Morgan, Jr. v. Dzurenda, et al
ORDER granting in part and denying in part Defendants' 82 Motion for Summary Judgment. Signed by Judge Victor A. Bolden on 3/31/2017. (Chen, C.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
LLOYD GEORGE MORGAN,
COMM’R JAMES E. DZURENDA, et al.,
Case No. 3:14-cv-966(VAB)
RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff, Lloyd George Morgan, is currently incarcerated at Garner Correctional
Institution, in Newtown, Connecticut (“Garner”). He initiated this action by filing a Complaint
alleging various claims under 42 U.S.C. § 1983 (“Section 1983”) and Title II of the Americans
with Disabilities Act (“ADA”). His Complaint, ECF No.1, named twenty-one officials or
officers employed by the State of Connecticut Department of Correction as Defendants.
In an Initial Review Order dated November 21, 2014, the Court dismissed Morgan’s
Section 1983 claims alleging violations of the Fifth, Sixth and Fourteenth Amendment, as well as
the ADA claims against all Defendants and the prison transfer claims against Defendants Semple
and Lewis under 28 U.S.C. § 1915A(b)(1). See Initial Review Order at 12, ECF No. 11. The
Court also dismissed the claims for monetary damages against all Defendants in their official
capacities under 28 U.S.C. § 1915A(b)(2). See id. The Court concluded that the Eighth
Amendment claims of failure to protect and deliberate indifference to safety, the First
Amendment retaliation claims and the state law claims of negligence and intentional infliction of
emotional distress would proceed against Defendants Commissioner James E. Dzurenda; Deputy
Commissioner Scott S. Semple; District Administrator Angel Quiros; Director of Offender
Classification Karl Lewis; Wardens Carol Chapdelaine, Edward Maldonado and Christine M.
Whidden; Deputy Wardens Gary Wright and Sandra Barone; Captains McCormick and K.
Godding; Unit Managers Manning and Jean Ott; Lieutenant Lizon; and Correctional Officers
Maldonado, Lindsey, Clayton, Torres, Gonzalez, Leiper and Ulm in their individual capacities,
and in their official capacities, but only to the extent that Mr. Morgan sought declaratory and
injunctive relief. See id.
On September 29, 2015, the Court denied in part and granted in part the Defendants’
motion to dismiss. ECF No. 53. The following claims remain pending against the Defendants in
their individual capacities: (1) the January 2014 failure to protect claim against Defendants
Godding, Chapdelaine, McCormick, Lindsey and Maldonado; (2) the claim that Defendants
Gonzalez, Torres, Ulm, Leiper and Clayton were deliberately indifferent to Mr. Morgan’s safety
when they called him a snitch in front of other inmates; (3) the claim that Defendants Lizon,
Wright, Maldonado, Manning, Ott, Barone, Dzurenda, Semple, Lewis and Quiros were
deliberately indifferent to Mr. Morgan’s safety because they failed to take any action to protect
Mr. Morgan from potential harm when they learned of the conduct of defendants Gonzalez,
Torres, Ulm, Leiper and Clayton; (4) the specific claims of retaliation against Defendants
Whidden and Warden Maldonado; and (5) the state law claim for intentional infliction of
emotional distress. See Motion to Dismiss Order at 22, ECF No. 53.
Pending before the Court is Defendants’ motion for summary judgment as to all of
Morgan’s claims. ECF No. 82. For the reasons set forth below, the motion is GRANTED in
part and DENIED in part. Specifically, the motion is GRANTED as to the Eighth Amendment
deliberate indifference to safety claims against Gonzalez, Torres, Ulm, Leiper, Clayton, Lizon,
Wright, Maldonado, Manning, Ott, Barone, Dzurenda, Semple, Lewis, and Quiros, in relation to
comments from Gonzalez, Torres, Ulm, Leiper, and Clayton indicating that Morgan was a snitch
in front of other inmates; the Eighth Amendment failure to protect claim against McCormick
centering on the assault by Rodriguez on Morgan; and the First Amendment retaliation claims
against Whidden and Maldonado. The motion is DENIED as to the Eighth Amendment failure
to protect claim against Chapdelaine, Godding, Maldonado and Lindsey arising from the assault
by Rodriguez on Morgan and as to the intentional infliction of emotional distress claims.
Standard of Review
The Court will grant a motion for summary judgment if it determines that there is no
genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). The moving party bears the burden of showing that no genuine dispute of
material fact exists. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 133 (2d Cir. 2000). “A
dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Williams v. Utica Coll. Of Syracuse Univ., 453 F.3d
112, 116 (2d Cir. 2006) (quoting Stuart v. Am. Cyanamic Co., 158 F.3d 622, 626 (2d Cir. 1998).
The substantive law governing the case identifies which facts are material, and “only disputes
over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Boubolis v. Transp. Workers Union of Am., 442 F.3d
55, 59 (2d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
On summary judgment, the Court’s task is “carefully limited to discerning whether there
are any genuine issues of material fact to be tried, not to deciding them.” Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). When reviewing the record
on a motion for summary judgment, the Court must “assess the record in the light most favorable
to the non-movant” and “draw all reasonable inferences in its favor.” Weinstock v. Columbia
Univ., 224 F.3d 33, 41 (2d Cir. 2000). Inferences drawn in favor of the nonmovant must,
however, be supported by evidence, and the “mere existence of a scintilla of evidence in support
of the [nonmovant’s] position” is insufficient to defeat summary judgment. Liberty Lobby, 477
U.S. at 252. Conclusory allegations, conjecture, and speculation are insufficient to create
genuine issues of material fact. Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (internal
quotation marks omitted).
Where one party is proceeding pro se, the Court must read the pro se party’s papers
liberally and interprets them “to raise the strongest arguments that they suggest.” Willey v.
Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (internal quotation marks omitted). Despite this
liberal interpretation, however, “[u]nsupported allegations do not create a material issue of fact”
and cannot overcome a properly supported motion for summary judgment. See Weinstock, 224
F.3d at 41.
In 2013, the Department of Correction (“DOC) housed Morgan at the Carl Robinson
Correctional Institution (“Robinson”), until he was transferred to Osborn Correctional
(“Osborn”) from Robinson on November 8, 2013. Morgan Aff. ¶ 3, ECF No. 100-1; Maiga Aff.
The relevant facts are taken from Defendants’ Local Rule 56(a)1 Statement, ECF No. 82-4; and Exhibits attached
to the Local Rule 56(a)1 Statement, ECF Nos. 82-4, 82-5, 82-6, 82-7, 82-9 through 82-15; and Mr. Morgan’s Local
Rule 56(a)2 Statement, ECF. No. 101; Affidavit, ECF No. 100-1; and Exhibits attached to the Complaint, ECF No.
1-1. The court notes that the Defendants initially submitted two Local Rule 56(a)1 Statements with their motion for
summary judgment. See ECF No. 82-4; ECF No. 82-8. Defendants then filed a motion substituting another
document for the second Local Rule 56(a)(1) statement for the one filed as ECF No. 82-8, indicating that it was filed
in error. ECF No. 83. The Court therefore considers the Defendants’ Local Rule 56(a)2 Statement filed as ECF No.
