Dolan v. Connolly, et al.
14-2561-cv
United States Court of Appeals for the Second Circuit
Decided: July 23, 2015
FOR THE SECOND CIRCUIT
August Term, 2014
(Submitted: April 29, 2015 Decided: July 23, 2015)
Docket No. 14-2561-cv
RORY DOLAN,
Plaintiff-Appellant,
v.
WILLIAM J. CONNOLLY, Superintendent, DAVID A. STALLONE,
Superintendent, ROGER MAINES, Plant Superintendent, M. CALLENDER,
Lieutenant, CARL GOOD, Senior Correction Counselor,
Defendants-Appellees.
Before: JACOBS, POOLER, and HALL, Circuit Judges.
Appeal from the United States District Court for the Southern District of
New York (George B. Daniels, J.) dismissing Plaintiff-Appellant Rory Dolan’s
complaint for failure to state a claim. Dolan alleged that defendants retaliated
against him for his actions as a member of the prison Inmate Liaison Committee
(“ILC”), in violation of
protected conduct, we vacate the dismissal of Dolan’s Section 1983 claim and
remand for further proceedings.
Affirmed in part, vacated and remanded in part.
RORY DOLAN, pro se, Marcy, NY, for Plaintiff-Appellant.
VALERIA FIGUEREDO, Assistant Solicitor General (Claude
S. Platton, Assistant Solicitor General, Barbara D.
Underwood, Solicitor General, on the brief), for Eric T.
Schneiderman, Attorney General of the State of New
York, New York, NY, for Defendants-Appellees.
POOLER, Circuit Judge:
Plaintiff-Appellant Rory Dolan filed a pro se complaint, pursuant to
employees of the New York Department of Corrections and Community
Supervision filed a false misbehavior report and conspired against him, resulting
in his 90-day confinement in the Special Housing Unit (“SHU”). The United
States District Court for the Southern District of New York (George B. Daniels,
J.), adopting the report and recommendation of a magistrate judge (Gabriel W.
Gorenstein, M.J.), dismissed the complaint under Federal Rule of Civil Procedure
alia, that Dolan’s alleged activities as a member of the Inmate Liaison Committee
(“ILC”) at Fishkill Correctional Facility (“Fishkill”) were insufficient to
demonstrate that he engaged in protected speech or conduct, as required to state
a First Amendment retaliation claim under Section 1983. The district court
declined to exercise supplemental jurisdiction over Dolan’s state law claims.
Dolan appeals.
We hold that action as a member of an ILC, i.e. the filing or voicing of
grievances on behalf of a prison population, qualifies as constitutionally
protected conduct under the First and Fourteenth Amendments and that
retaliation for such conduct is therefore actionable under Section 1983.
BACKGROUND
We draw the following facts, which we assume “to be true for purposes of
our de novo review of the district court’s grant of defendants’ motion to dismiss,”
from the plaintiff’s complaint. See Ricci v. Teamsters Union Local 456, 781 F.3d 25,
26 (2d Cir. 2015).
Dolan served as an ILC representative at Fishkill for two terms. On the ILC
Dolan advocated “for better conditions within the prison,” Complaint at 11,
June 27, 2014), and “aid[ed] other incarcerated individuals as they pursued
federal civil rights litigation [and] initiated the prison grievance process,” id. at
10. When Dolan was reelected for a third term, Superintendent William J.
Connolly banned him from further service. After this ban was lifted, Dolan was
again elected to the ILC, this time as chairperson, on January 20, 2011. Although
Dolan makes familiar reference to the ILC at Fishkill in his pleadings, it is not
clear from the complaint whether similar committees exist at other prisons, or
how they are structured. Of course, our decision today relies only on the facts
alleged in the complaint.
In the days following Dolan’s reelection, Carl Good, a senior correction
counselor, searched and confiscated Dolan’s prison law library computer, and M.
