Phelan v. Thomas et al

Filing 37

MEMORANDUM-DECISION AND ORDER: ORDERED that the Clerk is directed to amend the caption to reflect the proper spelling of Hirsch and Michael. ORDERED that defendants' motion for summary judgement (Dkt. No. 131 in 9:10-cv-11) is GRANTED and Phelan's amended complaint (Dkt. No. 88 in 9:10-cv-11) is DISMISSED. ORDERED that the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 2/8/17. (served on non-ecf party by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KENNETH J. PHELAN,
9:10-cv-11
9:10-cv-12
(GLS/DJS)

Plaintiff,
v.
R. THOMAS et al.,

Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Tully, Rinckey Law Firm
441 New Karner Road
Albany, NY 12205

MICHAEL W. MACOMBER,
ESQ.

FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York Attorney General
The Capitol
Albany, NY 12224

JOSHUA E. MCMAHON
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Kenneth J. Phelan commenced this action and another,
which was subsequently consolidated, against numerous defendants.
(Dkt. Nos. 1, 67; Dkt. No. 1, 9:10-cv-12.) Phelan thereafter filed a

consolidated amended complaint, which serves as the operative pleading.
(Am. Compl., Dkt. No. 88.) Pending is defendants’ motion for summary
judgment. (Dkt. No. 131.) For the reasons that follow, the motion is
granted and the amended complaint is dismissed.
II. Background
A.

Facts1
General familiarity with the facts is presumed from the court’s prior

Memorandum-Decision and Order. (Dkt. No. 110 at 2-9.) As relevant
here, Phelan, an inmate in the custody of the New York Department of
Corrections and Community Supervision (DOCCS), was housed at Mt.
McGregor Correctional Facility during the period of time pertinent to this
case. (Defs.’ Statement of Material Facts (SMF) ¶ 1, Dkt. No. 131, Attach.
1.) Defendants Richard Thomas, David Hirsch, Marina Scott, and
Jonathan Michael were all employed as corrections officers at Mt.
McGregor during the time in question.2 (Id. ¶¶ 2-5.)
1.

1

April 2, 2009 Incidents

Unless otherwise noted, the facts are not in dispute.

2

The Clerk is directed to amend the caption to reflect the proper spelling of Hirsch and
Michael. (Dkt. No. 131, Attach. 7; Dkt. No. 131, Attach. 10.)

2

While the parties disagree as to exactly why or how, Phelan was
found by Scott in Building 10, which included the Grievance Office, on April
2, 2009. (Id. ¶¶ 34-37.) According to defendants, Scott observed Phelan
in Building 10; he told her that “he wanted to go to the Grievance Office,
which was closed at that time.” (Id. ¶ 36.) Defendants claim that Scott
instructed Phelan to leave the building, which he eventually did. (Id.) Scott
issued a misbehavior report charging Phelan with three rule violations. (Id.
¶ 38.) Presumably before issuing the misbehavior report, Scott spoke with
Hirsch to ask if he had given Phelan permission to go to Building 10;
Hirsch denied that he had done so then and at a later disciplinary hearing.
(Id. ¶¶ 39, 41.) Scott also testified at the disciplinary hearing and “affirmed
the accuracy of the misbehavior report” filed by Scott. (Id. ¶ 40.) Phelan
later admitted his guilt to the charges contained in the misbehavior report
issued by Scott. (Id. ¶ 42.)
After his return to the building in which he was housed, Thomas and
Hirsch performed a cell search of Phelan’s living quarters while “Phelan
remained outside.” (Id. ¶¶ 11, 14; Dkt. No. 141 at 33.) Phelan contends
that his clothing and legal papers were thrown on the floor and “stomped
on,” (Dkt. No. 141 at 152), but he admits that none of “his property was
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destroyed or taken during the . . . search,” (Defs.’ SMF ¶ 17). Phelan also
claims that he “was threatened during the search that any further attempt
at filing a grievance would be met with further scrutiny and retaliatory
treatment.” (Dkt. No. 141 at 152-53.) The search yielded “a sheet of paper
with what appeared to be gang references, another sheet with derogatory
references to CO Thomas, a handkerchief marked ‘IB 9,’ and a quantity of
butter and sugar that should have been consumed in the mess hall.”
(Defs.’ SMF ¶ 19.) As a result of Phelan’s possession of those items,
Thomas charged him with rule violations in a misbehavior report to which
Phelan ultimately pleaded guilty. (Id. ¶¶ 20, 27, 28.)
2.

