Green v. Riffo et al

Filing 40

ORDER granting, in part, and denying, in part 29 Motion for Summary Judgment. For the reasons set forth in the attached ruling, summary judgment is granted as to defendant Riffo and denied as to defendant Downey. It is so ordered. Signed by Judge Sarah A. L. Merriam on 1/10/2022. (McCallum, C.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
COURTNEY GREEN
:
:
v.
:
:
ART RIFFO and DOWNEY
:
:
------------------------------x

Civ. No. 3:18CV00960(SALM)

January 10, 2022

RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Courtney Green (“plaintiff”), a sentenced inmate
in the custody of the Connecticut Department of Correction
(“DOC”), 1 brings this action against defendants Art Riffo and
Downey, both employees of DOC, pursuant to 42 U.S.C. §1983.
Plaintiff contends that defendants Riffo and Downey retaliated
against him in violation of the First Amendment to the United
States Constitution. See Doc. #1-1 at 19-20. 2

The Court may take judicial notice of matters of public record.
See, e.g., Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006); United States v. Rivera, 466 F. Supp. 3d 310, 313 (D.
Conn. 2020) (taking judicial notice of BOP inmate location
information); Ligon v. Doherty, 208 F. Supp. 2d 384, 386
(E.D.N.Y. 2002) (taking judicial notice of state prison website
inmate location information). The Court takes judicial notice of
the Connecticut Department of Correction website, which reflects
that Green is a sentenced inmate. See Inmate Information, Conn.
State Dept. of Correction,
http://www.ctinmateinfo.state.ct.us/detailsupv.asp?id_inmt_num=3
20094 (last visited Jan. 7, 2022).
1

Plaintiff asserted additional claims in the Complaint, but
after initial review, only the First Amendment retaliation claim
remains. See Doc. #10 at 21.
2

1

Pursuant to Federal Rule of Civil Procedure 56(a), both
defendants move for summary judgment in a joint motion. See Doc.
#29. For the reasons set forth below, defendant Riffo’s Motion
for Summary Judgment is GRANTED; defendant Downey’s Motion for
Summary Judgment is DENIED.
I.

BACKGROUND
The following facts are derived from the parties’

submissions pursuant to Local Rule 56(a) and the affidavits,
declarations, and exhibits attached thereto.
At the time of the incident giving rise to this claim, both
defendants were employed by DOC. See Doc. #29-2 at 1, ¶1; Doc.
#29-2 at 2, ¶11; Doc. #32 at 4, ¶1, ¶11.
On November 27 or 28, 2017, 3 plaintiff spoke with Downey,
and “claimed that he was not supposed to be receiving hot dogs
in his high fiber tray.” Doc. #29-2 at 3, ¶22; Doc. #32 at 6,
¶22. The details of that conversation are disputed, but on
November 28, 2017, plaintiff submitted an Inmate Request Form
addressed to defendant Riffo stating:
Today and for the last 2 Tuesdays, on first shift
(feedback) I’m getting served regular trays with extra
veggies, however that is contrary to the revision of the
Downey states that this conversation occurred on November 28,
2017. See Doc. #29-4 at 3, ¶13. Plaintiff states that this
conversation occurred on November 27, 2017. See Doc. #32-1 at
332, ¶24. The Court notes that November 27, 2017, was a Tuesday,
and plaintiff’s Inmate Request Form specifically refers to the
food he was being served on Tuesdays. This dispute does not
affect the Court’s analysis at this stage.
3

