solicitude to pro se litigants, I have not required plaintiff to resubmit those exhibits, and instead have considered them incorporated into plaintiff's amended complaint.
Two weeks later, on April 19, 2011, as plaintiff was exiting the prison barber shop, defendant Langendorf ordered him to stand against the wall and submit to a pat frisk pursuant to a facility policy requiring all inmates entering or exiting the barber shop to be pat-frisked in light of the potentially dangerous devices located there. Dkt. No. 12 at 2, 8; Dkt. No. 42-2 at 5. Plaintiff alleges that, while he stood facing toward the wall, defendant Langendorf rubbed the front of his body against Wellington's buttocks, making a grinding motion, while whispering in plaintiff's ear that he wanted to "see [plaintiff's] black snake." Dkt. No. 12 at 2, 8. Plaintiff filed another written complaint concerning defendant Langendorf's conduct on that same day with Richard Roy, Deputy Commissioner and Inspector General of the DOCCS. Dkt. No. 12 at 2; Dkt. No. 2 at 12-13. Plaintiff also filed a written complaint regarding the incident with John Maly, the Deputy Superintendent for Security at Shawangunk. Dkt. No. 12 at 2-3.
Plaintiff's amended complaint alleges that he filed a third written complaint against defendant Langendorf regarding the incident to J.T. Smith, the Superintendent at Shawangunk, and claims that he attached it as Exhibit A-2. Dkt. No. 12 at 2-3. Neither the original nor amended complaint, however, have an Exhibit A-2 attached. See generally Dkt. No. 2; Dkt. No. 12.
As a result of the encounter between defendant Langendorf and plaintiff outside of the barber shop, defendant Langendorf issued a misbehavior report to plaintiff accusing him of creating a disturbance, interfering with an employee, and harassing an employee. Dkt. No. 12 at 4; Dkt. No. 2 at 19; Dkt. No. 42-2 at 6. Those charges were based upon defendant's claim that, on his way back to his housing unit, and while defendant Langendorf was processing other inmates through a metal detector, plaintiff began yelling obscenities toward him as he walked down the hall. Dkt. No. 42-2 at 2-3, 6. As a result of the commotion caused by plaintiff's conduct and the presence of other inmates in the area, defendant Langendorf was forced to stop processing inmates through the metal detector and direct them back into a sally port, while plaintiff continued to direct obscenities toward him. Id. at 3, 6.
A Tier II hearing was convened on May 4, 2011, to address the charges set forth in the misbehavior report. Dkt. No. 42-2 at 9-13. Defendant Langendorf appeared and testified at the hearing, and answered questions posed by the plaintiff. Id. at 11-12. Plaintiff neither called any witnesses nor offered any evidence in his defense. Id. at 12. At the close of the hearing he was found guilty on all three counts, and was sentenced to a period of twenty-one days of keeplock confinement and a thirty-day loss of package, telephone, and commissary privileges. Id.
The DOCCS conducts three types of inmate disciplinary hearings. See 7 N.Y.C.R.R. § 270.3; see also Hynes v. Squillace, 143 F.3d 653, 655 n.1 (2d Cir. 1998). Tier I hearings address the least serious infractions and can result in minor punishments such as the loss of recreation privileges. Hynes, 143 F.3d 655 n.1. Tier II hearings involve more serious infractions, and can result in penalties which include confinement for a period of time in the SHU. Id. Tier III hearings address the most serious violations and can result in unlimited SHU confinement and the loss of "good time" credits. Id.
"Keeplock" is a form of confinement through which an "inmate is confined to his cell, deprived of participation in normal prison routine, and denied contact with other inmates." Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989); accord, Warburton v. Goord, 14 F. Supp. 2d 289, 293 (W.D.N.Y. 1998); Tinsley v. Greene, No. 95-CV-1765, 1997 WL 160124, at *2 n.2 (N.D.N.Y. Mar. 31, 1997) (Pooler, J., adopting report and recommendation by Homer, M.J.) (citing Green v. Bauvi, 46 F.3d 189, 192 (2d Cir. 1995)). "The most significant difference between keeplock and general population inmates is that the former do not leave their cells for out-of-cell programs unless they are a part of mandatory educational programs and general population inmates spend more time out of their cells on weekends." Lee v. Coughlin, 26 F. Supp. 2d 615, 628 (S.D.N.Y. 1998).
