Kotler v. Fischer et al

Filing 89

MEMORANDUM-DECISION AND ORDER: ORDERS that Magistrate Judge Baxter's January 31, 2012 Report-Recommendation and Order is ADOPTED in its entirety. ORDERS that 71 Motion for Summary Judgment is granted in part and denied in part. Signed by U.S. District Judge Mae A. D'Agostino on 3/19/12. {order served via regular mail on all non-ecf parties}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KERRY KOTLER,
Plaintiff,
vs.

9:09-cv-01443
(MAD/ATB)

BRIAN FISCHER, Commissioner, NYS
Department of Correctional Services;
ROBERT WOODS, Superintendent, Upstate
Correctional Facility; MARIAN B. TIRONE,
Deputy/Acting Superintendent, Upstate
Correctional Facility; KAREN BELLAMY,
Director of Inmate Grievance Program for DOCS;
C. GREGORY, Supervisor, Inmate Grievance
Resolution Committee, Upstate Correctional
Facility; D. QUINN, Captain, Upstate Correctional
Facility; R. LAMORA, Lieutenant, Upstate
Correctional Facility; and ANTHONY ANNUCCI,
Executive Deputy Commissioner for D.O.C.S.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

KERRY KOTLER
97-A-6645
Orleans Correctional Facility
3531 Gaines Basin Road
Albion, New York 14411
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

MICHAEL G. McCARTIN, AAG

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION
In a complaint dated November 13, 2009, Plaintiff pro se seeks monetary damages and
injunctive relief pursuant to 42 U.S.C. § 1983, for alleged violations of his constitutional rights
while he was incarcerated by the New York State Department of Correctional Services
("DOCS").1 See Dkt. No. 1. Primarily, Plaintiff claims that he was subjected to retaliation and
denied due process by various DOCS employees in connection with a disciplinary proceeding
conducted at Upstate Correctional Facility ("Upstate") in 2007. See id.
In an Amended Report-Recommendation dated January 31, 2012, Magistrate Judge Baxter
recommended that the Court deny, without prejudice to renewal, the summary judgment motion
as to the due process claims against Defendants LaMora and Quinn. See Dkt. No. 85 at 2.
Further, Magistrate Judge Baxter recommended that the Court grant Defendants' summary
judgment motion as to all remaining claims and Defendants, including Plaintiff's retaliation
claims against Defendants Gregory, Bellamy, LaMora, Quinn and Annucci. See id.
Currently before the Court are Defendants' objections to Magistrate Judge Baxter's
January 31, 2012 Amended Report-Recommendation. See Dkt. No. 86.

II. BACKGROUND
In May 2007, Plaintiff was transferred to Upstate, for alleged disciplinary infractions not
related to the instant claims. At that time, Plaintiff had an unrelated civil rights action and a
number of grievances pending against DOCS employees other than the named Defendants in this

On April 1, 2011, DOCS and the New York State Division of Parole were merged into
one agency, named the New York State Department of Corrections and Community Supervision.
Since the events relevant to this suit occurred before the merger, the Court will refer to New York
State's corrections agency as "DOCS."
1