82-4 to be the operative one for purposes of this ruling.
¶ 24, ECF No. 82-5. Before he was housed at Robinson in 2013, Morgan had been housed at
Osborn. Morgan Aff. ¶ 4.
November 8, 2013 Transfer
While housed at Robinson in 2013, Morgan testifies that he filed “numerous complaints
regarding threats to my safety made by multiple inmates who were gang members.” Morgan
Aff. ¶ 4. Morgan also wrote to Whidden about these threats and the fear for his safety, and
indicated that he had also “experienced threats to [his] person by gang members” while he was
housed at Osborn before being housed at Robinson. Id. ¶ 5. Morgan therefore requested
placement in protective custody and had a protective custody application completed and
submitted. Id. ¶ 6.
A correctional official conducted an investigation into Morgan’s allegations in support of
his request for protective custody. During an interview with the investigator, Morgan identified
three inmates who had threatened to harm him. The investigator also interviewed one of the
inmates who had allegedly threatened Morgan.
On November 4, 2013, the investigator recommended that the request for protective
custody status for Morgan be denied because there was a lack of evidence to support a valid
threat to Morgan’s safety and because there was a reasonable housing alternative in general
population. The investigator noted that Morgan could not be managed in a dormitory setting, but
recommended that Morgan be housed in a celled facility in a single cell in general population.
On November 5, 2013, Whidden concurred with the recommendations of the investigator
and denied the request for protective custody. She agreed that a transfer to another facility that
did not have dormitory-style housing would be sufficient to meet the safety and other concerns
of Mr. Morgan. Later that day, Quiros concurred with Whidden’s recommendation.
On November 7, 2013, Lewis approved the recommendations of Whidden to deny
Morgan’s request to be placed in protective custody and to transfer Morgan to a celled facility.
Lewis also ordered that formal separation profiles be established between Mr. Morgan and the
three inmates who had threatened him.
On November 8, 2013, officials at Robinson transferred Morgan to Osborn Correctional
Institution (“Osborn”). Inmate Gabriel Rodriguez was confined at Osborn in housing Unit B, the
same unit as Morgan. This was the first time that Rodriguez and Morgan had been confined
together in the same facility under DOC custody. Unit B had not been designated as a unit for
Morgan’s Complaints at Osborn
On November 13, 2013, Mr. Morgan completed and submitted an Inmate Request Form
addressed to Godding. On December 2, 2013, Mr. Morgan completed and submitted an Inmate
Request Form addressed Chapdelaine. On December 18, 2013, Mr. Morgan completed and
submitted an Inmate Request Form addressed to McCormick.
At some point in 2009, McCormick began to work at Osborn. On December 10, 2013,
DOC re-assigned Captain McCormick to the District One Office. His duties and responsibilities
at Osborn ended when he left Osborn for the District One Office. McCormick does not,
therefore, remember receiving the Inmate Request Form dated December 18, 2013 that Morgan
addressed to him. McCormick was unaware of any problems between Morgan and Rodriguez
and had no reason to believe that Morgan was in danger.
On January 3, 2014, DOC re-assigned Chapdelaine to become the Warden of
MacDougall-Walker Correctional Institution (“MacDougall”). Warden Chapdelaine’s reassignment to MacDougall terminated her responsibilities at Osborn. She was no, therefore,
aware of or involved in the incident that occurred on January 5, 2014 between Morgan and
Rodriguez at Osborn.
On January 3, 2014, DOC assigned Maldonado to take over as Warden of Osborn.
Morgan did not express any concerns for his safety or problems with Rodriguez to Maldonado
before the incident on January 5, 2014.
January 5, 2014 Incident with Rodriguez
On January 5, 2014, Morgan informed Lindsey and Maldonado that Rodriguez had
threatened him and that he feared for his safety. Morgan Aff. ¶ 22. Lindsey and Maldonado did
not take any action in response. Id.
Hours later, Rodriguez assaulted Morgan in the B-block shower at Osborn, “beating
[Morgan] about [his] head and choking [him].” Morgan Aff. ¶ 23. Morgan testifies that, during
the assault, Rodriguez informed him that it was “for being a snitch and a homo.” Id. ¶ 25.
Morgan testifies that this assault resulted in bruises to his head, face, and sides of his body, as
well as emotional distress. Id. ¶ 24.
After the assault by Rodriguez, Morgan was placed in segregation, in the Restrictive
Hoousing Unit from January 5, 2014 through sometime in February 2014. Morgan Aff. ¶ 26.
On February 18, 2014, Lizon transferred Morgan from the restrictive housing unit to Cell 24 in
Unit F in general population
Following the assault, Morgan again requested placement in protective custody. Morgan
Aff. ¶ 27. Morgan testifies that Long submitted the protective custody package and that both
Long and Lizon recommended that it be approved. Id. On January 21, 2014, Long submitted the
request for protective custody placement on Morgan’s behalf. On January 29, 2014, Morgan
learned that Maldonado had denied his request to be placed on protective custody. Morgan
appealed the denial of the request. On March 17, 2014, Semple denied the appeal.
After the assault, Rodriguez was also placed in the restrictive housing unit. He was
issued a disciplinary report for assault. Rodriguez pleaded guilty to the disciplinary charge.
Since the January 5, 2014 incident, Morgan and Rodriguez have remained separated. Maiga Aff.
¶ 42. Rodriguez was moved from Osborn on February 2014. Id. ¶ 49. Morgan and Rodriguez
have not been housed at the same facility since Rodriguez’s February 2014 move. Id.
Defendants assert three arguments in support of their motion for summary judgment on
all of Morgan’s claims. Defendants argue that that: (1) the facts do not, as a matter of law,
support Morgan’s failure to protect, deliberate indifference to safety, or retaliation claims; (2) the
facts do not demonstrate the personal involvement of Dzurenda, Semple, Quiros, Lewis,
Maldonado, Wright, Barone, Manning, Ott, and Lizon in any deliberate indifference to Morgan’s
safety; and (3) that Defendants are entitled to qualified immunity. See Def.’s Br. at 5-26, ECF
Eight Amendment Claims
Morgan frames some of his Eighth Amendment claims as failure to protect clams and the
others as deliberate indifference to safety claims. With respect to both types of claim, the threats
to his safety that Morgan identified and that he alleges the Defendants failed to protect him from
all came from other inmates. As discussed below, the standard for these claims is the same.
The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const. Amend.
VIII. Under the Eighth Amendment, prison conditions must, therefore, provide inmates with
“the minimal civilized measures of life’s necessities.” Wilson v. Seiter, 501 U.S. 294, 298
(1991). Prisons must provide inmates with their “basic human needs – e.g., food, clothing,
shelter, medical care, and reasonable safety,” and a failure to do so violates the Eighth
Amendment. DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989).
Accordingly, “prison officials have a duty to protect prisoners from violence at the hands of
other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal quotation marks
omitted); see also Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (“The Eighth Amendment .