2

high fiber diet as of Oct. 2017. On 11-27-17 I received
hot dogs for lunch in which I notified Downey, who said
I get hot dogs which is incorrect. The continuance of
Downey and Gardner’s practice of depriving me of A.D.
10.18(3) [desecrates] my medical condition. At your
convenience may we discuss this, and a high fiber menu.
Doc. #32-1 at 217. Riffo did not respond to this request. See
id. at 330, ¶16.
On December 4, 2017, defendant Downey issued a CN100101:
Offender Work Performance report, rating plaintiff’s attendance,
initiative, and productivity as fair and his attitude and
overall performance as poor. See Doc. #29-6 at 2. The form
states:
On 12-3-2017 I CFSS2 Downey, received an inmate request
form. In said form, Inmate Green, C #320094 sated that
supervisors Downey and Gardner had deprived him of A.D.
10.18 due to his receiving of hot dogs during a meal
which consisted in part of hot dogs, due to the fact
that the high fiber diet menu had been revised during
October of 2017. Inmate Green #320094 continued to state
that this protein portion of the meal along with these
supervisors statements were “incorrect.” Upon further
review of the OCI therapeutic diet menu, this supervisor
noted that hot dogs were in fact the proper protein of
said inmate’s meal of the day. Due to giving false
statements to and about correctional staff members in
regards to depriving said inmate of A.D. 10.18 by serving
an in proper protein portion of high fiber diet, Inmate
Green, C #320094 is seen to be no longer necessary as a
worker in the Osborn kitchen. His is to be fired with
malice. Do not rehire for kitchen. End of report.
Doc. #29-6 at 2; Doc. #32-1 at 268 (sic). Plaintiff refused to
sign this form. See id.
On that same date, plaintiff completed a second Inmate
Request Form addressed to defendant Riffo, stating:
3

Mr. Riffo in the aftermath of me complaining about my
therapeutic diet not being properly met per A.D.
10.18(9), and me questioning Downey if hot dogs are a
part of my diet, today at about 9:30 am Downey arrived
at my housing unit with a performance eval form with
reasons described pertaining to the hot dog incident
last Monday when I was not on duty. This clear evidence
shows that Downey retaliation against me for naming him
in an inmate request[.]
Doc. #32-1 at 218 (sic). Defendant Riffo did not respond to
plaintiff’s December 4, 2017, request. See id. at 330, ¶16.
On December 8, 2017, plaintiff submitted an Inmate Request
Form to the Unit Administrator stating:
On or about 11-28-17 I sent CN9601 to Riffo informing
him that on Tuesdays 1st shift, during feedback, I’m not
receiving
my
therapeutic
diet
pursuant
to
A.D.
10.18(3)D, also in CN9601 I told Riffo that Kitchen Sup.
Downey gave me hot dogs on 11-27-17, that I thought to
be in contrast with my diet, only to find out that it is
in accordance with my diet. So on 12-4-17, Kitchen Sup,
Downey arrived at about 9:30 am to my housing unit
issuing me a CN100101 form, with his factual basis being
solely about the hot dog situation in my CN9601. ... My
use of CN9601 to address a concern to Riffo led to Downey
retaliating by filing CN100101 about hot dogs in
violation of A.D. 2.17(B)15 and first amendment.
Id. at 243-44 (sic). On January 3, 2018, Warden Faneuff
responded to plaintiff, stating: “After reviewing the facts I
concur with the actions taken. Your argumentative and false
statements to kitchen staff warrant your removal from the
kitchen.” Id. at 243.
On January 10, 2018, plaintiff filed a Level 1 grievance
challenging Warden Faneuff’s response to his December 8, 2017,
inmate request. See id. at 247-48. On March 12, 2018,
4

Correctional Officer Kopacz sent plaintiff a letter that stated,
inter alia: “[I]t was determined that although you may have
handled the matter regarding your diet a little brash, Warden
Faneuff and I agree that it didn’t warrant a work evaluation of
an overall poor. Your actions were not job related. Therefore,
reclassification without malice was appropriate.” Id. at 264.
Plaintiff was advised that “the work report ... alone would not
be used to negatively impact [his] Classification status or his
Ability to earn RREC time.” 4 Id. With these conditions, plaintiff
“withdrew both administrative remedies[.]” Id.
On March 16, 2018, plaintiff’s grievance was denied by
District Administrator Edward Maldonado with the reasoning that
his “allegation of staff misconduct/retaliation [could not] be
substantiated.” Id. at 247. On March 28, 2018, plaintiff filed a
Level 2/3 grievance, alleging that the Level 1 reviewer was
“biased[]” and “allowing [him] to be retaliated against.” Id. at
251. On April 11, 2018, plaintiff’s Level 2/3 grievance was