II. PROCEDURAL HISTORY
Plaintiff commenced this action in the United States District Court for the Southern District of New York on or about August 10, 2011. Dkt. No. 2. His original complaint named five defendants, all of whom were alleged to be employed at Shawangunk. Dkt. No. 2 at 1-2. Following the transfer of the action to this district on September 21, 2011, Senior District Judge Frederick J. Scullin, Jr., reviewed plaintiff's complaint and determined that a response was required only from two defendants, but permitted plaintiff an opportunity to file an amended complaint to cure the deficiencies identified with the claims asserted against the other three defendants. Dkt. No. 8 at 8-9. Upon review of an amended complaint subsequently filed by the plaintiff, it was accepted for filing by Judge Scullin solely as to defendants Langendorf and Nelson, the only two defendants named, and plaintiff's claims against the other three defendants were dismissed without prejudice. Dkt. No. 16 at 2-3.
Defendants Langendorf and Nelson subsequently moved to dismiss plaintiff's claims against them, arguing that they failed to state a cause of action upon which relief may be granted. Dkt. No. 21. As a result of a report and recommendation issued by me on June 12, 2013, and a subsequent order issued by Judge Scullin on July 15, 2013, all of plaintiff's claims were dismissed with the exception of a retaliation cause of action asserted against defendant Langendorf. Dkt. Nos. 24, 28.
On May 28, 2014, following the close of discovery, defendant Langendorf moved for the entry of summary judgment dismissing plaintiff's remaining retaliation claim against him. Dkt. No. 42. Plaintiff has not responded to defendant's motion, which is now ripe for determination, and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Consequences of Plaintiff's Failure to Respond
Pursuant to local rule 7.1(b)(3), a party who fails to oppose a properly filed motion effectively consents to the granting of the relief sought. That rule provides as follows:
Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that the district courts may enter summary judgment in favor of the moving party where the non-moving party fails to respond in opposition, but not without first "ensur[ing] that each statement of material fact is support by record evidence sufficient to satisfy the movant's burden of production" and "determin[ing] whether the legal theory of the motion is sound").
In this case, plaintiff has not responded to defendant's motion. The motion was properly filed by defendant Langendorf, and, through his motion, he has met his burden of demonstrating entitlement to the relief requested. With respect to the question of whether defendant has met his burden, I note that his "burden of persuasion is lightened such that, in order to succeed, his motion need only be 'facially meritorious.'" See Rodriguez v. Goord, No. 04-CV-0358, 2007 WL 4246443, at *1 (Scullin, J., adopting report and recommendation by Lowe, M.J.) (finding that whether a movant has met its burden to demonstrate entitlement to a dismissal under local rule 7.1(b)(3) "is a more limited endeavor than a review of a contested motion to dismiss" (citing cases)). Because defendant Langendorf has accurately cited both proper legal authority and evidence in the record supporting the grounds upon which his motion is based, and plaintiff has failed to respond in opposition to the motion, I find that defendant's motion is facially meritorious. Jackson, 766 F.3d at 194. Accordingly, I recommend that the court grant defendant's motion on this basis.
All unreported cases cited to in this report have been appended for the convenience of the pro se plaintiff.
Although a facial review of defendant's motion and plaintiff's failure to respond alone justifies the entry of summary judgment dismissing plaintiff's remaining claim, for the sake of completeness I will nonetheless analyze the motion on its merits.
B. 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); Anderson 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." Anderson, 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." Anderson, 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. Anderson, 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; Anderson, 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. Anderson, 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 Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
C. Analysis of Plaintiff's Retaliation Claim
Plaintiff alleges that defendant Langendorf retaliated against him for filing sexual harassment complaints against Langendorf by issuing him a baseless misbehavior report. Dkt. No. 12 at 5. Defendant maintains that no reasonable factfinder could conclude, based upon the record now before the court, that the misbehavior report was issued in response to those complaints. Dkt. No. 42-3 at 6-7.
When a prison official takes adverse action against a prisoner, motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment, a cognizable section 1983 retaliation claim lies. See Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) ("In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws."). To prove unlawful retaliation, a plaintiff must establish that (1) he engaged in protected conduct, (2) the defendant took adverse action against him, and (3) there exists a causal connection between the protected activity and the adverse action. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.). If a plaintiff carries his burden, "[t]he burden then shifts to the defendant to show that the plaintiff would have received the same punishment even absent the retaliatory motivation." Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)); accord, Holland v. Goord, 758 F.3d 215, 226 (2d Cir. 2014). "A 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.'" Gayle, 313 F.3d at 682 (quoting Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998)).
In this case, plaintiff's amended complaint alleges that, as a result of the alleged sexual harassment by defendant Langendorf at his cell on April 5, 2011, and outside the barber shop on April 19, 2011, he filed complaints to DOCCS Chief of Investigations Fonda, Deputy Superintendent of Security Maly, and Deputy Commissioner and Inspector General Roy. Dkt. No. 12 at 4; Dkt. No. 2 at 16-17. Plaintiff further alleges that "as soon as [he] file[d] a complaint against [defendant] Langendorf[,] [he] received a false misbehavior report" from defendant Langendorf. Dkt. No. 12 at 4; Dkt. No. 2 at 19.
