Thomas v. DeCastroThomas v. DeCastro
- Reporters:
- ,
- Before:
- Kenneth M. Karas
Appearances:
Bernard Thomas
New York, NY
Pro Se Plaintiff
Kristin R. Vogel, Esq.
New York State Office of the Attorney General
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Bernard Thomas (“Plaintiff”) brings this pro se Action, pursuant to
I. Background
A. Factual History
The following facts are drawn from Plaintiff’s Amended Complaint and attached exhibits and are taken as true for the purpose of resolving the instant Motion.
1. Plaintiff’s Relationship with DeCastro
While at Woodbourne, Plaintiff was elected to be an inmate representative on the Inmate Grievance Resolution Committee (the “IGRC”), a position he held for about five years. (Id. at 11–12, 35, 40, 44, 54.)2 During this time, Plaintiff had numerous interactions and disagreements with DeCastro, a lieutenant, regarding “false grievances that [were] filed against DeCastro,” causing DeCastro to have a “personal vendetta” against him. (Id.) In particular, Plaintiff alleges that DeCastro “use[d] to threaten [him]” by saying that Plaintiff was “on the ‘burn,’ meaning watch [your] back,” (id. at 12), and by authorizing “unwarrant[ed] cell searches,” (id. at 35).
On April 22, 2012, Velez, a correction officer, issued Plaintiff a misbehavior report (the “First Report”) claiming that Plaintiff had violated certain disciplinary rules against creating a disturbance, interfering with employees, refusing a direct order, and moving in the facility contrary to procedure. (Am. Compl. 11, 18–19, 21.) Plaintiff alleges that the First Report was false, (id. at 11), and that it was “inadequate” because it was “not clear what the charges were,” (id.). The next day, DeCastro “reviewed” the First Report. (Id.) Plaintiff alleges that, given his history with DeCastro, he “changed the status” of the First Report, thereby denying Plaintiff adequate notice of the charges against him as required under 7 N.Y.C.R.R. § 251-3. (Id. at 12–16, 21.)
A disciplinary hearing regarding the First Report was held on May 1, 2012 (the “First Hearing”), at which Humphrey served as the presiding officer. (Id. at 13, 21, 23.) Given the alleged notice problems, Humphrey was “suppo[sed] to adjourn the hearing to give . . . Plaintiff an opportunity to prepare for his defense.” (Id. at 13.) Yet, Humphrey failed to rectify the error, thereby “prejudic[ing]” Plaintiff’s ability to present a defense. (Id. at 13–14.) Humphrey found Plaintiff guilty of three charges and sentenced him to 45 days in keeplock and loss of other privileges, including the loss of recreation, packages, commissary, and access to the telephone. (Id. at 14, 21.) Plaintiff appealed Humphrey’s decision to Prack, the Director of Special Housing, but Prack allegedly “rubber-stamped” the decision and denied the appeal. (Id. at 14, 23.) Plaintiff ultimately served 10 days of his 45-day sentence. (Id. at 21.)
3. Second Misbehavior Report and Second Disciplinary Hearing
Plaintiff alleges that DeCastro and Clark, a senior mail clerk, “conspired” to intentionally interfere with and open Plaintiff’s outgoing and incoming “privileged” and “legal”
A disciplinary hearing regarding the Second Report was held between April 4 and 8, 2013 (the “Second Hearing”), at which King, a lieutenant, served as the presiding officer. (Id. at 32.) Plaintiff was found guilty of the charges and sentenced to three months of keeplock and lost privileges. (Id.) Moreover, King removed Plaintiff from his IGRC position. (Id. at 32, 54.) Plaintiff appealed, and Prack reversed King’s decision on July 2, 2013. (Id. at 25–26, 34.) In Plaintiff’s view, the reversal “shows [that he] was telling the truth” and that DeCastro and Clark were “lying.” (Id. at 26, 37.)
Plaintiff further alleges that King, in removing Plaintiff from his position as an IGRC representative, did not comply with DOCCS Directive 4040, which, according to Plaintiff, prohibits an IGRC representative from being removed from his position without a prior hearing. (Id. at 49–50.) In particular, Plaintiff alleges that, because the Second Hearing addressed an issue unrelated to his IGRC position, it did not satisfy the requirements of the directive. (Id.)
