# Fitzak v. Annucci

> District Court, W.D. New York · September 22, 2022

URL: https://www.frixlaw.com/law-library/cases/10365368

## Case

- **Court:** District Court, W.D. New York
- **Decided:** September 22, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN M. FITZAK,

Plaintiff,
21-CV-298-LJV
v. DECISION & ORDER

ANTHONY J. ANNUCCI, et al.,

Defendants.

On February 25, 2021, the pro se plaintiff, John M. Fitzak, commenced this
action under 42 U.S.C. § 1983 and the New York Labor Law (“Labor Law”). Docket
Item 1. The defendants then moved to the dismiss the complaint, Docket Item 6, and
on September 22, 2021, this Court granted the motion to dismiss in part, Docket Item
11. More specifically, this Court dismissed Fitzak’s official-capacity claims for money
damages as well as his Labor Law claims, but it granted Fitzak leave to amend his
remaining claims to correct the deficiencies noted in the Court’s decision. Id. at 11-12.
On November 10, 2021, Fitzak filed an amended complaint alleging that the
defendants retaliated against him in violation of his rights under the First Amendment.1

1 The amended complaint also alleges that the defendants retaliated against
Fitzak in violation of the New York Labor Law. See Docket Item 12 at ¶ 25.
Presumably, that allegation was an oversight in amending the complaint because Fitzak
does not refer to the Labor Law elsewhere in the amended complaint. See Docket Item
12. Moreover, this Court already dismissed Fitzak’s Labor Law claims with prejudice
because the Court does not have subject matter jurisdiction over those claims. See
Docket Item 11 at 9-11. The Court therefore will not address in detail any Labor Law
claims in this decision. To the extent that the amended complaint alleges a retaliation
claim under the Labor Law, it is dismissed for all the reasons stated in this Court’s prior
decision. See id.
Docket Item 12. A month later, the defendants moved to dismiss the amended
complaint. Docket Item 13. On January 4, 2022, Fitzak responded, Docket Item 15,
and two weeks later, the defendants replied, Docket Item 16. On February 10, 2022,
Fitzak moved for leave to file a surresponse. Docket Item 17. A short time after the

Court granted that motion, Docket Item 18, Fitzak filed his surresponse, Docket Item 19.
For the following reasons, the defendants’ motion to dismiss is granted and the
case is closed.
FACTUAL BACKGROUND2

Fitzak has sued Anthony J. Annucci, Acting Commissioner of the New York
Department of Corrections and Community Supervision (“DOCCS”); Jason D. Effman,
Associate Commissioner of DOCCS; and James O’Gorman, Deputy Commissioner of
DOCCS, for alleged violations of Fitzak’s rights under the First and Fourteenth
Amendments. See Docket Item 12. The amended complaint tells the following story.
Fitzak is employed as a corrections officer at Orleans Correctional Facility
(“Orleans”). Id. at 1. On March 1, 2018, he consented to an interview with Auditor

Barbara King from Akron, Ohio, as a part of a Prison Rape Elimination Act (“PREA”)

2 On a motion to dismiss, the court “accept[s] all factual allegations as true and
draw[s] all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs
Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016) (citing City of
Pontiac Policemen’s & Firemen’s Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir.
2014)). The court also may consider any written documents that are attached to the
complaint, incorporated by reference, or integral to it. Sira v. Morton, 380 F.3d 57, 67
(2d Cir. 2004). Fitzak attached several documents to the amended complaint, see
Docket Items 12 at 7-31, and this Court therefore considers those documents.
compliance audit.3 Id. at ¶ 8. To prepare for the audit, management at Orleans
provided Fitzak and other staff with “a packet of possible questions” that might be asked
in the audit interviews and “the appropriate responses” to those questions. Id. at ¶ 10;
see also id. at 8-17 (question packet).

