# Walker v. Cuomo

> District Court, N.D. New York · April 24, 2023

URL: https://www.frixlaw.com/law-library/cases/10327158

## Case

- **Court:** District Court, N.D. New York
- **Decided:** April 24, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10327158

## How later opinions describe it (automated extraction)

- reasoning that “not telling Ford when or how Officer Law planned to poison him” could have enhanced its effectiveness as a threat and increased the likelihood that a person of ordinary firmness would be deterred from filing additional grievances”

## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

CARLTON WALKER,

Plaintiff, 9:20-cv-0082
(AMN/CFH)
v.

RICHARD SENECAL,

Defendant.

APPEARANCES: OF COUNSEL:
CARLTON WALKER
85-A-155920-82
Franklin Correctional Facility
P.O. Box 10
Malone, NY 12953
Plaintiff, Pro Se

ATTORNEY GENERAL FOR THE
STATE OF NEW YORK MARK G. MITCHELL, ESQ.
The Capitol Assistant Attorney General
Albany, NY 12224-0341
Attorney for Defendant
Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On January 23, 2020, Plaintiff pro se Carlton Walker, an inmate in the custody of the New
York State Department of Corrections and Community Supervision (“DOCCS”), commenced this
action pursuant to 42 U.S.C. § 1983, alleging various violations of his constitutional rights at
DOCCS facilities, including Bare Hill Correctional Facility (“Bare Hill C.F.”). See Dkt. No. 1
(“Complaint” or “Compl.”). Plaintiff sought leave to proceed in forma pauperis, Dkt. No. 2, which
was denied pursuant to the “three strikes” provision of 28 U.S.C. § 1915(g). See Dkt. No. 6.
Following an initial review of the Complaint, the Court dismissed all of the claims
contained therein, except for the First Amendment retaliation claims against Corrections Officers
Richard Senecal (“Senecal”) and Brian Benware (“Benware”) (collectively, the “Defendants”).
See Dkt. No. 6. Defendants filed a motion to dismiss on September 25, 2020. See Dkt. No. 32.
On July 19, 2021, Magistrate Judge Hummel issued a Report-Recommendation and Order (“July

19, 2021 Report-Recommendation”), recommending that Defendants’ motion to dismiss be
granted in part and denied in part. Dkt. No. 38. On August 26, 2021, the Court adopted the July
19, 2021 Report-Recommendation in its entirety. Dkt. No. 42. Consequently, the Court dismissed
Plaintiff’s (i) First Amendment retaliation claims against Senecal based on (a) missed meals, (b)
access to the mess hall, (c) pat frisks, and (d) verbal harassment claims related to a diet card and
recreation; and (ii) First Amendment retaliation claim against Benware. See id. Therefore, the
only remaining claim in this action is Plaintiff’s First Amendment retaliation claim against Senecal
based on Senecal’s alleged destruction of legal materials and verbal threat to Plaintiff. Id.
On May 27, 2022, Defendant Senecal filed a motion for summary judgment. Dkt. No. 58.

Plaintiff filed his opposition on July 8, 2022, Dkt. No. 62, and Senecal filed a reply on July 29,
2022, Dkt. No. 63. On January 27, 2023, Magistrate Judge Hummel issued a Report-
Recommendation and Order (“January 27, 2023 Report-Recommendation”), recommending that
Senecal’s motion for summary judgment be granted. Dkt. No. 67. Plaintiff filed a letter dated
February 10, 2023, seeking an extension to file objections to the January 27, 2023 Report-
Recommendation, see Dkt. No. 68, which the court granted on February 15, 2023, see Dkt. No.
69. Thereafter, Plaintiff timely submitted objections to the January 27, 2023 Report-
Recommendation,1 see Dkt. No. 70, and Senecal filed a response on March 9, 2023, see Dkt. No.
71.
Currently before this Court is Magistrate Judge Hummel’s January 27, 2023 Report-
Recommendation, Plaintiff’s objections thereto, and Defendant Senecal’s response to Plaintiff’s
objections. Plaintiff objects to Magistrate Judge Hummel’s recommendation that the Court grant

Senecal’s motion for summary judgment on a number of grounds.2 See Dkt. No. 70. Senecal
argues in response that (i) the Court should ignore Plaintiff’s objections because his objections
exceeded 25 pages in length; and (ii) Plaintiff’s objections “largely reiterate[] the arguments” made
in his opposition to Senecal’s motion for summary judgment.3 Dkt. No. 71.
For the reasons stated herein, the Court adopts the recommendation in the January 27, 2023
Report-Recommendation, and orders that Defendant Senecal’s motion for summary judgment is
granted.