The Court takes judicial notice that “RREC” references the
“Risk Reduction Earned Credit Program[,]” which permits inmates
at Connecticut prisons to earn three to five days per month off
of their sentence “as an incentive to promote good behavior and
program participation among offenders.” Risk Reduction Earned
Credit: Effective February 1, 2016, CONNECTICUT STATE DEPARTMENT
OF CORRECTION, https://portal.ct.gov/DOC/Miscellaneous/RiskReduction-Earned-Credit-NEW-2-1-2016 (last visited December 27,
2021).
4

5

denied, and plaintiff was advised that his “Administrative
Remedies are exhausted.” Id.
II.

LEGAL STANDARD
“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.” Fed. R. Civ.
P. 56(a). “The party seeking summary judgment has the burden to
demonstrate that no genuine issue of material fact exists.”
Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir.
2002). The moving party may discharge this burden by “pointing
out to the district court ... that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986). “In moving for summary
judgment against a party who will bear the ultimate burden of
proof at trial, the movant’s burden will be satisfied if he can
point to an absence of evidence to support an essential element
of the nonmoving party’s claim.” Goenaga v. March of Dimes Birth
Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).
In deciding a motion for summary judgment, the Court “must
construe the facts in the light most favorable to the non-moving
party and must resolve all ambiguities and draw all reasonable
inferences against the movant.” Beyer v. Cnty. of Nassau, 524
F.3d 160, 163 (2d Cir. 2008) (citation and quotation marks
omitted). “If there is any evidence in the record that could
6

reasonably support a jury’s verdict for the non-moving party,
summary judgment must be denied.” Am. Home Assur. Co. v. Hapag
Lloyd Container Linie, GmbH, 446 F.3d 313, 315 (2d Cir. 2006)
(citation and quotation marks omitted).
III. DISCUSSION
Defendants move for summary judgment on several bases: “1)
Plaintiff cannot demonstrate a retaliation claim; 2) Defendant
Riffo does not have direct involvement; 3) Defendant Riffo does
not have supervisory liability; 4) the Defendants are entitled
to the protections of qualified immunity and [5]) the Plaintiff
is not entitled to compensatory damages.” Doc. #29 at 1. 5 The
Court herein addresses only those arguments necessary to the
resolution of the motion.
A.

Defendant Riffo -- Personal Involvement

Defendant Riffo moves for summary judgment on the basis
that plaintiff has not produced evidence indicating that he had
Defendants do not make any argument that plaintiff failed to
exhaust his remedies under the Prison Litigation Reform Act
(“PLRA”). Plaintiff has placed in evidence a letter dated March
12, 2018, stating that plaintiff “withdrew both administrative
remedies” relating to the “poor work report generated by CFSS2
Downey on 12/4/17[.]” Doc. #32-1 at 264. Defendants were aware
of the March 12, 2018, letter, see Doc. #29-1 at 12 (citing
letter), but have not asserted that the withdrawal described
therein means that plaintiff failed to exhaust his
administrative remedies. Notably, plaintiff has also provided an
Inmate Grievance Appeal Form dated April 11, 2018, stating:
“[Y]our level three appeal is denied and Your Administrative
Remedies are exhausted.” Doc. #32-1 at 251.
5

