Demuth v. Chenango County Sheriff's Office

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

MICHAEL A. DEMUTH,

Plaintiff,

vs. 9:18-CV-915

(MAD/CFH)

SERGEANT WHITE, CORPORAL GREGWIRE,

Defendants.

____________________________________________

APPEARANCES: OF COUNSEL:

MICHAEL A. DEMUTH

19-B-1439

Collins Correctional Facility

Post Office Box 340

Collins, New York 14034

Plaintiff pro se

OFFICE OF FRANK W. MILLER FRANK W. MILLER, ESQ.

6575 Kirkville Road

East Syracuse, New York 13057

Attorneys for Defendants

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Michael A. Demuth commenced this action pro se on August 3, 2018, alleging

claims of First Amendment retaliation and First Amendment court access under 42 U.S.C. § 1983

against individual Defendants, the Chenango County Sheriff's Office, and the Town of Norwich.

See generally Dkt. No. 1. On October 5, 2018, the Court dismissed all claims with the exception

of the First Amendment retaliation claim against Defendants Sergeant White and Corporal

Gregwire. See Dkt. No. 10 at 10–11. Currently before the Court is Defendants' motion for

summary judgment. See Dkt. No. 31. Plaintiff has failed to submit any opposition papers. For

the following reasons, Defendants' motion is granted.

II. BACKGROUND

A. Local Rule 7.1(a)(3)

Local Rule 7.1(a)(3) requires a party opposing a motion for summary judgment to file a

response "admitting and/or denying each of the movant's assertions" in the movant's Statement of

Material Facts, and "[e]ach denial shall set forth a specific citation to the record where the factual

issue arises." N.D.N.Y.L.R. 7.1(a)(3). Where the opposing party fails to follow Local Rule

7.1(a)(3), the Court shall accept the properly supported facts stated in the movant's Statement of

Material Facts. See id. ("The Court shall deem admitted any properly supported facts set forth in

the Statement of Material Facts that the opposing party does not specifically controvert")

(emphasis in original). While this Court must construe a pro se litigant's pleadings and papers

liberally, and interpret them to raise the strongest arguments that they suggest, this standard "does

not excuse a pro se litigant from following the procedural formalities of summary judgment,"

including Local Rule 7.1(a)(3). Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2003)

(citation omitted). "The courts of the Northern District have adhered to a strict application of

Local Rule 7.1(a)(3)'s requirement on summary judgment motions." Id. (citations omitted).

In the present matter, Plaintiff failed to submit any response to Defendants' Statement of

Material Facts. Accordingly, the properly supported facts set forth in Defendants' "Statement of

Material Facts as to Which There is No Genuine Dispute" are deemed admitted for purposes of

this motion. See N.D.N.Y.L.R. 7.1(a)(3).

1 Magistrate Judge Christian F. Hummel granted Plaintiff two extensions to file a response.

See Dkt. Nos. 36, 38.

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B. Background

The conduct giving rise to this case occurred at the Chenango County Correctional

Facility. On July 30, 2018, Defendants White and Gregwire were working at the Chenango

County Correctional Facility and were approached by Plaintiff, who was an inmate at the facility.

See Dkt. No. 31-2 at ¶ 2. Plaintiff requested their signatures on legal documents, specifically,

paperwork for an application to proceed in forma pauperis. See id. The legal documents required

the signature of an "authorized officer" who could verify the contents of Plaintiff's commissary

account. See id. Defendants were not presented with a court order or any other documents

requiring the services of a notary. See Dkt. No. 31-2 at ¶ 2. Defendant White explained both

Defendants' inability to sign the documents, as they did not qualify as "authorized officers" for

this purpose. See Dkt. No. 31-2 at ¶¶ 3–4. Plaintiff allegedly then "became belligerent and

argumentative" because neither Defendant had the authority to comply with his request as they did

not have access to his commissary account or the balance thereof. See Dkt. No. 31-2 at ¶ 4; Dkt.

No. 31-25 at ¶ 8.

