McClendon v. Murphy, et al

Filing 37

ORDER granting 29 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 3/24/17. (Glynn, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CHARLIE J. MCCLENDON,
Plaintiff,
v.
WARDEN P. MURPHY and
INVESTIGATOR ROY,
Defendants.

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Case No. 3:14cv1460(DJS)

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The plaintiff, Charlie J. McClendon, is currently
incarcerated at Cheshire Correctional Institution (“Cheshire”)
in Cheshire, Connecticut.

He initiated this action by filing a

civil rights complaint naming Warden Peter Murphy, Captains M.
Beaudry and Mainly, Lieutenant Pain, Intelligence Officials
Allen and Perze, and Investigator Roy as defendants.

On June

23, 2015, the court dismissed all Fourteenth Amendment Due
Process and Equal Protection claims and the claims that
defendants Beaudry, Mainly, Pain, Allen and Perze violated the
plaintiff’s First Amendment right to be free from retaliation.
The court concluded that only the First Amendment retaliation
claims against defendants Roy and Murphy in their individual and
official capacities would proceed.
On August 5, 2015, the plaintiff filed a motion for leave
to file an amended complaint against Warden Murphy and

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Investigator Roy.

On November 3, 2015, the court granted the

motion to amend to the extent that it sought to clarify the
retaliation claims against defendants Roy and Murphy and denied
the motion to the extent that it sought to add a due process
claim regarding the plaintiff’s transfer to administrative
segregation on November 11, 2011.

The court directed the clerk

to docket the proposed amended complaint as the amended
complaint and clarified that the claim of a violation of due
process in connection with the plaintiff’s transfer to
administrative segregation on November 11, 2011, as set forth in
the amended complaint, was dismissed for the same reasons it was
dismissed in the court’s prior Ruling.
Thus, the case proceeds only as to the claims in the
amended complaint, ECF No. 23, of retaliation against defendants
Murphy and Roy.

Defendants Murphy and Roy have moved for

summary judgment.

For the reasons set forth below, the motion

is granted.
I.

Standard of Review
“The court shall grant summary judgment if the movant shows

that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

A fact is “material” if it “might affect the

outcome of the suit under the governing law,” and is “genuine”
if “a reasonable jury could return a verdict for the nonmoving
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party” based on it.

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).
When a motion for summary judgment is supported by
documentary evidence and sworn affidavits and “demonstrates the
absence of a genuine issue of material fact,” the nonmoving
party must do more than vaguely assert the existence of some
unspecified disputed material facts or “rely on conclusory
allegations or unsubstantiated speculation.”

Robinson v.

Concentra Health Services, Inc., 781 F.3d 42, 44 (2d Cir. 2015)
(internal quotation marks omitted).

Thus, the party opposing

the motion for summary judgment “must come forward with specific
evidence demonstrating the existence of a genuine dispute of
material fact.”

Id. (internal quotation marks omitted).

If there is any evidence in the record from which a
reasonable factual inference could be drawn in favor of the
opposing party on the issue on which summary judgment is sought,
however, summary judgment is improper.

See Security Ins. Co. of

Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d
Cir. 2004). In reviewing the record, the court must “construe
the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor.”

Gary

Friedrich Enterprises, LLC v. Marvel Characters, Inc., 716 F.3d
302, 312 (2d Cir. 2013).

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Where one party is proceeding pro se, the court reads 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,

“unsupported allegations do not create a material issue of fact”
and cannot overcome a properly supported motion for summary
judgment.

Weinstock v. Columbia University, 224 F.3d 33, 41 (2d

Cir. 2000).
II.

Facts
An examination of the complaint and its exhibits, the

amended complaint, defendants’ local rule 56 statement,
plaintiff’s local rule 56 statement, exhibits accompanying the
motion for summary judgment and responses thereto, discloses the
following undisputed facts:
Prior to his transfer to Cheshire, the plaintiff was
incarcerated at MacDougall-Walker Correctional Institution
(“MacDougall-Walker”), a high/maximum security level facility in
Suffield, Connecticut. On November 9, 2011, Captain Beaudry, who
was a member of the Intelligence Office at MacDougall-Walker,
received two typed documents from an inmate indicating that
another inmate was putting together a list of demands for the
prison administrators to meet regarding conditions of
confinement at MacDougall-Walker.
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Warden Murphy became aware

that on November 9 and 10, 2011, the MacDougall-Walker
Intelligence Office had received information from several
sources that inmates in J Pod housing unit were attempting to
recruit other inmates to become involved in concerted activities
that would affect the operation of the facility.

