Waters v. Jacobsen

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

KEITH WATERS,

Plaintiff,

vs. 9:18-CV-196

(MAD/ML)

CATHERINE JACOBSEN, et al.,

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

KEITH WATERS

1462 Dean Street

Brooklyn, New York 11213

Plaintiff pro se

OFFICE OF THE NEW YORK JOHN F. MOORE, AAG

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendants

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

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On February 15, 2018, Plaintiff pro se Keith Waters ("Plaintiff"), who was at all relevant

times in the custody of the New York State Department of Corrections and Community

Supervision ("DOCCS"), commenced this civil rights action asserting claims arising out of his

confinement at Wallkill Correctional Facility ("Wallkill C.F."). See Dkt. No. 1. On March 20,

2018, the Court reviewed the sufficiency of the Complaint, dismissed certain claims without

prejudice, and afforded Plaintiff the opportunity to submit an amended pleading. See Dkt. No. 7.

On April 5, 2018, Plaintiff filed an Amended Complaint. See Dkt. No. 9. On April 23, 2018, the

Court reviewed the sufficiency of the Amended Complaint, directing Defendants to respond to

multiple claims. See Dkt. No. 11. On August 8, 2018, the Court granted in part Plaintiff's motion

to amend his complaint. See Dkt. No. 31 at 21. On August 9, 2018, Plaintiff filed a Second

Amended Complaint, which is the operative pleading. See Dkt. No. 32.

Presently before the Court is Defendants' unopposed motion for summary judgment of

Plaintiff's Second Amended Complaint pursuant to Rule 56(a) of the Federal Rules of Civil

Procedure. See Dkt. No. 80.1 In a Report-Recommendation and Order dated February 13, 2020,

Magistrate Judge Miroslav Lovric recommended that the Court deny in part and grant in part

Defendants' motion. See Dkt. No. 85. On March 2, 2020, Defendants filed objections to

Magistrate Judge Lovric's Report-Recommendation and Order. See Dkt. No. 88.

II. BACKGROUND

Since neither party objected to Magistrate Judge Lovric's recitation of the relevant

background facts, and because it is consistent with the record, the Court adopts the factual

background set forth in Magistrate Judge Lovric's Report-Recommendation and Order. See Dkt.

No. 85 at 4–13.2

1 Plaintiff requested an extension for his time to respond to Defendants' motion, as well as

permission to exceed the twenty-five page limit for his memorandum of law. See Dkt. No. 83.

The Court granted Plaintiff's request, allowing him to file a thirty-five page memorandum of law,

and moving his date to respond to October 31, 2019. See Dkt. No. 84. Plaintiff did not file a

response to Defendants' motion.

2 Citations to page numbers refer to the pagination generated by CM/ECF, not the page

numbers generated by the parties.

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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

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

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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 v. Campbell, 289 F. Supp. 2d 289,

295 (N.D.N.Y. 2003) (quoting 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. Id. (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)).

When a party files specific objections to a magistrate judge's report-recommendation and

order, the district court "make[s] a de novo determination of those portions of the report or

specified proposed findings or recommendations to which objection is made." 28 U.S.C. §

636(b)(1)(C). However, "[g]eneral or conclusory objections, or objections which merely recite

the same arguments presented to the magistrate judge, are reviewed for clear error." O'Diah v.

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Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations and

footnote omitted). After the appropriate review, "the court may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §

636(b)(1)(C).

B. Exhaustion

The 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).

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,

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

90–103.

New York State has a three-step administrative review process (also known as the Inmate

Grievance Program ("IGP")). First, a grievance is submitted to the Inmate Grievance Resolution

Committee ("IGRC") which reviews and investigates the formal complaint before issuing a

written determination. See 7 N.Y.C.R.R. § 701.5(b). Second, an adverse decision by the IGRC

may be appealed to the Superintendent of the Facility. See id. § 701.5(c). Third, an adverse

decision by the Superintendent may be appealed to the CORC. See id. § 701.5(d). If all three

levels of review are exhausted, then the prisoner may seek relief in a federal court pursuant to

section 1983. See Bridgeforth v. DSP Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing

Porter, 534 U.S. at 524).

To the extent a civil rights claim must be exhausted by the grievance process, completion

of the three-tiered process, through and including a final decision by the CORC, must be

completed before an action asserting that claim may be filed in federal court. See, e.g., Casey v.

Brockley, No. 9:13-CV-1271, 2015 WL 8008728, *5 (N.D.N.Y. Nov. 9, 2015) ("Receiving a

decision from CORC after commencing litigation does not satisfy PLRA's requirement that

administrative remedies be exhausted before filing suit, and any claim not exhausted prior to

commencement of the suit must be dismissed without prejudice") (citing Neal v. Goord, 267 F.3d

116, 122–23 (2d Cir. 2001), overruled on other grounds by Porter, 534 U.S. 516) (emphasis in

original); Rodriguez v. Rosner, No. 12-CV-958, 2012 WL 7160117, *8 (N.D.N.Y. Dec. 5, 2012).

"[A] post-exhaustion amendment of the complaint cannot cure an exhaustion defect existing at the

time the action was commenced." Guillory v. Haywood, No. 9:13-CV-1564, 2015 WL 268933,

*11 (N.D.N.Y. Jan. 21, 2015) (citing Neal, 267 F.3d at 122) (other citation omitted).

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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).

1. Claims against Defendants Wlodkowski and Purdy

Defendants argue that Plaintiff failed to exhaust his First Amendment retaliation claims

against Defendants Wlodkowski and Purdy related to the February 2017 Inmate Misbehavior

Report ("MBR") and subsequent disciplinary hearing because Plaintiff failed to appeal the

disciplinary determination or complete the grievance process.3 See Dkt. No. 80-14 at 12. Having

carefully reviewed Magistrate Judge Lovric's Report-Recommendation and Order, the parties'

submissions, and the applicable law, the Court finds that Magistrate Judge Lovric correctly

determined that the Court should dismiss Plaintiff's First Amendment retaliation claims against

Defendants Wlodkowski and Purdy. See Dkt. No. 85 at 19.