4. Third Misbehavior Report and Third Disciplinary Hearing
On April 24, 2013, Plaintiff sought to speak to Encarnacion, the Imam at Woodbourne, because he was having “mental issues” and wanted to discuss “serious family matters.” (Id. at 37–38, 70.) Encarnacion came to visit Plaintiff that same day, where he proceeded to yell at
A disciplinary hearing regarding the Third Report was held between April 29 and May 7, 2013 (the “Third Hearing”), at which King served as the presiding officer. (Id. at 78.) Plaintiff alleges that King was biased and prejudiced against him and that there was no evidence that he threatened Encarnacion. (Id. at 39, 72.) King found Plaintiff guilty and sentenced him to 60 days in the special housing unit (“SHU”). (Id. at 72, 78.) Plaintiff appealed, and the appeal was affirmed by Venettozzi. (Id.)
Plaintiff further alleges that on May 8, 2013, Katz, a lieutenant, forged and rewrote King’s decision following the Third Hearing decision without authority. (Id. at 73.) Katz allegedly corrected King’s decision by having Plaintiff’s confinement in SHU commence immediately, rather than having it start following the completion of Plaintiff’s keeplock sentence. (Id. at 73–75.) Plaintiff claims that this confusion regarding his sentences resulted in him spending extra days in SHU. (Id.)
B. Procedural History
Plaintiff filed his initial Complaint and attached exhibits on August 5, 2014. (Dkt. No. 2.) The Court granted Plaintiff’s IFP request on November 18, 2014. (Dkt. No. 4.) On March 7, 2017, Defendants filed a letter requesting permission to file an initial motion to dismiss. (Dkt.
On March 13, 2018, the Court issued an Opinion granting Defendants’ initial motion. (Opinion (Dkt. No. 59).) The Court dismissed the Complaint without prejudice and directed Plaintiff to file an amended complaint correcting the deficiencies identified. (Id. at 33.)
On May 15, 2018, Plaintiff filed the instant Amended Complaint. (Dkt. No. 70.) On May 29, 2018, Defendants filed a letter seeking a motion in anticipation of moving to dismiss. (Dkt. No. 71.) Plaintiff filed a letter in opposition. (Dkt. No. 72.) On June 11, 2018, the Court set a briefing schedule. (Dkt. No. 73.) Defendants filed the instant Motion To Dismiss and accompanying papers on July 11, 2018. (Not. of Mot.; Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 75).) On August 14, 2018, Plaintiff filed his response in opposition to the Motion. (Pl.’s Resp. to Defs.’ Mot. (“Pl.’s Mem.”) (Dkt. No. 77).) On August 23, 2018, Defendants filed a reply. (Reply Mem. of Law in Supp. of Mot. (“Defs.’ Reply”) (Dkt. No. 78).)
II. Discussion
Defendants move to dismiss the Amended Complaint pursuant to
The Supreme Court has held that, while a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations, quotation marks, and alterations omitted). Indeed,
Generally, “[i]n adjudicating a
B. Analysis
1. Procedural Due Process Claims
A prison inmate “has the right not to be deprived of a protected liberty interest without due process of law.” Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986). “[T]o present a [procedural] due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (citation and quotation marks omitted). “The appropriate process depends on the balancing of three factors: (1) ‘the private interest that will be affected by the official action;’ (2) ‘the risk of erroneous deprivation of such interest through the procedures used;’ and (3) ‘the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’” Panzella v. Sposato, 863 F.3d 210, 218 (2d Cir. 2017) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
The Supreme Court has held that inmates retain due process rights in prison disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 563–72 (1974) (describing procedural protections inmates are to receive when subject to significant disciplinary punishment). However, “[p]rison discipline implicates a liberty interest [only] when it ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’” Ortiz, 380 F.3d at 654 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). The Second Circuit has explained that “[t]he length of disciplinary confinement is one of the guiding factors in applying Sandin’s atypical and significant hardship test.” Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003) (citation and quotation marks omitted). The duration of disciplinary confinement, however, is “not the only relevant factor,” and the Second Circuit has “explicitly avoided a bright line rule that a certain period of SHU confinement automatically fails to implicate due process rights.” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004). Indeed, “[t]he conditions of confinement are a distinct and equally important consideration in determining whether a confinement in SHU rises to the level of atypical and severe hardship,” and, therefore, courts should consider “the extent to which the conditions of the disciplinary segregation differ from other routine prison conditions.” Id. (citations and quotation marks omitted).
