Case Information

‐ ‐ pr Cnty. of Onondaga, et al. UNITED STATES COURT OF APPEALS THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At stated term United States of Appeals for Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City New York, th day October, two thousand seventeen.

PRESENT: JOHN M. WALKER, JR.,

RAYMOND J. LOHIER, JR.,

Circuit Judges ,

JOHN F. KEENAN, Judge .*

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FREDERICK MCMILLIAN,

Plaintiff ‐ Appellant , No. ‐ ‐ pr

THE COUNTY OF ONONDAGA, RICHARD CARBERY,

CHIEF ADMINISTRATOR, LEAH LAMERE,

Defendants Appellees, * Judge John F. Keenan, United States Southern New York, sitting designation.

ONONDAGA COUNTY SHERIFF’S DEPARTMENT, THE CITY OF SYRACUSE, SYRACUSE CITY POLICE DEPARTMENT, TOWN OF DEWITT, ONONDAGA COUNTY JUSTICE CENTER, DEWITT POLICE DEPARTMENT, FRANK L. FOWLER, CHIEF OF POLICE, SYRACUSE POLICE DEPARTMENT,

Defendants.

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FOR APPELLANT: Frederick McMillian, pro se , Alden,

NY. APPELLEES: Robert A. Durr , Carol L. Rhinehart,

Onondaga County Department of Law, Syracuse, NY.

Appeal from judgment of United States District Court Northern District New York (Thomas J. McAvoy, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED judgment is AFFIRMED.

Frederick McMillian, proceeding pro se, appeals from judgment

granting defendants dismissing

complaint this Section 1983 action. ^[1] alleges defendants *3 violated constitutional rights while he in pretrial detention the Onondaga County Justice Center (“OCJC”). On appeal, argues (1) genuine disputes material fact preclude summary judgment, (2) the Court should have permitted him additional discovery before ruling the defendants’ summary judgment motion, (3) the should have imposed sanctions defendants. assume the parties’ familiarity facts prior proceedings, refer only as necessary explain our decision affirm.

The properly granted summary judgment First Amendment retaliation claim. To establish a claim retaliation under First Amendment, plaintiff must show he engaged constitutionally protected speech conduct protected activity substantial motivating factor “adverse action” taken against him defendants. Bennett Goord, 2003). “Regardless presence retaliatory motive, . . . defendant may be entitled if he can show . . . even improper motivation alleged retaliatory action would occurred.” Scott Coughlin, 287–88 *4 Here, the undisputed record shows that McMillian placed on suicide watch because he made suicidal statements while the OCJC. McMillian’s conclusory assertion that he never made suicidal statements does not raise genuine factual dispute given the numerous pieces evidence to the contrary, because affidavit does not specifically deny he said he “[didn’t] feel like being alive” when he admitted to OCJC. Baez JetBlue Airways Corp.,

The properly granted due process claims challenging conditions his confinement while suicide watch. To succeed these claims, McMillian had to show (1) “the conditions, either alone or combination, pose[d] an unreasonable risk serious damage to health, includes risk serious damage to physical mental soundness” (2) defendants acted intentionally impose alleged conditions or recklessly failed mitigate risk conditions posed him even though defendant official knew, or should known, condition posed an excessive risk health safety. Darnell Pineiro, 2017) (quotation marks omitted). *5 presented no evidence that suicide prevention program posed an excessive risk to his health safety, or that it not a program “reasonably related to a legitimate, nonpunitive governmental purpose,” namely, protecting inmates at risk committing suicide. Id. 34.

affirm dismissal First Amendment claim relating to access to a telephone price placing a collect call, albeit grounds different than those relied upon Court. Leon v. Murphy, 988 F.2d 308 (2d Cir. 1993) (“We may affirm . . . any basis there is a record sufficient to permit conclusions law.”). Assuming, deciding, prisoner has limited right use a telephone to communicate with his attorney perhaps others, see Wolfish v. Levi, 1978), rev’d other grounds sub nom. Bell Wolfish, U.S. (1979), conclude there is no record evidence inability use telephone affected his legal rights or otherwise prevented access his attorney courts, see Davis Goord, With respect communication family, shows *6 1 able use telephone given free materials 2 write letters.

3 considered all remaining arguments (including 4 those relating additional discovery sanctions) conclude they are 5 merit. Accordingly, AFFIRM Court. 6

7 COURT: 8 Catherine O’Hagan Wolfe, Clerk

[1] While notice appeal is from Court’s vacated March 26, 2015 judgment, nevertheless jurisdiction over this appeal because we construe April 2, letter requesting this appeal be “reactivated” as timely notice appeal from March judgment. Barrett United States, 1996); Shrader CSX Transp., Inc.,