1 In the future, Plaintiff is cautioned to comply with Local Rule 7.1(b)(1), which provides, “[n]o
party shall file or serve a memorandum of law that exceeds twenty-five (25) pages in length,
double-spaced, unless that party obtains leave of the judge hearing the motion prior to filing.”
Plaintiff’s objections, while hand-written, exceed this page limit and Plaintiff failed to obtain leave
of the Court before filing.
2 Broadly construing Plaintiff’s objections, he principally objects to Magistrate Judge Hummel’s
analysis of the second and third prongs of the three-part test required to establish a First
Amendment retaliation claim under 42 U.S.C. § 1983. Plaintiff also asserts various other
arguments that are wholly unrelated to the analysis contained in the January 27, 2023 Report-
Recommendation. To the extent that these additional arguments can be construed as objections to
the January 27, 2023 Report-Recommendation, such objections merely reiterate allegations made
in the Complaint, or are conclusory. Accordingly, the Court has reviewed the remainder of the
January 27, 2023 Report-Recommendation for clear error and found none.
3 The Court disagrees with Senecal’s position that all of Plaintiff’s objections largely reiterate
arguments raised in the opposition to the summary judgment motion. Given Plaintiff’s pro se
status and the special solicitude afforded therewith, the Court finds that Plaintiff identified specific
portions of the January 27, 2023 Report-Recommendation that he contends are erroneous and has
provided bases for his contentions. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156
(2d Cir. 2017) (“[W]e liberally construe [submissions] by pro se litigants, reading such
submissions to raise the strongest arguments they suggest.”) (quotation marks omitted).
II. BACKGROUND4
Plaintiff’s allegations against Defendant Senecal stem from a single encounter by the
entrance of the mess hall at Bare Hill C.F. on an unspecified date in September 2017. See Compl.
at ¶ 435. Plaintiff alleges that he was carrying a “big stack” of legal materials in a net bag to the
mess hall, at which point, Senecal, who was standing by the entrance of the mess hall, read through

these legal materials to see if Plaintiff had another inmate’s legal materials in his possession. Id.
at ¶¶ 435, 437. According to Plaintiff, while Senecal was reading through the legal materials, he
came across Plaintiff’s “Civil Rights Complaint, which was pending in the United States District
Court, Northern District of New York, before Hon. Thomas McAvoy, Senior United States District
Judge,” id. at ¶ 439, challenging the prison conditions and advancing an “innocence” claim, Dkt.
No. 58-2 at 66, 72. Senecal proceeded to “rip[] out the first 18 Pages of the Plaintiff’s 88 page[]
Civil Rights Complaint, in which Acting Commissioner Annucci, and Superintendent Yelich are
named defendants, challenging the prison’s condition as unconstitutional, including the Messhall
(sic), a post which Officer Senecal works.” Compl. at ¶ 440. Plaintiff testified that the document

Senecal allegedly partially destroyed was an amended complaint that he intended to file in a case
pending before Judge McAvoy in this district.5 Dkt. No. 58-2 at 72-73, 75. Plaintiff further
testified that because Senecal ripped out the “first 18 Pages of [his] . . . Civil Rights Complaint,”
his complaint was “invalidated” and “cost [him his case].” Compl. at ¶ 440; see Dkt. No. 58-2 at

4 Plaintiff’s factual allegations are detailed in the January 27, 2023 Report-Recommendation. See
Dkt. No. 67 at 2-4. The Court has only included herein the relevant factual allegations necessary
for its de novo review of the portions of the Report-Recommendation to which Plaintiff has
specifically objected.
5 On September 11, 2017, Plaintiff filed an 88-page amended complaint in the case Walker v.
Cuomo et al., 9:17-cv-00650, which is the only action brought by Plaintiff over which Judge
McAvoy presided. That action was ultimately dismissed without prejudice for Plaintiff’s failure
to pay the filing fee.
73, 106-107. During the alleged destruction of the legal materials, Plaintiff informed Senecal that
he intended to file a grievance “about the fact that [Senecal] ripped out Page 1 through 18 of
[Plaintiff’s] 88 Pages (sic) Civil Rights Complaint,” to which Senecal allegedly responded by
saying that if Plaintiff ever put his name on any grievances stating that Senecal ripped out those
18 pages, he would make sure that Plaintiff would “end up dead or in the Box.”6 See Compl. at ¶