April 14, 2009 Incident

Phelan claims that, on April 14, 2009, “Michael struck him with ‘an
open’ hand[] ‘two or three times,’” that his head was “‘sore’” as a
consequence, and that the incident aggravated his traumatic brain injury
(TBI). (Id. ¶¶ 50, 52, 53.) Michael has no recollection of ever interacting
with Pehlan at Mt. McGregor. (Id. ¶¶ 55, 58.) In any event, Phelan
suffered no “bruising, edema, or physical injury as a result” of the alleged
used of force by Michael, and no medical diagnosis supports Phelan’s
claims that his TBI was aggravated by Michael’s open-handed strikes (Id.
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¶¶ 51, 53.)
3.

Americans with Disabilities Act Claim

Generically, Phelan alleges that certain defendants, including those
discussed above and defendant Dr. Peter Millson, a Mental Health Director
employed by DOCCS at a particular facility, prevented him from receiving
mental health treatment. (Am. Compl. ¶¶ 115-22; Dkt. No. 131, Attach. 11
¶ 1.) Phelan claims that defendants called him a “retard” when they denied
him treatment, access to the law library, and prevented him from filing
grievances. (Am. Compl. ¶ 118.) As the court has previously noted,
Phelan’s ADA Title II claim can be categorized as among those seeking
redress for irrational disability discrimination. (Dkt. No. 110 at 24 n.14.)
B.

Procedural History
After Phelan filed his consolidated amended complaint, (Dkt. No. 88),

defendants moved to dismiss. (Dkt. No. 102.) The court granted in part
and denied in part the motion, leaving only a handful of claims remaining:
(1) First Amendment retaliation against Hirsh and Thomas, relating to their
cell search on April 2, 2009; (2) First Amendment retaliation against
Thomas and Scott, relating to misbehavior reports issued pursuant to the
April 2, 2009 cell search; (3) Eighth Amendment excessive force against
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Michael, relating to striking Phelan in the head several times; and (4) Title
II of the ADA against all defendants in their official capacities. Following
discovery, (Dkt. No. 128), the instant motion was filed, (Dkt. No. 131.)
III. Standard of Review
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. For a full discussion of the
standard, the court refers the parties to its decision in Wagner v. Swarts,
827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v.
Sprague, 489 F. App’x 500 (2d Cir. 2012).
IV. Discussion
Defendants seek dismissal of the claims that survived their earlierfiled motion to dismiss for a litany of reasons, some of which the court
need not reach.3 (Dkt. No. 131, Attach. 13.) With respect to Phelan’s First
Amendment retaliation claims against Thomas and Hirsch for the April 2,
2009 cell search, defendants assert that, even if the search was in
retaliation for protected activity, because no property was taken or
destroyed, summary judgment must be entered in defendants’ favor. (Id.
3

For example, in light of the court’s resolution of the issues discussed below, it need
not reach defendants’ arguments about qualified immunity or Phelan’s failure to exhaust his
administrative remedies. (Dkt. No. 131, Attach. 13 at 8-9, 17-19.)

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at 4-5.) The retaliation claim against Thomas and Scott is infirm, argues
defendants, because the misbehavior reports were justified by Phelan’s
conduct apart from any retaliatory animus, and the reports would have
been issued even if there was no retaliatory motive. (Id. at 5-8.) As to
Phelan’s Eighth Amendment claim, defendants contend that the use of
force was de minimis. (Id. at 9-10.) Lastly, defendants assert that they are
entitled to summary judgment on the ADA claims because Phelan has
failed to demonstrate that he was denied any programs or services
because of disability and because sovereign immunity shields them from
liability. (Id. at 13-17.)
In response to defendants’ arguments, Phelan asserts that the cell
search — in particular its timing and manner coupled with comments made
by Scott, Hirsch, and Thomas — “would deter a similarly situated individual
of ordinary firmness from exercising his constitutional rights.” (Dkt. No.
141 at 10.) Phelan further contends that issues of fact as to whether he
was given permission by Hirsch to go to the library, and whether Phelan’s
conduct involved “danger to life, health, security or property” exist and
preclude summary judgment on the false misbehavior report claim. (Id. at
10-11.) His admission of guilt to the misbehavior reports should not be
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considered, argues Phelan, because he had no counsel during the
disciplinary proceedings and suffers from, among other things, a TBI. (Id.
at 11.) Although it is not entirely clear why it is relevant, Phelan also
alleges that he may have been misclassified and entitled to mental health
treatment at the outset of his imprisonment. (Id. at 11-12.) The Eighth
Amendment claim is not subject to summary judgment, according to
Phelan, because the facts tend to show a wanton state of mind by Michael
and the absence of a lasting injury is not fatal to his claim. (Id. at 12-14.)
Phelan also argues against entry of summary judgment on his ADA claim.
(Id. at 14-24.)
A.