As a guidepost to determining whether due process protections are required in the prison context, the Second Circuit has instructed that, “[w]here the plaintiff was confined for an intermediate duration — between 101 and 305 days — development of a detailed record of the conditions of the confinement relative to ordinary prison conditions is required.” Id. at 64–65 (citation and quotation marks omitted); see also Abdur-Raheem v. Caffery, No. 13-CV-6315, 2015 WL 667528, at *5 (S.D.N.Y. Feb. 17, 2015) (same). Moreover, “although shorter confinements under normal SHU conditions may not implicate a prisoner’s liberty interest, [the Second Circuit has] explicitly noted that SHU confinements of fewer than 101 days could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions . . . or a more fully developed record showed that even relatively brief confinements under normal SHU conditions were, in fact, atypical.” Palmer, 364 F.3d at 65 (citations omitted). Indeed, “[a]bsent a detailed factual record, courts typically affirm dismissals of due process claims where the period of time spent in SHU was short — e.g., thirty days — and there was no indication of unusual conditions.” Houston v. Cotter, 7 F. Supp. 3d 283, 298 (E.D.N.Y. 2014) (citing Palmer, 364 F.3d at 66).
Applying these principles, to make out a due process claim related to his confinements in keeplock and SHU, Plaintiff must plausibly allege (1) that there was a deprivation of a protected liberty interest and (2) that such deprivation was the result of the procedural defects. See Ortiz, 380 F.3d at 654. Here, as with the initial Complaint, (see Opinion 14–17), the first element of Plaintiff’s due process claim has not been met as to any of the disciplinary actions. Following the First Report and First Hearing, Plaintiff was sentenced to 45 days in keeplock, although he served only 10 days, with the remaining time suspended. (Am. Compl. 14, 21, 23.) Following the Second Report and Second Hearing, Plaintiff was sentenced to 90 days in keeplock, but served only 30 days, with the remaining time suspended. (Id. at 32.) And following the Third Report and Third Hearing, Plaintiff was sentenced to, and served, 60 days in the SHU. (Id. at 72, 78.)4 Because each of Plaintiff’s separate segregated confinements was fewer than 101 days,
2. Access to Courts Claim
“To state a claim for denial of access to the courts — in this case due to interference with legal mail — a plaintiff must allege that the defendant took or was responsible for actions that hindered a plaintiff’s efforts to pursue a legal claim.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (citation, alteration, and quotation marks omitted). “[A] plaintiff must allege not only that the defendant’s alleged conduct was deliberate and malicious, but also that the defendant’s actions resulted in actual injury to the plaintiff such as the dismissal of an otherwise meritorious legal claim.” Cancel v. Goord, No. 00-CV-2042, 2001 WL 303713, at *4 (S.D.N.Y. Mar. 29, 2001) (emphasis added) (citing Lewis v. Casey, 518 U.S. 343, 351 (1996)). Actual injury includes “claims that systemic official action frustrates a plaintiff . . . in preparing and filing suits at the present time,” and “claims not in aid of a class of suits yet to be litigated, but of specific cases that cannot now be tried (or tried with all material evidence), no matter what official action may be in the future.” Christopher v. Harbury, 536 U.S. 403, 413–14 (2002) (collecting
Here, Plaintiff alleges that DeCastro and Clark “conspired” to interfere with and open Plaintiff’s outgoing and incoming “privileged correspondence” outside of his presence. (Am. Compl. 24, 26–27.) Even assuming Defendants “alleged conduct was deliberate and malicious,” Cancel, 2001 WL 303713, at *4, Plaintiff makes no showing of actual injury. “Mere delay in being able to work on one’s legal action or communicate with the courts does not rise to the level of a constitutional violation.” Davis, 320 F.3d at 352 (citation and quotation marks omitted). Plaintiff does not allege that he was prevented (or even delayed) from making legal filings. As before, (see Opinion 27), there is no indication that any Defendant “obstruct[ed] [Plaintiff’s] legitimate efforts to seek judicial redress” or otherwise prejudiced Plaintiff’s legal actions. City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 397 (2d Cir. 2008) (citation and quotation marks omitted); see also Christopher, 536 U.S. at 413 (noting right-of-access concerns are implicated when “systemic official action frustrates a plaintiff . . . in preparing and filing suits at the present time”). Accordingly, Plaintiff’s access-to-courts claim is dismissed. See Tutora v. Gessner, No. 17-CV-9517, 2019 WL 1382812, at *5 (S.D.N.Y. Mar. 27, 2019) (collecting cases for the proposition that an access-to-courts claim must be dismissed where no showing of actual injury is made).7
Plaintiff alleges that DeCastro and Clark “conspired” to violate his constitutional rights when they opened his mail and issued him a false misbehavior report. (Am. Compl. 24, 26–27.) As the Court earlier held, (see Opinion 28), any conspiracy claim is properly brought under
4. First Amendment Retaliation Claims
a. Applicable Law
To state a First Amendment claim of retaliation, an inmate must allege “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the [inmate], and (3) that there was a causal connection between the protected conduct and the adverse action.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (citation, alteration, and quotation marks omitted). An adverse action is any “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Davis, 320 F.3d at 353 (citation omitted). In determining whether a prison official’s conduct constitutes adverse action, “the court’s inquiry must be tailored to the different circumstances in which retaliation claims arise, bearing in mind that prisoners may be required to tolerate more than average citizens.” Id. (citation, alterations, and quotation marks omitted). “[B]ecause 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,” the Second Circuit has instructed that district courts must “approach prisoner retaliation claims with skepticism and particular care.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (citation and quotation marks omitted). Accordingly, a First Amendment retaliation claim must be supported by “specific and detailed factual allegations,” and not stated in “wholly conclusory terms.” Id. (citation and quotation marks omitted).