3 On February 16, 2017, Defendant Wlodkowski issued a MBR charging Plaintiff with

violating rules related to unauthorized exchange, legal assistance, and possessing contraband. See

Dkt. No. 80-3 at 184. On February 28, 2017, Defendant Purdy presided over a Tier II disciplinary

hearing related to the MBR, finding Plaintiff guilty of violating the rules related to contraband and

legal assistance. See Dkt. No. 80-3 at 180–81.

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DOCCS maintains a separate review process for inmate appeals of disciplinary hearings.

See Davis v. Barrett, 576 F.3d 129, 132 (2d Cir. 2009). A disciplinary appeal is sufficient to

exhaust a claim that an inmate was deprived of due process at a disciplinary hearing. See Thomas

v. Delaney, No. 9:17-CV-1023, 2019 WL 4247807, *10 (N.D.N.Y. Aug. 13, 2019) (collecting

cases). Courts in this Circuit have held that "[t]hough a disciplinary appeal is sufficient to exhaust

a claim that Plaintiff was deprived of due process at a disciplinary hearing, 'allegations of staff

misconduct related to the incidents giving rise to the discipline must be grieved.'" Barker v. Smith,

No. 16-CV-76, 2017 WL 3701495, *3 (S.D.N.Y. Aug. 25, 2017 (quoting Scott v. Gardner, 287 F.

Supp. 2d 477, 489 (S.D.N.Y. 2003)).

Magistrate Judge Lovric correctly determined that the appeal of a disciplinary hearing

would not exhaust the claims brought against either Defendant Wlodkowski or Defendant Purdy;

these claims required a separate grievance determination under the IGP as the claims are

allegations of staff misconduct. Furthermore, while Plaintiff did file a grievance on March 7,

2017, asserting that Defendants Wlodkowski and Purdy used the disciplinary process to retaliate

against him, delayed his legal mail, and restricted his access to the law library, see Dkt. No. 80-4

at 22–23, he did not appeal the IGRC's March 22, 2017 dismissal of the grievance after they

determined that Plaintiff was seeking "a decision or an appeal of a decision otherwise attainable

through the disciplinary process." Dkt. No. 80-4 at 37; Dkt. No. 80-5 at 149–50 (excerpt of direct

examination of Plaintiff when he testified he did not appeal the IGRC's decision).

Moreover, Plaintiff does not allege that he failed to meet the exhaustion requirement due

to administrative remedies being unavailable to him. As a frequent litigator and "no stranger to

the IGP," he has not presented any claim that he construed the disciplinary appeal process as a

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substitute for completing the grievance process. See Dabney v. Pegano, 604 Fed. Appx. 1, 5 (2d

Cir. 2015).

Based upon the record before the Court, Defendants have met their burden of showing that

Plaintiff failed to exhaust his administrative remedies with respect to his First Amendment

retaliation claims against Defendants Wlodkowski and Purdy related to the February 2017 MBR

and subsequent disciplinary hearing.

2. Claim against Defendant Annucci

Defendants argue that Plaintiff's Fourteenth Amendment due process claim against

Defendant Annucci should be dismissed because Plaintiff did not fully exhaust his administrative

remedies because he made "no mention of any acts by Defendant Annucci" in his grievances on

the issue of the recommendation for Plaintiff's special condition while on parole. Dkt. No. 80-14

at 12. The Court finds that Magistrate Judge Lovric correctly determined that the Court should

deny this portion of Defendants' motion. See Dkt. No. 85 at 24.

"Because New York's IGP does not articulate an identification requirement, it is plain that

a New York state prisoner is not required to name responsible parties in a grievance in order to

exhaust administration remedies." Espinal v. Goord, 558 F.3d 119, 125 (2d Cir. 2009). "The pro

se prisoner cannot be expected to infer the existence of an identification requirement in the

absence of a procedural rule stating that the grievance must include the names of the responsible

parties." Id. at 127. To satisfy the exhaustion requirement, "inmates must provide enough

information about the conduct of which they complain to allow prison officials to take appropriate

responsive measures." Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004).

Both Plaintiff's April 24, 2018 grievance and his May 28, 2018 grievance relate to

Plaintiff's special conditions of parole, namely, Plaintiff not being provided with Form 9601aCS

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and that the special conditions were imposed for the purpose of harassment and retaliation. See

Dkt. No. 80-4 at 51, 67. Both grievances were eventually appealed to the CORC. See Dkt. No.

80-4 at 55, 76. It is clear from the record that Defendants were provided with sufficient

information, in both grievances, to allow them to take appropriate responsive measures by fully

investigating and responding to Plaintiff's complaints. See Dkt. No. 85 at 22–24. As Defendants

present no alternative argument in favor of awarding summary judgment to Defendant Annucci

based upon exhaustion, the Court denies this portion of Defendants' motion.

C. First Amendment Freedom of Speech and Fourth Amendment Claims

Defendants move for summary judgment on Plaintiff's First Amendment and Fourth

Amendment claims against Defendants Purdy and Jacobsen arguing that these Defendants had

"reasonable cause" to open and confiscate Plaintiff's mail in January 2016, because they

reasonably applied the policies and procedures set forth in DOCCS Directive #4422 and had a

legitimate penological interest in preventing the mailing of contraband. See Dkt. No. 80-14 at

13–15. The Court finds that Magistrate Judge Lovric correctly determined that Defendants'

motion for summary judgment as to these claims should be granted. See Dkt. No. 85 at 31.