As part of the

planned activities, inmates were going to stop: (1) working; (2)
eating in the cafeteria; (3) buying items from the commissary;
and (4) using the prison mail system.

These activities were to

commence on January 4, 2012.
On November 11, 2011, prison officials placed J Pod housing
unit on lockdown.

On November 11, 12, 13, 2011, Captain

Beaudry, Captain Manley and Lieutenant Paine, who were all
members of the Intelligence Office, interviewed numerous inmates
in the J Pod housing unit and several inmates in other housing
units.
On November 11, 2011, Captain Beaudry came to the
plaintiff’s cell and informed him that he and his cellmate were
being investigated and would be placed on administrative
detention pending the investigation.

On November 14, 2011,

Captain Beaudry, Captain Manley, and Lieutenant Paine
interviewed the plaintiff.

They informed him that they were

investigating an inmate protest planned for January 4, 2012 and
that the plaintiff’s cellmate was a target of the investigation.
The plaintiff informed them that he had no knowledge of his
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cellmate’s involvement in the upcoming protest.

The plaintiff

was told that he would be able to return to his cell in the J
Pod unit and to his job in the commissary once the investigation
was over.
Information gathered during the interviews of inmates from
J Pod unit supported the possibility of a civil demonstration on
January 4, 2012 to protest multiple issues regarding conditions
of confinement at MacDougall-Walker.

Investigator Roy was

involved in the investigation of the planned inmate protest.
A total of eleven inmates were placed on administrative
detention because of their possible involvement in the planned
protest.

On November 15, 2011, eight of the eleven inmates were

suspected to have been involved in the planning/organizing of
the protest and received disciplinary reports for impeding
order.

On that same date, the plaintiff received a disciplinary

report for possessing contraband in his cell.

The plaintiff

does not dispute that he had contraband in his cell.
Captain Beaudry, Captain Manley, and Lieutenant Paine
interviewed the plaintiff again on November 21, 2011 regarding
the involvement of other inmates in the planned protest.

The

plaintiff claimed that he had no knowledge of the protest or the
involvement of other inmates in the protest.

He complained

about a disciplinary report that he had received for contraband
found in his cell and indicated that that this type of
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infraction usually resulted in nothing more than an informal
reprimand.

Captain Beaudry informed the plaintiff that he would

not be returning to J Pod unit.

Captain Beaudry also informed

the plaintiff that he would try to defer the disciplinary report
issued in connection with the contraband.
On November 23, 2011, after a hearing on the contraband
charge, a hearing officer found the plaintiff guilty and imposed
sanctions of ten days of punitive segregation and thirty days
loss of recreation.

On that same day, the plaintiff filed two

grievances, one relating to his placement in administrative
detention without a hearing and the other relating to the
hearing officer’s finding that he was guilty as to the
contraband charge.
On November 29, 2011, the plaintiff met with Investigator
Roy who informed him that the warden had received his grievances
and that prison officials were willing to defer any further
action regarding the sanctions imposed on the basis of the
contraband charge. The plaintiff signed a form indicating that
he agreed to not pursue this grievance any further in light of
the deferral of the disciplinary report.

Lieutenant Roy also

indicated that the plaintiff would be transferred to Cheshire
later that day, and he was transferred to Cheshire that evening.

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III. Discussion
Defendants Murphy and Roy assert two arguments in support
of their motion for summary judgment.

They argue that (1) the

plaintiff fails to state a claim of retaliation against them,
and (2) they are entitled to qualified immunity.

In response,

the plaintiff contends there are material facts genuinely in
dispute, and, for that reason, the defendants are not entitled
to summary judgment.
As a preliminary matter, the court notes that the
plaintiff’s Local Rule 56(a)2 Statement and his memorandum in
opposition to the motion for summary judgment include a claim
that he served a request for production of documents and
interrogatories on the defendants in January 2016, but the
defendants did not respond to these discovery requests.

