Hendricks v. Mallozzi

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

____________________________________________

ANDREW HENDRIKS,

Plaintiff,

vs. 9:20-CV-1035

(MAD/ML)

C. DELUTIS, Captain of Security, Clinton

Correctional Facility

Defendant.

____________________________________________

APPEARANCES: OF COUNSEL:

ANDREW HENDRIKS

Green Haven Correctional Facility

Post Office Box 4000

Stormville, New York 12582

Plaintiff, Pro Se

OFFICE OF THE NEW YORK BRENDA BADDAM, AAG

STATE ATTORNEY GENERAL

The Capitol

Albany, New York 12224

Attorneys for Defendant

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

ORDER

On September 3, 2020 pro se Plaintiff commenced this civil rights action against

Defendants Bell, Delutis, Holdridge, and Mazzoli and filed a motion to proceed in forma pauperis

("IFP"). Dkt. Nos. 1, 2. Plaintiff filed an amended complaint on November 18, 2020, alleging he

was removed from his position in the Clinton Correctional Facility Annex tailor shop in

retaliation for filing a grievance against Correctional Officer Ayotte. Dkt. No. 8. On March 23,

2022, the Court adopted an Order and Report-Recommendation by Magistrate Judge Lovric

granting Defendants' motion to dismiss Plaintiff's amended complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) with respect to Defendants Holdridge, Bell, and Mazzoli. Dkt. No. 30.

Plaintiff's motion to appoint counsel was denied without prejudice on April 15, 2022. Dkt. No.

34. Currently before the Court is Defendant Delutis' motion for summary judgment pursuant to

Federal Rule of Civil Procedure 56. Dkt. No. 46.

In his motion for summary judgment, Defendant Delutis argues Plaintiff's retaliation claim

fails as a matter of law because (1) Plaintiff's allegation does not meet the heightened burden to

establish a causal connection, (2) temporal proximity alone is insufficient to establish an inference

of retaliation at the summary judgment stage, (3) Plaintiff does not have a constitutional right to a

particular prison job and removal was proper pursuant to DOCCS Directive 4803, and (4)

Plaintiff's familiarity with staff was a legitimate, non-retaliatory reason for removing Plaintiff

from the position because it created a security concern in a security sensitive area. In the

alternative, Defendant Delutis argues that he is entitled to qualified immunity.

In opposition to Defendant Delutis' motion, Plaintiff argues (1) he has established a causal

connection between the protected conduct and adverse action, (2) Defendant did not have a

legitimate reason to remove him from the program, and (3) Defendant is not entitled to qualified

immunity. In a supplemental letter filed on February 27, 2023, Plaintiff further argues Defendant

Delutis did not seek and obtain the required approval before removing Plaintiff from the program,

and that Defendant has not produced documentation that prompted Defendant's removal of

Plaintiff from the program.

In an Order and Report-Recommendation issued on May 9, 2023, Magistrate Judge Lovric

recommended that Defendant's motion for summary judgement be denied. Neither party has

objected to the Order and Report-Recommendation.

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

district court makes 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). However,

when a party declines to file objections or files "[g]eneral or conclusory objections or objections

which merely recite the same arguments [presented] to the magistrate judge," the court reviews

those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846,

*1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted); see also McAllan v. Von Essen,

517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). 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).

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, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (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, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (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, 477

U.S. at 252). "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

Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (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. (citation omitted). 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 Carey v.

Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).

To prevail on a First Amendment retaliation claim, an inmate must establish (1) that the

speech or conduct at issue was protected,1 (2) that the defendant took adverse action against the

plaintiff,2 and (3) that there was a causal connection between the protected conduct and the

adverse action. Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir. 2020) (cleaned up). As the Second

Circuit has repeatedly cautioned, 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) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other

grounds by Swierkiewicz v. Sorema N.A,, 534 U.S. 506 (2002)); see also Phelps v. Kapnolas, 308

F.3d 180, 187 n.6 (2d Cir. 2002).

To establish a causal connection between protected activities and the adverse action, the

court may consider a number of factors, including (1) the outcome of any hearing concerning

the allegedly retaliatory charges; (2) the inmate's prior disciplinary record; (3) any statements

made by the defendant concerning his motivation; and (4) the temporal proximity between the

protected activity and the defendant’s adverse action. Williams v. Muller, 98-CV-5204, 2001

1 The use of the prison grievance system is constitutionally protected conduct under the First

Amendment. Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004); see Graham v. Henderson, 89

F.3d 75, 80 (2d Cir. 1996) (holding that retaliation against a prisoner for pursuing a grievance

violates the right to petition the government for redress of grievances guaranteed by the First and

Fourteenth Amendments and is actionable under § 1983).

2 Adverse action for the purposes of a retaliation claim has been defined as retaliatory conduct that

would deter a similarly situated individual of ordinary firmness from exercising . . . constitutional

r ights . . . otherwise the retaliatory act is simply de minimis and therefore outside the ambit of

constitutional protection. Davis, 320 F.3d at 353 (citing Dawes, 239 F.3d at 493).