The interception of a prisoner's mail has been analyzed under both the First and Fourth

Amendments. See United States v. Felipe, 148 F.3d 101, 108 (2d Cir. 1998). The First

Amendment protects a prisoner's right to the free flow of incoming and outgoing mail, with

greater protection being afforded to outgoing mail. See Davis v. Goord, 320 F.3d 346, 351 (2d

Cir. 2003). The Fourth Amendment establishes that "[t]he right of the people to be secure in their

persons . . . against unreasonable searches and seizures[ ] shall not be violated." U.S. Const.

amend. IV. However, "a prisoner's constitutional rights are limited by the legitimate penological

needs of the prison system." Felipe, 148 F.3d at 107. "The investigation and prevention of

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ongoing illegal inmate activity constitute legitimate penological objectives." United States v.

Workman, 80 F.3d 688, 699 (2d Cir. 1996). Non-legal, outgoing mail may be opened and read by

prison officials with "good cause." Minigan v. Irvin, 977 F. Supp. 607, 609 (W.D.N.Y. 1997)

(citations omitted). Courts in this Circuit have upheld Directive #4422 and DOCCS' policy and

procedure for inspection of outgoing inmate correspondence as reasonably related to legitimate

penological interest. See id.

Directive #4422 generally sets forth DOCCS' correspondence procedures, stating in

relevant part that oversized correspondence "shall be inspected in the presence of the offender by

a designated security staff person for the presence of contraband," and that after inspection,

"[l]egitimate correspondence may be sealed by the offender ..., and the inspecting staff person

shall then sign the back of the envelope or parcel certifying inspection[.]" Dkt. No. 80-6 at 82.

Plaintiff contends that Defendants did not have good cause to open his mail because they failed to

adhere to Directive #4422(III)(B)(9), which he argues requires written authorization from the

Superintendent to open the mail, and that Defendant Purdy did not have written or verbal

authorization to do so. See Dkt. No. 80-5 at 45–46, 50–51. Defendants disagree, claiming that

written authorization is only required for outgoing mail in a standard business envelope. See Dkt.

No. 80-14 at 14. On January 11, 2016, Defendant Purdy states that he was working in the

mailroom when he was presented with an oversized, sealed envelope mailed by Plaintiff. See Dkt.

No. 80-12 at ¶ 5. Defendant Jacobsen attests that she provided verbal authorization to confiscate

and open the sealed, oversized, outgoing mail envelope, based on Plaintiff's failure to comply with

Directive #4422. See Dkt. No. 80-6 at ¶ 14. Plaintiff also alleges that Defendants did not have

reasonable cause to retain his outgoing mail because they failed to adhere to Directive #4422. See

Dkt. No. 80-5 at 41.

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Even assuming the Defendants violated these components of Directive #4422, these facts,

without more, do not result in a constitutional violation. See Long v. Crowley, No. 09-CV-4456A,

2012 WL 1202181, *9 (W.D.N.Y. Mar. 22, 2012). To establish a First or Fourth Amendment

violation, Plaintiff must prove that Defendants lacked "good" or "reasonable" cause to open,

inspect, and confiscate his mail. See id. Based upon the totality of the evidence, the Court agrees

with Magistrate Judge Lovric's determination that Defendants acted with good cause and in the

interest of prison security when they opened and confiscated a sealed, over-sized envelope

addressed to the family member of another inmate, containing legal materials, that was not

produced for inspection prior to mailing or marked as "legal mail." See Dkt. No. 85 at 30; see

also Long, 2012 WL 1202181, at *9. Defendants have articulated legitimate penological

objectives for the prevention of unauthorized inmate communications, including protecting

against the exchange of contraband, the January 2016 occurrence appears to have been an isolated

incident, and Plaintiff has not come forth with evidence that the opening of his non-privileged

mail resulted in any harm.4 See Dkt. No. 85 at 31; see also Minigan, 977 F. Supp. at 610.

Moreover, the record makes clear that Plaintiff even acknowledged that the contents of the

envelope violated Directive #4422, and were thus contraband, because the envelope contained

written material for a different inmate not identified as the sender. See Dkt. No. 80-2 at 293; Dkt.

No. 80-6 at 83.

4 While Plaintiff attempted to create an issue of fact by arguing Defendant Purdy acted

without just cause because he did not return the correspondence with a particular facility form,

this form is dated two years after the incident and, as Plaintiff concedes, does not pertain to the

correspondence at issue. See Dkt. No. 80-3 at 50; Dkt. No. 80-5 at 47, 311; Dkt. No. 85 at 28–29.

As such, the Court finds that the form does not create an issue of fact as to whether Defendants

violated Plaintiff's Fourth Amendment rights .

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Based upon the record before the Court, Defendants have met their burden of showing that

their motion for summary judgment should be granted with regards to Plaintiff's Fourth

Amendment and First Amendment freedom of speech claims.

D. First Amendment Retaliation

"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, 320 F.3d at 352 (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, 558 F.3d at 128 (quoting Gill v. Pidlypchak, 389 F.3d

379, 380 (2d Cir. 2004)).5

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).

5 Defendants do not dispute that Plaintiff engaged in protected activity or that he suffered

adverse actions. See Dkt. No. 80-14 at 16–28.

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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").

1. Claims Related to January 2016 MBR, Disciplinary Hearing, and Appeal

Plaintiff alleges that Defendant Purdy issued a January 2016 MBR and Defendants

Huckeba and Niles rendered subsequent disciplinary determinations with retaliatory animus after

reviewing the contents of Plaintiff's confiscated documents discussed earlier.6 See Dkt. No. 80-5

at 204, 209–10, 326. Defendants argue that Plaintiff has not established a causal connection

between the protected conduct and Defendants' actions and further, that Defendants would have

taken the same action, absent the protected conduct. See Dkt. No. 80-14 at 20–22, 24–25. The

Court agrees with Magistrate Judge Lovric's determination that Plaintiff's allegations are

impermissibly vague, conclusory, and entirely unsupported by competent, admissible facts. See

Dkt. No. 85 at 35. Mere speculation that a defendant acted with retaliatory animus, without more,

6 On January 11, 2016, Defendant Purdy issued a MBR charging Plaintiff with violating

rules related to following Directive # 4422 and legal assistance. See Dkt. No. 80-2 at 262. On

January 20, 2016, Defendant Huckeba presided over a Tier II Disciplinary Hearing related to the

MBR, subsequently finding Plaintiff guilty of both charges. See id. at 259, 260, 266, 287. On

January 21, 2016, Defendant Niles affirmed Defendant Huckeba's determination. See Dkt. No.