Callendar, a correction lieutenant, filed a false misbehavior report against Dolan
for use of unauthorized password-protected files. On January 26, 2011, Dolan
was placed in a solitary confinement cell pending a disciplinary hearing. At that
hearing, Roger Maines, a superintendent at Fishkill, found, among other things,
that Dolan disobeyed a direct order with respect to his computer use, in violation
of 7 N.Y.C.C.R. § 270.2(7)(i), and sentenced him to ninety days in the SHU.
hearing and penalty. Dolan subsequently appealed the disciplinary hearing
decision, which was administratively reversed on April 14, 2011.
However, Dolan, who had been transferred to Cayuga Correctional
Facility (“Cayuga”) in March, was not released from the SHU at Cayuga until
twelve days later on April 26, 2011, when the original ninety-day term expired,
despite the fact that Cayuga Superintendent David A. Stallone had received
notice of the administrative reversal.
Dolan brought suit, alleging that defendants violated
retaliating against him for exercising his First Amendment right to “file prison
grievances, pursue civil litigation, and help other incarcerated individuals at
Fishkill do the same.” Complaint at 25, Dolan v. Connolly, No. 13-civ-5726 (GBD)
(GWG), 2014 WL 3057973 (S.D.N.Y. June 27, 2014). Dolan alleged that defendants
were present during ILC meetings and had been involved in general grievances
raised by Dolan on behalf of the general prison populace in his capacity as an
ILC representative. Additionally, Dolan looked to
asserting that the defendants conspired to deny him equal protection of the law
ILC.
The district court referred the matter to a magistrate judge, and defendants
moved to dismiss the complaint under
The magistrate judge recommended granting the motion. As to the Section 1983
claim, the magistrate judge found that (1) Dolan did not identify specific
grievances he filed that resulted in retaliation, and neither his general conduct on
the ILC nor his status as a member was constitutionally protected and (2) he
failed to establish a sufficient causal link between protected activity and
defendants’ adverse actions against him. The conspiracy claim failed because
Dolan did not identify membership in a protected class for purposes of
Section 1985(3) relief. After reviewing Dolan’s objections, the district court
adopted the magistrate judge’s report and recommendation in its entirety,
dismissed the complaint for failure to state a claim, and declined to exercise
supplemental jurisdiction over the state law claims. Although the magistrate
judge noted that Dolan should be granted leave to file an amended complaint,
the district court did not address Dolan’s request to replead and directed the
clerk to close the case.
claims.
DISCUSSION
“We review de novo a district court’s dismissal of a complaint pursuant to
in the complaint as true, and drawing all reasonable inferences in the plaintiff’s
favor.” Mirabilio v. Reg‘l Sch. Dist. 16, 761 F.3d 212, 213 (2d Cir. 2014) (internal
quotation marks omitted). We are “obligated to construe a pro se complaint
liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009).
I. Section 1983 Claim
To state a First Amendment retaliation claim sufficient to withstand a
motion to dismiss, a plaintiff must allege “(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 speech and the
adverse action.” Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal
quotation marks omitted). The question before us is whether Dolan’s complaint
adequately pleaded factual matter sufficient to establish the first and third
prongs. Because we conclude that the district court erred, as a matter of law, in
was not constitutionally protected conduct, we do not pass on the sufficiency of
Dolan’s retaliation claim and instead remand to the district court for further
consideration.
While we have not held specifically that a prisoner engages in
constitutionally protected conduct by carrying out the duties of a member of an
ILC,1 it is well established that “retaliation against a prisoner for pursuing a
grievance violates the right to petition government for the redress of grievances
guaranteed by the First and Fourteenth Amendments and is actionable under
Section 1983.” Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); see also, e.g., Gill v.
Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (“[Plaintiff] has sufficiently alleged . . .
participation in protected activity: the use of the prison grievance system.”);
prisoner’s right to seek redress of grievances is precisely the sort of oppression
that section 1983 is intended to remedy.” (alterations and internal quotation
marks omitted)). Indeed, we have held that a prisoner states protected conduct
where prison officials are alleged to have filed a false misbehavior report “in
retaliation for [the prisoner’s] leadership in filing a grievance to protest” prison
conditions. Graham, 89 F.3d at 79–80. In Graham, we found the prisoner’s
conduct—filing a grievance and attempting to identify other inmates to represent
additional grievants in raising the same issue—“clearly” implicated “a protected
right of redress under the First and Fourteenth Amendments.” Id. at 80.
We perceive no sufficient basis to distinguish a prisoner’s conduct in filing
a grievance on his own behalf and the filing or voicing, as a member of a prisoner
grievance body, of grievances on behalf of other prisoners. Cf. Franco, 854 F.2d at
586, 589 (recognizing retaliation for prisoner’s cooperation with a state
administrative investigation of abuse of another inmate “implicate[s] [a
prisoner’s] broader right to petition government for redress of grievances”). As
we have previously recognized, the ILC is “a group of inmates elected to
communicate grievances to officials.” Meriwether v. Coughlin, 879 F.2d 1037, 1039
grievances raised as class actions to “be referred to the inmate liaison
committee”). Dolan’s alleged actions as an ILC representative are similar, if not
identical, to the grievance-related activity already established as constitutionally
protected conduct. See Graham, 89 F.3d at 79–80; Franco, 854 F.2d at 589.
Accordingly, we now hold that retaliation against a prisoner for filing or voicing
grievances on behalf of a prison population as a member of an inmate grievance
body, such as the ILC, “violates the right to petition government for the redress
of grievances guaranteed by the First and Fourteenth Amendments.” Graham, 89
F.3d at 80.2
We have previously instructed district courts to “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) (internal quotation marks omitted). Thus, we have
required that such claims be “supported by specific and detailed factual
Notes
constitutionally protected conduct when carrying out the duties of a
representative to a prisoner grievance body. See, e.g, Webster v. Fischer, 694 F.
Supp. 2d 163, 183 (N.D.N.Y.) (“voic[ing] criticisms regarding prison conditions”
as an ILC member), aff’d, 398 F. App’x 683 (2d Cir. 2010); Ayers v. Roberts, No. 05-
CV-889A(F), 2008 WL 2079921, at *6 (W.D.N.Y. May 15, 2008) (“accept[ing] staff
misconduct complaints . . . and forwarding such complaints for investigation” as
ILC chairperson); Shaheen v. Filion, No. 9:04-CV-625, 2006 WL 2792739 (FJS/DRH),
at *3 (N.D.N.Y. Sept. 17, 2006) (making “complaints to prison officials in
[prisoner’s] capacity as the chairman of the ILC”); Gill v. Riddick, No. 9:03-CV-
1456, 2005 WL 755745, at *8–11 (N.D.N.Y. Mar. 31, 2005) (“filing of [a] grievance
agenda and making oral complaints” as inmate representative to prison problem
solving committee).
Accordingly, we need not (and do not) decide whether this constitutional rule
was clearly established at the time of the alleged misconduct.
F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002). Notwithstanding these requirements, the district court’s
appraisal of the complaint’s factual allegations as “insufficient to demonstrate a
distinct exercise of protected speech or conduct,” Dolan v. Connolly, No. 13-civ-
5726 (GBD) (GWG), 2014 WL 3057973 at *1 (S.D.N.Y. June 27, 2014), adopted an
unduly restrictive view of the nature of Dolan’s activities.
Because the district court erred in determining that Dolan’s complaint
failed to allege protected conduct, we reinstate his Section 1983 claim and
remand for the district court to reconsider, in light of our decision, whether the
complaint “contain[s] 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)
(internal quotation marks omitted).