See

Pl.’s Local Rule 56(a)2 Statement, ECF No. 34-1 at 6; Mem. Opp’n
Mot. Summ. J., ECF No. 34-3 at 7-8 & Ex. G.
Federal Rule of Civil Procedure 56(d) permits a court, in
the exercise of its discretion, to defer or deny a decision on
summary judgment if a “nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.”

Rule 56(d) requires

“submitting an affidavit that includes the nature of the
uncompleted discovery; how the facts sought are reasonably
expected to create a genuine issue of material fact; what
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efforts the affiant has made to obtain those facts; and why
those efforts were unsuccessful.” Whelehan v. Bank of America,
621 F. App’x 70, 73 (2d Cir. 2015)(internal quotation marks
omitted).
When parties submit affidavits pursuant to Rule 56(d) which
include insufficient or conclusory descriptions of forthcoming
evidence or fail to show how that evidence would demonstrate the
existence of a genuine issue of material fact, courts routinely
deny requests to conduct further discovery.

See, e.g., Gualandi

v. Adams, 385 F.3d 236, 245 (2d Cir. 2004) (affirming district
court's implicit denial of discovery where plaintiff failed to
“demonstrate that additional discovery was needed in order to
decide the jurisdictional issue”); United States v. Private
Sanitation Industry Association, 995 F.2d 375, 377 (2d Cir.
1993) (affirming district court's denial of discovery where
affidavit “only speculated about what further discovery might
reveal” and failed to “describe[ ] in specific terms evidence
that might be forthcoming and would demonstrate that a genuine
issue actually existed”).

Moreover, “[a] court is not required

to withhold consideration of a summary judgment motion based on
mere speculation.” Roswell Capital Partners LLC v. Alternative
Construction Technologies, 638 F. Supp. 2d 360, 372 (S.D.N.Y.
2009).

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The plaintiff has not filed an affidavit or declaration in
support of his implicit request to continue discovery.

Although

he served his discovery requests before the deadline for
completing discovery expired, he does not assert that he made
any attempt to resolve any discovery dispute or to contact
counsel for the defendants after serving his discovery requests.
Nor did he file a motion to compel the defendants to respond to
the requests.

Furthermore, the plaintiff has not demonstrated

how any undiscovered evidence could create a genuine issue of
material fact in this case.

Thus, the court concludes that the

plaintiff has not met the necessary requirements of Rule 56(d)
in order to grant him additional time to conduct discovery.
Accordingly, the court will not defer ruling on the motion for
summary judgment to permit the plaintiff to conduct additional
discovery.
A. Failure to State a Claim
When prison officials take adverse action against an
inmate, motivated by the inmate's exercise of a constitutional
right, a section 1983 retaliation claim may be sustained. See
Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000) (“In
general, a section 1983 claim will lie where the government
takes negative action against an individual because of his
exercise of rights guaranteed by the Constitution or federal
laws.”).

At the same time, however, “because prisoner
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retaliation claims are easily fabricated, and accordingly pose a
substantial risk of unwarranted judicial intrusion into matters
of general prison administration, [courts] are careful to
require non-conclusory allegations.” Bennett v. Goord, 343 F.3d
133, 137 (2d Cir. 2003) (internal quotation marks omitted).
To state a First Amendment retaliation claim, a plaintiff
must show that (1) his conduct or speech was protected by the
Constitution; (2) prison officials took adverse action against
him; and (3) there was a causal connection between the
protected conduct or speech and the adverse action taken by
prison officials.

See Gill v. Pidlypchak, 389 F.3d 379, 380 (2d

Cir. 2004). In order to demonstrate a causal connection, a
plaintiff must show that his protected conduct or speech was a
substantial motivating factor in the adverse action taken
against him. See Smith v. County of Suffolk, 776 F.3d 114, 118
(2d Cir. 2015) (per curiam). If the plaintiff meets his burden
of demonstrating all three prongs of the retaliation standard,
“the defendants must show . . . that they would have [taken the
adverse action against him] even in the absence of the protected
conduct.

Thus, if 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.”

Graham v. Henderson, 89

F.3d 75, 79 (2d Cir. 1996) (internal quotation marks and
citation omitted).
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The defendants do not dispute that the plaintiff’s filing
of a grievance in which he threatened to file a lawsuit meets
the first prong of the retaliation standard.

