Slip Opinion
N.D.N.Y.2013Background
- Plaintiff Daniel Monko, a pro se state prisoner, sued two Shawangunk Correctional employees (Cusack and Gardner) alleging First Amendment retaliation and Fourteenth Amendment due process violations after receiving two misbehavior reports and 36 days’ loss of privileges.
- Plaintiff claims Cusack filed false misbehavior reports in retaliation for Monko’s complaints to Cusack’s supervisor about confiscated food and missing contraband receipts; Gardner is accused of upholding the reports and failing to remedy them as a supervisor/hearing officer.
- Magistrate Judge Dancks recommended granting summary judgment for Defendants, finding (1) the 36‑day loss of privileges was de minimis and insufficient for a retaliation claim and (2) Monko lacked a protected liberty or property interest because the sanction was not an atypical and significant hardship.
- Plaintiff objected, arguing a person of ordinary firmness would be deterred by threats of false reports or a 36‑day loss of privileges, and stating he had asserted a substantive due process claim.
- Defendants objected only to add an alternative ground: absence of causation—arguing the misbehavior reports would have been issued regardless of Monko’s complaints.
- The district court adopted the Report‑Recommendation, granted summary judgment, and additionally accepted Defendants’ causation argument and rejected any substantive due process claim as duplicative of other constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 36‑day loss of privileges is a sufficiently serious adverse action for a First Amendment retaliation claim | Monko: loss of privileges and threat of false reports would deter a person of ordinary firmness; inmate affidavit supports deterrence | Defendants: loss was de minimis; sanction insufficient to support retaliation | Court: loss was de minimis; no genuine dispute of adverse action adequacy—retaliation fails |
| Whether there is causal connection between protected speech and misbehavior reports | Monko: reports were retaliatory responses to his complaints to a supervisor | Defendants: reports would have been issued regardless; Monko invited reports by escalating conduct | Court: no genuine dispute of causation; Defendants’ alternative argument accepted |
| Whether Monko had a protected liberty or property interest to support procedural due process | Monko: disciplinary finding and sanctions deprived him of protected interest | Defendants: 36‑day loss is not an atypical and significant hardship; no protected interest | Court: no protected interest; procedural due process claim fails |
| Whether Substantive Due Process claim stands independent of First/14th Amendment claims | Monko: labeled his claim substantive in complaint | Defendants: claim overlaps existing constitutional claims and must be analyzed under those doctrines | Court: substantive due process dismissed as duplicative and not appropriate where other amendments supply the protection (Albright) |
Key Cases Cited
- Albright v. Oliver, 510 U.S. 266 (1994) (where an explicit textual source of constitutional protection exists, substantive due process is not the proper guide)
- Mario v. P&C Food Markets, Inc., 313 F.3d 758 (2d Cir. 2002) (objections to a magistrate's report must be specific to preserve issues)
- Paddington Partners v. Bouchard, 34 F.3d 1132 (2d Cir. 1994) (district court ordinarily will not consider evidence not presented to the magistrate)
- Velez v. Levy, 274 F. Supp. 2d 444 (S.D.N.Y. 2003) (substantive due process claims based on same allegations as procedural due process claims must be analyzed under procedural standards)