80-2 at 291.

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does not support a claim for retaliation. See Dorsey v. Fisher, 486 Fed. Appx. 25, 27 (2d Cir.

2012). Plaintiff has not provided evidence of any connection between Defendants and the

individuals referenced in the confiscated documents. See Flood v. Cappelli, No. 18-CV-3897,

2019 WL 3778736, *8 (S.D.N.Y. Aug. 12, 2019).

As such, the record lacks evidence from which a rationale finder of fact could conclude

that Plaintiff established the third element necessary for his retaliation claims to succeed.

Therefore, the Court grants Defendants' motion for summary judgment as to Plaintiff's retaliation

claim against Defendants Purdy, Huckeba, and Niles related to the January 2016 MBR and

disciplinary hearing/appeal.

2. Claims Related to Inmate Records

Plaintiff alleges that Defendants Jacobsen and Niles denied his requests for a copy of

Inmate Teddy Jeudy's ("Jeudy") records in retaliation for prior grievances, lawsuits, the contents

of the envelope he attempted to mail in January 2016, and because Plaintiff sought Jeudy's records

"for litigation purposes." See Dkt. No. 80-5 at 21, 77, 337–38. Defendants argue that Defendants

Jacobsen and Niles would have denied Plaintiff's request, absent the protected conduct. See Dkt.

No. 80-14 at 25. Plaintiff submitted requests for Jeudy's records that were denied on February 25,

2016, August 10, 2016, and August 23, 2016. See Dkt. No. 80-3 at 161, 163, 165. Defendants

assert that they denied these requests for a variety of reasons: (1) inmates are not permitted to

possess a different inmate's records, see Dkt. No. 80-6 at ¶ 31; (2) Plaintiff could have been

disciplined for possessing Jeudy's records if a random cell search uncovered the documents, see

id.; (3) the Superintendent had already denied this same request, and Plaintiff did not offer any

new facts in his second attempt which would have justified disclosure of another inmate's

disciplinary records, see Dkt. No. 80-11 at ¶ 15; and (4) Plaintiff could have had an attorney

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request certain documents, but no request was made by an attorney. See Dkt. No. 80-6 at ¶¶ 27-

32.

As such, the record lacks evidence undermining Defendants' legitimate, non-retaliatory

reasons for denying Plaintiff's requests for Jeudy's records. See Nieblas v. Ricci, No. 03-CV-6225,

2008 WL 163686, *7 (W.D.N.Y. Jan. 16, 2008). Therefore, the Court grants Defendants' motion

for summary judgment as to Plaintiff's retaliation claims against Defendants Jacobsen and Niles

related to Jeudy's records.

3. Claims Related to Law Library Position

Plaintiff alleges that Defendants Wlodkowski and Niles discharged him from his position

in the law library, in January 2016, in retaliation for filing grievances, lawsuits, and because of the

contents of the envelope he attempted to mail in January 2016. See Dkt. No. 32 at 11; Dkt. No.

80-5 at 321–25; Dkt. No. 85 at 39. Defendants argue that they were not personally involved in the

decision to remove Plaintiff from his position in the law library. See Dkt. No. 80-14 at 23–25.

The Court agrees with Magistrate Judge Lovric that the record lacks evidence that these

Defendants were even aware of Plaintiffs' lawsuits filed prior to January 2016, that Defendants

were not referenced in the grievance Plaintiff filed prior to this discharge, and that there is no

indication that these Defendants were identified in the documents in the January 2016 envelope.

See Dkt. No. 85 at 39.

As such, the record lacks evidence from which a rationale finder of fact could conclude

that Plaintiff established the third element necessary for his retaliation claims to succeed.

Therefore, the Court grants Defendants' motion for summary judgment as to Plaintiff's retaliation

claim against Defendants Wlodkowski and Niles related to Plaintiff's discharge from his law

library position.

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4. Claims Related to February 2017 MBR and Hearing

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

granted as to these claims based on Plaintiff's failure to exhaust his administrative remedies, the

Court will nevertheless address the merits of Plaintiff's First Amendment retaliation claim.

Plaintiff alleges that Defendant Wlodkowski acted with retaliatory animus when he issued the

February 2017 MBR because Plaintiff previously filed a grievance against Wlodkowski in 2016.

See Dkt. No. 80-5 at 213. Defendants argue that Plaintiff has not established a causal connection

between the protected activity and Defendant Wlodkowski's actions, and that he would have taken

the same actions despite the protected conduct. See Dkt. No. 80-14 at 23–24. Plaintiff also

alleges that Defendant Purdy retaliated against him when he found him guilty after a disciplinary

hearing because Plaintiff successfully appealed Defendant Purdy's disciplinary determination

related to the January 2016 MBR. See No. 80-5 at 208. Defendants argue that Defendant Purdy

would also have taken the same actions despite the protected conduct. See Dkt. No. 80-14 at 21,

23–24.

The Court agrees with Magistrate Judge Lovric's determination that, while Plaintiff claims

that Defendant Wlodkowski waged a "campaign of harassment" against him, the record provides

no evidence of any specific act from January 2016 until February 2017 that supports Plaintiff's

claim. See Dkt. No. 80-5 at 125–28; Dkt. No. 85 at 41. Furthermore, it is clear from the record

that Plaintiff admitted to the facts that created the basis for the February 2017 MBR, namely,

providing unauthorized legal assistance and possessing contraband. See Dkt. No. 80-3 at 181,

184; Dkt. No. 80-4 at 5–13. Thus, Defendants have met their burden by demonstrating through

admissible evidence that there is no dispute that Plaintiff committed the prohibited conduct

charged in the misbehavior report, establishing that Defendants would have imposed the same

17

punishment, regardless of the protected conduct. See Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.