. . imposes on prison officials a duty to protect prisoners from violence at the hands of other
prisoners.” (internal quotation marks omitted)).
To establish an Eighth Amendment violation for either failure to protect or deliberate
indifference to safety, an incarcerated plaintiff must show first, “that he is incarcerated under
conditions posing a substantial risk of serious harm,” and second, that the prison official had a
“sufficiently culpable state of mind,” which in “prison-conditions cases” is “one of deliberate
indifference to inmate health or safety.” Farmer, 511 U.S. at 834 (internal quotation marks
omitted); see also Lewis v. Swicki, 629 Fed.Appx. 77, 79 (2d Cir. 2015) (citing Hayes v. N.Y.C.
Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996)). To show deliberate indifference, the plaintiff
must show that “the official kn[ew] of and disregard[ed] an excessive risk to inmate health or
safety,” which means that the official must “both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837. Thus, the “deliberate indifference standard embodies both
an objective and a subjective prong.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994); see
also Bridgewater v. Taylor, 698 F. Supp. 2d 351, 357 (S.D.N.Y. 2010) (explaining that
defendants must be aware of facts supporting an inference that harm would occur and must
actually draw that inference).
Failure to Protect Claims
Morgan’s remaining claims include Section 1983 claims alleging that Godding,
Chapdelaine, McCormick, Lindsey, and Maldonado failed to protect him in violation of the
Eighth Amendment. See Motion to Dismiss Order at 22.
Morgan originally alleged that he sent an Inmate Request to McCormick on December
18, 2013. See Compl. ¶ 52, ECF No. 1. The request included allegations that Rodriguez had
threatened Morgan with bodily harm. See Compl. Ex. 8, ECF No. 1-1 at 27. Morgan claimed
that McCormick did not respond to this request in writing, but that after he sent the request he
encountered McCormick in the hallway at Osborn and raised the issues in the request.
McCormick indicated that he would call Morgan to his office to discuss the request, but he never
did so. Compl. ¶ 53; Morgan Aff. ¶¶ 19-20.
McCormick has now filed an affidavit and testifies that, on December 10, 2013, DOC
transferred him from Osborn to the District One Office of the DOC. See McCormick Aff. ¶ 3,
ECF No. 83-11. McCormick testifies that his duties and responsibilities at Osborn ended when
he was reassigned to the District One Office. Id. McCormick further states that he does not
recall ever receiving or seeing Morgan’s December 18, 2013 Inmate Request, was unaware of
any problems between Morgan and Rodriguez, and had no reason to think that Mr. Morgan was
at risk of harm from Inmate Rodriguez. See id. ¶¶ 5-6.
The only evidence that Morgan offers to rebut McCormick’s affidavit is his own
affidavit, which reiterates his allegation that he had seen and spoken to McCormick about his
December 18, 2013 request. See Morgan Aff. ¶¶ 19-20. Morgan’s Rule 56 Statement
contradicts his affidavit by admitting the paragraphs of Defendants’ Rule 56 statement that
discuss McCormick’s December 10, 2013 transfer away from Osborn, the end of McCormick’s
responsibilities at Osborn, and McCormick’s lack of knowledge of Morgan’s December 18, 2013
request regarding Rodriguez’s threats against Morgan. See Def.’s Rule 56 Statement ¶¶ 35-37,
ECF No. 82-4; Pl.’s Rule 56 Statement ¶¶ 35-37, ECF No. 100-1.
Under Local Rule 56(a)(1), any “material facts set forth in [the summary judgment
movant’s Rule 56 statement] and supported by the evidence will be deemed admitted unless
controverted by the statement required to be filed . . . by the opposing party.” Local R. Civ. P.
56(a)(1). The Court therefore deems the evidence brought by Defendants surrounding
McCormick’s December 10, 2013 transfer and lack of knowledge of Morgan’s December 18,
2013 request as “undisupted.” Dolan v. Select Portfolio Servicing, No. 03-CV-3285, 2016 WL
3512196, at *1 n. 4 (E.D.N.Y. June 22, 2016) (“Where a party either (i) admits or (ii) denies
without citing to admissible evidence facts alleged in the opposing party's Local Rule 56.1
Statement, the Court shall deem such facts undisputed.”).
The undisputed evidence shows that McCormick could not have been aware of Morgan’s
allegations regarding Rodriguez’s threats because McCormick no longer worked at Osborn as of
December 18, 2013, when Morgan first reported the threat. This demonstrates an absence of a
genuine issue of material fact and Captain McCormick’s entitlement to judgment as a matter of
law regarding the failure to protect claim Morgan brings against him. See Torres v. Mazzuca,
246 F. Supp. 2d 334, 339 (S.D.N.Y. 2003) (finding no failure to protect claim in the absence of
“facts that show [defendant correction officer] . . . had knowledge of, or reason to have
knowledge of, any danger to [plaintiff] prior to the [i]ncident that could place particular
responsibility on [defendant] for protecting [plaintiff]”). Morgan will not be able to show that
McCormick “was aware of any specific risk to [Morgan], which [McCormick] ignored,” as is
required to make out an Eighth Amendment failure to protect claim. Id. The Court therefore
grants summary judgment in favor of Defendants as to the Eighth Amendment failure to protect
claim against McCormick.
Correctional Officers Maldonado and Lindsey
Morgan’s Complaint alleged that, on January 5, 2014, soon after second shift began, he
spoke to Lindsey and Maldonado and informed them that Rodriguez, who was also housed in
Unit B, had threatened him and that he feared for his safety. Compl. ¶ 53. Lindsey and
Maldonado allegedly took no action in response to Morgan’s complaints about his safety. Id. A
few hours after Mr. Morgan spoke to Lindsey and Maldonado, Rodriguez assaulted Mr. Morgan
in the shower. Id.; Morgan Aff. ¶ 23.
Defendants now argue that Morgan’s allegations that he informed Lindsey and
Maldonado about the risk of harm from Rodriguez are conclusory and that he has provided no
support for these assertions. See Def.’s Br. at 8-9. Morgan has, however, supported his
allegations with an affidavit stating that he spoke to Lindsey and Maldonado the day of the
assault and communicated to them that Rodriguez, who resided in the same housing unit, had
threatened to harm him and that he feared for his safety. See Morgan Aff. ¶ 22. Within hours of
Morgan informing Lindsey and Maldonado of his safety concerns, Rodriguez assaulted Morgan.
Id. ¶ 23. Morgan also raised these same allegations with regards to the conduct of Lindsey and
Maldonado in an Inmate Request and a grievance that he filed after the assault. See Compl. Exs.
9, 15, ECF No. 1-1 at 29, 43-44.
