Tyson
v.
Vasile

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORKAug 6, 2018
Civil Action No. 9:17-CV-0874 (DNH/DEP) (N.D.N.Y. Aug. 6, 2018)

Civil Action No. 9:17-CV-0874 (DNH/DEP)

08-06-2018

KENNETH TYSON, Plaintiff, v. JOSEPH VASILE and TODD COMPO, Defendants.

APPEARANCES: FOR PLAINTIFF: KENNETH TYSON, Pro Se 15-A-2954 Elmira Correctional Facility P.O. Box 500 Elmira, NY 14902 FOR DEFENDANTS: HON. BARBARA UNDERWOOD New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: TIMOTHY MULVEY, ESQ. Assistant Attorney General


APPEARANCES: FOR PLAINTIFF: KENNETH TYSON, Pro Se
15-A-2954
Elmira Correctional Facility
P.O. Box 500
Elmira, NY 14902 FOR DEFENDANTS: HON. BARBARA UNDERWOOD
New York State Attorney General
The Capitol
Albany, NY 12224 OF COUNSEL: TIMOTHY MULVEY, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Pro se plaintiff Kenneth Tyson, a New York State prison inmate, has commenced this action against two corrections employees stationed at the prison facility in which plaintiff was confined at the relevant times pursuant 42 U.S.C. § 1983 alleging the deprivation of his civil rights. Specifically, plaintiff asserts a First Amendment retaliation cause of action against defendants based on his claim that defendant Compo planted a weapon in his cell and issued plaintiff a misbehavior report concerning the matter, and defendant Vasile presided over an ensuing disciplinary hearing and found plaintiff guilty as charged, all allegedly in retaliation for plaintiff having previously filed grievances against other corrections employees.

Currently pending before the court is a summary judgment motion brought by defendants seeking the dismissal of plaintiff's remaining retaliation claims. In their motion defendants argue that no reasonable factfinder could conclude plaintiff's protected conduct bore a causal relationship to the alleged retaliatory acts, principally because defendants were not implicated in the grievances filed by plaintiff prior to defendants' alleged retaliatory acts. For the reasons set forth below, I recommend that defendants' 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 the non-movant's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).

Plaintiff is a New York State prison inmate currently in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). See generally Dkt. No. 1. While he is now incarcerated elsewhere, at the times relevant to plaintiff's claims in this action he was confined in the Auburn Correctional Facility ("Auburn") located in Auburn, New York. Id.

According to the plaintiff, he made complaints about his "mail, food, pictures, & property being stolen" in November of 2016. Dkt. 1 at 3. On November 3, 2016, he filed a formal grievance complaining that Corrections Officer Gebroni, who is not a defendant in the action, discarded his mail. Dkt. No. 22-2 at 6; see also Dkt. No. 30-1 at 1. Plaintiff later submitted a grievance on April 6, 2017, claiming that his needs were being neglected by DOCCS medical staff, including "mainly Ms. Quirry." Dkt. No. 22-3 at 3; see also Dkt. No. 30-1 at 1. In a post script to that grievance, plaintiff alleged that his mail had not been delivered in two weeks, but did not accuse a specific individual of misconduct. Id. On April 13, 2017, one week later, plaintiff filed a grievance against Corrections Officer Skelly, who is not a named defendant, claiming that the officer denied him access to a telephone. Dkt. No. 22-4 at 5; see also Dkt. No. 30-1 at 1. According to a declaration from Cheryl Parmiter, the DOCCS Inmate Grievance Coordinator at Auburn, the November 3, 2016, April 6, 3017, and April 13, 2017 grievances were the only ones filed by the plaintiff between the time of his transfer into Auburn in July 2015 and April 28, 2017. Dkt. No. 30.

Ms. Quirry is not a defendant in this matter.