Plaintiff alleges that DeCastro has a “personal vendetta” against him deriving from Plaintiff’s position as an IGRC inmate representative and their IGRC-related interactions, and that because of this vendetta, DeCastro “changed the status” of the First Report authored by Velez, authored the Second Report himself, and encouraged Encarnacion to file the Third Report. (Am. Compl. 11–12, 35, 40, 44, 54.)
As an initial matter, as the Court previously held, (see Opinion 22), to the extent Plaintiff alleges that the roots of DeCastro’s retaliation are found in Plaintiff’s IGRC position, such conduct, liberally construed, constitutes protected activity. See Dolan, 794 F.3d at 295 (holding that “retaliation against a prisoner for filing or voicing grievances on behalf of a prison population as a member of an inmate grievance body . . . violates the right to petition government for the redress of grievances guaranteed by the First and Fourteenth Amendments” (quotation marks omitted)); see also Dolan v. Connolly, No. 13-CV-5726, 2017 WL 825311, at *5 n.10 (S.D.N.Y. Mar. 2, 2017) (collecting cases for the proposition that “advocacy on behalf of an [inmate grievance body] is constitutionally protected”).
The next question is whether the Amended Complaint alleges adverse action. The only adverse action alleged with respect to DeCastro are the three misbehavior reports. As to the First and Third Reports, however, they were not issued by DeCastro; rather, the First Report was issued by Velez and the Third Report by Encarnacion. (Am. Compl. 11, 18–19, 21, 38, 78.) Plaintiff alleges that DeCastro “reviewed” and “changed the status” of the First Report, (id. at 11–13), yet, as indicated by the documents attached to the Amended Complaint, DeCastro appears to have been involved only to the extent that he provided Plaintiff with a copy of report on April 23, 2013, (id. at 21–22). Put differently, the Amended Complaint does not allege facts
However, as to the Second Report, Plaintiff alleges that it was authored by DeCastro and, critically, that it was ultimately “reversed” on administrative appeal following the Second Hearing. (Am. Compl. 24–25, 30, 32, 34; Pl.’s Mem. 21.) In Plaintiff’s view, the reversal constitutes proof that DeCastro was lying and that the report was therefore false and retaliatory. (Am. Compl. 26–28; Pl.’s Mem. 25 (“It is a fact when a misbehavior report get[s] vindicated it shows the Defendants deliberately and . . . maliciously interfered and lied.”).) Defendants argue in response that “Plaintiff does not allege the basis for the reversal, which may have had nothing to do with the truth of the allegations in the [Second Report].” (Defs.’ Mem. 16 n.4.) That is true, yet, liberally construed, that the Second Report was reversed on appeal does tend to support Plaintiff’s allegation that the alleged adverse action was “unjustified” and “unwarranted.”
The final question is whether Plaintiff has sufficiently alleged a plausible causal connection between the adverse action (the Second Report) and the protected activity (Plaintiff’s position as an inmate IGRC representative). In considering whether a causal connection exists, “a court may infer an improper or retaliatory motive in the adverse action from: (1) the temporal proximity of the filing to the grievance and the disciplinary action; (2) the inmate’s prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant regarding his motive for disciplining the plaintiff.” Barnes v. Harling, — F. Supp. 3d —, 2019 WL 1319479, at *15 (W.D.N.Y. Mar. 19, 2019) (citation and quotation marks omitted); see also Vogelfang, 889 F. Supp. 2d at 517 (describing causation factors); Harnage v. Brighthaupt, 168 F. Supp. 3d 400, 414 (D. Conn. Mar. 1, 2016) (“With regard to false misbehavior reports, the types of evidence required to establish a causal connection between the plaintiff’s protected conduct and the alleged retaliation include temporal proximity, prior good discipline, a finding of not guilty at the disciplinary hearing[,] and statements from the defendants regarding their motives.” (citation and alterations omitted)), aff’d, 720 F. App’x 79 (2d Cir. 2018).