It is well settled

that the filing of grievances and lawsuits constitutes protected
activity for purposes of a First Amendment retaliation analysis.
See Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015);
Baskerville v. Blot, 224 F. Supp. 2d 723, 731 (S.D.N.Y. 2002).
With regard to the second prong of the retaliation
standard, the plaintiff claims that his transfer to another
prison and the loss of his job in the commissary at MacDougallWalker constituted adverse action.

Prison officials' conduct

constitutes an “adverse action” when it “would deter a similarly
situated individual of ordinary firmness from exercising . . .
constitutional rights.” Gill, 389 F.3d at 381 (internal
quotation marks omitted).

The defendants do not dispute that

under the second prong of the retaliation standard, a transfer
to another prison and the loss of the opportunity to work
constituted adverse action.
The defendants argue, however, that the plaintiff has not
met the third prong of the standard.

With respect to the

causation element of a retaliation claim, several factors may be
considered in determining whether the requisite nexus exists
between the plaintiff's protected activity and a prison
official's actions, including whether the defendants made any
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statements regarding their motivation in taking action against
the plaintiff, the temporal proximity between the protected
activity and the defendants’ allegedly adverse action, and
whether there was a subsequent finding that the adverse action
was not justified or was improper.

See Espinal v. Goord, 558

F.3d 119, 129 (2d Cir. 2009) (“causal connection that suggests
retaliation” may be established if “protected activity was close
in time to the adverse action”); Bennett v. Goord, 343 F.3d 133,
138 (2d Cir. 2003)(circumstantial evidence of retaliation
“further supported by the fact that essentially all relevant
adverse actions by DOCS officials were subsequently found to
have been unjustified”); Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995)(inmate’s allegation of admission by prison official
of the existence of a retaliatory scheme constituted direct
evidence of retaliatory conduct).
The plaintiff asserts that he wrote to Warden Murphy and
the Deputy Warden at MacDougall-Walker on November 14, 2011,
complaining that it was unfair that he had been placed on
administrative detention given that he was not the target of the
investigation.

See Amended Compl., ECF No. 23 at 2.

In that

correspondence, which the plaintiff has not submitted to the
court, the plaintiff claims that he threatened to sue Warden
Murphy and the Deputy Warden over his placement on
administrative detention.

See id.
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The plaintiff also claims

that on November 23, 2011, he filed a grievance regarding his
placement on administrative detention.

See id. at 3.

He

asserts that on November 29, 2011, Lieutenant Roy informed him
that his letter of complaint and grievance had reached Warden
Murphy and that he would be transferred later that day.

See id.

The plaintiff argues that his transfer shortly after Warden
Murphy received his letter and grievance is evidence that the
transfer was retaliatory.

A plaintiff alleging a First

Amendment retaliation claim may not, however, rely on temporal
proximity alone to defeat summary judgment.

See Faulk v.

Fisher, 545 F. App’x 56, 58 (2d Cir. 2013)(although temporal
proximity between protected conduct and adverse action
constitutes circumstantial evidence of retaliation, “we have
consistently required some further evidence of retaliatory
animus 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, in addition to the temporal proximity
between the plaintiff’s transfer and the exercise of his First
Amendment rights, he must provide some non-conclusory evidence
that raises an inference that the conduct of the defendants was
due to “retaliatory animus.”

Faulk, 545 F. App’x at 58.

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For the first time, in his opposition to the motion for
summary judgment, the plaintiff claims that Investigator Roy
stated to him that the main reason for his transfer was his
threat of a lawsuit that had been included in a letter to the
warden regarding his placement in administrative detention.

Roy

allegedly stated that prison administrators were very unsettled
about the threat of a lawsuit.

These allegations were not

included in the original complaint, the amended complaint, or in
plaintiff’s affidavit in opposition to the motion for summary
judgment.

Rather, they are included in the plaintiff’s unsworn

memorandum and statement of undisputed facts in opposition to
the motion for summary judgment.

See Pl.’s Local Rule 56(a)(2)

Statement, ECF No. 34-1 at 6; Mem. Opp’n Mot. Summ. J., ECF No.
34-3 at 6.
The plaintiff cannot amend his complaint in a memorandum in
opposition to a motion for summary judgment.