In his complaint, plaintiff alleges that on April 28, 2017, defendant Compo planted a "can top" in his cell. Dkt. No. 1 at 3; Dkt. No. 22-5 at 1. According to plaintiff, defendant Compo thereafter issued him a false misbehavior report accusing him of possessing a weapon, and, as a result, plaintiff was placed in the facility's special housing unit ("SHU"). Dkt. No. 1 at 3. A Tier III disciplinary hearing concerning that misbehavior report was conducted by defendant Vasile on May 11, 2017. Dkt. No. 22- 5 at 1. Following the hearing, defendant Vasile found plaintiff guilty as charged and sanctioned him to, inter alia, ninety days of SHU confinement. Id.; see also Dkt. No. 1 at 4.

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 at 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.

On July 7, 2017, defendant Vasile's hearing determination was reversed based upon a finding that the "circumstances surrounding the incident raise question to [sic] inmate's culpability." Dkt. No. 1-1 at 4. Id. Plaintiff was released from SHU confinement on July 12, 2017, after serving seventy-five days of his ninety-day sentence. Dkt. No. 1 at 4.

The records pertaining to the April 28, 2017, misbehavior report and the subsequent disciplinary hearing determination were expunged, following the reversal, and are therefore no longer available. Dkt. No. 22-6 at 4.

II. PROCEDURAL HISTORY

Plaintiff commenced this action on or about August 9, 2017, by the filing of a complaint, accompanied by an application for leave to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 5. Following an initial review of plaintiff's complaint, pursuant to 28 US.C. §§ 1915(e), 1915A, District Judge David N. Hurd issued a decision and order granting plaintiff's IFP application and accepting the complaint for filing only to the extent that it asserted First Amendment retaliation causes of action against defendants Compo and Vasile. Dkt. No. 7 at 13.

Other causes of action alleging that defendant Compo issued plaintiff a false misbehavior report, and that plaintiff's procedural due process rights were violated by defendant Vasile during the course of the disciplinary hearing, as well as claims brought against the Auburn Correctional Facility, were dismissed by District Judge Hurd in his initial order. Dkt. No. 7 at 6-13.

On January 23, 2018, following the close of discovery, defendants filed a motion for summary judgment in their favor, arguing that no reasonable factfinder could conclude, based on the record, that there was a causal connection between plaintiff's grievances and defendant Compo's planting of a weapon in his cell or defendant Vasile's disciplinary hearing determination. See generally Dkt. No. 22-6. Defendants' motion, to which plaintiff has not formally responded, 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).

On January 29, 2018, following the filing of defendants' motion, the court received a seven-page submission from plaintiff. Dkt. No. 26. It is comprised of copies of grievances filed by him on November 3, 2016, April 3, 2017, and April 7, 2017, as well as various determinations related to those grievances. Id. The submission did not include a memorandum of law, a response to defendants' statement of undisputed material facts, or an affidavit as required by the local rules of practice for this court. N.D.N.Y. L.R. 7.1(a)(3).

III. DISCUSSION

A. Legal Standard Governing Motions for Summary Judgment

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 fact 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 N.Y., 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; 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 non-moving 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").

B. Plaintiff's First Amendment Retaliation Claim

In his complaint, plaintiff asserts a First Amendment retaliation claims against defendants arising from allegations that defendant Compo planted a weapon in his cell and defendant Vasile issued an unsubstantiated disciplinary hearing determination against him, both in response to his filing of grievances and making complaints against other Auburn employees. Dkt. No. 1 at 3-5. In support of their request for dismissal, defendants argue that, because neither defendant was named or implicated in the grievances plaintiff filed before defendants' alleged retaliatory conduct occurred, no reasonable factfinder could conclude that there is a causal nexus between plaintiff's grievances and defendants' conduct. Dkt. No. 22-6 at 6.

When adverse action is taken by prison officials against an inmate based upon the inmate having engaged in conduct protected under the First Amendment, a cognizable retaliation claim under 42 U.S.C. § 1983 lies. See Friedl v. City of N.Y., 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."). As the Second Circuit has repeatedly cautioned, however, because such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus, courts must approach such claims "with skepticism and particular care." Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).