7

“direct involvement” in the alleged retaliation. Doc. #29-1 at
9. The Court agrees.
When bringing a claim pursuant to §1983, “a plaintiff must
plead and prove ‘that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.’” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir.
2020) (quoting Aschroft v. Iqbal, 556 U.S. 662, 676 (2009)). An
alleged constitutional “violation must be established against
the supervisory official directly[]” and cannot be based on
supervisory liability. Id. In other words a supervisory official
is not personally involved in the violation of a plaintiff’s
constitutional rights simply “by reason of [the official’s]
supervision of others who committed the violation.” Id. at 619. 6
Plaintiff has submitted an Inmate Request Form dated
December 4, 2017, addressed to defendant Riffo, stating:
Mr. Riffo in the aftermath of me complaining about my
therapeutic diet not being properly met per A.D.
10.18(9) and me questioning Downey if hot dogs are a
part of my diet, today at about 9:30 am Downey arrived
at my housing unit with a performance eval form with
reasons described pertaining to the hot dog incident
last Monday when I was not on duty. This clear evidence
The parties’ briefing for this motion was completed prior to
the issuance of the Second Circuit’s opinion in Tangreti, and
they therefore rely on Colon v. Coughlin, 58 F.3d 865 (2d Cir.
1995). See Doc. #29-1 at 7-9; Doc. #32 at 56. However, after
Tangreti, the test set forth in Colon for demonstrating indirect
personal involvement of a supervisory defendant is no longer
controlling. See Tangreti, 983 F.3d at 615-18 (citing Colon, 58
F.3d at 873).
6

8

shows that Downey retaliated against me for naming him
in an inmate request regarding my -->
Doc. #32-1 at 221. 7
“The fact that a prisoner sent a letter or written request
to a supervisory official does not establish the requisite
personal involvement of the supervisory official.” Young v.
Choinski, 15 F. Supp. 3d 172, 189 (D. Conn. 2014).
The form is not signed by defendant Riffo. See Doc. #32-1
at 221. As plaintiff concedes, “Riffo did not respond to
plaintiff’s request[.]” Doc. #32 at 38; see also Doc. #32-1 at
225 (“Mr. Riffo is not responding to my CN9601, requesting
reinstatement of my job immediately[.]”); Doc. #32-1 at 232
(“CN9601 isn’t attached because Kitchen Manager Riffo didn’t
respond.”).
“[A] defendant’s mere receipt of a letter or grievance,
without personally investigating or acting thereon, is
insufficient to establish personal involvement. Personal
involvement will be found, however, where a supervisory official
receives and acts on a prisoner’s grievance or otherwise reviews
and responds to a prisoner’s complaint.” Alvarado v. Westchester
Cnty., 22 F. Supp. 3d 208, 215 (S.D.N.Y. 2014) (citations and
quotation marks omitted).

After the “my” there is an arrow, suggesting that the text
continues, but no second page is provided.
7

9

In his declaration in support of the motion for summary
judgment, defendant Riffo avers that he “was not aware Downey
had issued” the poor performance evaluation to plaintiff, and
that he “was not consulted on whether or not to issue” it. Doc.
#29-3 at 3, ¶10. Defendant Downey confirms this, stating: “I
issued the [evaluation] based on the Plaintiff’s actions, prior
to doing so I did not consult or inform Riffo that I was doing
so.” Doc. #29-4 at 4, ¶28. The poor performance evaluation bears
only the signature of Downey. See Doc. #32-1 at 224.
Plaintiff has not offered any evidence to rebut these
declarations establishing that Riffo did not have a role in
Downey’s actions. To the contrary, the December 4, 2017, Inmate
Request Form directed to defendant Riffo suggests that plaintiff
believed Riffo to be unaware of Downey’s actions. See Doc. #32-1
at 221. “ For purposes of Section 1983 ..., personal involvement
cannot be established based on the receipt of a letter or
grievance. Likewise, allegations that an official ignored a
prisoner’s letter or grievance, is insufficient to establish
personal liability for purposes of section 1983.” Smith v. Conn.
Dep’t of Corr., No. 3:05CV00960(HBF), 2007 WL 678549, at *4 (D.
Conn. Mar. 1, 2007) (citations and quotation marks omitted).
Plaintiff bears the burden of establishing the personal
involvement of each defendant in the unconstitutional
retaliation. He has failed to present any evidence suggesting
10

that Riffo was involved in the decision to issue him a poor
performance evaluation, or in the termination of plaintiff from
his kitchen job. Defendants have provided unrebutted evidence
that Riffo was not involved in these actions. Accordingly,
summary judgment is GRANTED as to defendant Riffo.
B.