Morgan has therefore presented evidence supporting his claim that he informed Lindsey
and Maldonado of the threat to his safety from Rodriguez before the assault by Rodriguez. See
Local R. Civ. P. 56(a)(3) (providing that any denials in a nonmovant’s Rule 56 statement
responding to motion for summary judgment must “be followed by a specific citation to (1) the
affidavit of a witness competent to testify as to the facts at trial and/or (2) evidence that would be
admissible at trial”). Defendants have offered no evidence or affidavits to contradict Morgan’s
Morgan’s statements in his affidavit and grievance create a genuine issue of material fact
as to whether Lindsey and Maldonado are liable for a failure to protect him in violation of the
Eighth Amendment: whether they were aware of the risk of harm that he faced from Inmate
Rodriguez before the assault; whether the risk of harm was substantial; and whether they
deliberately failed to take action to abate the harm he suffered. See Farmer, 511 U.S. at 834,
837. The Court therefore denies summary judgment as to the Eighth Amendment failure to
protect claims against Lindsey and Maldonado.
Warden Chapdelaine and Captain Godding
Morgan alleges that he sent an Inmate Request to Godding in November 2013 and an
Inmate Request to Chapdelaine in December 2013, before the incident involving Rodriguez.
See Compl. Ex.s 6-7, ECF No. 1-1 at 25-26. The Inmate Requests included specific allegations
regarding Morgan’s fears of being harmed by Rodriguez, who was confined in the same housing
unit and was allegedly a member of the Los Solidos gang. See id. The November 14, 2013
request was addressed to Godding, but included a notation that a copy had also been sent to
Chapdelaine. See Compl. Ex. 6, ECF No. 1-1 at 25.
In his affidavit, Morgan testifies that Godding did not respond in writing to his November
14, 2013 Inmate Request, but that he frequently toured Unit B. See Morgan Aff. ¶ 15. During at
least one of those tours, according to Morgan, Godding discussed Morgan’s November 14, 2013
request with him. Id. Morgan testifies that during this conversation, Godding suggested that
Morgan mind his own business and “learn to fight like a man.” Id. Godding did not file an
affidavit in support of the motion for summary judgment.
In his affidavit, Morgan also testifies that Chapdelaine did not respond in writing to his
December 2, 2013 Inmate Request, but that he spoke to Chapdelaine while she did a tour of his
housing unit after he had sent her the request. See Morgan Aff. ¶¶ 16-17. During that
conversation, Morgan states that Chapdelaine acknowledged that she had received the December
2, 2013 request. See id. ¶ 17.
Chapdelaine has filed an affidavit testifying that she does not remember receiving either
the November 14, 2013 Inmate Request or the December 2, 2013 Inmate Request. See
Chapdelaine Aff. ¶¶ 8, 15, ECF No. 87. Furthermore, having since reviewed the requests, which
Morgan had attached to his Complaint in this case, Chapdelaine now states that there was
nothing in either request that would have alerted her to when and where Rodriguez made threats
to Morgan, what Rodriguez specifically said to Morgan, or that there was a risk of substantial
harm to Morgan. See id. ¶¶ 9, 12, 16, 18. Chapdelaine states that the allegations were so vague
that she would have been unable to assess their validity. See id. ¶¶ 12, 18. She also states that
she did not have any conversations with Morgan that would have alerted her that Rodriguez had
threatened him, that he was afraid of Rodriguez, or that a fight might occur between Morgan and
Rodriguez. See id. ¶¶ 22-23.
Assessing the factual record in the “light most favorable to” Morgan and “draw[ing] all
reasonable inference in [his] favor,” Chapdelaine and Godding not only received Morgan’s
Inmate Requests, but also spoke to Morgan in person regarding his concerns and fears about
Rodriguez. Weinstock, 224 F.3d at 41. Morgan has presented evidence that he made defendants
Chapdelaine and Godding aware of a specific threat to his safety by identifying Rodriguez, who
resided in the same housing unit as himself, and describing the threats of harm made by
Rodriguez. Morgan was then assaulted by Rodriguez within a few months of when he made
Chapdelaine and Godding aware of Rodriguez’s threats.
A jury could find that Morgan’s written and verbal communications with Chapdelaine
and Godding were sufficient to put them on notice of a serious risk to his safety such that they
needed to act to protect him from that risk. See Shell v. Brun, 585 F. Supp. 2d 465, 469
(W.D.N.Y. 2008) (“[I]n failure to protect cases, a prisoner normally proves actual knowledge of
impending harm by showing that he complained to prison officials about a specific threat to his
safety.”); Beckles v. Bennett, No. 05-CIV-2000 (JSR), 2008 WL 821827, at *17 (S.D.N.Y. Mar.
26, 2008) (“Courts have found that, when an inmate informs corrections officers about a specific
fear of assault and is then assaulted, this is sufficient to proceed on a claim of failure to
protect.”). The Court therefore finds that there are issues of disputed material fact that as to
whether Chapdelaine and Godding failed to protect Morgan in violation of the Eighth
Amendment, and summary judgment on these claims is denied.
Defendants argue that they are entitled to qualified immunity on the entirety of Morgan’s
Complaint. See Def.’s Br. at 24-26. Because, as discussed above and below, the only
constitutional claims that Morgan can show are the Eighth Amendment failure to protect claims
against Chapdelaine, Godding, Maldonado, and Lindsey in relation to the assault by Rodriguez,
the Court considers the issue of qualified immunity only as to these claims.
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)
(internal quotation marks omitted). An official is entitled to qualified immunity unless plaintiff
shows both “(1) that the official violated a statutory or constitutional right” and “(2) that the right
was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S.
731, 735 (2011). The Supreme Court has held that district courts have the discretion to choose
which of the two prongs of the qualified immunity standard to decide first in view of the
particular circumstances surrounding the case to be decided. See Pearson, 555 U.S. at 236.
Under the second prong, a right is clearly established if, “at the time of the challenged
conduct . . . every ‘reasonable official would have understood that what he is doing violates that
right.’” al-Kidd, 563 U.S. at 731, 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640
(1987)). There is no requirement that a case have been decided which is directly on point, “but
existing precedent must have placed the statutory or constitutional question beyond debate.” Id.
“[A] broad general proposition” does not constitute a clearly established right. Reichle v.
Howards, 566 U.S. 658, 658 (2012). Rather, the constitutional right allegedly violated must be
established “in a ‘particularized’ sense so that the ‘contours’ of the right are clear to a reasonable
official.” Id. (quoting Anderson, 483 U.S. at 640).
Because Defendants cannot show either that they did not, as a matter of law “violate a
statutory or constitutional right” or that Morgan’s Eighth Amendment right to his safety was not
“clearly established at the time of the challenged conduct,” they are not entitled to qualified
immunity on the Eighth Amendment failure to protect claim. al-Kidd, 563 U.S. at 735. As
discussed in the above sections, Defendants have also failed to show that, as a matter of law,
Chapdelaine, Godding, Maldonado, and Lindsey did not “violate a statutory or constitutional
right,” namely Morgan’s Eighth Amendment right to be free from threats to his safety at the
hands of another inmate. al-Kidd, 563 U.S. at 735.
In 2013 and 2014, when Morgan reported his fears about Rodriguez, Defendants ignored
the reports, and Rodriguez eventually assaulted Morgan, it was also clearly established that a
prison official’s deliberate indifference to threats to an inmate’s safety by another inmate would
violate the Eighth Amendment. See Farmer, 511 U.S. at 833 (correctional officers have a “duty .