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action. See Dkt. No. 79-1 at ¶¶ 2-14. Starting in early June 2007, Plaintiff wrote a series of
letters to Defendant Gregory – Upstate's Inmate Grievance Program ("IGP") Supervisor – and
Defendant Bellamy – the IGP Director – criticizing Defendant Gregory's handling of Plaintiff's
grievances. See Dkt. No. 79-3 at 17-27.2
On June 22, 2007, Plaintiff submitted for photocopying at the Upstate library a
copy of DOCS Form 2133 relating to a past grievance, which Plaintiff had redacted to create a
blank version of the form. See Dkt. No. 71-24 at ¶ 7. Form 2133 is typically used to set forth the
ruling of a facility Superintendent on a grievance, and has a block for the Superintendent's
signature and a space at the bottom for the inmate to indicate his intention to appeal the
Superintendent's decision to the DOCS Central Office Review Committee ("CORC"). See Dkt.
No. 71-12. Corrections Officer ("C.O.") Santamore, who is no longer a Defendant in this action,
asked Defendant Gregory whether inmates were allowed to have blank copies of Form 2133, and
Defendant Gregory advised that inmates were not allowed to possess that form in blank. C.O.
Santamore, after consulting with his supervisor, decided to file an inmate misbehavior report
against Plaintiff, charging him under a disciplinary rule that prohibits altering, forging, or
counterfeiting any document, as well as distributing or possessing DOCS documents "without
authorization." See Dkt. No. 71-24 at ¶¶ 7-9 & Exhibit "A" attached thereto. After the
misbehavior report was filed against Plaintiff, but before the disciplinary hearing, Defendant
Gregory confirmed with her IGP supervisors, including Defendant Bellamy, that inmates were not
allowed to possess Form 2133 in blank. See Dkt. No. 71-19 at ¶¶ 8-11 & Exhibit "A" attached
thereto.

To avoid confusion, anytime the Court references a specific page number or range of
pages for an entry on the docket, the Court will cite to the page number or numbers assigned by
the Court's electronic filing system.
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Defendant LaMora presided over Plaintiff's disciplinary hearing, at which C.O.
Santamore and Defendant Gregory testified. Plaintiff argued that Defendant Gregory and others
in the IGP were mistaken in their interpretation that DOCS' rules prohibit inmates from
possessing Form 2133 in blank. See Dkt. No. 71-28 at 13-14, 21. Plaintiff claimed that DOCS
inmates had been allowed to possess blank copies of the form in order to appeal the denial of a
grievance to the CORC when the facility Superintendent did not review the denial on a timely
basis. See id. at 24-25. Plaintiff asserted that he tried to secure blank copies of Form 2133 from
the library so that he could appeal, in good faith, a prior grievance for which he had not yet
received a Superintendent's ruling. See id. at 12-14.
Defendant LaMora, accepting the testimony of Defendant Gregory that inmates
are not allowed to possess blank copies of Form 2133, found Plaintiff guilty on the misbehavior
report, and sentenced him to 30 days of "keeplock" confinement, along with the suspension of
certain other privileges. See id. at 28. Defendant Quinn reviewed and denied Plaintiff's appeal of
the disciplinary action against him. See Dkt. No. 79-3 at 41-54.
Plaintiff claims that, as a result of the Progressive Inmate Movement System
("PIMS") in place at Upstate, he served significantly more than thirty (30) days of disciplinary
confinement as a result of the misbehavior report against him. See Dkt. No. 79-1 at ¶¶ 45-48;
Dkt. No. 79-3 at 35-40. Plaintiff alleges, in considerable detail, how the conditions of his
confinement at Upstate amounted to an "atypical and significant hardship." See Dkt. No. 79-1 at
¶¶ 137-171.
Plaintiff wrote numerous letters complaining to Defendants Bellamy and Fischer that the
imposition of disciplinary sanctions against him were contrary to DOCS' rules, were
fundamentally unfair, and were the result of retaliation against him because of his extensive
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grievance-related activities. See Dkt. No. 79-5 at 4-33. Both Defendant Bellamy and Defendant
Annucci, the DOCS Executive Deputy Commissioner, replied to Plaintiff. They advised Plaintiff,
in essence, that his recourse was limited to the appeal of the disciplinary action, which had
already been decided, and that they would not or could not conduct any further investigation or
take any other remedial action. See id. at 13, 19, 25, 33.
In his complaint, Plaintiff alleges that Defendant LaMora violated his due process rights
because he was a biased hearing officer, who conducted the disciplinary hearing in an unfair and
partial manner. Further, the complaint alleges that Defendants Annucci and Quinn denied
Plaintiff due process by ratifying and failing to correct the violations allegedly committed by
Defendant LaMora. See Dkt. No. 1 at 16. Moreover, the complaint alleges that Defendants
LaMora, Gregory and Bellamy retaliated against Plaintiff because of his "protected grievance
related activities" by pursuing the disciplinary charges against him. Plaintiff also claims that
Defendants Annucci, Bellamy, and Quinn are liable for this purported retaliation because they
ratified and failed to correct the conduct of Defendants more directly involved in the disciplinary
proceeding. See id. at 15.
In his January 31, 2012 Amended Report-Recommendation, Magistrate Judge Baxter
recommended that the Court grant in part and deny in part Defendants' motion for summary
judgment. See Dkt. No. 85. Specifically, Magistrate Judge Baxter recommended that the Court
deny without prejudice to renewal the summary judgment motion as to the due process claims
against Defendants LaMora and Quinn and that the Court grant the motion as to all of the
remaining Defendants and claims, including Plaintiff's retaliation claims against Defendants
Gregory, Bellamy, LaMora, Quinn, and Annucci.