First Amendment Retaliation Claims
As should be clear from the foregoing, two of Phelan’s claims of

retaliation survived defendants’ motion to dismiss. For essentially the
reasons argued by defendants, and as explained below, their motion for
summary judgment is granted as to these claims.
1.

Cell Search

To make out a claim of retaliation, the plaintiff must show, among
other things, that adverse action was taken by the defendants in
connection with the plaintiff’s protected speech. See Gonzalez v. Hasty,
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802 F.3d 212, 222 (2d Cir. 2015). Adverse action, as it relates to a
retaliatory cell search, requires more than a search alone. See Stewart v.
Richardson, No. 15 CV 9034, 2016 WL 7441708, at *5 (S.D.N.Y. Dec. 27,
2016). Indeed, the plaintiff must demonstrate a search and “other wrongful
conduct,” such as the destruction or confiscation of property, that evinces
the requisite deterrent of a similarly situated inmate of ordinary firmness
from exercising his or her constitutional rights. Id.; see Guillory v.
Haywood, No. 9:13-cv-01564, 2015 WL 268933, at *21 (N.D.N.Y. Jan. 21,
2015).
Here, Phelan readily admits that none of his property was taken or
destroyed. (Defs.’ SMF ¶ 17.) He contends, however, that the “search
coupled with the timing and manner it was conducted and the harassing
comments4 and threats made by . . . Scott, Hirsch and Thomas would deter
a similarly situated individual of ordinary firmness from exercising his
constitutional right.” (Dkt. No. 141 at 10.) What is most notably absent
from Phelan’s legal argument is any citation to authority that supports the
notion that a search coupled with statements can amount to adverse

4

Phelan alleges in a declaration prepared in connection with the summary judgment
motion that Thomas said “This is how we deal with grievances retard. Next time, it will be
worse.” (Dkt. No. 141 at 33.)

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action. The claim that survived summary judgment was for retaliation
based on the cell search, (Am. Compl. ¶ 104), yet Phelan now attempts to
expand upon that claim by suggesting that he was verbally threatened too.
The court cannot permit Phelan to move the target at this late juncture nor
are the non-specific statements actionable in any event. See Mateo v.
Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010); Lunney v. Brureton,
No. 04 CIV. 2438, 2007 WL 1544629, at *23 (S.D.N.Y. May 29, 2007). In
any event, as a matter of law, Phelan cannot demonstrate adverse action
in connection with the cell search because he has only shown that a
search occurred and, at most, the corrections officers involved in the
search were discourteous to him and made non-specific threats.
Accordingly, defendants are entitled to summary judgment on Phelan’s
First Amendment retaliation claim based on the cell search.
2.

Misbehavior Reports

“The Second Circuit has held that, ‘[r]egardless of the presence of
retaliatory motive, . . . 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.’” Lunney,
2007 WL 1544629, at *22 (quoting Scott v. Coughlin, 344 F.3d 282, 287-88
10

(2d Cir.2003)). Assuming that a defendant’s actions were retaliatory, that
defendant may be entitled to summary judgment nonetheless provided he
demonstrates that he would have “‘taken exactly the same action absent
the improper motive.’” Id. (quoting Scott, 344 F.3d at 288).
Here, Phelan argues that issues of fact preclude summary judgment.
(Dkt. No. 141 at 10-11.) Phelan’s arguments are not persuasive in light of
his admission to facts that demonstrate that the reports were issued for
legitimate reasons, including his admission to the disciplinary charges
themselves.5 (Defs.’ SMF ¶¶ 20-21, 26-28, 40-42.) The attempt by Phelan
to manufacture issues of fact to preclude summary judgment is unavailing
because the undisputed facts amply demonstrate that the misbehavior
reports would have been issued even if there was no retaliatory motivation
by Scott or Thomas. Accordingly, defendants are entitled to summary
judgment on the retaliation claims based on the misbehavior reports.