See Lyman v. CSX

Transportation, Inc., 364 F. App’x 699, 701 (2d Cir. 2010)
(affirming district court's determination that it should not
consider claims raised for the first time in opposition to
summary judgment); Auguste v. Department of Corrections, 424 F.
Supp. 2d 363, 368 (D. Conn. 2006) (a plaintiff “cannot amend his
complaint in his memorandum in response to defendants' motion
for summary judgment”).

Nor is the court inclined to permit the

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plaintiff to further amend the complaint to add new allegations
against the defendants at this late stage in the case.
Even if the court were to credit the statements purportedly
made by Lieutenant Roy, the defendants contend that there was a
legitimate reason for the plaintiff’s transfer to Cheshire.

The

defendants argue that the transfer would have occurred even if
the plaintiff had not filed a letter of complaint or a
grievance.
Warden Murphy avers that he was the warden of MacDougallWalker from 2007 until 2014.

See Murphy Aff. ¶ 2, ECF No. 29-2.

In November 2011, when he became aware of inmate involvement in
a planned protest at MacDougall-Walker, he was concerned about
the safety of the inmates involved in planning the protest, as
well as the other inmates at the facility and the facility
staff.

See id. ¶¶ 9-11.

Based on his experience within the

Department of Correction, Warden Murphy believed that there was
a high probability that the plaintiff did have some knowledge
about the planned protest.

See id. ¶ 13.

Furthermore, if the

plaintiff were returned to the J Pod housing unit, he may have
been viewed by other inmates in the unit as having provided
information about the leaders/organizers of the planned protest
to prison officials at MacDougall-Walker.

See id. ¶ 14.

This

perception or belief by other inmates in the housing unit could
have jeopardized the plaintiff’s safety.
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See id.

For both of

these reasons, the decision was made to transfer the plaintiff
to Cheshire rather than to return him to the J Pod housing unit
at MacDougall-Walker.

See id. ¶ 15.

Thus, Warden Murphy has provided an alternative basis for
the transfer of the plaintiff to Cheshire that was based on
prison safety and security concerns and not on the complaints
and threats to sue that the plaintiff allegedly included in a
letter and a grievance filed with Warden Murphy.

As the Second

Circuit has acknowledged, “the conclusion that the state action
would have been taken in the absence of improper motives is
readily drawn in the context of prison administration where we
have been cautioned to recognize that prison officials have
broad administrative and discretionary authority over the
institutions they manage.”

Lowrance v. Achtyl, 20 F.3d 529, 535

(2d Cir. 1994) (internal quotation marks omitted).

Because the

defendants have submitted “a properly supported motion [for
summary judgment], the plaintiff . . . 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) (emphasis
added).
The plaintiff has failed to provide evidence that the sole
basis for the alleged wrongful action, his transfer to Cheshire,
was an improper retaliatory motive and not also due to another
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valid reason.

See Graham, 89 F.3d at 79 (action that is taken

for both valid and invalid reasons will not be deemed
unconstitutional if the action would have been taken in any
event for the constitutionally valid reason). Because the
defendants have submitted a legitimate, non-retaliatory reason
for the plaintiff’s transfer to Cheshire, and the plaintiff has
not submitted evidence that this basis for his transfer was
invalid, he has not met his burden of demonstrating that the
letter and grievances he filed constituted a substantial
motivating factor for the transfer.

See Davidson v. Chestnut,

193 F.3d 144, 149 (2d Cir. 1999) (per curiam) (“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.”).

The motion for summary

judgment is granted in favor of defendants Murphy and Roy on the
First Amendment retaliation claims.
B. Qualified Immunity
The defendants also argue that they are entitled to
qualified immunity. Because the court has ruled that the
plaintiff’s allegations do not state a claim of retaliation, it
need not reach the qualified immunity argument.

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IV.

Conclusion
For the reasons stated above, the Motion for Summary

Judgment [Doc. No. 29] filed by Defendants Murphy and Roy is
GRANTED.
The clerk is directed to enter judgment for the defendants
and close this case.

SO ORDERED at Hartford, Connecticut this

24th

of March, 2017.

___________/s/ DJS__________________
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE

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day