. . to protect prisoners from violence at the hands of other prisoners”); Hayes v. New York City
Dep't of Corrections, 84 F.3d 614, 620 (2d Cir.1996) (finding that Eighth Amendment “requires
prison officials to take reasonable measures to guarantee the safety of inmates in their custody”).
The Court therefore finds that Chapdelaine, Godding, Maldonado and Lindsey are not entitled to
summary judgment on the basis of qualified immunity with regards to Morgan’s Eighth
Amendment failure to protect claims related to the assault on Morgan by Rodriguez.
Deliberate Indifference to Safety
Morgan’s surviving claims under Section 1983 include various claims alleging that
Defendants violated the Eighth Amendment through their deliberate indifference to his safety.
These claims include Morgan’s claims that Gonzalez, Torres, Ulm, Leiper, and Clayton were
deliberately indifferent to his safety when they called him a snitch in front of other inmates. See
Order on Motion to Dismiss at 22. Morgan’s remaining deliberate indifferent claims also
include claims against Lizon, Wright, Maldonado, Manning, Ott, Barone, Dzurenda, Semple,
Lewis, and Quiros (collectively, the “Supervisory Defendants”) for failing to take any action to
protect Morgan from the potential harm that could have resulted from the conduct of Gonzalez,
Torres, Ulm, Leiper, and Clayton. See id. Morgan had alleged that, while the Supervisory
Defendants were not involved in calling Morgan a snitch in front of other inmates, Morgan had
made them aware of the problem with Gonzalez, Torres, Ulm, Leiper, and Clayton by sending
the Supervisory Defendants letters or Inmate Requests referring to the conduct.
Gonzalez, Torres, Ulm, Leiper, and Clayton
Defendants argue that Morgan’s allegations that Gonzalez, Torres, Ulm, Leiper, and
Clayton called him a snitch or a confidential informant in front of other inmates are unsupported
by evidence. See Def.’s Br. at 15-17. Defendants further argue that Morgan has failed to submit
evidence or even allege that he suffered any physical injury as a result of the alleged statements
by Gonzalez, Torres, Ulm, Leiper, and Clayton. See id. at 15-16 Defendants argue that Morgan
has failed, as a matter of law, to submit evidence of a genuine issue of material fact as to his
claims of deliberate indifference to his safety in violation of the Eighth Amendment.
Courts in the Second Circuit have acknowledged that, in a prison setting, labeling an
inmate as “a snitch” may pose a threat to that inmate's safety or health and give rise to an Eighth
Amendment deliberate indifference claim. See Campbell v. Gardiner, No. 12–CV–6003P, 2014
WL 906160, *4 (W.D.N.Y. Mar. 7, 2014) (gathering cases allowing a deliberate indifference
claim where a corrections officer identified an inmate as being an informant or snitch in front of
other inmates); see also Allah v. Juchnewioz, No. 93-CIV-8813 (LMM), 1999 WL 562100, at *3
(S.D.N.Y. July 30, 1999) (“Many courts have recognized . . . in the context of Eighth
Amendment analysis, the dangers a prisoner faces from his fellow inmates when labeled a snitch
Generally, a prison official's verbal statement labeling an inmate as a snitch or informant
will not, however, meet the objective prong of the Eighth Amendment, of “incarcerat[ion] under
conditions posing a substantial risk of serious harm,” Lewis, 629 Fed.Appx. at 79, absent
allegations that the inmate faced actual or imminent physical injury or harm as a result of the
comment. See Dawes v. Walker, 239 F.3d 489, 494 (2d Cir. 2001) (affirming dismissal of
prisoner plaintiff’s case where plaintiff failed to allege that the other inmate actually “assaulted
him . . . threatened him with physical violence nor even that there were credible rumors that [the
other inmate] intended to attack him”). Making out an Eighth Amendment claim based on a
corrections officer’s labeling an inmate a snitch therefore requires plaintiff to make “allegations
or proffer evidence of actual physical harm” or the substantial risk thereof. Green v. City of
N.Y. Dep't of Corr., No. 06-CIV-4978 (LTS) (KNF), 2008 WL 2485402, at *7 (S.D.N.Y. June
19, 2008); see also Abney v. Jopp, 655 F. Supp. 2d 231, 233 (W.D.N.Y. 2009) (noting that
“[a]lthough courts have recognized that being labeled a ‘snitch’ in the prison environment can
indeed pose a threat to an inmate's health and safety in violation of the Eighth Amendment, in
general prison officials will not be liable for such actions absent a showing that the inmate
suffered actual harm as a result” (internal citations omitted)).
In opposing summary judgment, Morgan has included the following statements in his
o From January 5, 2014 to February 18, 2014, when Morgan was confined in the
restrictive housing unit at Osborn, Gonzalez called him a snitch during escorts to
the medical department, Morgan Aff. ¶ 32;
o Around February 19, 2014, Clayton informed members of the Bloods gang that
Morgan was a snitch and a confidential informant who was informing on them, id.
o Clayton also told other inmates that Morgan was a snitch and that prison officials
would deny Morgan’s request for protective custody and suggested that the other
inmates could assault Morgan for acting as a snitch, id.;
o Morgan wrote complaints to Lizon, Wright, Maldonado, Quiros, and Dzurenda
regarding Clayton’s conduct, id. ¶ 31;
o Around March 14, 2014, Torres called Morgan a snitch, a sexual pervert and a
child molester in front of other inmates, id. ¶ 33;
Leiper and Ulm
o In May 2014, Morgan filed complaints with Maldonado alleging that Leiper and
Ulm had called him a snitch and stated that “snitches get stitches” in front of other
inmates, id. ¶ 34; and
o When Leiper and Ulm found out that Morgan had reported their comments to
Maldonado, they allegedly told other inmates that Morgan had snitched on them
(Leiper and Ulm) and suggested that the other inmates hit Morgan in the head
with a bar of soap, id. ¶ 35.
Morgan argues that Gonzalez, Torres, Ulm, Leiper, and Clayton would have known that labeling
Morgan a snitch would create a risk to his safety. See Pl.’s Br. at 7, ECF No. 100. Morgan
further argues that he need not demonstrate that he suffered a physical injury to state a failure to
protect claim or deliberate indifference to safety claim as to Gonzales, Torres, Ulm, Leiper, and
Clayton. Id. at 8.
Morgan fails to present evidence or affidavit testimony that any other inmate called him a
snitch, verbally harassed him, threatened him, or injured him as a result of the conduct of
Gonzalez, Torres, Ulm, Leiper, and Clayton. Morgan has merely raised the possibility that he
could have been harmed as a result of these Defendants’ comments. This affidavit testimony is
too speculative and remote for a reasonable jury to find that the objective prong of the Eighth
Amendment, that Morgan was “incarcerated under conditions posing a substantial risk of serious
harm,” Lewis, 629 Fed.Appx. at 79, was met. See Hamilton v. Fischer, No. 6:12-CV-6449
MAT, 2013 WL 3784153, at *15 (W.D.N.Y. July 18, 2013) (dismissing plaintiff inmate’s Eighth
Amendment claim where his sole allegations where that defendant correctional officers “exposed
him to an unreasonable risk of harm by calling him a ‘snitch’ in front of other inmates” and
commenting about “stitches for snitches” but included no other factual allegations that that “if
proven, would establish that he ever faced actual or imminent harm”); Bouknight v. Shaw, No.