2002); Waters v. Prack, No. 9:13-CV-1437, 2012 WL 1239642, *8 (N.D.N.Y. Feb. 24, 2017).

Therefore, the Court grants Defendants' motion for summary judgment as to Plaintiff's retaliation

claims against Defendants Wlodkowski and Purdy as to the February 2017 MBR and hearing on

the merits as well.

5. Claims against Defendant Jacobsen

a. The opening of Plaintiff's January 2016 mail

Plaintiff alleges that Defendant Jacobsen was motivated to retaliate against him when she

directed Defendant Purdy to open his mail in January 2016 because she was aware of his prior

civil rights complaints. See Dkt. No. 80-5 at 21–27. Defendants argue that Plaintiff failed to

establish the causal connection between the protected speech and the adverse action, namely, that

Defendant Jacobsen was unaware of the details surrounding Plaintiff's July 2015 lawsuits when

she authorized the mail to be opened. See Dkt. No. 80-14 at 26. The Court agrees with

Magistrate Judge Lovric's determination that while the six month gap between the filing of

Plaintiff's 2015 lawsuits and the opening of his mail in 2016 suggests a causal connection, it is

insufficient to defeat a motion for summary judgment. See Williams v. King, 763 Fed. Appx. 36,

38–39 (2d Cir. 2019). While Plaintiff alleges that Defendant Jacobsen was aware of the 2015

lawsuits, see Dkt. No. 80-5 at 22–27, the record lacks evidence establishing how or why

Defendant Jacobsen would be motivated to retaliate against Plaintiff due to any prior lawsuit that

did not involve her, or any other officers or staff at Wallkill C.F. See id. at 27. Therefore, the

Court grants Defendants' motion for summary judgment as to Plaintiff's retaliation claim against

Defendant Jacobsen related to the opening of Plaintiff's mail in January 2016.

b. Facility claim

18

Plaintiff alleges that Defendant Jacobsen retaliated against him when she denied his

facility claim because of his prior lawsuits, grievances, and the contents of the envelope he

attempted to mail in January 2016. See Dkt. No. 80-5 at 77. Plaintiff's facility claim was for

compensation in the amount of $5,000.00 – the maximum amount allowed by DOCCS Directive

#2733 – for the mail confiscated in January 2016. See Dkt. No. 80-6 at 93. Defendants argue that

Defendant Jacobsen's decision to deny the facility claim was "for reasons unrelated to retaliation,"

but do not dispute the issues of fact. See Dkt. No. 80-14 at 27–28. The Court agrees with

Magistrate Judge Lovric's determination that Defendant Jacobsen presented sufficient evidence

establishing that she would have taken the same action against Plaintiff, in the absence of

protected conduct, including that Plaintiff failed to provide evidence to support the value of his

papers, and that Plaintiff was "substantially responsible for the loss or damage, specifically

because it was caused by a violation of rules." Dkt. No. 80-6 at ¶ 23. Therefore, the Court grants

Defendants' motion for summary judgment as to Plaintiff's retaliation claim against Defendant

Jacobsen related to Plaintiff's facility claim.

c. Rules 113.23 and 180.17

Plaintiff also alleges a First Amendment retaliation claim against Defendant Jacobsen

based upon the application of DOCCS' Rules 113.23 and 180.17. See Dkt. No. 32 at 39.

Magistrate Judge Lovric found that Defendants did not present any argument in support of

summary judgment on this ground, and, therefore, declined to undertake sua sponte review of this

claim. See Dkt. No. 80 at 43 n.1. While its generally prudent not to engage in sua sponte review,

the Court declines to permit this claim, to the extent that it was even raised, to go forward.

Plaintiff's claim based on the application of DOCCS' Rules 113.23 and 180.17 relates to

the February 2017 MBR. See Dkt. No. 80-13 at ¶¶ 115-31. Since Plaintiff failed to appeal the

19

disciplinary determination, it necessarily follows that Defendant Jacobsen was not personally

involved in any alleged retaliatory application of Rules 113.23 and 180.17. As such, the claim is

dismissed based on her lack of personal involvement. Alternatively, the Court dismisses this

claim based on Plaintiff's failure to exhaust, as set forth above.

Accordingly, the Court rejects Magistrate Judge Lovric's Report-Recommendation and

Order insofar as he declined to review and dismiss this claim.

E. Injunctive and Declaratory Relief

Defendants move for summary judgment on Plaintiff's claims for declaratory and

injunctive relief against Defendant Annucci, in his official capacity, because the requests have

been rendered moot by Plaintiff's release from DOCCS' custody. See Dkt. No. 80-14 at 28–31.

Plaintiff's release from DOCCS' custody on July 19, 2018 moots his claim for prospective

injunctive and declaratory relief. See Ciaprazi v. Jacobson, 719 Fed. Appx. 86, 87 (2d Cir. 2018);

Collins v. Goord, No. 05-CV-39, 2009 WL 1796550, *3 (W.D.N.Y. June 24, 2009) (holding that

the plaintiff's release from prison moots his interest in either an injunction or a declaration

regarding his conditions of confinement). As such, the Court finds that Magistrate Judge Lovric

correctly determined that Defendants' motion for summary judgment as to these claims should be

granted. See Dkt. No. 85 at 47.

F. Special Conditions of Parole

Defendants move for summary judgment on the Fourteenth Amendment due process

claims against Defendants Levandoski, Annucci, and Jacobsen, related to the recommendations

for conditions of Plaintiff's parole, namely, the recommendation of a special condition in which

Plaintiff, after his release, was to have no contact, no communication, and no association by any

20

means with his spouse and his daughter without prior authorization from his parole officer. See

Dkt. No. 80-10 at ¶ 4.