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In their objections dated February 7, 2012, Defendants argue that Magistrate Judge Baxter
erred in determining that Defendants LaMora and Quinn were not entitled to qualified immunity.
See Dkt. No. 86 at 4. Specifically, Defendants argue as follows:
The disciplinary rule at issue here, Rule 116.12, states in total: "An
inmate shall not alter, forge or counterfeit any document. An
inmate shall not distribute or be in possession of any departmental
document without authorization." 7 NYCRR 270.2, Rule 116.12.
At plaintiff's Tier II disciplinary hearing, Defendant LaMora was
told by the grievance supervisor for the facility, Ms. Christine
Gregory, a person who he reasonably expected would know, that
the departmental form that plaintiff sought to possess in blank
format (a Form 2133) was an "unauthorized" form for the plaintiff
to possess in blank format. Dkt. No. 71-22, pp. 9-10. Ms. Gregory
told Defendant LaMora that she had confirmed this with her
supervisor in Albany. Id., at p. 10. In fact, Ms. Bellamy, the
Director of DOCCS Inmate Grievance Program, confirmed that this
was a correct interpretation of the DOCCS' rule. Dkt. No. 711-11,
at ¶¶ 9-13.
See id. at 5-6. Based on this, Defendants argue that Defendant LaMora acted reasonably in
interpreting Rule 116.12 as prohibiting Plaintiff from creating a "blank" Form 2133, despite the
fact that DOCS Directive 4040 requires inmates, in certain circumstances, to initiate an appeal to
CORC on a blank Form 2133. See id. at 6-7. Defendants assert that Defendant LaMora is not a
"grievance official expert" and that he reasonably relied on the grievance experts' interpretations
of the rules. See id. at 7. Moreover, Defendants argue that Defendant LaMora could have
reasonably concluded that Plaintiff believed that he was doing something knowingly wrong
because he "did not simply 'ask permission before acting' – i.e., he did not simply ask the
grievance office at Upstate CF for copies of the form in question free of charge, as opposed to
seeking to pay for altered forms to be copied in the prison library." See id. at 10. Finally,
Defendants argue that, "[b]ecause it was not 'plainly incompetent' or a 'knowing[ ] violat[ion of]
the law' for Defendant LaMora or Defendant Quinn to accept the DOCCS' grievance department's
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expert opinions on which departmental forms were 'unauthorized,' qualified immunity should
apply to protect them from a jury trial on this issue." See id. at 12 (citation omitted).

III. DISCUSSION
A.

Standard of review
When a party files specific objections to a magistrate judge's report-recommendation, the

district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After the appropriate review, "the court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "'cannot try issues of fact; it can only determine whether there are issues to be tried.'" Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c), (e)).