Defendant Downey -- First Amendment Retaliation

Defendants assert that plaintiff is unable to establish a
retaliation claim because the “poor work report was properly
issued.” Doc. #29-1 at 4. Plaintiff responds that he
“establish[es] a claim of retaliation, as the poor work report
he was issued by defendant Downey was not work related ... and
did not warrant a work evaluation of an overall poor.” Doc. #32
at 38.
A district court must “‘approach prisoner retaliation
claims with skepticism and particular care, because 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.’” Dolan v.
Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Davis v.
Goord, 320 F.3d 346, 352 (2d Cir. 2003)). Thus, the Court must
ensure that a retaliation claim brought by an inmate is
“supported by specific and detailed factual allegations, not

11

stated in wholly conclusory terms.” Id. (citation and quotation
marks omitted).
“[T]o sustain a First Amendment retaliation claim, a
prisoner must demonstrate the following: (1) that the speech or
conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was a
causal connection between the protected speech and the adverse
action.” Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)
(citation and quotation marks omitted).
1.

Protected Speech or Conduct

Plaintiff has met his burden with respect to the first
element, and defendants make no argument to the contrary.
Plaintiff has a constitutionally protected right to be free from
retaliation as a result of his filing of a grievance. See Graham
v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (“This court has
held 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.”). The speech or
conduct at issue was therefore protected.
2.

Adverse Action

As to the second element, “adverse action on the part of
the defendants” is defined as conduct “that would deter a
prisoner of ordinary firmness from vindicating his or her
12

constitutional rights through the grievance process and the
courts[.]” Gill, 389 F.3d at 384. “A job reassignment or
termination can under certain circumstances constitute adverse
action necessary to support a claim of retaliation.” Vega v.
Lareau, No. 9:04CV00750(GTS)(ATB), 2010 WL 2682307, at *8
(N.D.N.Y. Mar. 16, 2010), report and recommendation adopted,
2010 WL 2682289 (N.D.N.Y. July 2, 2010). It is undisputed that
plaintiff was fired from his kitchen job “with malice.” Doc.
#29-6 at 2; see also Doc. #32-1 at 264. This is sufficient to
constitute “adverse action” at the summary judgment stage. See
Walker v. Senecal, No. 9:20CV00082(DNH)(CFH), 2021 WL 3813081,
at *9 (N.D.N.Y. July 19, 2021), report and recommendation
adopted, 2021 WL 3793771 (N.D.N.Y. Aug. 26, 2021); Logan v.
Graham, No. 9:18CV00291(DNH)(ML), 2019 WL 8015209, at *13 n.19
(N.D.N.Y. Nov. 26, 2019), report and recommendation adopted,
2020 WL 871197 (N.D.N.Y. Feb. 21, 2020); Casey v. Pallito, No.
5:12CV00284(JMC), 2015 WL 13730672, at *10 (D. Vt. Sept. 22,
2015), report and recommendation adopted, 2016 WL 96157 (D. Vt.
Jan. 7, 2016) (“Neither does the Constitution tolerate
termination from prison employment in retaliation for the
exercise of such rights.”).
3.

Substantial or Motivating Factor

As to the third element, plaintiff “bears the burden of
showing that ‘the protected conduct was a substantial or
13