Here, Plaintiff alleges that he served as an inmate representative on the IGRC for a “little over five years.” (Am. Compl. 11, 35, 40.) He alleges that, over this period, he had numerous interactions and disagreements with DeCastro in connection with that position, including certain “grievance hearings” against DeCastro which led to “adverse findings” against him. (Id. at 35, 40.) This allegedly caused DeCastro to “threaten” Plaintiff by saying that Plaintiff was “on the ‘burn,’ meaning watch [your] back.” (Id. at 12.) Further, DeCastro would “harass[]” and “threat[en]” Plaintiff and the other IGRC inmate representatives by authorizing “unwarrant[ed] cell searches.” (Id. at 12, 35.) In sum, Plaintiff alleges, DeCastro had a longstanding “personal vendetta” against him, which led him to issue the false (and ultimately reversed) Second Report. (Id. at 11, 40.) These allegations, which were not in the initial Complaint, (see Opinion 22–24), are sufficient to plausibly allege that Plaintiff’s position on the IGRC, and the attendant negative interactions he had with DeCastro, were “a substantial or motivating factor” in DeCastro’s conduct. Hanner v. Westchester County, No. 16-CV-7610, 2019 WL 1299462, at *8 (S.D.N.Y. Mar. 21, 2019) (quoting Dorsey v. Fisher, 468 F. App’x 25, 27 (2d Cir. 2012)). As such, this case is different from those in which plaintiffs have offered only conclusory allegations to
To be sure, Plaintiff does not have a “reasonable expectation of privacy in his or her prison cell,” and, accordingly, the search of his cell, “even [if done] for retaliatory reasons, . . . does not implicate a constitutional right.” Battice v. Phillip, No. 04-CV-669, 2006 WL 2190565, at *7 (E.D.N.Y. Aug. 2, 2006) (collecting cases); see also Harnage v. Brighthaupt, No. 12-CV-1521, 2016 WL 10100763, at *6 (D. Conn. June 3, 2016) (holding that “even if [the plaintiff] could demonstrate a retaliatory motive for the search, his claim would be legally insufficient” to “support a First Amendment retaliation claim”), aff’d, 720 F. App’x 79 (2d Cir. 2018). Yet, even if “a cell search alone is not actionable,” courts have held that, when “combined . . . with other wrongful conduct,” such allegations may be sufficient to state a claim. Stewart v. Richardson, No. 15-CV-9034, 2016 WL 7441708, at *5 (S.D.N.Y. Dec. 27, 2016) (collecting cases). Further, as Defendants point out, (Defs.’ Mem. 15–16), Plaintiff does not provide specific details (beyond stating that he had been an IGRC representative for about five years) as to when, exactly, he had his “numerous” IGRC-related disagreements with DeCastro, when DeCastro allegedly threatened him that he was “on the burn,” or when the “adverse findings” were made against DeCastro. Yet, construed liberally, the Amended Complaint suggests that Plaintiff had an ongoing
In sum, construing the Amended Complaint to raise the strongest arguments it plausibly suggests, see Sykes, 723 F.3d at 403, the Court concludes that the alleged combination of DeCastro’s threatening comments to Plaintiff, his unauthorized cell searches, and the “adverse findings” against him, over the course of an ongoing contentious relationship with Plaintiff, are sufficient to suggest retaliatory animus and, therefore, to establish a causal connection between the Second Report and Plaintiff’s protected conduct. (Am. Compl. 11–12, 35, 40.) Therefore, Plaintiff states a prima facie retaliation claim against DeCastro. Accordingly, the Court denies the Motion To Dismiss Plaintiff’s retaliation claim against DeCastro.8
c. Velez and Encarnacion
Separate from his allegations against DeCastro, Plaintiff alleges that Velez retaliated against him in authoring the First Report and that Encarnacion did the same in authoring the Third Report. (Am. Compl. 11, 35, 38.) Yet, even assuming these misbehavior reports constitute adverse action with respect to the authoring Defendant, Plaintiff fails to allege a plausible causal connection between the authoring Defendant and Plaintiff’s protected conduct as an IGRC representative. Unlike with DeCastro, Plaintiff does not allege that he had any ongoing relationship or repeated interactions with Velez or Encarnacion. Indeed, the Amended
5. Qualified Immunity
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation and quotation marks omitted). In determining whether a right is clearly established, the “inquiry turns on the objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken.” Id. at 244 (citation and quotation marks omitted). “In the Second Circuit, ‘a right is clearly established if (1) the law
Defendants argue that they are entitled to qualified immunity on Plaintiff’s First Amendment retaliation claims because it was not clearly established, at the time Defendants’ alleged retaliation occurred in 2012 and 2013, that Plaintiff’s position as an inmate representative on the IGRC constituted protected conduct. (Defs.’ Mem. 16–18.) In support, Defendants rely on the Second Circuit’s 2015 decision in Dolan v. Connolly (“Dolan I”) for the proposition that it had “not held specifically that a prisoner engages in constitutionally protected conduct by carrying out the duties of a member of an [inmate grievance body].” Dolan I, 794 F.3d at 295 (emphasis added). Therefore, in Defendants’ view, it was only in 2015 — at least two years after the alleged conduct in this case — “that retaliation against a prisoner for filing or voicing grievances on behalf of a prison population as a member of an inmate grievance body” violated a clearly established right. Id.