To establish a prima facie claim under section 1983 for unlawful retaliatory conduct, a plaintiff must demonstrate that (1) the conduct at issue was protected, (2) the defendants took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action - in other words, that the protected conduct was a "substantial or motivating factor" in the prison officials' decision to take action against the plaintiff. 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.).

Because defendants in this action contend only that the record does not support a factfinder's conclusion that there exists a causal connection between the plaintiff's protected conduct and defendants' alleged adverse actions, I have assumed, for the purposes of this motion, that plaintiff has established the first two elements of a First Amendment retaliation claim. With respect to the third element, concerning causation, when a retaliation claim is based upon an allegation that a defendant issued a false 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.). "[M]ore 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, 58 F.3d at 872)). 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). "The causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action." Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002).

In this case, according to plaintiff, defendant Compo allegedly planted a weapon in his cell on April 28, 2017, in retaliation for plaintiff having filed grievances and complained that his property was being stolen. Dkt. No. 1 at 3. Plaintiff also alleges that defendant Vasile retaliated against him for filing grievances by conducting a "falsified hearing" concerning the allegedly false misbehavior report issued by defendant Compo and sanctioned him to, inter alia, ninety days of SHU confinement. Id. at 3-4. The defendants were not named in those grievances, however, nor is there any record evidence tending to establish their knowledge of the grievances filed by the plaintiff in November 2016 and April 2017. Dkt. No. 22-2 at 6; Dkt. No. 22-3 at 3; Dkt. No. 22-4 at 5. Although plaintiff alleges that defendant Vasile told him that he was going to find him guilty of the disciplinary charges "no matter what . . . because him & his staff says so," that comment - assuming its truth - does not link defendants to plaintiff's grievances. Dkt. No. 1 at 4. Moreover, while the disciplinary hearing determination rendered by defendant Vasile concerning the misbehavior report issued by defendant Campo was ultimately reversed, that fact alone is not sufficient to lead a factfinder to conclude that defendants knew about the grievances filed by plaintiff in November 2016 and April 2017, complaining of the actions of other corrections officers, and were motivated by those grievances in carrying out their alleged retaliatory conduct.

In short, there is no evidence before the court from which a reasonable factfinder could conclude that retaliatory animus motivated either defendant Campo to issue a false misbehavior report against plaintiff or defendant Vasile to find him guilty following a disciplinary hearing. See Mateo v. Dawn, No. 14-CV-2620, 2016 WL 5478431, at *8 (S.D.N.Y. Sept. 28, 2016) ("Plaintiff's claim is similarly handicapped by its failure to allege or otherwise suggest that Defendants even knew of the complaints filed against other correction officers."); Henson v. Gagnon, No. 13-CV-0590, 2015 WL 9809874, at *14 (N.D.N.Y. Dec. 10, 2015) (Dancks, M.J.) adopted by 2016 WL 204494 (N.D.N.Y. Jan. 15, 2016) (Suddaby, C.J.) (holding that no reasonable juror could find a causal connection between the plaintiff's protected conduct and the defendant's alleged retaliatory act because there was no evidence showing that the defendant knew of the plaintiff's grievances at the time he rendered his disciplinary hearing determination). Accordingly, I recommend that defendants' motion be granted.

All unreported decisions cited to in this report have been appended for the convenience of the pro se plaintiff.

IV. SUMMARY AND RECOMMENDATION

Because no reasonable factfinder could conclude, based on the evidence now before the court, that defendants' conduct was motivated by retaliatory animus, I find that defendants' motion for summary judgment should be granted.

Accordingly, it is hereby respectfully

RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 22) be GRANTED, and 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).

If you are proceeding pro se and are served with this report and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the report and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C). --------

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. Dated: August 6, 2018


Syracuse, New York

/s/_________


David E. Peebles


U.S. Magistrate Judge