449. Plaintiff also testified that he filed a grievance regarding Senecal’s verbal threat and
destruction of legal materials. Dkt. No. 58-2 at 94-96.
III. STANDARD OF REVIEW
A. Summary Judgment
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). “The ‘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.’” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (emphasis in original). In
other words, “a nonmoving party must offer some hard evidence showing that its version of the
events is not wholly fanciful.” Id. (quotation omitted). Moreover, the court “cannot try issues of
fact; it can only determine whether there are issues to be tried.” See Chambers, 43 F.3d at 36-37
(quotation and citation omitted). Any assessments of credibility and all choices between available

6 The Court understands the “Box” to mean keeplock confinement. See Dkt. No. 58-2 at 95-96
(explaining that the “Box” is synonymous with the Special Housing Unit).
inferences are matters to be left for a jury, not matters to be decided by the Court on summary
judgment. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (citing Fed. R. Civ. P. 56(c), (e)).
In assessing the record to determine whether any issues of material fact exist, the court is
required to resolve all ambiguities and draw all reasonable factual inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing, inter alia, Anderson, 477 U.S. at 255).

Where a party is proceeding pro se, like here, the court must “read his supporting papers liberally,
and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994); accord Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). “However,
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)
(quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B. Review of a Report-Recommendation
A district court reviews de novo those portions of a magistrate judge’s report-
recommendation that have been properly preserved with a specific objection. 28 U.S.C.

§ 636(b)(1)(C). “To be ‘specific,’ the objection must, with particularity, ‘identify [1] the portions
of the proposed findings, recommendations, or report to which it has an objection and [2] the basis
for the objection.’” Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012) (alteration in
original) (quoting N.D.N.Y. Local Rule 72.1(c)). When a party files “[g]eneral or conclusory
objections, or objections which merely recite the same arguments [previously] presented to the
magistrate judge,” the district court reviews a magistrate judge’s report-recommendations for clear
error. O’Diah v. Mawhir, No. 9:08-CV-322 (TJM)(DRH), 2011 WL 933846, at *1 (N.D.N.Y.
Mar. 16, 2011) (citations omitted); accord Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766
(2d Cir. 2002) (a “statement, devoid of any reference to specific findings or recommendations to
which [the plaintiff] objected and why, and unsupported by legal authority, was not sufficient to
preserve” a claim).
“[I]n a pro se case, like here, 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. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972))

(additional citations omitted). The Second Circuit has held that courts are 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)). That said, “even a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s
proposal . . . .” Machicote v. Ercole, No. 06 Civ. 13320 (DAB)(JCF), 2011 WL 3809920, at *2,
(S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No. 1:22-cv-567
(BKS/CFH), 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After 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).
IV. DISCUSSION
Plaintiff has specifically and timely objected to Magistrate Judge Hummel’s
recommendation that Defendant Senecal’s motion for summary judgment on Plaintiff’s First
Amendment claim be granted. Thus, the court reviews this recommendation de novo. Because
Plaintiff’s First Amendment retaliation claim against Senecal based on the alleged destruction of
legal materials and verbal threat fails as a matter of law, the Court adopts Magistrate Judge
Hummel’s recommendation to grant Senecal’s motion for summary judgment. Plaintiff’s claim
fails as a matter of law because he cannot establish—even if true—that Senecal’s destruction of
legal materials and verbal threat falls within the ambit of actionable First Amendment retaliation.
“To prevail on a First Amendment retaliation claim, an inmate must establish (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 conduct and the adverse