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In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2505, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where
the non-movant either does not respond to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving party’s Rule 56.1 statement; rather, the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").
In reviewing a pro se case, the court "must view the submissions by a more lenient
standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.
Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court
is obligated to "make reasonable allowances to protect pro se litigants" from inadvertently
forfeiting legal rights merely because they lack a legal education. Govan v. Campbell, 289 F.
Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
However, this does not mean that a pro se litigant is excused from following the procedural
requirements of summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725,
2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's 'bald assertion,'
completely unsupported by evidence" is not sufficient to overcome a motion for summary
judgment. Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Carey v. Crescenzi,
923 F.2d 18, 21 (2d Cir. 1991)).
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B.

Qualified immunity
"The doctrine of qualified immunity shields public 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." Salahuddin v. Goord, 467 F.3d 263,
273 (2d Cir. 2006) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d
396 (1982)).
For a constitutional right to be "clearly established" for purposes of
determining whether an officer is entitled to qualified immunity, the
contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.
This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been
held unlawful, but it is to say that in the light of pre-existing law the
unlawfulness must be apparent.
Mollica v. Volker, 229 F.3d 366, 370-71 (2d Cir. 2000) (quoting Anderson v. Creiehton, 483 U.S.
635, 638 (1987)) (internal quotations omitted). "Where the right at issue in the circumstances
confronting police officers . . . was clearly established but was violated, the officers will
nonetheless be entitled to qualified immunity 'if . . . it was objectively reasonable for them to
believe their acts did not violate those rights.'" Zellner v. Summerlin, 494 F.3d 344, 367 (2d Cir.
2007) (quotation and other citation omitted).
"Although a mere mistake in the performance of an official duty may not deprive the
officer of qualified immunity, the doctrine does not shield performance that either (a) was in
violation of clearly established law, or (b) was plainly incompetent." Manganiello v. City of New
York, 612, F.3d 149, 165 (2d Cir. 2010) (citations omitted). "With respect to both the legal
question and the matter of competence, the officials' actions must be evaluated for objective
reasonableness. . . . That is, '[e]ven if the right at issue was clearly established in certain respects
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. . . an officer is still entitled to qualified immunity if "officers of reasonable competence could
disagree" on the legality of the action at issue in its particular factual context.'" Id. (quotations
omitted).
The determination of whether an official's conduct was objectively reasonable is a mixed
question of law and fact. See Zellner, 494 F.3d at 367 (citing Kerman v. City of New York, 374
F.3d 93, 109 (2d Cir. 2004)) (other citations omitted). "The ultimate question of whether it was
objectively reasonable for the officer to believe that his conduct did not violate a clearly
established right, i.e., whether officers of reasonable competence could disagree as to the
lawfulness of such conduct, is to be decided by the court. However, '[a] contention that . . . it was
objectively reasonable for the official to believe that his acts did not violate those rights has "its
principle focus on the particular facts of the case."'" Id. (quotation and other citations omitted).
If there is no dispute as to any material fact, the issue of whether the official's conduct was
objectively reasonable is an issue of law to be decided by the court. See id. at 368 (citation
omitted). Any unresolved factual issues, however, must be resolved by the jury. See id. (quoting
Kerman, 374 F.3d at 109) (other citations omitted). Once the court has received the jury's
decision as to "what the facts were that the officer faced or perceived," the court must then "make
the ultimate legal determination of whether qualified immunity attaches on those facts."
Stephenson v. Doe, 332 F.3d 68, 81 (2d Cir. 2003) (quotation omitted); see also Lennon v. Miller,
66 F.3d 416, 421 (2d Cir. 1995) (quotation omitted).
In the present matter, Magistrate Judge Baxter correctly determined that Defendants
LaMora and Quinn are not entitled to qualified immunity. As discussed, Plaintiff was charged