WL 936297, *3 (S.D.N.Y. Aug. 17, 2001) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d

Cir. 1995) abrogated, in part, on other grounds by Tangreti v. Bachmann, 983 F.3d 609 (2d

2020)). However, with respect to temporal proximity at the summary judgment stage, the

Second Circuit has consistently required some further evidence of retaliatory animus before

permitting a prisoner to proceed to trial on a retaliation claim. Washington v. Afify, 681 Fed.

Appx. 43, 46 (2d Cir. 2017).

In the present matter, the Court finds that Magistrate Judge Lovric correctly found that

Defendant's motion for summary judgment should be denied.

As to Defendant's motion for summary judgment on the grounds that Plaintiff fails to

establish a causal connection between the protected conduct and adverse action, Magistrate Judge

Lovric correctly found that Defendant's motion for summary judgment should be denied.

Defendant conceded that Plaintiff engaged in constitutionally protected speech by filing a

grievance, and Defendant did not contest whether removing Plaintiff from his position was an

adverse action. Dkt. No. 46; see also Davis v. Goord, 320 F.3d at 352-53 (determining the filing

of prison grievances is a constitutionally protected activity). Particularly, Magistrate Judge

Lovric correctly found the alleged protected conduct and adverse action occurred within a

sufficiently close time to support an inference of retaliation. See Espinal v. Goord, 558 F.3d 119,

129 (2d Cir. 2009) (citing Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir.

2001) (suggesting the lapse of five months between protected activity and retaliation may show a

causal connection). Here, Defendant was involved in the investigation of Plaintiff's grievance and

failed to identify when he became aware of Plaintiff's grievance between the time it was filed by

Plaintiff and received by Defendant. See Dkt. No. 46. Furthermore, Plaintiff identified additional

evidence from which a causal connection could be inferred, and there are sufficient facts on the

record from which a fact finder could conclude that Defendant retaliated against Plaintiff. Dkt.

No. 46, Attach. 4 at ¶¶ 41-49, 58.

As to Defendant's argument he would have taken the same action in absence of improper

motive, Magistrate Judge Lovric correctly found that Defendant's motion should be denied.

Magistrate Judge Lovric correctly found that questions of fact exist as to whether Defendant had a

legitimate non-retaliatory reason for Plaintiff's removal from the program which he would have

taken in absence of an improper motive. See Greer v. Mehiel, 805 Fed. Appx. 25, 29 (2d Cir.

2020) (citing Scott v. Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003)) (noting a defendant may be

entitled to summary judgment if he can show dual motivation, i.e., that even without the improper

motivation the alleged retaliatory action would have occurred). Here, Defendant failed to

establish Plaintiff's change of assignment was due to legitimate security concerns. See e.g.,

Woods v. Chadwick, No. 21-CV-0662, 2023 WL 2864805, *5 (N.D.N.Y. Jan. 30, 2023)

(dismissing the plaintiff’s retaliation claim where it was beyond dispute that plaintiff’s discipline .

. . would have been pursued and imposed even in the absence of any retaliatory motive where the

plaintiff acknowledged that he violated the established rules and procedures), report and

recommendation adopted by, 2023 WL 2568890 (N.D.N.Y. Mar. 20, 2023). A reasonable juror

could reject Defendant's claimed reason for Plaintiff's change of assignment based on the

evidence that Defendant did not take any action to remove Plaintiff from his assignment until

approximately three months after Plaintiff's close relationship with staff members, which

presented the alleged security concern, became apparent, and ten days after Defendant was

instructed that Plaintiff posed such security threat. Dkt. No. 46, Attach. 3 at 26-27; Dkt. No. 48,

Attach. 1 at 6 [citing Dkt. No. 46, Attach. 4 at ¶ 50]).

Magistrate Judge Lovric further correctly found that Defendant Delutis' motion for

summary judgment should be denied because Defendant is not entitled to qualified immunity.

The case presents disputed issues of fact as to whether it was objectively reasonable for

Defendant to believe that removing Plaintiff from his assignment at the tailor shop was lawful.

See Hartline v. Gallo, 546 F.3d 95, 102 (2d Cir. 2008); see also Thomas v. Roach, 165 F.3d 137,

143 (2d Cir. 1999) (finding summary judgment on the basis of qualified immunity is

inappropriate when facts material to the determination of reasonableness remain in dispute). In

particular, qualified immunity would be improper in this case because there are disputed facts as

to the reasonableness of Defendant’s belief that his conduct did not constitute retaliation in regard

to when Defendant became aware of Plaintiff’s grievance, and whether any DOCCS policies or

directives were violated in the removal of Plaintiff from his assignment in the tailor shop. See

Weyant v. Okst, 101 F.3d 845, 858 (2d Cir. 1996) (holding that matter of officers' qualified

immunity could not be resolved as a matter of law because determination of whether it was

reasonable for officers to believe their actions met established legal principles depended on

disputed versions of facts).

Accordingly, the Court hereby

ORDERS that Defendant's motion for summary judgment is DENIED; and the Court

further

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in

accordance with Local Rules.

IT IS SO ORDERED.

Dated: July 24, 2023

Albany, New York