Plaintiff alleges that Defendants White and Gregwire retaliated against Plaintiff's filing of

lawsuits concerning the conditions of his confinement at Chenango County Correctional Facility

by refusing to sign these legal documents, by becoming hostile towards him, and threatening to

"lock [him] in [his] cell." Dkt. No. 1 at 2. Plaintiff further alleges that Defendant White had

previously locked him in his cell "for [a] long period[] of time" after Plaintiff threatened to "file

one more civil [lawsuit]." Id. Defendants deny these allegations, stating that neither Defendant is

a Commissary Officer, the appropriate "authorized officer" required for the type of legal document

Plaintiff wanted signed. See Dkt. No. 31-2 at ¶ 3. Defendants further explain that Plaintiff has

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been locked in his cell due to various counts of misbehavior and violations of rules in the facility.

See Dkt. No. 31-2 at ¶¶ 12–20.

Plaintiff filed an informal grievance regarding the underlying events on July 29, 2018. See

Dkt. No. 31-21. He then filed a formal grievance on the same date. See Dkt. No. 31-22 at 1. On

August 9, 2018, a Grievance Coordinator issued a determination on Plaintiff's formal grievance.

See id. at 2. Plaintiff's complaint in this matter is dated July 31, 2018, and was received by the

Court on August 3, 2018. See Dkt. No. 1. Plaintiff did obtain the information he needed for the

application to proceed in forma pauperis at a later date, and the civil action for which he needed it

was not delayed. See Dkt. No. 31-2 at ¶¶ 23–24.

Presently pending before the Court is the remaining Defendants' motion for summary

judgment. See Dkt. No. 31. In their motion, Defendants seek summary judgment on (1) the

ground that Plaintiff failed to exhaust his administrative remedies as required by the Prison

Litigation Reform Act ("PLRA"); (2) the merits of Plaintiff's First Amendment claim; and (3) the

ground that Defendants are entitled to qualified immunity. See id. Plaintiff has not responded to

the pending motion.

III. DISCUSSION

A. Standard of Review

A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue

warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43

F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the

court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at

36–37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a

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motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56 (c), (e)).

In assessing the record to determine whether any such issues of material fact exist, the

court is required to resolve all ambiguities and draw all reasonable inferences in favor of the

nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the

motion or fails to dispute the movant's statement of material facts, the court may not rely solely on

the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to

evidence in the record support the movant's assertions. See Giannullo v. City of New York., 322

F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the

motion for summary judgment "would derogate the truth-finding functions of the judicial process

by substituting convenience for facts").

"Assessments of credibility and choices between conflicting versions of the events are

matters for the jury, not for the court on summary judgment." Jeffreys v. City of New York, 426

F.3d 549, 553–54 (2d Cir. 2005) (quotation omitted). "However, '[t]he mere existence of a

scintilla of evidence in support of the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the plaintiff." Id. (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (emphasis and alterations in original)). "To defeat

summary judgment, therefore, nonmoving parties 'must do more than simply show that there is

some metaphysical doubt as to the material facts,' . . . and they 'may not rely on conclusory

allegations or unsubstantiated speculation.'" Id. (quotations omitted).

"[I]n a pro se case, the court must view the submissions by a more lenient standard than

that accorded to 'formal pleadings drafted by lawyers.'" Govan, 289 F. Supp. 2d at 295 (quoting

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Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has

directed that the court is obligated to "'make reasonable allowances to protect pro se litigants'"

from inadvertently forfeiting legal rights merely because they lack a legal education. Govan, 289

F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). "This liberal

standard, however, does not excuse a pro se litigant from following the procedural formalities of

summary judgment." Id. (citing Showers v. Eastmond, No. 00 CIV. 3725, 2001 WL 527484, *2

(S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's 'bald assertion,' completely unsupported

by evidence is not sufficient to overcome a motion for summary judgment." Lee v. Coughlin, 902

F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

B. Exhaustion

The Prison Litigation Reform Act ("PLRA") states that "[no] 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). This exhaustion requirement applies to all suits

brought by inmates regarding aspects of prison life. See Porter v. Nussle, 534 U.S. 516, 532

(2002). Inmates must exhaust all available administrative remedies even if they are seeking only

money damages that are not available in prison administrative proceedings. See Giano v. Goord,

380 F.3d 670, 675 (2d Cir. 2004), abrogated on other grounds by Ross v. Blake, 136 S. Ct. 1850

(2016). The failure to exhaust is an affirmative defense that must be raised by the defendants and,

as such, it is the defendants' burden to establish that the plaintiff failed to meet the exhaustion

requirements. See Jones v. Bock, 549 U.S. 199, 216 (2007); Key v. Toussaint, 660 F. Supp. 2d

518, 523 (S.D.N.Y. 2009) (citations omitted).