At the start of Fitzak’s interview, King stated that “she was an independent
auditor, [that] she had no connections to [Orleans] or to [DOCCS],” and that the
“interview was voluntary . . . and . . . confidential.” Id. at ¶ 11. King also said “that there
would be no names or identifiers of who was interviewed and . . . no repercussions or
retaliation for talking to her.” Id. at ¶ 12. The interview included questions about
DOCCS’s policy towards sexual abuse and sexual harassment and the training that
officers received regarding sexual abuse and harassment. Id. at ¶ 13; see also id. at 8-
17.
During the interview, King asked Fitzak what he thought “would cause an inmate
to be a victim of sexual abuse or sexual harassment.” Id. at ¶ 14. Based on his twenty-

3 Congress enacted PREA for multiple purposes, including to “establish a zero-
tolerance standard for the incidence of prison rape in prisons in the United States,” to
“develop and implement national standards for the detection, prevention, reduction, and
punishment of prison rape,” and to “increase the accountability of prison officials who
fail to detect, prevent, reduce, and punish prison rape.” 34 U.S.C. § 30302. As a part of
PREA, Congress conditioned certain federal funding on a state’s agreement to conduct
PREA compliance audits for all “prisons under the operational control of the executive
branch of the State” every three years. Id. § 30307(e)(2); see also 28 C.F.R. §
115.401(a) (“During the three-year period . . . the agency shall ensure that each facility
operated by the agency, or by a private organization on behalf of the agency, is audited
at least once.”). A PREA compliance audit assesses and documents “whether agency-
wide policies and procedures comply with relevant PREA standards.” 28 C.F.R.
§ 115.403(b).
plus years of experience working in corrections, Fitzak responded “that 95% of sexual
activity was probably consensual . . . ; 3% could probably be attributed to karma, in that
inmates today have the ability to get more information from the outside, through family
and friends, in order to find out about other inmates’ crimes” (the “karma statement”);

and “that the remaining 2% could possibly be a combination of both scenarios that
ended up going to[o] far and became a criminal offense.” Id. at ¶ 15.
In saying that three percent probably could be “attributed to karma,” Fitzak “in no
way suggested nor defended this type of behavior as being appropriate.” Id. Indeed,
Fitzak “does not believe that any form of sexual misconduct is condonable, whether ‘on
the street’ or inside any type of facility.” Id. (bold and emphasis in original). He simply
said “karma” as a “way to state that one’s actions, whether good or bad, have
corresponding reactions.” Id. In other words, what Fitzak meant by the karma
statement is that upon a prisoner’s finding out the basis for another prisoner’s
incarceration, “some inmates may decide to exact their own form of justice.” Id.

But Orleans officials viewed Fitzak’s karma statement differently. They
characterized it as an “assert[ion] that inmates get what they deserve when they have
been subject to sexual abuse.” Id. at 25.
The day after the interview, a local union official advised Fitzak that Fitzak “was
being ‘locked out,’ [i.e.] suspended without pay” and would be “issued a notice of
discipline.” Id. at ¶ 16 (capitalization omitted). Later that same day, another union
official contacted Fitzak and clarified that those actions were being taken because of
Fitzak’s karma statement and because Fitzak’s interview “was the worst one that
Auditor King had ever conducted.” Id. at ¶ 17.
Fitzak was never issued a notice of discipline. Instead, on March 5, 2018, the
very next business day, Orleans Facility Captain E. Raczkowski issued Fitzak “a Formal
Counseling.” Id. at ¶ 21; see also id. at 25 (formal counseling). The formal counseling
stated that Fitzak’s karma statement “could have been construed to undermine

[DOCCS’s] efforts to comply with federal law governing PREA during an audit being
conducted at Orleans”; it directed Fitzak “to immediately attend PREA [t]raining in an
effort to educate [him] about the law and DOCCS[’s] policy.” Id. at 25. The formal
counseling also stated that the “counseling [was] not meant to be personal or
derogatory in nature but rather [was] meant to point out possible shortcomings in
[Fitzak’s] job performance and ways in which [he] may improve them.” Id.
Fitzak received this formal counseling because King breached the promised
confidentiality of the PREA audit interview. Id. at ¶ 21. In response to King’s breach of
confidentiality, Fitzak filed a formal complaint against King with the United States
Department of Justice. Id. at ¶ 22; see also id. at 27 (complaint).4