08-Civ-5187, 2009 WL 969932, at *4 (S.D.N.Y. Apr. 6, 2009) (concluding that plaintiff failed to
make out Eighth Amendment claim against officer based on allegation that officer labeled
plaintiff a “snitch,” where plaintiff “ha[d] not alleged any facts that, if proven, would establish
that he ever faced actual or imminent harm,” and adding that “[t]he Court is unwilling simply to
assume that such a risk existed merely because [defendant officer[ spread rumors about him”
(internal quotation marks omitted)); Abney, 655 F. Supp. 2d at 233-34 (granting defendant
corrections officer’s motion for summary judgment on Eighth Amendment deliberate claim
because plaintiff had not alleged or presented evidence that he “ha[d] ever been physically
attacked or injured as a result of” defendant’s statements to other inmates that plaintiff was a
Because Morgan has offered no evidence that the comments from Gonzalez, Torres, Ulm,
Leiper, and Clayton identifying him as a snitch or suggesting that other inmates could harm him
because he had acted as a snitch actually subjected him to a “substantial risk of serious harm,”
Lewis, 629 Fed.Appx. at 79, he has not met the objective component of the deliberate
indifference to safety standard. The Court therefore finds that no reasonable jury could conclude
that these Defendants are liable for deliberate indifference to a substantial risk of serious harm to
Morgan in violation of the Eighth Amendment. Accordingly, Defendants’ motion for summary
judgment is granted as to these claims.
Defendants also argue that Morgan has not demonstrated the personal involvement of the
Supervisory Defendants in the alleged deliberate indifference to his safety based on the conduct
of Gonzalez, Torres, Ulm, Leiper, and Clayton. See Def.’s Br. at 17-19.
“It is well settled in [the Second Circuit] that personal involvement of defendants in
alleged constitutional deprivations is a prerequisite to an award of damages under [Section
1983].” Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal quotation marks omitted).
The involvement of a supervisory defendant may be shown in one of the following ways, that
“(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant,
after being informed of the violation through a report or appeal, failed to remedy the wrong, (3)
the defendant created a policy or custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in
supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited
deliberate indifference to the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.” Id.
A supervisory official cannot be held liable under Section 1983 solely “on the basis of
respondeat superior or simply because he is atop the prison hierarchy.” Lewis v. Cunningham,
483 Fed. App’x. 617, 619-20 (2d Cir. 2012). Furthermore, the plaintiff must also show “an
affirmative causal link between the supervisor's inaction and h[is] injury.” Poe v. Leonard, 282
F.3d 123, 140 (2d Cir. 2002).
Because, as discussed above, no reasonable jury could conclude that Morgan can make
out an Eighth Amendment deliberate indifference claim against Gonzalez, Torres, Ulm, Leiper,
and Clayton for their comments referring to Morgan as a snitch in front of other inmates, he also
may not assert a claim for supervisor liability against the Supervisory Defendants with regards to
those comments. See Gonzalez v. Wright, 665 F. Supp. 2d 334, 356 (S.D.N.Y. 2009) (“The
dismissal of the Section 1983 claims against the defendants actually involved in [the conduct at
issue] mandates dismissal of the supervisory liability claim . . . as well.”). Where a plaintiff
“has not established any underlying constitutional violation, [he] cannot state a claim for
[Section 1983] supervisor liability.” Elek v. Inc. Vill. of Monroe, 815 F. Supp. 2d 801, 807-08
(S.D.N.Y. 2011). The Court therefore grants summary judgment in favor of the Supervisory
Defendants with regards to Morgan’s Eighth Amendment deliberate indifference to safety claims
related to the conduct of Gonzalez, Torres, Ulm, Leiper, and Clayton.
First Amendment Retaliation Claim
Morgan’s remaining claims also include First Amendment retaliation claims against
Whidden and Maldonado. See Motion to Dismiss Order at 22. Specifically, Morgan contends
that, on or around November 8, 2013, Whidden denied his request for protective custody in
retaliation for Morgan’s having filed previous lawsuits against Whidden. See Morgan Aff. ¶¶ 79. Morgan further argues that, around the end of January 2014, Maldonado denied his request
for protective custody in retaliation for Morgan’s having filed previous lawsuits and grievances
against Maldonado. Id. ¶¶ 28-29. Defendants move for summary judgment on these claims,
arguing that Morgan has failed to demonstrate that there is a genuine issue of material fact as to
whether Whidden and Maldonado had an improper retaliatory basis for denying Morgan’s
requests for placement in protective custody. See Def.’s Br. at 19-26.
Under the First Amendment, prison officials may not retaliate against inmates for
exercising their constitutional rights. To state a claim of retaliation, Morgan must show the
following: (1) that he was engaged in constitutionally protected conduct or speech, (2) that the
prison officials took adverse action against him, and (3) that a causal connection existed between
the protected speech or conduct and the adverse action. See Davis v. Goord, 320 F.3d 346, 352
(2d Cir.2003). To meet the third element, Mr. Chambers must allege that retaliation for the
protected conduct or speech “was a substantial or motivating factor for the adverse actions taken
by prison officials.” Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003); see also Dorsey v.
Fisher, 468 F. App'x 25, 27 (2d Cir.2012). Because of the potential for abuse and the “ease with
which claims of retaliation may be fabricated,” courts should examine prisoner retaliation claims
with “skepticism and particular care.” Johnson v. Eggersdorf, 8 F. App'x 140, 144 (2d Cir.2001)
(quoting Colon, 58 F.3d at 872).
The parties do not appear to dispute that Morgan is able to show the first two elements of
a retaliation claim. The filing of grievances is “a constitutionally protected activity,” which
allows Morgan to show the first element required to make out a claim of First Amendment
retaliation. Davis, 320 F.3d at 352–53. As to the second element of adverse action, “[o]nly
retaliatory conduct that would deter a similarly situated individual of ordinary firmness from
exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation.”
Davis, 320 F.3d at 353. Courts in this Circuit have found that “refusal of protective custody” by
a prison official defendant can be an “adverse action” for the purposes of a First Amendment
retaliation claim because it could cause a prisoner to “fear for his safety.” Cruz v. Grosso, No.
9:13-CV-30 (FJS) (TWD), 2014 WL 2176256, at *6 (N.D.N.Y. May 23, 2014); see also Cruz v.