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The Supreme Court has held that in order to properly exhaust an inmate's administrative

remedies, the inmate must complete the administrative review process in accordance with the

applicable state rules. See Jones, 549 U.S. at 218–19 (citing Woodford v. Ngo, 548 U.S. 81

(2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must

complete the administrative review process in accordance with the applicable procedural rules,

including deadlines, as a prerequisite to bringing suit in federal court. See Woodford, 548 U.S. at

90–103.

Although administrative remedies generally must be exhausted, a prisoner need not

exhaust remedies if they are not "available." Ross, 136 S. Ct. at 1855. "First, an administrative

remedy may be unavailable when 'it operates as a simple dead end – with officers unable or

consistently unwilling to provide any relief to aggrieved inmates.'" Williams v. Corr. Officer

Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross, 136 S. Ct. at 1859). "Second, 'an

administrative scheme might be so opaque that it becomes, practically speaking, incapable of

use.'" Id. (quoting Ross, 136 S. Ct. at 1859). "In other words, 'some mechanism exists to provide

relief, but no ordinary prisoner can discern or navigate it.'" Id. at 123–24 (quoting Ross, 136 S.

Ct. at 1859). "Third, an administrative remedy may be unavailable 'when prison administrators

thwart inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.'" Id. at 124 (quoting Ross, 136 S. Ct. at 1860).

When a plaintiff fails to fairly raise claims in his grievances, those claims are not

exhausted. See Beckles v. Bennett, No. 05 Civ. 2000, 2008 WL 821827, *13 (S.D.N.Y. Mar.

2008) (citing Porter, 534 U.S. at 524–25 (an inmate must "afford [ ] corrections officials time and

opportunity to address complaints internally before the initiation of a federal case")). In order to

fairly raise his claims for exhaustion purposes:

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Plaintiff is not required to name all responsible parties in a

grievance . . . . However, plaintiff must "provide 'a specific

description of the problem,' that was sufficient to 'alert the prison to

the nature of the wrong for which redress was sought,' and provide

'sufficient notice of wrongdoing to cause them to investigate any

such claim.'"

Hill v. Smith, No. 9:16-CV-1225, 2018 WL 2172701, *5 (N.D.N.Y. Apr. 19, 2018), adopted by

2018 WL 2170291 (N.D.N.Y. May 10, 2018) (quoting Albritton v. Morris, No. 13-CV-3708, 2018

WL 1609526, *10–11 (S.D.N.Y. Mar. 29, 2018)) (other internal citations omitted).

In the present matter, the Court initially finds that the administrative remedies not pursued

by Plaintiff were available to him. When an inmate enters the Chenango County Correctional

Facility, he is provided with a copy of the Inmate Rule Book, which outlines a variety of

procedures, including the "Inmate Complaint Procedures." See Dkt. No. 31-19 at ¶¶ 3–4; Dkt. No.

31-20 at 20–22. On July 29, 2018, Plaintiff filed an "Informal Inmate Complaint Form" that

indicated he did not wish to attempt to resolve the complaint informally, and wished to file a

formal grievance. See Dkt. No. 31-21 at 2. On the same date, Plaintiff filed a formal "Inmate

Grievance Form" that described the following:

Sir, I Have Paperwork that needs to Be Signed By an officer of this

facility. I Have Been Denied By many officers with in [sic] the

facility. Therefor [sic] I am Being Denied the Right to legal

materials and Required Signature of an officer.

Dkt. No. 31-22 at 2. Plaintiff's grievance form was received by a staff member on July 30, 2018.