motivating factor’ in the prison officials’ disciplinary
decision.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014)
(quoting Graham, 89 F.3d at 79).
Defendants do not argue that the filing of the grievance
was not a motivating factor in the termination of plaintiff’s
kitchen job. Rather, defendants argue that “there was a valid
basis for [plaintiff’s] removal from his kitchen work
assignment[.]” Doc. #29-1 at 7. Once a plaintiff shows that
there is a causal connection between protected speech and an
adverse action, the burden shifts to defendants to “show by a
preponderance of the evidence that they would have disciplined
the plaintiff even in the absence of the protected conduct.”
Graham, 89 F.3d at 79 (citation and quotation marks omitted).
Plaintiff’s “version of events would be insufficient as a matter
of law even if true (even if the defendants were retaliating
against protected conduct) if there were proper, non-retaliatory
reasons for his punishment.” Id. at 81.
Defendants contend:
After consulting the diet formulary for high fiber
diets, Downey determined that the food provided to the
Plaintiff, which included the hot dogs, was [indeed],
part of his high fiber diet. He discussed this with the
Plaintiff. A week later, the Plaintiff asserted the same
complaint in an inmate request form, after he had been
told that the formulary did include hot dogs. The
Plaintiff's knowledge for one week prior to filing his
complaint that the high fiber diet included hot dogs,
demonstrates that he was being untruthful when he filed
the inmate request form. This is equivalent to filing a
14

report with false information. Filing a report with
false information is an offense that could warrant
discipline of the Plaintiff. On this basis, Downey felt
placing the Plaintiff in a position of trust was no
longer warranted and could jeopardize the safety of DOC
personnel and others. As a result, he issued the CN100101
outlining the false report submitted by the Plaintiff
and proceeded to fire him from his position in the
kitchen.
Id. at 6 (citations omitted). The Court finds that there is at
the very least a genuine dispute of material fact as to whether
plaintiff was in fact being “untruthful” in the November 28,
2017, grievance. That grievance reflects that plaintiff brought
his concerns to Downey’s attention, that Downey offered an
explanation, and that plaintiff did not believe Downey was
correct in his interpretation of the relevant directive. See
Doc. #32-1 at 217. Under defendants’ theory, plaintiff’s claims
in the November 28, 2017, Inmate Request were lies, but a
reasonable jury could easily conclude that they represented a
mere difference of opinion. At a minimum, this possibility
prevents entry of summary judgment in Downey’s favor.
The Court further observes that plaintiff has provided
evidence that Downey’s termination of his employment “with
malice” was found not to be justified under the circumstances.
On March 12, 2018, a letter was sent to plaintiff from DOC
stating:
Upon completion of an inquiry regarding inquiry
regarding an overall poor work report generated by CFSS2
Downey on 12/4/17, it was determined that although you
15

may have handled the matter regarding your diet a little
brash, Warden Faneuff and I agree that it didn’t warrant
a work evaluation of an overall poor. Your actions were
not job related.
Doc. #32-1 at 264. Plaintiff’s “allegations of retaliation are
further supported by the fact that” Downey’s actions “were
subsequently found to have been unjustified.” Bennett v. Goord,
343 F.3d 133, 138 (2d Cir. 2003); see also Gayle v. Gonyea, 313
F.3d 677, 683 (2d Cir. 2002).
At the summary judgment stage, defendants must “proffer an
alternative basis for disciplining [plaintiff] that would apply
to him even if his version of events were true.” Graham, 89 F.3d
at 81 (emphasis added). If plaintiff’s version of events is
true, then the statements in the November 28, 2017, Inmate
Request Form are truthful, and Downey had no basis to terminate
him for the cited reasons. Accordingly, summary judgment in
favor of Downey is not appropriate.
C.

Defendant Downey -- Qualified Immunity

Downey further contends that he is entitled to summary
judgment on qualified immunity grounds. See Doc. #29-1 at 9-13.
“Under the doctrine of qualified immunity, a government
official performing discretionary functions is shielded from
liability for civil damages if his conduct did not violate
plaintiff’s clearly established rights or if it would have been
objectively reasonable for the official to believe that his
16