5

It should be noted that Phelan’s contention that an issue of fact exists regarding
whether he was given permission by Hirsch to go to Building 10, (Dkt. No. 141 at 10), is
irrelevant to the question of whether Scott’s misbehavior report would have been issued
absent any retaliatory motivation. Phelan admits that Hirsch told Scott that Phelan was not
given permission to go to Building 10. (Defs.’ SMF ¶ 39.) Even if Hirsch lied to Scott, it only
strengthens the notion that Scott did not issue the misbehavior report for a retaliatory reason.
In addition, Phelan fails to address the specifics of the misbehavior report issued by Thomas
and whether that report would have been issued in the absence of retaliatory motive,
assuming there was such motive. As explained above, the arguments advanced by Phelan
are inconsistent with his admission of facts that establish defendants’ dual motivation.

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B.

Excessive Force Claim
Claims of excessive force in violation of the Eighth Amendment, have

two components — “one subjective, focusing on the defendant’s motive for
his conduct, and the other objective, focusing on the conduct’s effect.”
Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009). To satisfy the first
component, the plaintiff must show “that the defendant had the necessary
level of culpability, shown by actions characterized by wantonness in light
of the particular circumstances surrounding the challenged conduct.” Id.
(internal quotation marks and citation omitted). Wantoness “turns on
‘whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.’” Id. (quoting
Hudson v. McMillan, 503 U.S. 1, 7 (1992)). The objective inquiry, on the
other hand, focuses on “the nature of the force — specifically, whether it
was nontrivial and ‘was applied . . . maliciously and sadistically to cause
harm.’” Wilkins v. Gaddy, 559 U.S. 34, 39 (2010) (quoting Hudson, 503
U.S. at 7). Thus, the severity of the injuries ultimately inflicted is not
dispositive. See id. At the same time, “de minimis uses of forces are ‘
necessarily exclude[d] from constitutional recognition.’” Hogan v. Fischer,
738 F.3d 509, 515 (2d Cir. 2013) (quoting Wilkins, 559 U.S. at 37)).
12

Here, Phelan seemingly concedes that he suffered no “lasting
physical injury,” (Dkt. No. 141 at 13); indeed the record is devoid of any
competent evidence to demonstrate that Phelan suffered anything other
than some soreness. (Defs.’ SMF ¶¶ 51-53.) He instead focuses on the
circumstances under which Michael allegedly slapped him with an open
hand “two or three” times. (Id. at 14.) The conduct alleged here — two or
three open-handed slaps that caused no lasting injury — falls short of the
objective component of an Eighth Amendment excessive force claim. See
Wright, 554 F.3d at 269; Jones v. Goord, No. 05-CV-0182A, 2008 WL
904895, at *4 (W.D.N.Y. Mar. 31, 2008) (finding an open-handed slap to be
“considered a de minimis use of force, especially in light of” the lack of any
lasting injury); see also Hogan v. Fischer, No. 09-CV-6225, 2012 WL
4845609, at *5 (W.D.N.Y. Oct. 10, 2012) (citing Jones favorably and
reaching the same conclusion in case where “a ‘light slap’” was alleged),
vacated in part on other grounds, 738 F.3d 509 (2d Cir. 2013).
Accordingly, defendants are entitled to summary judgment on Phelan’s
excessive force claim.
C.