See id. An investigation of Plaintiff's grievance was completed on August 9, 2018. See id. The

decision of the Grievance Coordinator was to deny the grievance on the merits, indicating that "no

officer or staff member has to voluntarily sign any of your paperwork. You are not being denied

the right to legal materials. Officers or staff are not required to provide a signature on your

personal legal work." Id. On the second page of the "Inmate Grievance Form," there is a clearly

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marked section titled "Grievant's Appeal to the Chief Administrative Officer" with two options to

select. Id. at 3. Plaintiff selected the option indicting "I agree to accept the decision." Id. He did

not select the option indicating "I am appealing to the Chief Administrative Officer." Id. Plaintiff

signed and dated this decision on August 9, 2018. See id. Plaintiff, therefore, knew of the

availability to appeal the denial of his grievance to the Chief Administrative Officer as set forth in

the Inmate Complaint Procedures, but chose not to take this action. See Dkt. No 31-24 at 21

("Fifth Step: If you are not satisfied with the Investigating Grievance Officer's determination, you

may file an appeal to the Jail Administrator or designee of this facility within two business days").

Plaintiff has not provided any reason why he did not appeal this decision.

Second, Defendants preserved the exhaustion defense by pleading it in their answer. See

Dkt. No. 15 at ¶ 13. Plaintiff alleges generally in his complaint that Defendants have instructed

officers to not sign paperwork for Plaintiff and that officers are placing Plaintiff in a cell for no

reason. See Dkt. No. 1 at 2. The Second Circuit has recognized "that defendants' actions may

estop them from raising non-exhaustion as a defense." Ruggiero v. Cnty. of Orange, 267 F.3d

170, 178 (2d Cir. 2006). Here, however, there is no evidence that Defendants' behavior estops

them from asserting the exhaustion defense. See Ziemba v. Wezner, 366 F.3d 161, 162–64 (2d

Cir. 2004) (directing the district court to consider whether the defendants were estopped from

raising the exhaustion defense where the plaintiff alleged that he was beaten, threatened, denied

grievance forms, and transferred to another prison in order to prevent him from seeking

administrative remedies). Additionally, as stated above, Plaintiff clearly was not prevented from

exhausting his administrative remedies against Defendants as he did, in fact, file both an informal

and a formal grievance against them. See Dkt. No. 31-21; Dkt. No. 31-22.

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Third, Plaintiff failed to fairly raise claims in his grievances, and therefore his claims are

not exhausted. Plaintiff's informal and formal grievance make no mention of either Defendant by

name. See Dkt. No. 31-21; Dkt. No. 31-22. Plaintiff only references "an officer" or "officers"

refusing to sign documents. Id. Plaintiff's grievances do not–even read generously–charge any

misconduct by either Defendant specifically. See id. Furthermore, although Plaintiff now alleges

that he has been "cell confined" by Defendant White "in the past," and that both Defendants

threatened to do the same on July 30, 2018, see Dkt. No. 1 at 2, "nothing in Plaintiff's grievance

forms would have alerted the authorities that plaintiff was making such an allegation, nor would

an official investigating plaintiff's grievance reasonably be expected to have explored such

matters." Turner v. Goord, 376 F. Supp. 2d 321, 325 (W.D.N.Y. 2005) (collecting cases).2

Plaintiff's formal grievance only stated that he was denied the right to a legal signature by many

officers. Dkt. No. 31-22 at 2.

Additionally, Plaintiff filed an informal grievance on July 29, 2018. See Dkt. No. 31-21.

He then filed a formal grievance on the same date. See Dkt. No. 31-22 at 1. On August 9, 2018, a

Grievance Coordinator issued a determination on Plaintiff's grievance. See id. at 2. Plaintiff's

complaint in this matter is dated July 31, 2018, and was received by the Court on August 3, 2018.

See Dkt. No. 1. Accordingly, Plaintiff failed to fully exhaust his administrative remedies prior to

commencing this action.

2 Defendants argue that because Plaintiff's grievances are dated July 29, 2018, and that the

complaint alleges the underlying incident occurred on July 30, 2018, that this did not place

Defendants on notice for the purposes of the exhaustion requirement. There is, however, a

notation on Plaintiff's "Informal Inmate Complaint Form" that indicates the form was given to

Plaintiff on July 30, 2018 at 6:20 pm "for 'officers won't sign his papers.'" See Dkt. No. 31-21 at 2.