LEGAL PRINCIPLES

“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the

4 Fitzak has not sued King in this action, and the Court therefore neither
expresses nor implies any opinion about the viability of any claim against her.
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

DISCUSSION
“To state a valid claim under 42 U.S.C. § 1983, the plaintiff must allege that the

challenged conduct (1) was attributable to a person acting under color of state law, and
(2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or
laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir.
1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “Section 1983
itself creates no substantive rights; it provides only a procedure for redress for the
deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)).

I. PERSONAL INVOLVEMENT
In this Court’s prior decision, the Court reminded Fitzak that in amending his
section 1983 claims, “liability under section 1983 may attach only upon a showing that a
party was personally involved in causing the claimed injury.” Docket Item 11 at 7 n.2
(citing Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)). As explained in this
Court’s prior decision, to establish liability against a defendant under section 1983, “a
plaintiff must plead and prove ‘that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.’” Tangreti, 983 F.3d at

618 (citing Iqbal, 556 U.S. at 676). It is not enough to assert that the defendant is a
“link[] in the prison[’s] chain of command.” See McKenna v. Wright, 386 F.3d 432, 437
(2d Cir. 2004). Moreover, the theory of respondeat superior is not available in a section
1983 action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). Instead,
“[t]he violation must be established against the supervisory official directly.” Tangreti,
983 F.3d at 618. In other words, the official must be personally involved. See Gaston

v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (“Proof of an individual defendant’s
personal involvement in the alleged wrong is . . . a prerequisite to his liability on a claim
for damages under § 1983.”).
Fitzak alleges that his First Amendment rights were violated when Facility
Captain Raczkowski issued him a formal counseling because of Fitzak’s statements
during the PREA interview. See Docket Item 12 at ¶¶ 21, 24. But he says very little
about how the named defendants—Annucci, Effman, and O’Gorman—were personally
involved in the alleged constitutional violations. Although Fitzak alleges that upon
“information and belief,” the PREA “interviews were done in cooperation with the
[o]ffices of the [d]efendants,” see id. at 1, he has not pleaded anything about how the

defendants were personally involved in issuing the formal counseling—the alleged
retaliatory act that is the gravamen of his claim. Indeed, Fitzak has not alleged that the
defendants even knew about Fitzak’s selection for an interview, his responses during
the interview, or his subsequent formal counseling.5

5 In Fitzak’s response, he also “contends that” PREA Auditor King “contacted”
Effman “immediately after [Fitzak’s] interview concluded.” See Docket Item 15 at 6.
Fitzak raises this allegation for the first time in his response. Normally, a court “will not
consider [] factual allegations raised for the first time in a brief in opposition to a motion
to dismiss.” Harrell v. N.Y. State Dep’t of Corr. & Cmty. Supervision, 2019 WL
3817190, at *2 n.3 (S.D.N.Y. Aug. 14, 2019). But even considering that allegation,
Fitzak still has not pleaded that Effman was personally involved in the alleged
constitutional violations because he still does not allege that Effman was involved in
issuing the formal counseling—or any other action adverse to Fitzak for that matter.
In his response to the defendants’ motion, Fitzak argues that under various
DOCCS directives, the offices of the defendants have authority over disciplinary matters
and that they therefore were personally involved. See Docket Item 15 at 5-6. But
asserting that the defendants are the final “link[] in the prison[’s] chain of command” is

insufficient to plead personal involvement. See McKenna, 386 F.3d at 437. So the
defendants “may not be held liable for damages for constitutional violations merely
because [they] held . . . high position[s] of authority” at DOCCS. See Black v. Coughlin,
76 F.3d 72, 74 (2d Cir. 1996).
Because Fitzak has not pleaded that the defendants were personally involved in
issuing the formal counseling or taking any other action adverse to him, his First
Amendment claim under section 1983 is not viable.6