1. Defendant Levandoski

Defendants argue that Defendant Levandoski's recommendations for this special condition

were based upon legitimate state interests, and thus summary judgment of the Fourteenth

Amendment claim is appropriate. See Dkt. No. 80-14 at 34.

"In the Second Circuit, special restrictions on a parolee's rights are upheld where they 'are

reasonably and necessarily related to the interests that the Government retains after his conditional

release.'" Yunus v. Robinson, No. 17-cv-5839, 2019 WL 168544, *20 (S.D.N.Y. Jan. 11, 2019)

(quoting Muhammad v. Evans, No. 11 CV 2113, 2014 WL 4232496, *9 (S.D.N.Y. Aug. 15,

2014)). Conditions will be upheld if there "is a reasonable relationship to the parolee's prior

conduct or to a legitimate government interest such as rehabilitation, the prevention of recidivism

and future offenses, and protection of the public." Id. (citing Singleton v. Doe, 210 F. Supp. 3d

359, 372–74 (E.D.N.Y. 2016)). However, "if conditions are arbitrary and capricious, they will be

invalidated." Id. Furthermore, "parole conditions that bar a parent from all contact with a child or

condition such contact on a parole officer's approval implicate a fundamental liberty interest in a

familial relationship, are subject to strict scrutiny, require individualized justification based on the

threat posed by the defendant to the child, and require that the releasee be given an opportunity to

be heard before their imposition." Maldonado v. Mattingly, No. 11-CV-1091, 2019 WL 5784940,

*10 (W.D.N.Y. Nov. 6, 2019) (citing Doe v. Lima, 270 F. Supp. 3d 684, 703 (S.D.N.Y. 2017)).

Magistrate Judge Lovric determined that, after reviewing the record, material issues of fact

existed as to whether the special conditions of parole are arbitrary and capricious. First,

Magistrate Judge Lovric found that Defendants did not present evidence establishing that the

21

special conditions were related to Plaintiff's robbery conviction. See Dkt. No. 85 at 55.

Magistrate Judge Lovric also found that Defendants have not provided evidence that the special

conditions were narrowly tailored to protect Plaintiff's daughter or his wife, because the record

was devoid of any documentary evidence relating to the 1996 domestic assault charge, there was

no allegation that this charge involved Plaintiff's daughter or his wife, and no Order of Protection

was currently active or any other court order prohibiting or limiting Plaintiff's contact with them.

See Dkt. No. 80-4 at 59, 71; Dkt. No. 32 at 200. Magistrate Judge Lovric also highlighted that

Defendants did not submit evidence contradicting Plaintiff's testimony that he has maintained

"frequent contact, communication, and association" with his family, that they appeared on his

correspondence and telephone lists, that he provided them with financial support through his

facility account, and that he completed a parenting program and was assigned as a clerk to the

parenting program in 2016. See Dkt. No. 32 at 28, 32, 33.

Defendants object to Magistrate Judge Lovric's determination, arguing that Plaintiff has

challenged these conditions in subsequent grievances and a lawsuit against the Parole Board,

rendering his claim superfluous, and that the conditions were reasonably related to Plaintiff's

criminal history. See Dkt. No. 88 at 12. The cases that Defendants cite in objection to Magistrate

Judge Lovric's Report-Recommendation and Order are distinguishable from the matter before the

Court. For example, the court in Muhammad v. Evans did uphold parole conditions that restricted

a parolee from residing with intimate partners and restricted his right to marry; however, the

plaintiff in that case had multiple protective orders against women (including his former wife) that

were in effect at the time the special conditions were determined, and he was convicted for

charges of domestic violence against his ex-fiancée, as well charges of assault, stalking, and

harassment of the same woman. See Muhammad v. Evans, No. 11 CV 2113, 2014 WL 4232496,

22

*9 (S.D.N.Y. Aug. 15, 2014). The court in Walker v. Mattingly upheld parole conditions that

restricted the housing of a parolee who was designated as a Level 3 sex offender. See Walker v.

Mattingly, No. 09-CV-845, 2012 WL 1160772, *2 (W.D.N.Y. Apr. 5, 2012). These cases are

factually different from the present case, where Plaintiff has one domestic assault charge from

twenty-two years prior to the date of his release in July 2018, and one Order of Protection issued

thirteen years prior to the date of his release (which did restrict Plaintiff from the residence,

property, school, or place of employment of Plaintiff's wife and daughter for three months). See

Dkt. No. 80-10 at ¶¶ 5, 8.7

Defendants' argument regarding Defendant Levandoski's role in recommending the

condition, and that this would potentially diminish her responsibility, is also not persuasive. See

Dkt. No. 88 at 9. Officers who make recommendations as to the status of a parolee or their

conditions of parole are frequently made defendants in proceedings and are not free from liability

because the ultimate decision to impose the special condition is made elsewhere. See, e.g.,

Maldonado, 2019 WL 5784940, at *11. Furthermore, while Defendants argue that this matter is

superfluous because of a pending Eastern District of New York case against the ultimate

decisionmakers, no final determination has been made in that case, and Defendant Levandoski is

not a defendant in that case. See Dkt. No. 88 at 11; Dkt. No. 88-2. Furthermore, this case is first

filed and more advanced. See Waters v. Annucci, No. 18-Civ-5452 (E.D.N.Y.). Notably, in the

Eastern District of New York case, Defendants intend to file a motion to dismiss or stay that

proceeding because of the Northern District of New York case. See id., Dkt. No. 32 at 1–2.

7 The Court does agree with Defendants that it is plausible that Plaintiff was not prohibited

from contact with his second child because this child was not born until October 2005, after the

expiration of the March 2005 Order of Protection, and, therefore, he was not possibly included in

the Order of Protection. See Dkt. No. 88 at 13.