Lee, No. 14-CV-4870 (NSR) (JCM), 2016 WL 1060330, at *6 (S.D.N.Y. Mar. 15, 2016)
(“Plaintiff alleges that Defendants' denial of protective custody . . . constitutes an adverse action
because Plaintiff feared for his safety without custodial protection. It cannot be said, as a matter
of law, that this fear would not deter a similarly situated individual from filing further lawsuits or
grievances. Therefore, Plaintiff has sufficiently alleged an adverse action.” (internal citations
As for the third element of a causal connection between protected conduct such as the
filing of grievances or lawsuits and the alleged adverse action of Whidden and Maldonado
denying Morgan’s requests to be placed in protective custody, the court may consider several
factors in determining whether such a causal link exists. “A plaintiff can establish a causal
connection that suggests retaliation by showing that protected activity was close in time to the
adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009). The Second Circuit has
“not drawn a bright line to define the outer limits beyond which a temporal relationship is too
attenuated to establish a causal relationship between the exercise of a federal constitutional right
and an allegedly retaliatory action.” Id. It has found that the “passage of only six months
between the dismissal of [the prisoner plaintiff’s] lawsuit and an allegedly retaliatory” act by a
defendant in the lawsuit “is sufficient to support an inference of a causal connection.” Id. The
Supreme Court has found that, in the employment retaliation context, a gap of twenty months is
too long to establish causality. See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 274 (2001)
(“Action taken (as here) 20 months later suggests, by itself, no causality at all.”). Furthermore,
the Second Circuit generally “require[s] some further evidence of retaliatory animus” beyond
temporal proximity between a plaintiff’s protected act and defendant’s adverse action “before
permitting a prisoner to proceed to trial on a retaliation claim. Faulk v. Fisher, 545 F. App'x 56,
58 (2d Cir. 2013).
Morgan argues that Maldonado denied his January 2014 request to be placed in
protective custody in retaliation for Morgan filing a lawsuit against him in 2011.2 Morgan filed
the lawsuit on September 22, 2011, more than two years before Maldonado denied his request
for protective custody towards the end of January 2014. Morgan’s lawsuit against Maldonado
was closed on May 2, 2012, nearly twenty months before the denial of protective custody. The
Court finds that, because the temporal gap between the filing of the lawsuit and Maldonado’s
denial of protective custody is more than two years, no reasonable jury could find that there is a
causal connection between the lawsuits and the allegedly retaliatory act. See Clark Cty., 532 U.S.
at 274. Morgan cannot, as a matter of law, shown a genuine issue of material fact as to the
causal connection between his protected activity of filing a lawsuit and Maldonado’s January
The case is: Morgan v. Arnone, Case No. 3:11-cv-1475 (JBA) (filed 9/22/2011, closed 5/2/2012).
2014 denial of his request for protective custody. The Court therefore grants summary judgment
in favor of Maldonado as to Morgan’s First amendment retaliation claim.
Morgan argues that Whidden denied his November 2013 request to be placed in
protective custody in retaliation for his filing a lawsuit against her in 2001, filing two lawsuits
against her in 2005, and for submitting an Inmate Request Form to her on August 8, 2013.3 As
to the lawsuits that Morgan filed against Whidden in 2001 and 2005, the last of these cases was
closed on September 9, 2008, while Morgan alleges that Whidden denied his request for
protective custody around November of 2013, more than five years later. The Court finds that,
because the temporal gap between the lawsuits and Whidden’s denial of protective custody is far
longer than 20 months and that no reasonable jury could find that there is a causal connection
between the lawsuits and the allegedly retaliatory act. See Clark Cty., 532 U.S. at 274 (2001).
As for the August 8, 2013 Inmate Request grievance, Morgan filed it within three
months of Whidden’s decision, in November of 2013, to deny the protective custody placement.
See Compl. Ex. 4, ECF No. 1-1 at 9-10. A reasonable jury could find a gap of three months
could establish causation based on the temporal proximity of the protected activity and the
adverse action. See Espinal, 558 F.3d at 129 (finding six months sufficient to support causal
The cases are: Morgan v. Rowland, Case No. 3:01-cv-1107 (CFD) (filed 6/14/2001, closed 3/20/2006); Morgan v.
Regan, Case No. 3:05-cv-873 (CFD) (filed 6/1/2005, closed 11/28/2007); and Morgan v. Lantz, Case No. 3:05-cv1659 (MRK) (filed 10/25/2005, closed 9/9/2008).
A plaintiff, however, may not rely on temporal proximity alone to defeat summary
judgment. See Faulk, 545 F. App’x at 58 (“[W]e have consistently required some further
evidence of retaliatory animus [beyond temporal proximity] before permitting a prisoner to
proceed to trial on a retaliation claim.”); Ziemba v. Thomas, 390 F. Supp. 2d 136, 157 (D. Conn.
2005) (“Temporal proximity alone . . . is not sufficient for the plaintiff’s claim [of retaliatory
transfer] to survive summary judgment.”). Thus, Morgan must also provide other evidence that
raises an inference of that Whidden’s denial of his request for protective custody was due to
“retaliatory animus.” Faulk, 545 F. App’x at 58.
The Second Circuit has found that an inmate’s testimony that a prison official admitted
“the existence of a retaliatory scheme” is enough, when combined with other circumstantial
evidence suggesting retaliation, to defeat summary judgment on a First amendment retaliation
claim. See Colon, 58 F.3d at 872-73 (“[Plaintiff] offers more than circumstantial proof; he also
presents direct evidence of retaliation, namely, [defendant’s] alleged admission of the existence
of a retaliatory scheme. To be sure, [defendant] submitted an affidavit denying that he ever made
any such statement. But the disparity between the affidavits . . . itself creates a credibility issue
that is not readily amenable to resolution on summary judgment.”). Morgan’s affidavit states
that Whidden informed him that she would “recommend that my protective custody application
be denied in retaliation” against him. Morgan Aff. ¶ 8. This creates a genuine issue of material
fact that Whidden’s denial of his request for protective custody may have a causal link to
Morgan’s protected activity of filing the Inmate Request grievance against her on August 8,
Legitimate Reasons to Deny Protective Custody
Defendants argue that, regardless of whether Morgan can show that Whidden’s actions
were retaliatory, Whidden also had legitimate reasons to deny Morgan’s request for protective
custody. See Def.’s Br. at 22-23. “Regardless of the presence of retaliatory motive, however, a
defendant may be entitled to summary judgment if he can show dual motivation, i.e., that even
without the improper motivation the alleged retaliatory action would have occurred.” Scott v.
Coughlin, 344 F.3d 282, 287-88 (2d Cir. 2003) (discussing prisoner case). Once a plaintiff has
“carrie[d] that burden” of showing the three elements of a retaliation claim, “defendants must
show by a preponderance of the evidence that they would have [taken the allegedly retaliatory
action] even in the absence of the protected conduct.” Graham v. Henderson, 89 F.3d 75, 79 (2d
Cir. 1996) (internal quotation marks omitted). To the extent that the adverse action was “taken
for both proper and improper reasons, state action may be upheld if the action would have been
taken based on the proper reasons alone.” Id. Such proper reasons are “readily drawn in the
context of prison administration where we have been cautioned to recognize that prison officials
have broad administrative and discretionary authority.” Id. (citing Lowrance v. Achtyl, 20 F.3d
529, 535 (2d Cir. 1994)). Because Defendants have submitted “a properly supported [summary
judgment] motion” on this claim, Morgan now “must identify affirmative evidence from which a
jury could find that the plaintiff has carried his or her burden of proving the pertinent motive.”