ADA Title II Claim
Defendants argue that Phelan’s ADA claim is both without merit and,
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in any event, barred by sovereign immunity. (Dkt. No. 131, Attach. 13 at
10-17.) The sovereign immunity issue was discussed at length in the
court’s prior Memorandum-Decision and Order. (Dkt. No. 110 at 17-25.)
What was said there need not be said again here. In the end, the court
denied defendants’ motion to dismiss on immunity grounds because,
understandably, defendants did not address the tripartite test set forth in
City of Boerne v. Flores, 521 U.S. 507, 519 (1997). (Id. at 23-25.)
Because of its global impact on Phelan’s ADA Title II claim, it is most
expeditious to consider whether Congress validly abrogated sovereign
immunity when it enacted Title II. For the reasons discussed below,
defendants are immune from Phelan’s ADA claim.
As the court previously explained in conjunction with its detailed
analysis of the immunity issue:
to determine whether abrogation under section five of
the Fourteenth Amendment is valid, a court must
consider the tripartite test established in City of
Boerne v. Flores, 521 U.S. 507, 519 (1997). Under
Boerne, the court must determine: (1) the
constitutional right or rights that Congress sought to
protect when it enacted the statute; (2) whether there
was a history of constitutional violations to support
Congress’s determination that prophylactic legislation
was necessary; and (3) whether the statute is a
congruent and proportional response to the history
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and pattern of constitutional violations. See id.;
Goonewardena[ v. New York], 475 F. Supp. 2d [310,]
322-23 [(S.D.N.Y. 2007)].
(Dkt. No. 110 at 23-24.) Now having had the opportunity to focus
arguments on the Boerne test, defendants concede for purposes of their
motion that “steps one and two of the . . . analysis are satisfied” and focus
their arguments on the third prong. (Dkt. No. 131, Attach. 13 at 16-17.)
The court is not entirely sure what defendants mean by saying that the first
two steps are satisfied; indeed, the third prong of the Boerne tripartite is
dependent on the other two and some discussion of all three prongs would
have been helpful to the court. In any case, citing a handful of out-ofCircuit cases, some of which the court previously identified, (Dkt. No. 110
at 24 n.14), see Wilke v. Cole, No. 12-CV-1231-JPS, 2014 WL 7237019
(E.D. Wis. Dec. 17, 2014), aff’d, 630 F. App’x 615 (7th Cir. 2015); Belk v.
Smith, No. 1:10CV724, 2013 WL 5430426 (M.D.N.C. Sept. 27, 2013); Hale
v. Mississippi, No. 2:06cv245-MTP, 2007 WL 3357562, at *1 (S.D. Miss.
Nov. 9, 2007), aff’d sub nom. Hale v. King, 624 F.3d 178 (5th Cir. 2010),
opinion withdrawn, superseded on reh’g, vacated, and remanded 642 F.3d
492 (5th Cir. 2011); Chase v. Baskerville, 508 F. Supp. 2d 492 (E.D. Va.
2007), aff’d, 305 F. App’x 135 (4th Cir. 2008), defendants assert, in
15

essence, that Title II of the ADA is incongruent and not proportional “to the
claims [Phelan] has alleged.” (Id. at 16.) Phelan, who appears to concede
that his ADA claims are only asserted against Scott, Hirsch, and defendant
P. Millson, relies exclusively on Roberts v. New York State Department of
Correctional Services, 63 F. Supp. 2d 272 (W.D.N.Y. 1999), a case in
which the court determined that Title I of the ADA was congruent and
proportional to the history and pattern of constitutional violations Congress
sought to protect, and argues that Congress’s abrogation of the state’s
Eleventh Amendment immunity was valid. (Dkt. No. 141 at 18-19, 22.)
The court rejects Phelan’s reliance on Roberts and adopts the logic
and reasoning of the authority relied upon by defendants. As the court
found in Wilke, because “Title II indiscriminately ‘prohibits far more state
conduct and in many more areas of prison administration than conceivably
necessary to enforce’ any relevant constitutional rights,” the third prong of
the Boerne test is not met. 2014 WL 7237019, at *7; see Belk, 2013 WL
5430426, at *6-*9 (same); Chase, 508 F. Supp. 2d at 506. As a
consequence, abrogation is valid only for conduct that actually violates the
Fourteenth Amendment. See Wilke, 2014 WL 7237019, at *7 (quoting
United States v. Georgia, 546 U.S. 151, 159 (2006)). As explained above,
16

Phelan has not demonstrated an independent violation of his constitutional
rights. As such, defendants — all of whom are sued in their official
capacities and shielded by immunity to the same extent as the State of
New York, (Dkt. No. 110 at 14 n.7) — are immune from the ADA claims.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the Clerk is directed to amend the caption to reflect
the proper spelling of Hirsch and Michael; and it is further
ORDERED that defendants’ motion for summary judgement (Dkt. No.
131) is GRANTED and Phelan’s amended complaint (Dkt. No. 88) is
DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
February 8, 2017
Albany, New York

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