On remand, we direct the district court to grant Dolan an opportunity to
amend his complaint. As we have stated, “[a] pro se complaint should not [be]
dismiss[ed] without [the Court] granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a valid claim might be
stated.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (internal quotation
give leave when justice so requires”). Here, the magistrate judge recommended
granting Dolan leave to amend, but the district court’s decision and order did not
address Dolan’s request. While we harbor some skepticism as to whether the
complaint, as it stands, adequately pleads a factual basis from which to infer a
causal connection between Dolan’s protected conduct and the adverse actions
allegedly taken by (at least) some defendants, reading the pro se complaint and
opposition papers liberally, we cannot conclude that amendment would be futile.
See Drimal v. Tai, 786 F.3d 219, 223 (2d Cir. 2015); Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000).
II. Section 1985(3) Claim
A conspiracy claim under Section 1985(3) requires a plaintiff to allege: “1) a
conspiracy; 2) for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and 3) an act in furtherance of the
conspiracy; 4) whereby a person is either injured in his person or property or
deprived of any right or privilege of a citizen of the United States.” Britt v. Garcia,
U.S.C. § 1985(3).
The conspiracy must also be “motivated by some racial or perhaps
otherwise class-based, invidious discriminatory animus.” Cine SK8, Inc. v. Town
of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (internal quotation marks omitted);
Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). “A narrow interpretation of the
statute as protecting only blacks and other analogously oppressed minorities is
untenable in light of the history of the Act.” Keating v. Carey, 706 F.2d 377, 387 (2d
Cir. 1983). Indeed, Section 1985(3) covers classes beyond race. See, e.g., N.Y. State
Nat’l Org. for Women v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989) (gender); Keating,
706 F.2d at 388 (political affiliation). But the term class “unquestionably connotes
something more than a group of individuals who share a desire to engage in
conduct that the § 1985(3) defendant disfavors. Otherwise, innumerable tort
plaintiffs would be able to assert causes of action under § 1985(3) by simply
defining the aggrieved class as those seeking to engage in the activity the
defendant has interfered with.” Town of W. Hartford v. Operation Rescue, 991 F.2d
1039, 1046 (2d Cir. 1993).
and members of an ILC.3 We disagree. These putative “classes” plainly do not
possess the type of inherited or immutable characteristics sufficient to satisfy the
class-based animus requirement. See Griffin, 403 U.S. at 101–02 (noting that
Section 1985(3) was not intended to provide a federal remedy for “all tortious,
conspiratorial interferences with the rights of others” and was specifically
limited “by requiring, as an element of the cause of action, . . . invidiously
discriminatory motivation”). Thus, the district court properly dismissed Dolan’s
conspiracy claim as he failed to allege membership in a class protected under
Section 1985(3).
III. Appointment of Counsel
We appoint Dolan counsel in the district court. Where the factors set forth
in Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986) are satisfied, we may appoint
counsel. “These factors include: (1) whether the party’s claim has substantial
merit; (2) whether the nature of the factual issues requires an investigation, and
that jailhouse lawyers are a protected class for Section 1985(3) purposes.
However, Johnson did not establish jailhouse lawyers as a constitutionally
protected class; it merely invalidated a state regulation that prohibited inmates
from assisting other prisoners with post-conviction relief as such restriction
conflicted with the federal right of habeas corpus. See id. at 490.
factual issues turn on credibility, which benefits from the skills of those trained
in presentation of evidence and cross-examination; (4) the party’s overall ability
to present its case; and (5) whether the legal issues presented are complex.”
Garcia v. USICE (Dep’t of Homeland Sec.), 669 F.3d 91, 98–99 (2d Cir. 2011) (citing
Hodge, 802 F.2d at 60–61). Here, we find that all of the Hodge factors favor
appointment and, therefore, direct the district court, with Dolan’s consent, to
appoint counsel to represent him. See
61. Counsel should determine which, if any, of Dolan’s federal and state law
claims to replead and assess whether the complaint would benefit from the
inclusion of additional factual allegations.
CONCLUSION
Accordingly, we affirm in part, vacate in part, and remand the case for
further proceedings consistent with this opinion.