Washington v. Afify, 681 F. App'x 43

Anthony Washington, a pro se prisoner, sued under 42 U.S.C. § 1983 alleging (1) a due process violation by Lt. Donahue related to a disciplinary hearing and 60 days keeplock, and (2) First Amendment retaliation by COs Evertts, Deming, Waters, and Faucett for filing grievances.
District court granted summary judgment for defendants; Washington appealed.
Washington alleged Donahue delayed the hearing, used a racial epithet, and imposed 60 days keeplock. He offered no evidence the keep-lock conditions were atypical or unusually onerous.
For retaliation, Washington alleged temporal proximity: misbehavior reports were filed shortly after he filed grievances (Evertts: 1 day; Deming: 2 days; Waters/Faucett: 1 day after refusal to obey order).
Washington submitted an affidavit claiming the officers confronted him about his grievance-filing before issuing the reports (offered as direct evidence of retaliatory animus).
Officers denied retaliatory conduct; the court reviewed summary judgment de novo and considered whether genuine issues of material fact existed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Donahue’s disciplinary action implicated a protected liberty interest under Sandin	Donahue biased hearing, used racial epithet, imposed 60-day keeplock	Keeplock did not create an atypical and significant hardship requiring due process	Affirmed for Donahue — no evidence keeplock conditions were more onerous than usual; no liberty interest
Whether Evertts retaliated for grievance by filing false misbehavior report	Temporal proximity (1 day) and direct confrontation about grievance show retaliation	Denies retaliatory intent	Vacated/Remanded — material dispute exists (temporal + direct evidence)
Whether Deming retaliated for grievance by filing false misbehavior report	Temporal proximity (2 days) and confrontation support retaliation claim	Denies retaliatory intent	Vacated/Remanded — material dispute exists (temporal + direct evidence)
Whether Waters and Faucett retaliated after confronting plaintiff and ordering him to clean feces, then filing a report	Temporal proximity (1 day), alleged confrontation and order, and affidavit alleging direct statements show retaliation	Deny retaliation; argue discipline would have occurred for disobeying order (argument raised first on appeal)	Vacated/Remanded — material dispute exists; appellate court declined to consider new argument raised on appeal

Garcia v. Hartford Police Dep't, 706 F.3d 120 (2d Cir. 2013) (standard of review for summary judgment)
Hicks v. Baines, 593 F.3d 159 (2d Cir. 2010) (conclusory allegations cannot defeat summary judgment)
Fletcher v. Atex, Inc., 68 F.3d 1451 (2d Cir. 1995) (same)
Palmer v. Richards, 364 F.3d 60 (2d Cir. 2004) (liberty interest inquiry for prison discipline)
Sandin v. Conner, 515 U.S. 472 (Sup. Ct. 1995) (discipline implicates liberty interest only if atypical and significant hardship)
Espinal v. Goord, 558 F.3d 119 (2d Cir. 2009) (elements of prisoner retaliation claim)
Bennett v. Goord, 343 F.3d 133 (2d Cir. 2003) (requirement for non-conclusory allegations in retaliation claims)
Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995) (direct admissions or statements can be direct evidence of retaliation)
Greene v. United States, 13 F.3d 577 (2d Cir. 1994) (appellate courts generally do not consider new arguments raised on appeal)
Singleton v. Wulff, 428 U.S. 106 (Sup. Ct. 1976) (procedural bar principles cited for appellate consideration)