This distinction does not change the Court's analysis for the purposes of the exhaustion

requirement.

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Because the administrative remedies were available to Plaintiff, Defendants properly

preserved the defense and are not estopped from asserting it, and Plaintiff failed to "fairly present"

claims in his grievances. Accordingly, the Court grants Defendants' motion for summary

judgment because of Plaintiff's failure to exhaust his administrative remedies.

C. Relief Under 42 U.S.C. § 1983

Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the

complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode,

423 U.S. 362, 370–71 (1976) (quoting 42 U.S.C. § 1983). Not only must the conduct deprive the

plaintiff of rights and privileges secured by the Constitution, but the actions or omissions

attributable to each defendant must be the proximate cause of the injuries and consequent

damages that the plaintiff sustained. See Brown v. Coughlin, 758 F. Supp. 876, 881 (S.D.N.Y.

1991) (citing Martinez v. California, 444 U.S. 277, 285 (1980)). As such, for a plaintiff to

recover in a section 1983 action, he must establish a causal connection between the acts or

omissions of each defendant and any injury or damages he suffered as a result of those acts or

omissions. See Brown, 758 F. Supp. at 881 (citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S.

410, 416–17 (1979); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

D. Retaliation

Although the Court has found that Defendants motion for summary judgment should be

granted, the Court will nevertheless address the merits of Plaintiff's First Amendment retaliation

claim. "Courts properly approach prisoner retaliation claims 'with skepticism and particular care,'

because 'virtually any adverse action taken against a prisoner by a prison official – even those

otherwise not rising to the level of a constitutional violation – can be characterized as a

constitutionally proscribed retaliatory act.'" Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003)

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(quotation and other citation omitted). "To prove a First Amendment retaliation claim under

Section 1983, a prisoner 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.'" Espinal v. Goord, 558 F.3d

119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)).

"Only retaliatory conduct that would deter a similarly situated individual of ordinary

firmness from exercising his or her constitutional rights constitutes an adverse action for a claim

of retaliation." Davis, 320 F.3d at 353 (internal quotation marks and citation omitted). In making

this determination, courts are to "bear in mind" that "prisoners may be required to tolerate more

than average citizens, before a retaliatory action taken against them is considered adverse."

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, 508 (2002) (internal quotation marks and citations omitted). The

"test is objective, not subjective, and must be so, since the very commencement of a lawsuit

would otherwise be dispositive on the issue of chilling." Davidson v. Bartholome, 460 F. Supp.

2d 436, 447 (S.D.N.Y. 2006) (citations omitted).

In determining whether a causal connection exists between a plaintiff's protected activity

and a prison official's actions, factors to be considered include: "(i) the temporal proximity

between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good

disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the

defendant concerning his or her motivation." Cole v. New York State Dep't of Corr. Servs., No.

9:10-CV-1098, 2012 WL 4491825, *11 (N.D.N.Y. Aug. 31, 2012) (citing Colon, 58 F.3d at

872–73).

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Upon satisfying his initial burden, "the burden shifts to defendants to establish that the

same adverse action would have been taken even in the absence of the plaintiff's protected

conduct, i.e., 'even if they had not been improperly motivated.'" Davidson v. Desai, 817 F. Supp.

2d 166, 194 (W.D.N.Y. 2011) (quoting Graham, 89 F.3d at 80). "At the summary judgment

stage, if the undisputed facts demonstrate that the challenged action clearly would have been taken

on a valid basis alone, defendants should prevail." Davidson v. Chestnut, 193 F.3d 144, 149 (2d

Cir. 1999); see also Murray v. Hulihan, 436 Fed. Appx. 22, 23 (2d Cir. 2011) ("Defendants

cannot be liable for First Amendment retaliation if they would have taken the adverse action even

in the absence of the protected conduct").