action.” Hayes v. Dahlke, 976 F.3d 259, 272 (2d Cir. 2020) (internal quotation marks and citations
omitted). That is, to defeat summary judgment, Plaintiff “bears the burden of showing, first, that
he engaged in constitutionally protected conduct and, second, that the conduct was a substantial or
motivating factor for the adverse actions taken by prison officials.” Bennett v. Goord, 343 F.3d
133, 137 (2d Cir. 2003) (citations omitted). “[B]ecause prisoner retaliation claims are easily
fabricated, and accordingly pose a substantial risk of unwarranted judicial intrusion into matters
of general prison administration, [courts] are careful to require non-conclusory allegations.” Id.
(internal quotation marks omitted). Therefore, courts must approach claims of retaliation “‘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) (citations omitted).
a. Destruction of Legal Materials
Plaintiff alleges that Senecal destroyed a portion of his legal materials—18 pages of a
federal civil rights complaint—because Plaintiff intended to pursue a lawsuit challenging, among
other things, the conditions at Bare Hill C.F.7 Compl. at ¶ 440. To start, there is no dispute that

7 During his deposition, Plaintiff offered an alternative reason for Senecal’s alleged destruction of
his legal materials. Specifically, he testified that while Senecal was allegedly destroying his legal
materials, Senecal stated that Plaintiff should not be using the prison law library to work on his
Plaintiff’s federal civil rights complaint challenging, among other things, prison conditions
constitutes protected speech. Prisoners have a right to petition the government for redress of
grievances, and prison officials may not retaliate against inmates for exercising that right. See
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (citation omitted). The right to petition the
government for redress of grievances includes the right to file lawsuits as well as the right to pursue

administrative grievances. See Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988). Thus, Plaintiff
has satisfied the first prong necessary to establish a retaliation claim under 42 U.S.C. § 1983. See
Hayes, 976 F.3d at 272.
As to the second prong, even if true, Senecal’s alleged destruction of 18 pages of Plaintiff’s
federal civil rights draft amended complaint does not rise to the level of an adverse action. To be
an “adverse action,” retaliatory conduct must be the type that would deter “a similarly situated
individual of ordinary firmness from exercising his or her constitutional rights.” Davis, 320 F.3d
at 353 (internal quotation marks and citations omitted). “[T]his objective test applies even where
a particular plaintiff was not himself subjectively deterred; that is, where he continued to file

grievances and lawsuits.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004). Courts “look to
the specific circumstances in which retaliation claims arise, ‘bearing in mind that prisoners may
be required to tolerate more than average citizens, before a retaliatory action taken against them is
considered adverse.’” Hayes, 976 F.3d at 272 (quoting Davis, 320 F.3d at 353) (internal quotation
marks and alterations omitted).
Retaliatory destruction of a prisoner’s personal property can qualify as an adverse action
when there is at least a “substantial amount” of personal property destroyed. See Smith v. City of

own civil rights lawsuit because as an employee of the law library Plaintiff is only supposed to
assist other inmates with their legal issues. See Dkt. No. 58-2 at 76-80.
New York, No. 03-CV-7576(NRB), 2005 WL 1026551, at *3 (S.D.N.Y. May 3, 2005) (finding
adverse action where the defendant was missing “nine hundred dollars’ worth of personal
property” and a “substantial amount of his legal materials from his cell and locker,” including
criminal case materials such as motions drafted by defendant’s attorney and grand jury minutes,
as well as civil case materials including copies of his complaints in the actions, docket sheets, a

pro se book, a jailhouse lawyer’s manual, and various motions). However, destruction of an
inmate’s property is not actionable where it is merely a de minimis act of retaliation. See Davis v.
Jackson, 15-CV-5359, 2018 WL 358089, at *11 (S.D.N.Y. Jan. 8, 2018) (“The one-time taking of
Plaintiff’s belt [was] a de minimis action and does not constitute an adverse action.”); Fann v.
Arnold, No. 14-CV-6187, 2016 WL 2858927, at *2 (W.D.N.Y. May 16, 2016) (holding that the
plaintiff’s allegation of property destruction “constitute[d] a de minimis act of retaliation” where
the plaintiff had alleged that “all of his property was thrown in the shower”). De minimis acts of
retaliation do not chill the exercise of constitutional rights and are insufficient to support a First
Amendment retaliation claim. See Davidson v. Chestnut, 193 F .3d 144, 150-51 (2d Cir. 1999).