with violating Rule 116.12, which provides that "[a]n inmate shall not alter, forge or counterfeit
any document." 7 N.Y.C.R.R. § 270.2(B)(17)(iii); see also Dkt. No. 71-25. In Costantino v.
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Goord, 38 A.D.3d 659 (2d Dep't 2007), the petitioner was charged with violating Rule 116.12
because he created "a personalized grievance form which he sought to replicate in the library to
enable him to file grievances." Id. at 659. The petitioner claimed that there was a shortage of
grievance forms and that he sought to replicate the forms in the library to enable him to file
grievances. See id. The hearing officer found the petitioner guilty, stating that "'[i]t is apparent
that this form was forged and counterfeited solely for your use in submitting grievances.'" Id.
The Appellate Division disagreed. Specifically, the court found that "[t]he terms 'forge' and
'counterfeit' carry with them an element of intent to defraud or deceive. . . . While the word 'alter'
could conceivably embrace what the petitioner did to the grievance form in this case – indeed, by
filling out any form a person is, in a sense, altering it – the word 'alter' as it appears in Rule
116.12 has rational meaning only by reference to the words with which it is associated." Id. at
660 (citations omitted). Therefore, the court found that the word "alter" as used in Rule 116.12
"carries the same intent to defraud or deceive as do its companion words 'forge' and 'counterfeit.'"
Id. Since there was no evidence that the petitioner altered the form with an intent to deceive or
defraud, the court vacated the charge. See id.
In Farid v. Ellen, an inmate was charged with violating, among other things, the prison's
general ban on contraband as a result of a pamphlet criticizing New York's parole policies. See
Farid v. Ellen, 593 F.3d 233, 237-38 (2d Cir. 2010). The defendants argued that the pamphlet
constituted contraband because it violated the bylaws of the prison-approved organization, which
included the plaintiff as a member, and which produced the pamphlet. See id. The Second
Circuit agreed with the district court "that these rules were unconstitutionally vague as applied to
Farid, both because they failed to give him adequate notice and because they failed adequately to
constrain the discretion of the prison officials who had the power to impose them." Id. at 241.
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The Circuit, however, disagreed that the defendants were entitled to qualified immunity and held
that, "in light of Chatin, a jury could very well decide that it is unreasonable for a prison official
to act on the belief that violation of a prisoner organization's internal by-laws can properly subject
a prisoner to discipline under the prison's rules." Id. at 247.
As in Farid, in the present matter, Magistrate Judge Baxter correctly determined that "a
jury could very well decide that it is unreasonable for a prison official to act on the belief that a
lay inmate should have understood, based on a nuanced interpretation of various provisions of
DOCS Directive 4040, that he could be disciplined for his attempts to obtain a blank copy of
DOCS Form 2133." See Dkt. No. 85 at 23-24. According to section 701.9(f) of DOCS Directive
4040, "[i]f the superintend[e]nt fails to respond within the required twenty-five (25) calendar day
time limit the grievant may appeal to CORC. This is done by filing a Notice of Decision to
Appeal (Form #2133) with the inmate grievance clerk." See Dkt. No. 71-11 at ¶ 10. This
language, which seemingly contradicts Defendants' position that Plaintiff was not allowed to
possess this form in blank, could lead a jury to find Defendants actions unreasonable. This is
especially true in light of the fact that there is no indication in the record that Plaintiff intended to
do anything other than use the blank form to appeal an adverse ruling in a previous grievance and
the fact that Plaintiff alleges that he and other DOCS inmates were often allowed to possess blank
copies of Form 2133 to pursue grievance appeals.
Based on the foregoing, the Court denies Defendants' motion for summary judgment on
this ground and accepts Magistrate Judge Baxter's Report-Recommendation and Order.

IV. CONCLUSION

12

After carefully considering Magistrate Judge Baxter's Report-Recommendation and Order,
Defendants' objections thereto and the applicable law, and for the reasons stated herein, the Court
hereby
ORDERS that Magistrate Judge Baxter's January 31, 2012 Report-Recommendation and
Order is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion for summary judgment is GRANTED in part and
DENIED in part; and the Court further
ORDERS that the Clerk of the Court shall serve the parties with a copy of this
Memorandum-Decision and Order in accordance with the Local Rules.
IT IS SO ORDERED.

Dated: March 19, 2012
Albany, New York

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