conduct did not violate plaintiff’s rights.” Mandell v. Cnty. of
Suffolk, 316 F.3d 368, 385 (2d Cir. 2003).
A right is clearly established if it is “sufficiently clear
that every reasonable official would have understood that what
he is doing violates that right.” Mullenix v. Luna, 577 U.S. 7,
11 (2015) (citation and quotation marks omitted). For a right to
be clearly established, “existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011).
The Second Circuit “has held 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.”
Graham, 89 F.3d at 80 (citing Franco v. Kelly, 854 F.2d 584 (2d
Cir. 1988)). “The right to petition government for redress of
grievances -- in both judicial and administrative forums -- is
among the most precious of the liberties safeguarded by the Bill
of Rights.” Id. (citation and quotation marks omitted). That
right has been clearly established by Second Circuit law for
decades. Defendants do not dispute that, as of November 27,
2017, plaintiff’s right to be free from retaliation for filing a
grievance was clearly established. Accordingly, the Court
proceeds to consider “whether the officer had fair notice that
[his] conduct was unlawful[.]” Brosseau v. Haugen, 543 U.S. 194,
17

198 (2004). “[T]he critical question is whether it was
objectively reasonable for [Downey] to believe that [he was] not
committing” a violation of plaintiff’s First Amendment right to
be free from retaliation. Frisenda v. Inc. Vill. of Malverne,
775 F. Supp. 2d 486, 523 (E.D.N.Y. 2011). “[I]f [Downey] did in
fact intentionally retaliate against plaintiff because of his
First Amendment activity, [he] would not be protected by
qualified immunity.” Id.
Downey argues that his actions were objectively reasonable
because he “had direct knowledge that the Plaintiff was being
untruthful when he filed an inmate request form indicating that
the Plaintiff had not received a special diet meal.” Doc. #29-1
at 11. But, as defendants concede in their motion, the basis for
plaintiff’s asserted “knowledge” that the meal he had received
was the proper one was based on Downey’s own assessment: “After
consulting the diet formulary for high fiber diets, Downey
determined that the food provided to the Plaintiff, which
included in the hot dogs, was indeed, part of his high fiber
diet.” Id. at 6 (emphasis added). Plaintiff disagreed with
Downey’s determination, and he therefore filed an Inmate Request
form stating: “I received hot dogs for lunch in which I notified
Downey, who said I get hot dogs which is incorrect.” Doc. #32-1
at 217. Assuming that it is possible to view this as “being

18

untruthful” rather than expressing disagreement, that is
certainly not the only reasonable interpretation. 8
A genuine issue of material fact exists as to whether
Downey terminated plaintiff from his job based on false
statements or retaliation, and whether the proffered legitimate
reasons for the termination were objectively reasonable. On the
facts presented, “a rational jury could find that the
[discipline] was imposed in retaliation” for plaintiff’s
November 28, 2017, complaint against Downey in the Inmate
Request Form. Frierson v. Reinisch, 806 F. App’x 54, 57 (2d Cir.
2020). Thus, summary judgment is precluded. See Royal Crown Day
Care LLC v. Dep’t of Health & Mental Hygiene of City of New
York, 746 F.3d 538, 545 (2d Cir. 2014) (“The existence of that

The Court notes that after these events transpired, Downey
filed a request that plaintiff to be transferred to a different
facility. Downey claimed that plaintiff’s grievance against him
for the termination constituted “a direct order from an inmate
to a staff member to inflict disciplinary remedies upon another
staff member which cannot be tolerated[.]” Doc. #32-1 at 267.
Downey’s interpretation of that grievance was based solely on
plaintiff’s use of the word “warrant,” saying the “behavior
displayed by Downey warrant discipline.” Id. (sic). Downey
insisted that “warrant” in this context must mean “certification
or sanction as given by a superior.” Id. This is a surprising
interpretation, especially given that Downey used a definition
under which “warrant” would be a noun, while plaintiff clearly
used “warrant” as a verb, and the most natural meaning of the
word in that context was “merit,” or “deserve.” While this
evidence is not necessary to the Court’s determination, and the
outcome would be the same without it, it does provide additional
insight into the reasonableness of Downey’s assessments of
plaintiff’s actions.
8

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genuine dispute of material fact with respect to defendants’
violations of Royal Crown's First Amendment and substantive due
process rights precludes the entry of summary judgment on behalf
of defendants unless they can show that their action was
objectively legally reasonable or that the rights they violated
were not clearly established.”); Bonilla v. United States, 357
F. App’x 334, 335 (2d Cir. 2009) (“[I]f there are factual
disputes that bear directly upon whether it was objectively
reasonable for an official to believe that he was acting
lawfully, these disputes must be resolved by a jury before the
legal question can be addressed.”). Accordingly, Downey is not
entitled to summary judgment on the basis of qualified immunity.
D.