The Court recognizes the effort required for an inmate to author a civil rights complaint,
however, even with this recognition, the Court finds that the destruction of 18 pages of Plaintiff’s
draft amended complaint is de minimis. Apparently, Plaintiff was not deterred from filing his 88-
page amended complaint, and the Court thinks it equally unlikely that an “individual of ordinary
firmness” would have been deterred. Davis, 320 F.3d at 353. Therefore, because there is no
legally cognizable adverse action, Plaintiff’s First Amendment retaliation claim based on the
alleged destruction of legal materials fails.
b. Verbal Threat
Plaintiff’s First Amendment retaliation claim based on Defendant Senecal’s alleged verbal
threat fares no better. Plaintiff contends that Senecal stated that he would make sure that Plaintiff
would “end up dead or in the Box” if Plaintiff filed a grievance against him based on the alleged
destruction of Plaintiff’s legal materials. Compl. at ¶ 449. Because the filing of a grievance is

protected speech, the first prong of the three-part test necessary to establish a retaliation claim
under 42 U.S.C. § 1983 is met. See Hayes, 976 F.3d at 272.
However, with respect to the second prong, Plaintiff cannot establish that the alleged verbal
threat constitutes an adverse action. When asserting a retaliation claim, “[a]n inmate has no right
to redress simply because an officer made a hostile or derogatory comment about him.” Roseboro
v. Gillespie, 791 F. Supp. 2d 353, 373 (S.D.N.Y. 2011) (quotation marks, alteration, and citation
omitted). The line between a de minimis verbal threat and a retaliatory adverse action hinges on
the specificity and seriousness of the words used. See Mateo v. Fischer, 682 F. Supp. 2d 423, 434
(S.D.N.Y. 2010) (“The less direct and specific a threat, the less likely it will deter an inmate from

exercising his First Amendment rights.”).
For purposes of this analysis, the Court analyzes the alleged threat that Plaintiff “would
end up dead” separately from the threat to place him in keeplock confinement. Starting with
Senecal’s alleged threat that Plaintiff would end up dead, the Court finds that this threat is
insufficiently direct and specific to constitute an adverse action. Although there is no Second
Circuit case directly on point,8 district courts within the Second Circuit have found that similar

8 In Hayes v. Dahlke, the Second Circuit held that a verbal threat such as “maybe all of this would
go away” if the Plaintiff stopped filing grievances was de minimis and did not constitute an adverse
action. 976 F.3d at 266. In Ford v. Palmer, the Second Circuit found that the plaintiff had plead
facts sufficient to establish that a verbal threat constituted an adverse action when he alleged that
“the plaintiff was threaten (sic) by C.O. Law defendant, to put some kind of substance in plaintiff’s
threats do not constitute an adverse action. See, e.g., Moreau v. Ellsworth, 9:20-CV-124
(DNH/ATB), 2021 WL 3813172, at *11 (N.D.N.Y. July 15, 2021) (threat to “break plaintiff’s neck
if he saw [him] close [to] the Grievance Office” not an adverse action); Tutora v. Gessner, No. 17-
CV-9517 (KMK), 2019 WL 1382812, at *7 (S.D.N.Y. Mar. 27, 2019) (finding threat of “I have a
16 inch rope with your name on it. I was a slave owner for Halloween” to be insufficiently specific,

direct and detailed enough to state a First Amendment claim based on a verbal threat); Terry v.
Hulse, No. 16-CV-252 (KMK), 2018 WL 4682784, at *11 (S.D.N.Y. Sept. 28, 2018) (granting
summary judgment in an action where corrections officers allegedly threatened to “kill” plaintiff
if he didn’t drop the lawsuit); Barnes v. Cnty. of Monroe, 85 F. Supp. 3d 696, 740 (W.D.N.Y.
2015) (find that a threat to kill without any specifics is too general and not an adverse action);
Barrington v. New York, 806 F. Supp. 2d 730, 746 (S.D.N.Y. 2011) (threat of “me and my boys .
. . going to get you while brandishing a copy of the grievance” not an adverse action); Kemp v.
LeClaire, No. 03-CV-844S, 2007 WL 776416, at *15 (W.D.N.Y. Mar. 12, 2007) (threats like
“your day is coming,” “you’ll be sent to your mother in a black box,” and “you’ll get your black