Plaintiff claims that, as a result of his filing lawsuits concerning his conditions of

confinement at the Chenango County Correctional Facility, Defendants retaliated against him by

denying his requests for signatures on legal documents, threatened to discipline Plaintiff for

requesting these signatures, and Defendant White did indeed discipline Plaintiff at some point for

filing lawsuits generally. See Dkt. No. 1 at 2.

In the present matter, the undisputed facts do not support an allegation of First

Amendment retaliation with regards to Plaintiff's requests for Defendants' signatures. On July 30,

2018, Defendants White and Gregwire were approached by Plaintiff, who requested their

signatures on legal documents. See Dkt. No. 31-2 at ¶ 2. The legal documents required the

signature of an "authorized officer" who could verify the contents of Plaintiff's commissary

account. See id. Neither Defendant is a Commissary Officer, the appropriate "authorized officer"

for this legal document. See id. at ¶ 3. Defendants were not presented with a court order or any

other documents requiring the services of a notary. See Dkt. No. 31-2 at ¶ 2. Defendant White

explained both Defendants' inability to sign Plaintiff's documents, after which Plaintiff "became

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belligerent and argumentative" because neither Defendant had the authority to comply with his

request as they did not have access to his commissary account or the balance thereof. See Dkt.

No. 31-2 at ¶ 4; Dkt. No. 31-25 at ¶ 8. In his deposition, Plaintiff stated Defendants "wouldn't

sign [the paperwork] because they didn't have a court order." See Dkt. No. 31-4 at 8:6–11.

There are a proscribed set of ways by which an inmate can obtain information about their

commissary account. See Dkt. No. 31-2 at ¶ 5 ("Only a Commissary Officer is authorized to

provide inmates with the information in an inmate's commissary account"); Dkt. No. 31-23 at ¶¶

5–6 ("Information is obtained through receipts, order forms, kiosk, and the banker program. IFP

applications are a regular part of the business, if an inmate needs to know amount in commissary

account for fed or state court, they can access amount by kiosk or by a foil request"). The Inmate

Rule Book outlines that the first interaction with a staff officer regarding a commissary account is

typically, in fact, a Commissary Officer. See Dkt. No. 31-24 at 38–40.

Simply put, an officer refusing to perform a task for an inmate that the officer is not

authorized to perform is not an adverse action for purposes of a First Amendment retaliation

claim.

Additionally, the undisputed facts do not support an allegation of First Amendment

retaliation with regards to Plaintiff being threatened by Defendants because he requested their

signatures. There is no indication in the record that Plaintiff was threatened by Defendants after

the alleged incident on July 30, 2018. "Courts have found that, while verbal threats may qualify

as adverse actions, they must be 'sufficiently specific and direct' to be actionable." Terry v. Hulse,

No. 16-CV-252, 2018 WL 4682784, *11 (S.D.N.Y. Sept. 28, 2018); see also Quezada v. Roy, No.

14 Civ. 4056, 2015 WL 5970355, *21 (S.D.N.Y. Oct. 13, 2015) ("The less direct and specific a

threat, the less likely it will deter an inmate from exercise his First Amendment rights")

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(quoting Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010)). The Court finds that the

record is devoid of sufficiently direct or specific statements to support a retaliation claim based on

the alleged verbal threats.

Furthermore, the record does not support that Plaintiff was disciplined as a result of filing

various legal proceedings against staff at the Chenango County Correctional Facility. The

procedures for determining disciplinary actions for a violation of the Inmate Rules of Conduct are

contained in the Inmate Rule Book. See Dkt. No. 31-20 at 17–19. Between the dates of June 19

and July 12, 2018, Plaintiff was charged with various counts of misbehavior and violations at the

Chenango County Correctional Facility. See Dkt. No. 31-2 at ¶ 13. On June 20, 2018, Plaintiff

was charged with "failure to obey any lawful order given to you by any officer or staff member

immediately" because Plaintiff was ordered to "lock in due to referencing to another inmate as

'pedo' and 'slant eye.' Inmate Demuth had to be ordered multiple times to stop making these

comments and lock in before he complied." Dkt. No. 31-8 at 2. Plaintiff also violated Rule A3