Compensatory Damages

Plaintiff seeks both compensatory and punitive damages for
the violations of his First Amendment rights. See Doc. #1-1 at
21. Defendants conclude their summary judgment argument with a
claim that plaintiff is “precluded from compensatory damages[]”
because “he has failed to establish any physical injury”
resulting from Downey’s actions. Doc. #29-1 at 14. Plaintiff
responds that he is seeking compensatory damages for the loss of
his “constitutional liberty interest[]” rather than for “mental
or emotional injury[.]” Doc. #32 at 74.
Defendants argue:

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Consistent with the PLRA, plaintiffs are required to
demonstrate physical injury. “Section 1997e(e) applies
to claims in which a plaintiff alleges constitutional
violations so that the plaintiff cannot recover damages
for mental or emotional injury for a constitutional
violation in the absence of a showing of actual physical
injury.” Thompson v. Carter, 284 F.3d 411, 417 (2d Cir.
2002).
Doc. #29-1 at 13. However, Thompson also states: “Because
Section 1997e(e) is a limitation on recovery of damages for
mental and emotional injury in the absence of a showing of
physical injury, it does not restrict a plaintiff’s ability to
recover compensatory damages for actual injury, nominal or
punitive damages, or injunctive and declaratory relief.”
Thompson, 284 F.3d at 416. Plaintiff could therefore potentially
recover compensatory damages for his lost wages, and for the
actual injury to his First Amendment rights.
“[E]ven if [plaintiff] is unable to establish that any of
the injuries complained of in this action stemmed from an
incident in which he suffered physical injuries, [he] may still
recover damages for injuries to his First Amendment rights, as
well as nominal and punitive damages for any other
constitutional violations.” Toliver v. City of New York, 530 F.
App’x 90, 93 n.2 (2d Cir. 2013) (citing Thompson, 284 F.3d at
416). See also Lipton v. Cnty. of Orange, NY, 315 F. Supp. 2d
434, 457 (S.D.N.Y. 2004) (“[A] First Amendment deprivation
presents a cognizable injury standing alone and the PLRA does
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not bar a separate award of damages to compensate the plaintiff
for the First Amendment violation in and of itself.” (citations
and quotation marks omitted)) (collecting cases); Sheppard v.
Roberts, No. 3:20CV00875(VAB), 2021 WL 3023090, at *3-4 (D.
Conn. July 16, 2021) (acknowledging that compensatory damages
may be sought for loss of a constitutional liberty interest,
particularly in the First Amendment context).
As acknowledged by defendants in their motion, “[h]ere, the
constitutional violation before the court is one of retaliation
in violation of the Plaintiff’s First Amendment Rights.” Doc.
#29-1 at 14. Plaintiff’s request for compensatory damages could
be construed to seek relief for a cognizable injury due to a
violation of his First Amendment rights by Downey. Such damages
are distinct from those recoverable for any physical, emotional,
or mental injury, and would not be barred by §1997e(e).
Accordingly, summary judgment on this issue is denied.
IV.

CONCLUSION
For the reasons set forth herein, defendants’ motion for

summary judgment is GRANTED, in part, as to defendant Riffo, and
DENIED, in part, as to defendant Downey.
The Clerk shall terminate defendant Riffo in this action.
Judgment will enter in favor of defendant Riffo.
This case will proceed to trial as to defendant Downey. A
separate Joint Trial Memorandum Order will enter.
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It is so ordered this 10th day of January, 2022, at New
Haven, Connecticut.
__ /s/______________________
HON. SARAH A. L. MERRIAM
UNITED STATES DISTRICT JUDGE

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