ass kicked” are not adverse actions); Bartley v. Collins, No. 95 Civ. 10161 (RJH), 2006 WL
1289256, at *6 (S.D.N.Y. May 10, 2006) (“verbal threats such as ‘we going to get you, you better
drop the suit,’ do not rise to the level of adverse action.”); Alicea v. Howell, 387 F. Supp. 2d 227,
237 (W.D.N.Y. 2005) (“alleged statements to plaintiff about there being ‘no secrets in prison’ and
that plaintiff would ‘have to pay the consequences’ for filing a grievance” not adverse action). C.f.
Quezada v. Roy, No. 14 CIV. 4056 CM, 2015 WL 5970355, at *23 (S.D.N.Y. Oct. 13, 2015)
(denying summary judgment in an action where a corrections officer threated to kill plaintiff by

hot water for writing compliance (sic) and grievances.” 539 Fed. Appx. 5 (2d Cir. 2013). Neither
Hayes nor Ford is on point here.
allegedly stating “[y]ou get on my nerves and I will do something to put you out of circulation”);
Vincent v. Sitnewski, F. Supp. 3d 329, 339-40 (S.D.N.Y. 2015) (denying summary judgment in an
action where a corrections officer threated to “jump” plaintiff in his cell); Lunney v. Brureton, No.
04 CIV. 2438 (LAK/GWG), 2007 WL 1544629, at *23 (S.D.N.Y. May 29, 2007), objections
overruled, No. 04 CIV. 2438(LAK), 2007 WL 2050301 (S.D.N.Y. July 18, 2007) (verbal threat of

“if you don’t stop writing grievances I’m going to break your fuckin’ neck” constituted an adverse
action). Moreover, unlike the threat in Ford v. Palmer, the vagueness of the alleged threat in this
action did not “enhance[] its effectiveness as a threat.” 539 Fed. Appx. at 5 (reasoning that “not
telling Ford when or how Officer Law planned to poison him” could have enhanced its
effectiveness as a threat and increased the likelihood that a person of ordinary firmness would be
deterred from filing additional grievances”).
Turning to Senecal’s alleged threat to place Plaintiff in keeplock confinement, this threat
does not amount to an adverse action either. “As a general matter, a single isolated threat to place
an inmate in restrictive confinement for filing a grievance, without more, is not sufficient adverse

action for purposes of a First Amendment retaliation claim[.]” Sanchez v. Shanley, No. 9:20-CV-
0648 (GTS/ML), 2021 WL 365912, at *3 (N.D.N.Y. Feb. 3, 2021) (citing cases). Plaintiff does
not contend that he was placed in keeplock confinement as a result of this interaction with Senecal.
Therefore, this isolated threat to place plaintiff in keeplock confinement, unaccompanied by
subsequent action, does not amount to an adverse action. See Wellington v. Langendorf, No. 12-
CV-1019 (FJS/DEP), 2013 WL 3753978, at *11 (N.D.N.Y. July 15, 2013) (finding no adverse
action where the defendant made a vague verbal threat on one occasion, and did not repeat the
threat or take any affirmative action to suggest that she would do anything to act on the threat);
Keitt v. New York State Dep’t of Corr. and Cmty. Supervision, No. 11-CV-0855 (LJV/MJR), 2017
WL 9471826, at *10 (W.D.N.Y. Jan. 4, 2017) (finding that an isolated threat to file a misbehavior
report did not constitute an adverse action where the defendant never carried out that threat).
In summary, the Court adopts the Magistrate Judge’s recommendation that Defendant
Senecal’s motion for summary judgment be granted because Plaintiff cannot show that Defendant
Senecal’s alleged actions constitute adverse action, which is necessary to prevail on a First
Amendment retaliation claim under 42 U.S.C. § 1983.
V. CONCLUSION
Accordingly, the Court hereby
ORDERS that the recommendation in the January 27, 2023 Report-Recommendation, Dkt.
No. 67, is ADOPTED for the reasons stated herein; and the Court further
ORDERS that the Defendant’s motion for summary judgment, Dkt. No. 58, is
GRANTED, and the Court further
ORDERS that the Clerk shall enter judgment in Defendant’s favor and close this case; and
the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: April 24, 2023 Qhune VY). } Jay QAR
Albany, New York Anne M. Nardacci
U.S. District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10327158. Public record. Not legal advice.