"'insolence (rudeness and disrespect to any employee or any other person' by referring to another

inmate as 'pedo' and 'slant eye.'" Id. As a result of this conduct, Plaintiff was placed in

administrative segregation pending a hearing for twenty-four hours. See id.3 On June 23, 2018,

Plaintiff was charged with "insolence (rudeness and disrespect) to any employee or any other

person" because Plaintiff "did express his pleasure with CO Jagodzinski, saying, 'he can suck my

dick!'" Dkt. No. 31-9 at 2.4 Plaintiff was already in disciplinary lock-in at that time. See id. On

3 A proposed hearing was set for June 21, 2018 at 9:00 am. See Dkt. No. 31-8 at 2.

However, there is no paperwork that a hearing was actually conducted on the violation "due to

either it was over looked [sic] or it was not completed." See Dkt. No. 31-5 at ¶ 8.

4 A proposed hearing was set for June 25, 2018 at 9:00 am. See Dkt. No. 31-9 at 2.

However, there is no paperwork that a hearing was actually conducted on the violation "due to

(continued...)

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July 12, 2018, Plaintiff was charged with "insolence to any employee or any other person" because

Plaintiff referred "to CPL Hand as a 'asshole' and CO Torre as a 'fatass.'" See Dkt. No. 31-10 at 2.

As a result of this conduct, Plaintiff was already locked in and was placed in administrative

segregation pending a hearing. See id. Again on July 12, 2018, Plaintiff was charged with

"failure to obey any lawful order given to you by any officer or staff member immediately"

because Plaintiff stated that "'asshole CPI Hand and fatass CO Toree locked me up.' Sir on 6/23

yourself as well as CO Toree on 7/11 told him not to talk about officers using that language."

Dkt. No. 31-12 at 2. As a result of this conduct, Plaintiff was placed in administrative segregation

pending a hearing for twenty-four hours. See id. On a separate occasion on July 12, 2018,

Plaintiff was charged with "any homosexual or sexual act" because Plaintiff stated to CO DuMont

"I'm going to go lock in now you fucking faggot, you can suck my dick." Dkt. No. 31-13 at 2. As

a result of this conduct, Plaintiff was placed in administrative segregation pending a hearing. See

id.

After his initial hearing on the July 12, 2018 conduct was delayed five business days to

obtain counsel, Plaintiff pled guilty to the first charge, and was found guilty of the second two

charges on August 7, 2018. See Dkt. No. 31-2 at ¶¶ 17, 19; Dkt. No. 31-5 at ¶¶ 12, 14; Dkt. No.

31-11; Dkt. No. 31-14; Dkt. No. 31-15. A sentence of three days lock in was imposed for the first

charge, and a sentence of suspended five days lock in was imposed for the second charge, to run

concurrent with the same sentence for the third charge. See Dkt. No. 31-2 at ¶¶ 17, 19; Dkt. No.

31-5 at ¶¶ 12, 14; Dkt. No. 31-11; Dkt. No. 31-14; Dkt. No. 31-15. Plaintiff appealed the August

7, 2018 hearing, and Lieutenant Christopher S. Miles found that the hearing was not completed in

4(...continued)

either it was over looked [sic] or inmate did not receive a copy of the misbehavior report." See

Dkt. No. 31-5 at ¶ 10.

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the necessary time frame, thus rendering the sanctions null and void. See Dkt. No. 31-2 at § 20;

Dkt. No. 31-5 at ¥ 15; Dkt. No. 31-16; Dkt. No. 31-17; Dkt. No. 31-18. Plaintiff has failed to

offer anything other than conclusory allegations and speculation that Defendants acted with any

retaliatory animus. Additionally, Defendants have established that, because of Plaintiff's many

violations of facility rules, they would have taken the same actions against him.

Based on the foregoing, the Court grants Defendants’ motion for summary judgment as to

Plaintiff's First Amendment retaliation claim.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions and the

applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Defendants’ motion for summary judgment (Dkt. No. 31) is GRANTED

and Plaintiff's complaint is DISMISSED with prejudice; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close

this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision

and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.

Dated: March 3, 2020 □ fo

Albany, New York J) ie 2 Ce,

Mae A. D’Agosting~/

U.S. District Judge

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