It is well-settled that filing a grievance is constitutionally protected conduct. Johnson v. Eggersdorf, 8 F. App'x 140, 144 (2d Cir. 2001); Graham, 89 F.3d at 80. It is also clearly established that, where a corrections officer has filed a false misbehavior report against a prisoner in retaliation for the prisoner filing a complaint against that same corrections officer, such conduct can satisfy the adverse action prong of the relevant test. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) ("[The plaintiff] has sufficiently alleged . . . adverse action on the part of the defendants-the filing of false misbehavior reports[.]"). Plaintiff has therefore established two of the three elements required to support a cognizable retaliation cause of action.
Pivotal to plaintiff's retaliation claim, in this instance, is whether he can satisfy the third element by establishing the requisite causal connection between the protected activity and the adverse action - that is, that the protected conduct was a "substantial" or "motivating factor" in the defendant's decision to issue him a misbehavior report. Mount Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 287; Dillon, 497 F.3d at 251. When a retaliation claim is based upon the filing of a misbehavior report, "[t]he difficulty lies in establishing a retaliatory motive." Barclay v. N.Y., 477 F. Supp. 2d 546, 558 (N.D.N.Y. 2007) (Hurd, J.). "More than mere conclusory allegations [regarding retaliatory motive] are required in order to survive a summary judgment motion." Barclay, 477 F. Supp. 2d at 558 (citing Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)). The "[t]ypes of circumstantial evidence that can show a causal connection between the protected conduct and the alleged retaliation include temporal proximity, prior good discipline, a finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives." Barclay, 474 F. Supp. 2d at 558; see also Rivera v. Goord, 119 F. Supp. 2d 327, 339 (S.D.N.Y. 2000).
Plaintiff claims that, during the eighteen months while he was confined at Attica, prior to the issuance of the disputed misbehavior report by defendant Langendorf, he did not receive any disciplinary complaints. Dkt. No. 12 at 4. At his disciplinary hearing, however, at which he was afforded the opportunity to present his case and confront defendant Langendorf and the evidence against him, plaintiff was found guilty of the offenses charged in the misbehavior report. Dkt. No. 42-2 at 8-13. Because plaintiff has not responded in opposition to defendant's motion for summary judgment, there is no record evidence suggesting that plaintiff did not, as asserted by defendant Langendorf, create a commotion on April 19, 2011, by yelling obscenties at the defendant, causing other inmates "to exit the sally port to see what the commotion was about." Dkt. No. 42-2 at 3. According to the defendant, plaintiff's conduct forced him "to stop processing inmates through the metal detector and direct the inmates back into the sally port." Id. By virtue of plaintiff's failure to respond to the motion, he has admitted that the charges lodged in the misbehavior report by defendant Langendorf were not baseless and that the misbehavior report would have been issued to plaintiff even absent the alleged retaliatory intent. The conclusory allegations contained in plaintiff's amended complaint regarding defendant Langendorf's retaliatory motive are not sufficient to overcome the undisputed evidence set forth by the defendant. See Houston v. Goord, No. 03-CV-1412, 2009 WL 890658, at *12 (Suddaby, J., adopting report and recommendation by Peebles, M.J.) (finding that the plaintiff's allegations regarding the temporal proximity between his protected conduct and the defendants' adverse action was not sufficient to create a genuine dispute of material fact in light of all of the evidence submitted by the defendants, which included, inter alia, affidavits from the defendants denying retaliatory animus).
Given these circumstances, I find that no reasonable factfinder could conclude that defendant's issuance of a misbehavior report to plaintiff, on April 19, 2011, was motivated by plaintiff's complaints against him, rather than his disruptive conduct on the day in question. I therefore recommend dismissal of plaintiff's remaining claim in this action.
IV. SUMMARY AND RECOMMENDATION
The sole remaining cause of action in this case alleges retaliation against defendant Langendorf based upon his issuance of a misbehavior report to plaintiff. Defendant Langendorf has submitted uncontroverted evidence that the misbehavior report was issued based upon plaintiff's conduct on April 19, 2011, and not because plaintiff filed sexual harassment complaints against him. Accordingly, it is hereby respectfully
RECOMMENDED that defendant's summary judgment motion (Dkt. No. 42) be GRANTED, and that plaintiff's amended complaint (Dkt. No. 12) be DISMISSED in its entirety.
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
Date: January 5, 2015
Syracuse, New York