6 The original complaint also alleged that the defendants violated Fitzak’s right to
due process under the Fourteenth Amendment. Docket Item 1 at 4. Fitzak appears to
abandon his due process claim in the amended complaint. See Docket Item 12. The
amended complaint does not mention due process, see id., nor does it mention the
Fourteenth Amendment except for one reference in the first paragraph of the amended
complaint and another reference in final paragraph. See id. at ¶ 25. To the extent that
the failure to include the due process claim was an oversight and Fitzak intended to
continue pursuing his due process claim, that claim is not viable because Fitzak has not
pleaded that the defendants were personally involved in any alleged deprivation of a
property interest.
Moreover, Fitzak has not alleged facts to sufficient to show that he was deprived
of any property interest. See Docket Item 11 at 8-9 (explaining the requirements for due
process claim). Although he alleges that he received a formal counseling, was locked
out of the facility for some time, and would be (but never was) issued a notice of
discipline, Fitzak does not allege that he actually was suspended and, if so, for how long
or how much pay he lost. See Docket Item 12 at ¶¶ 16, 21. In fact, it seems that Fitzak
was not suspended at all—or for at most a couple days—given that the union told him
he was “locked out” on a Friday but that he received the formal counseling the following
Monday. See id.
II. RETALIATION (FIRST AMENDMENT)
Even if Fitzak had alleged the defendants’ personal involvement in retaliating
against him, he still would fail to state a First Amendment retaliation claim because he
has not plausibly alleged that he engaged in protected speech. To establish a claim for
retaliation under section 1983, a plaintiff must show that (1) he engaged in

constitutionally protected speech or conduct, (2) the defendants took adverse action
against him, and (3) there was a causal connection between the protected speech or
conduct and the adverse action. Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009).
The Second Circuit “and the Supreme Court have long recognized that ‘the First
Amendment protects a public employee’s right, in certain circumstances, to speak as a
citizen addressing matters of public concern.’” Shara v. Maine-Endwell Cent. Sch. Dist.,
2022 WL 3452280, at *2 (2d Cir. Aug. 18, 2022) (quoting Garcetti v. Ceballos, 547 U.S.
410, 417 (2006)). “When acting as an employer,” however, “‘the State has interests . . .
in regulating the speech of its employees that differ significantly from those it possesses

in connection with regulation of the speech of the citizenry in general.’” Piscottano v.
Murphy, 511 F.3d 247, 268-69 (2d Cir. 2007) (alteration in original) (quoting Pickering v.
Bd. of Educ., 391 U.S. 563, 568 (1968)). “The problem in any case is to arrive at a
balance between the interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.” Pickering, 391 U.S.
at 568.
“[I]n assessing the first prong of the retaliation test—whether a public employee’s
speech is protected—[a court] must consider ‘two separate subquestions’: (1) whether
the employee ‘spoke as a citizen rather than solely as an employee,’ and (2) whether he
spoke on ‘a matter of public concern.’” Shara, 2022 WL 3452280, at *2 (quoting
Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015)). “If the answer to
either question is no,” the inquiry ends there because the employee has not engaged in
protected speech. Matthews, 779 F.3d at 172. “If, however, both questions are

answered in the affirmative, [a] court then” considers whether the employer “had an
adequate justification for treating the employee differently from any other member of the
public based on the government’s needs as an employer.” Id.
“[T]he critical question” in determining whether an employee speaks as a citizen
is “whether the speech at issue is itself ordinarily within the scope of an employee’s
duties.” Montero v. City of Yonkers, 890 F.3d 386, 397-98 (2d Cir. 2018) (internal
quotation marks omitted) (quoting Lane v. Franks, 573 U.S. 228, 240 (2014)). To
answer that question, courts consider “‘the nature of the plaintiff’s job responsibilities,
the nature of the speech, and the relationship between the two,’ along with other
contextual factors such as whether the plaintiff’s speech ‘was also conveyed to the