23

If the goal of the condition was to protect Plaintiff's wife and daughter, a question of

material fact exists as to whether such a danger has been demonstrated, as well as to whether the

condition represents a greater deprivation than is reasonably necessary. See United States v.

Myers, 426 F.3d 117, 128 (2d Cir. 2005). Therefore, the Court denies Defendants' motion for

summary judgment as to Plaintiff's due process claim against Defendant Levandoski related to the

special conditions of Plaintiff's parole.

2. Defendants Annucci and Jacobsen

Defendants argue that Defendants Annucci and Jacobsen were not personally involved in

the recommended conditions of parole. See Dkt. No. 80-14 at 34. "Personal involvement of

defendants in alleged constitutional deprivations is a prerequisite to an award of damages under

[section] 1983." Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of

Brookfield, 21 F.3d 496, 501 (2d Cir. 1991)). The mere position of a prison official "within the

prison hierarchy is insufficient to establish the official's personal involvement in the alleged

constitutional deprivation." Bloodywone v. Bellnier, 778 Fed. Appx. 52, 53 (2d Cir. 2019) (citing

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).

As Magistrate Judge Lovric correctly determined, Plaintiff's conclusory claims that

Defendant Annucci was personally involved in decisions related to conditions of parole are

insufficient to establish personal involvement. Plaintiff needed to provide sufficient evidence to

establish that Defendant Annucci created, or allowed to continue, a policy or custom under which

the alleged constitutional violation occurred. See Colon, 58 F.3d at 873. There is no evidence in

the record that would permit a jury to find that Defendant Annucci did so, as there is no evidence

suggesting that he was even aware of Plaintiff's claims or that he acted, or failed to act, once

placed on notice of these claims. See Haynes v. Mattingly, No. 06-CV-1383, 2014 WL 4792241,

24

at *9 (S.D.N.Y. Sept. 24, 2014). As such, the Court finds that Magistrate Judge Lovric correctly

determined that Defendants' motion for summary judgment as to Plaintiff's Fourteenth

Amendment due process claim against Defendant Annucci should be granted. See Dkt. No. 85 at

51.

Magistrate Judge Lovric also determined that the claim against Defendant Jacobsen should

survive because genuine issues of material fact exist regarding her personal involvement in the

Fourteenth Amendment claims. Defendants object to Magistrate Judge Lovric's determination,

arguing that she had no involvement in Plaintiff's parole recommendation, nor any input into the

decision made by the Parole Board, and therefore lacked the personal involvement factor required

to succeed on this claim. See Dkt. No. 88 at 14; Dkt. No. 80-6 at ¶ 40.

A supervisory official is deemed to have been personally involved in an alleged

constitutional deprivation when "if, after learning of a violation through a report or appeal, [ ] she

failed to remedy the wrong. . . ." Vega v. Artus, 610 F. Supp. 2d 185, 198 (N.D.N.Y. 2009).

District courts in this Circuit have extended this concept to the denial of a grievance, where the

alleged constitutional violation complained of was "ongoing . . . such that the 'supervisory official

who reviews the grievance can remedy [it] directly.'" Burton v. Lynch, 664 F. Supp. 2d 349, 360

(S.D.N.Y. 2009) (citing Vega, 610 F. Supp. 2d at 198); see also Harnett v. Barr, 538 F. Supp. 2d

511, 524–25 (N.D.N.Y. 2008) ("Some courts have held that if the supervisory official acts

personally in denying a grievance at various stages of the grievance process, he may be

sufficiently involved in failing to remedy this situation"). "If the official is confronted with a

violation that has already occurred and is not ongoing, then the official will not be found

personally responsible for failing to 'remedy' a violation." Id. District courts in this Circuit have

also found personal involvement when a superintendent "provides a detailed and specific response

25

to the grievance rather than a pro forma denial." Johnson v. Fischer, No. 9:12-CV-210, 2015 WL

670429, *8 (N.D.N.Y. Feb. 17, 2015) (citing Burton, 664 F. Supp. 2d at 360).

Plaintiff was incarcerated at Wallkill C.F. when Defendant Jacobson denied two

grievances related to Plaintiff's special conditions of parole. See Dkt. No. 80-5 at 18; Dkt. No. 80-

10 at ¶ 7. The first grievance was denied by Defendant Jacobsen on May 7, 2018. See Dkt. No.

80-4 at 76. The second grievance was denied by Defendant Jacobsen on May 28, 2018. See Dkt.

No. 80-4 at 55. Both denials issued by Defendant Jacobsen were more than simply pro forma

denials. Moreover, Plaintiff's grievances involved alleged ongoing constitutional violations.

Therefore, Plaintiff has presented a triable issue of fact that Defendant Jacobsen was personally

involved in the alleged constitutional violations. As such, the Court finds that Magistrate Judge

Lovric correctly determined that Defendants' motion for summary judgment as to Plaintiff's

Fourteenth Amendment due process claim against Defendant Jacobson should be denied. See

Dkt. No. 80 at 53.

G. Qualified Immunity8

Defendants also move for summary judgment on all claims based on the doctrine of

qualified immunity. Magistrate Judge Lovric considered these arguments only as to whether

Defendants Jacobsen and Levandoski are shielded from liability based on the doctrine of qualified

immunity. See Dkt. No. 85 at 56–59. Magistrate Judge Lovric determined that Defendants

Jacobsen and Levandoski are not shielded by qualified immunity because the special conditions of

8 To the extent that Defendants move for summary judgment for all claims based on the

doctrine of qualified immunity, the Court will only consider these arguments for claims that

survived the above analysis. See Posr v. City of New York, No. 10 CIV 2551, 2013 WL 2419142,

*10 n.8 (S.D.N.Y. June 4, 2013) ("Because [the defendant] did not violate [the] [p]laintiff's

[constitutional] rights, there is no need to consider if [the defendant] is entitled to qualified

immunity"), aff'd sub nom. Posr v. Ueberbacher, 569 Fed. Appx. 32 (2d Cir. 2014).

