382 F. App'x 56

2d Cir.

2010

Kerry KOTLER, Plaintiff-Appellant, v. John DONELLI, Superintendent, Bare Hill Correctional Facility, L. Jubert, Deputy Superintendent of Security, Linda Turner, Deputy Superintendent of Programs, W. Dann, Corrections Sergeant, Darwin Daily, Corrections Officer, David Charland, Corrections Officer, Thomas Eagen, Director, Inmate Grievance Programs, Donald Selsky, Director, Special Housing/Inmate Discipline, Defendants-Appellees.

No. 09-4262-pr.

United States Court of Appeals, Second Circuit.

June 24, 2010.

clude that the IJ did not err in denying petitioner‘s motion for a continuance.

Additionally, petitioner argues that the denial of his motion for a continuance denied him due process. “To establish a violation of due process, an alien must show that [he] was denied a full and fair opportunity to present [his] claims or that the [IJ] or [BIA] otherwise deprived [him] of fundamental fairness.” Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.2007) (internal quotation marks omitted). The petitioner must also show that he was prejudiced by the alleged denial of due process. See, e.g., Garcia-Villeda v. Mukasey, 531 F.3d 141, 149 (2d Cir.2008). Here, petitioner fails to show either that the denial of the continuance affected the fundamental fairness of the hearing or that he was prejudiced by the denial. An IJ need not prolong immigration proceedings so that an alien may develop a new claim, and petitioner here failed to show what information he might uncover that could alter the outcome of the proceedings. Accordingly, we conclude that the IJ‘s denial of petitioner‘s motion for a continuance was not a denial of due process.

CONCLUSION

We have considered all of petitioner‘s arguments and find them to be without merit. Accordingly, for the reasons stated above, the petition for review is DENIED.

Michael E. Cassidy, Prisoners’ Legal Services of New York, Plattsburgh, NY, for Appellant.

Barbara D. Underwood, Andrew B. Ayers (Nancy A. Spiegel, of counsel), for Andrew M. Cuomo, Attorney General of the State of New York, for Appellees.

Present: GUIDO CALABRESI, ROSEMARY S. POOLER, DENNY CHIN, Circuit Judges.

SUMMARY ORDER

Plaintiff-appellant Kerry Kotler (“Kotler“) filed a complaint on Oct. 27, 2006 under 42 U.S.C. § 1983 alleging that defendants planted a weapon in his prison cell and then disciplined him for possession of that weapon in retaliation for his participation in an inmate grievance program. He alleged violations of his First and Fourteenth Amendment rights for the retaliation, and violations of his fifth amendment due process rights during his disciplinary hearing. Judge Mordue granted defendants’ motion for summary judgment on Sept. 17, 2009 and Kotler now appeals. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.

We review orders granting summary judgment de novo, construing evidence in the light most favorable to the nonmoving party. Anderson v. Recore, 446 F.3d 324, 328 (2d Cir.2006). A grant of summary judgment should be affirmed if there are no genuine issues as to any material fact and the movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue of material fact exists if the evidence is such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We must “resolve all ambiguities and draw all factual inferences in favor of the nonmovant,” but the nonmovant may not defeat the motion through reliance on “conclusory statements or mere allegations.” Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002). We review allegations especially carefully for conclusory statements in prison retaliation claims. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003).

To prove a First Amendment retaliation claim under Section 1983, a plaintiff must show that the speech or conduct was protected, that there was an adverse action, and 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). There is no dispute that Kotler‘s activities on the grievance committee were protected. See Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002). There were also clearly adverse actions—impeachment from the grievance committee and disciplinary consequences. The principle disputed issue is the causal connection between Kotler‘s protected conduct as a member of the Inmate Grievance Program and the weapon purportedly found in his cube, which resulted in disciplinary action.

A plaintiff bears the initial burden of showing that “the protected conduct was a substantial or motivating factor in the prison officials‘” disciplinary decision. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). Plaintiffs may do so with cir-cumstantial evidence if it is “sufficiently compelling,” Bennett, 343 F.3d at 139, and may show a causal connection by demonstrating that the protected activity was close in time to the adverse action. Espinal, 558 F.3d at 129; Gayle, 313 F.3d at 683.

Viewing the evidence in the light most favorable to Kotler, as we must, a reasonable jury could return a verdict for Kotler. Kotler disavows ownership of the weapon, defendants’ testimony is inconsistent on how and where the prison officials found the weapon, and there is evidence that at least one defendant wished to remove Kotler from the grievance committee. This combined with the rest of the circumstantial evidence Kotler alleges is sufficient to raise a genuine issue of fact as to whether one or more of the defendants retaliated against Kotler for his protected activities. On remand, the district court should, of course, evaluate the claims against each group of defendants separately and may consider whether summary judgment for lack of personal involvement is appropriate as to some.

Accordingly, the judgment of the district court hereby is VACATED and REMANDED.

Notes

The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties above.