public.’” Shara, 2022 WL 3452280, at *3 (quoting Ross v. Breslin, 693 F.3d 300, 306
(2d Cir. 2012)). Moreover, a public employee’s speech “can be pursuant to” his “official
job duties even though it is not required by, or included in, [his] job description, or in
response to a request by the employer.” Weintraub v. Bd. of Educ., 593 F.3d 196, 203
(2d Cir. 2010) (internal quotation marks omitted). “Although relevant inquiries, neither
the form of a public employee’s communication nor to whom the communication was
directed is dispositive of whether the communication was made pursuant to the
employee’s official duties.” Brown v. Off. of State Comptroller, 456 F. Supp. 3d 370,
391 (D. Conn. 2020).
Fitzak has not plausibly alleged that he made the karma statement in his capacity
as a citizen. Indeed, the amended complaint suggests the opposite—that Fitzak’s
remarks were made in his role as a corrections officer. He alleges that the interview
was a part of a PREA compliance audit of Orleans and that the purpose of the audit was

to “assess . . . knowledge of [PREA] and to provide and/or gather any information that
could be utilized to effectively eliminate prison rape.” Docket Item 12 at ¶¶ 8, 9
(emphasis removed). Although he alleges that King was an independent auditor, id. at
¶ 11, Fitzak also says that the interviews and audit were done in connection with
DOCCS and his work at Orleans, see id. at 1.7 What is more, Fitzak alleges that
Orleans prepared staff for the PREA audit by providing “possible questions and the
appropriate responses.” Docket Item 12 at ¶ 10; see also id. at 8-17.
In short, part of the employment duties for Orleans staff, including Fitzak, on
March 1, 2018, was to prepare to meet with the PREA auditor and to answer questions
about PREA and Orleans’s compliance with it. Therefore, during his PREA interview,

Fitzak answered the auditor’s questions as an Orleans employee and not as a private
citizen. See Brown, 456 F. Supp. 3d at 394 (D. Conn. 2020) (finding that statements
made during a routine audit of a government agency were not protected speech
because “for employees at the [agency], part of their job on July 30 was to meet with the
Auditors, if the Auditors asked”).

7 Although an auditor must be independent and an audit cannot be conducted by
someone affiliated with the agency, the agency, in this case DOCCS, bears the
responsibility for ensuring that a PREA compliance audit occurs every three years and
may do so by contracting with a certified PREA auditor for only that purpose. See supra
at 3 n.3; 28 C.F.R. § 115.401(a).
Because Fitzak has not pleaded that he spoke as citizen, he has not alleged that
his statements were protected under the First Amendment. 8 His First Amendment
retaliation claim therefore is not viable not only because Fitzak has not pleaded the
defendants’ personal involvement but for that reason as well.9

CONCLUSION

For the reasons stated above, the defendants’ motion to dismiss, Docket Item 13,
is GRANTED, and the amended complaint, Docket Item 12, is dismissed. The Clerk of
the Court shall close the file.

SO ORDERED.

Dated: September 22, 2022
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

8 To the extent that Fitzak presses a stand-alone free speech claim in addition to
his retaliation claim, that claim is not viable for the same reason—he has not alleged
that he engaged in constitutionally protected speech. See Piscottano, 511 F.3d at 270
(“[A] threshold question” to a state employee’s First Amendment claim is “whether the
employee’s expressive conduct was speech as a citizen on a matter of public concern.”
(emphasis added)).
9 The defendants also argue that even if Fitzak stated a viable First Amendment
claim, the defendants are entitled to qualified immunity. See Docket Item 13-1 at 18-22.
Because the Court finds that Fitzak has not stated a viable First Amendment claim, it
need not and does not reach that argument.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10365368. Public record. Not legal advice.