Crawford-El v. Britton, 523 U.S. 574, 600 (1998) (discussing summary judgment motions in a
case involving a prisoner plaintiff).
On November 1, 2013, the shift commander of Morgan’s housing unit at Robinson
submitted a request for protective custody on Morgan’s behalf, Maiga Aff. ¶ 21, based on
Morgan’s allegations that he feared for his safety because a specific inmate had called him a
snitch and a rat; that other inmates in his housing unit had threatened to harm him because he had
provided information regarding gang activity at the facility to members of the intelligence unit;
and that unknown inmates had damaged his personal property. See Protective Custody Req. at 12. At this time, Morgan was confined in the restrictive housing unit pending the investigation
into his safety concerns. See id. An investigator conducted an investigation based on Morgan’s
protective custody request and interviewed inmate witnesses; interviewed Morgan; and reviewed
Morgan’s prior disciplinary history, restrictive and protective housing placements and past
efforts made by Robinson officials to address Morgan’s concerns. See id. at 3, 5-6, 9.
On November 4, 2013, the investigator recommended that Morgan’s request for
protective custody placement be denied because (a) there was insufficient evidence to support a
legitimate threat to Morgan’s safety and (b) there was a reasonable housing alternative for
Morgan. See Protective Custody Req. at 10 (“The basis for this recommendation is based on a
lack of evidence to support a valid threat to Inmate Morgan’s personal safety and the belief that a
reasonable housing alternative is available.”). The investigator recommended that Morgan “be
housed in general population in a celled facility on single cell status.” Id.
On November 5, 2013, Whidden determined that placement of Morgan in protective
custody was not warranted because the alleged threats against him could not be substantiated.
See Protective Custody Req. at 11. She therefore denied Morgan’s request for protective custody
placement, but approved the transfer of Morgan out of Robinson,which had a “dormitory
lifestyle,” id. at 3, to a celled facility to be housed in a single cell in general population. See id.
at 11. Quiros concurred with Whidden’s recommendation. See id.
Whidden has shown that her November 2013 decision to deny Morgan’s request for
protective custody and instead transfer him to Osborn was, taken, at least in part for “proper”
reasons and that the decision would have been made “even in the absence of the protected
conduct” of Morgan filing an Inmate Request grievance against her only months before.”
Graham, 89 F.3d at 79. When evaluating Whidden’s legitimate reasons justifying the decision,
the Court keeps in mind the Second Circuit’s instruction that courts should “recognize that prison
officials have broad administrative and discretionary authority” when it comes to prison
administration decisions. Id.
Whidden has provided evidence showing that the rejection of Morgan’s request for
protective custody was based on there being insufficient evidence to support a conclusion that
Morgan was at substantial risk of serious harm if he remained in general population at Robinson.
See Protective Custody Req. at 11; Maiga Aff. ¶ 22. Whidden has presented evidence that DOC
policy provided that “[i]f an alternative placement is available then it will be utilized before
Protective Custody assignment.” Maiga Aff. ¶ 23; see also DOC Administrative Directive §
9.9(9), ECF No. 82-7 (“Assignment to Protective Custody shall only be authorized when, after
an investigation, the approving authority determines that the inmate is at substantial risk of
serious harm and no alternative placement is available.”); Id. § 9.9(8) (“An inmate may be
recommended for transfer to another facility or out of state as an alternative to a Protective
Whidden and other prison officials concluded that transfer from Robinson to an
alternative placement was justified because, despite the efforts of prison officials at Robinson to
address Morgan’s concerns and to find him a suitable housing unit, it had become evident that
the dormitory-style housing units at the facility were not appropriate to meet Mr. Morgan’s
needs. See Protective Custody Req. at 9, 11; Maiga Aff. ¶ 51. Whidden had concluded that an
alternative placement in a single cell in a celled facility would be most beneficial to Mr. Morgan.
See Protective Custody Req. at 9 (“It is feasible that Inmate Morgan could be managed in a
celled facility on single cell status.”)
Because Whidden has submitted evidence of legitimate, non-retaliatory reasons for her
decision to deny Morgan’s request for protective custody placement and Morgan has submitted
no evidence to rebut the evidence of these legitimate alternative bases for the denial of the
requests, he has not met his burden of demonstrating that the Inmate Request grievance that he
filed against Whidden in August 2013 was the substantial or motivating factor for the decisions.
See Crawford-El, 523 U.S. at 600 (requiring prisoner plaintiffs to “identify affirmative evidence
from which a jury could find that the plaintiff has carried his or her burden of proving the
pertinent motive” following defendants’ submission of a “properly supported” summary
judgment motion); Davidson v. Chestnut, 193 F.3d 144, 148 (2d Cir. 1999) (“At the summary
judgment stage, if the undisputed facts demonstrate that the challenged action clearly would have
been taken on a valid basis alone, defendants should prevail.”) (discussing prison case). The
Court therefore grants summary judgment in favor of Whidden on the First Amendment
retaliation claim against her.
State Law Claims
Morgan’s remaining claims include a Connecticut state law intentional infliction of
emotional distress claim. See Motion to Dismiss Order at 17 n.1. Defendants do not address this
claim in their summary judgment brief. See generally Def.’s Br. A court may only grant
summary judgment if the moving party meets its “burden of showing that no genuine factual
dispute exists,” such that the moving party is “entitled to a judgment as a matter of law.”
Carlton, 202 F.3d at 133. By failing to discuss the intentional infliction of emotional distress
claims in any way, Defendants fail to meet their burden and cannot prevail on their summary
judgment motion as to these claims. The Court therefore denies summary judgment on
Morgan’s remaining intentional infliction of emotional distress claims.
For the foregoing reasons, Defendants’ motion for summary judgment, ECF No. 82, is
GRANTED as to the Eighth Amendment deliberate indifference to safety claims against
Gonzalez, Torres, Ulm, Leiper, Clayton, Lizon, Wright, Maldonado, Manning, Ott, Barone,
Dzurenda, Semple, Lewis, and Quiros, in relation to comments from Gonzalez, Torres, Ulm,
Leiper, and Clayton indicating that Morgan was a snitch in front of other inmates; the Eighth
Amendment failure to protect claim against McCormick centering on the assault by Rodriguez
on Morgan; and the First Amendment retaliation claims against Whidden and Maldonado. The
motion is DENIED as to the Eighth Amendment failure to protect claim against Chapdelaine,
Godding, Maldonado and Lindsey arising from the assault by Rodriguez on Morgan and as to the
intentional infliction of emotional distress claims.
SO ORDERED at Bridgeport, Connecticut, this 31st day of March, 2017.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge
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