Read v. Calabrease et al

Filing 90

MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge David E. Peebles' March 11, 2015 Report and Recommendation (Dkt. No. 88 ) is ADOPTED in its entirety. ORDERED that defendants' motion for summary judgment (Dkt. No. 75 ) is GRANTED. ORDERED that Read's amended complaint (Dkt. No. 39 ) is DISMISSED. ORDERED that the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 3/26/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DAVID PAUL READ,
Plaintiff,

9:11-cv-459
(GLS/DEP)

v.
DAWN M. CALABRESE et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
David Read
Pro Se
10-A-5909
Collins Correctional Facility
P.O. Box 340
Collins, NY 14034
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

KEVIN M. HAYDEN
Assistant Attorney General

Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se David Paul Read commenced this action against

defendants Dawn M. CalaBrese 1 and M.D. Kinderman, pursuant to 42
U.S.C. § 1983, alleging retaliation and a deprivation of procedural due
process, in violation of the First and Fourteenth Amendments. 2 (See
generally Am. Compl., Dkt. No. 39.) On May 5, 2014, defendants moved
for summary judgment, seeking dismissal of all of Read’s remaining claims.
(Dkt. No. 75.) In a Report and Recommendation (R&R) issued on March
11, 2015, Magistrate Judge David E. Peebles recommended that
defendants’ motion for summary judgment be granted in its entirety, and
Read’s remaining claims be dismissed. (Dkt. No. 88.) Pending are Read’s
objections to the R&R. (Dkt. No. 89.) For the reasons that follow, the R&R
is adopted in its entirety.
II. Background
Although Judge Peebles engaged in a lengthy and thorough
discussion of the relevant facts in his R&R, for the sake of context, the
court briefly mentions the salient facts here. Read is an inmate currently in

1

Although named in the amended complaint as “D. CalaBrease,” the court ordered that
the docket in this case reflect what appears to be her correct name of “Dawn M. CalaBrese.”
(Dkt. No. 51 at 1 n.1.)
2

Read had also arguably asserted additional claims in his amended complaint, but
after defendants’ filing of a motion to dismiss, this court dismissed all of Read’s claims with the
exception of his procedural due process and retaliation claims. (Dkt. No. 53.)

2

the custody of the New York State Department of Corrections and
Community Supervision (DOCCS), and, during the time period relevant to
his claims, was housed at Marcy Correctional Facility. (See generally Am.
Compl.; Dkt. No. 75, Attach. 3 at 8.) His claims here arise from a decision
by CalaBrese to place Read’s wife, Michelle Read, on a negative
correspondence list, which prevented Read from contacting her, because
of an existing order of protection. (See generally Am. Compl.; Defs.’
Statement of Material Facts (SMF) ¶ 3, Dkt. No. 75, Attach. 34.) The order
of protection had been issued to Michelle Read by the Town of Haverstraw
Justice Court because she was the victim of the crime for which Read was
incarcerated. (Defs.’ SMF ¶¶ 1-2.) Read was advised that any attempts to
contact his wife, or to circumvent the no-contact list, would result in
disciplinary action. (Id. ¶¶ 5, 7, 9.)
In response to Read’s objections to his wife being placed on a
negative correspondence list, CalaBrese advised him to communicate with
the proper authorities in order to obtain verification that there was, in fact,
no active order of protection in place against him, as he claimed. ( Id.
¶¶ 10-12; Dkt. No. 75, Attach. 10.) Read obtained a letter from the
Haverstraw Justice Court confirming that no order of protection was in
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effect against him from that court at the time, and again requested that he
be permitted to contact his wife. (Defs.’ SMF ¶¶ 18, 20.) In response,
Kinderman informed Read that his wife would remain on his negative
correspondence list because the Rockland County Sheriff’s Office had
indicated that an order of protection remained in effect. (Id. ¶ 19.) Despite
this, Read made several requests to have phone numbers added to his
contact list, some of which appeared to belong to his wife, though he did
not identify them as such, and also attempted to call a phone number that
he had previously identified as belonging to his wife. (Id. ¶¶ 20-31.)
Consequently, he was issued a misbehavior report by CalaBrese, accusing
him of refusing to follow direct orders to refrain from contacting his wife and
lying. (Id. ¶¶ 32-33.) Kinderman conducted a disciplinary hearing, after
which Read was found guilty of the charges and placed in SHU. (Id. ¶¶ 3443.)
Read filed two grievances regarding these events, in which he
complains of CalaBrese placing his wife on a negative correspondence list
without justification. (Id. ¶¶ 13, 15; Dkt. No. 77, Attach. 7 at 6-7, 9.)
Neither grievance mentions Kinderman’s conduct. (Defs.’ SMF ¶ 14.)
Read’s grievances were denied, and there is no record of him appealing
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any grievance to DOCCS’ Central Office Review Committee (CORC).
(Defs.’ SMF ¶¶ 16-17.)
III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
In his R&R, Judge Peebles recommended that defendants’ motion for
summary judgment be granted and Read’s claims be dismissed. (Dkt. No.
88.) Judge Peebles offered two alternative bases justifying dismissal.
First, he recommended that Read’s claims be dismissed for failure to
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exhaust available administrative remedies before commencing suit. ( Id. at
11-21.) Specifically, Judge Peebles noted that the undisputed record
evidence demonstrates that Read did not file a grievance in which he
alleged that Calabrese issued a misbehavior report in retaliation for Read’s
filing of earlier grievances, or that Kinderman denied him due process
during the disciplinary hearing that followed, which form the basis for
Read’s current lawsuit. (Id. at 15-16; Am. Compl. at 7.) Furthermore,
Read had not shown circumstances that would excuse his failure to
exhaust his administrative remedies. (Dkt. No. 88 at 16-21.)
Alternatively, notwithstanding Read’s failure to exhaust, Judge
Peebles addressed the merits of Read’s claims, “out of an abundance of
caution,” (id. at 21 n.9), and recommended dismissal of his remaining
claims for lack of merit. (Id. at 23-34.) With respect to Read’s retaliation
claim, Judge Peebles noted Calabrese’s sworn affidavit in which she
denied any retaliatory motivation for issuing the misbehavior report, and
Read’s reliance on pure speculation that Calabrese issued the misbehavior
report out of retaliation for Read’s filing of earlier grievances. ( Id. at 23-26.)
As to Read’s procedural due process claim, Judge Peebles concluded that
defendants were entitled to summary judgment because Read could not
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demonstrate that he suffered an “‘atypical and significant hardship,’” and
thus failed to show that he was deprived of a cognizable liberty interest.
(Id. at 26-31 (quoting Sandin v. Conner, 515 U.S. 472, 483-84 (1995).)
Furthermore, even if he could prove he was deprived of a legally
recognized liberty interest, there was no evidentiary support for his claim
that such deprivation occurred without due process. (Id. at 32-34.)
From what the court can discern from Read’s objections, he appears
to argue that he did not, in fact, attempt to communicate with his wife and
have her phone number added to his contact list under false pretenses,
because the phone number he sought to add to his contact list belonged to
his mother-in-law, and not his wife. (Dkt. No. 89 at 1-4.) However, Read
has not addressed, in any fashion, either his retaliation or his due process
claim, nor has he specifically addressed any of the grounds on which
Judge Peebles recommends dismissing his claims, and thus has failed to
identify errors with any specific portion of the R&R. His objections,
therefore, merit only review for clear error, consistent with the standards
set forth in Almonte, 2006 WL 149049, at *3-5. After careful review of the
record, the court finds that the recommendations in the R&R are not clearly
erroneous, and adopts them in their entirety.
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V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ March 11, 2015
Report and Recommendation (Dkt. No. 88) is ADOPTED in its entirety; and
it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
75) is GRANTED; and it is further
ORDERED that Read’s amended complaint (Dkt. No. 39) 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.
March 26, 2015
Albany, New York

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