26

Plaintiff's parole do not appear to be justified or tailored to Plaintiff's circumstances. See Dkt. No.

85 at 58. Defendants object to Magistrate Judge Lovric's Report-Recommendation and Order,

arguing that Defendants' conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known. See Dkt. No. 88 at 16. Defendants also

object insofar as they allege that Plaintiff's claims do not support an inference that it would not

have been objectively reasonable for officials in Defendants' positions to believe their conduct did

not violate Plaintiff's federal rights. See id.

"The doctrine of qualified immunity shields public officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known." Salahuddin v. Goord, 467 F.3d 263, 273

(2d Cir. 2006) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

For a constitutional right to be "clearly established" for purposes of

determining whether an officer is entitled to qualified immunity, the

"contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.

This is not to say that an official action is protected by qualified

immunity unless the very action in question has previously been

held unlawful, but it is to say that in the light of pre-existing law the

unlawfulness must be apparent."

Mollica v. Volker, 229 F.3d 366, 370–71 (2d Cir. 2000) (quoting Anderson v. Creighton, 483 U.S.

635, 640 (1987)) (emphasis in original). "Where the right at issue in the circumstances

confronting [officials] ... was clearly established but was violated, the officers will nonetheless be

entitled to qualified immunity 'if ... it was objectively reasonable for them to believe their acts did

not violate those rights.'" Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir. 2007) (quotation and

other citation omitted).

27

"Although a mere mistake in the performance of an official duty may not deprive the

officer of qualified immunity, the doctrine does not shield performance that either (a) was in

violation of clearly established law, or (b) was plainly incompetent." Manganiello v. City of New

York, 612 F.3d 149, 165 (2d Cir. 2010) (citations omitted). "With respect to both the legal

question and the matter of competence, the officials' actions must be evaluated for objective

reasonableness.... That is, '[e]ven if the right at issue was clearly established in certain respects ...

an officer is still entitled to qualified immunity if "officers of reasonable competence could

disagree" on the legality of the action at issue in its particular factual context.'" Id. (quotations

omitted).

The determination of whether an official's conduct was objectively reasonable is a mixed

question of law and fact. See Zellner, 494 F.3d at 367 (citing Kerman v. City of New York, 374

F.3d 93, 109 (2d Cir. 2004)) (other citations omitted). "The ultimate question of whether it was

objectively reasonable for the officer to believe that his conduct did not violate a clearly

established right, i.e., whether officers of reasonable competence could disagree as to the

lawfulness of such conduct, is to be decided by the court." Id. (citation omitted). "However, '[a]

contention that ... it was objectively reasonable for the official to believe that his acts did not

violate those rights has "its principle focus on the particular facts of the case."'" Id. (quotation and

other citations omitted).

If there is no dispute as to any material fact, the issue of whether the official's conduct was

objectively reasonable is an issue of law to be decided by the court. See id. at 368 (citation

omitted). Any unresolved factual issues, however, must be resolved by the jury. See id. (quoting

Kerman, 374 F.3d at 109) (other citations omitted). Once the court has received the jury's

decision as to "what the facts were that the officer faced or perceived," the court must then "make

28

the ultimate legal determination of whether qualified immunity attaches on those facts."

Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (quotation omitted); see also Lennon v. Miller,

66 F.3d 416, 421 (2d Cir. 1995) (quotation omitted).

The Court agrees with Magistrate Judge Lovric's determination that Defendants Jacobsen

and Levandoski are not entitled to qualified immunity as to Plaintiff's Fourteenth Amendment due

process claim regarding the recommended conditions of parole. As discussed previously, other

cases in this Circuit have held that restrictions on a parent's "fundamental liberty interest in

maintaining a relationship with his [ ] child . . . [who] has a reciprocal interest . . . are subject to

strict scrutiny and as such must be narrowly tailored to serve a compelling state interest[,] and that

these standards apply to parole conditions akin to those here." Lima, 270 F. Supp. 3d at 711

(citing Doe v. Annucci, No. 14 Civ. 2953, 2015 WL 4393012, *11–15 (S.D.N.Y. July 15, 2015)).

"This was not a case in which there was 'an objectively reasonable basis for the[] decision,

whichever way they make it.'" Id. (quoting Doe ex rel. Doe v. Whelan, 732 F.3d 151, 155 (2d Cir.

2013) (emphasis in original)).

Based on the record before the Court, there are genuine issues of material fact as to

whether the behavior of these Defendants fell outside the protection that qualified immunity

extends to good-faith judgment calls. See id. As such, the Court finds that Magistrate Judge

Lovric correctly determined that Defendants' motion for summary judgment as to qualified

immunity should be denied as to Plaintiff's Fourteenth Amendment due process claim regarding

his conditions of parole. See Dkt. No. 85 at 58.

IV. CONCLUSION

After carefully considering Magistrate Judge Lovric's Report-Recommendation and Order,

the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby

29

ORDERS that Magistrate Judge Lovric's February 13, 2020 Report-Recommendation and

Order is ADOPTED in part and REJECTED in part;’ and the Court further

ORDERS that Defendants' motion for summary judgment (Dkt. No. 80) is GRANTED in

part and DENIED in part;'° and the Court further

ORDERS 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 31, 2020 J) □ Uf

Albany, New York Mae A. D'Agostino”

U.S. District Judge

» The Report-Recommendation and Order is only rejected insofar as 1t recommended not

dismissing Plaintiff's First Amendment retaliation claim against Defendant Jacobsen relating to

the application of DOCCS' Rules 113.23 and 180.17.

’ Asa result of this Memorandum-Decision and Order, the only remaining claim is

Plaintiff's Fourteenth Amendment due process claim against Defendants Jacobsen and Levandoski

as to Plaintiff's recommended conditions of parole.

30