This reliance is misplaced. As an initial matter, a right does not become clearly established only when there is “specific authority directly on point”; rather, a right becomes clearly established where “the circuit’s decisions ‘clearly foreshadow’ a particular ruling on the issue.” Varrone v. Bilotti, 123 F.3d 75, 79 (2d Cir. 1997) (citation omitted). Thus, the Second Circuit’s statement in Dolan I that it had not “specifically” decided the issue is not dispositive. More fundamentally, it was “clearly foreshadowed” at the time of the alleged conduct here that Plaintiff’s IGRC position was protected conduct. As the one district court to have applied Dolan I to the question of qualified immunity stated:
In Dolan [I] itself, the Second Circuit observed that it was “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
§ 1983 .” Further, the [Second Circuit] found “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.” Thus, the [Second Circuit] concluded that “[the plaintiff’s] alleged actions as an [inmate grievance] representative are similar, if not identical, to the grievance-related activity already established as constitutionally protected conduct.”
Dolan, 2017 WL 825311, at *4 (“Dolan II”) (citations and some quotation marks omitted). This analysis is persuasive. Relevant here, in 1996, the Second Circuit considered a case in which the plaintiff, an inmate, provided IGRC representatives investigating a particular grievance the names of five inmates who “would be willing to represent the other prisoners in the grievance process.” Graham v. Henderson, 89 F.3d 75, 77 (2d Cir. 1996). The plaintiff was thereafter issued an allegedly false and retaliatory misbehavior report by a correction officer. Id. at 78. The Second Circuit held that the plaintiff’s “filing of a grievance and attempt to find inmates to represent . . . grievants” was protected conduct that implicated the “right to petition government” — “in both judicial and administrative forums” — “for the redress of grievances guaranteed by the First and Fourteenth Amendments.” Id. at 80. Further, in 2004, the Second Circuit considered a case in which the plaintiff, an inmate, filed grievances against prison officials and was thereafter issued allegedly retaliatory misbehavior reports. See Gill, 389 F.3d at 380. The Second Circuit broadly held that “use of the prison grievance system” constitutes protected activity. Id. at 384. Reading these cases together, as did the district court in Dolan II, 2017 WL 825311, at *5, it can fairly be said that, by 2004, it was clearly foreshadowed that an inmate’s participation in a prison’s grievance committee squarely implicates his right to petition the government. Put differently, at the time the alleged retaliation in this case occurred, in 2012 and 2013, it was clearly established that Plaintiff’s IGRC position “[fell] within the type of First
Qualified immunity is an affirmative defense on which Defendants bear the burden of proof. See Lore v. City of Syracuse, 670 F.3d 127, 149 (2d Cir. 2012) (citation omitted). For qualified immunity to bar suit at the motion to dismiss stage, “[n]ot only must the facts supporting the defense appear on the face of the complaint, but, as with all
III. Conclusion
For the foregoing reasons, Defendants’ Motion To Dismiss is granted in part and denied in part. All Defendants and claims except for Plaintiff’s First Amendment retaliation claim against DeCastro are dismissed. Dismissal is with prejudice.9
The Court will hold a status conference on May 3, 2019, at 2:00 p.m.
SO ORDERED.
DATED: March 29, 2019
White Plains, New York
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE