Marino v. Watts et al

Filing 62

MEMORANDUM-DECISION AND ORDER: ORDERED, the Report-Recommendation and Order (Dkt. No. 56 ) is accepted in part and rejected in part as set forth herein. ORDERED that plaintiff's amended complaint (Dkt. No. 52 ) is accepted as set forth herei n. ORDERED that defendants Poirier, Ryan, and Smith are dismissed from this action. ORDERED that plaintiff's letter motion (Dkt. No. 59 ) is denied as moot as set forth herein. Signed by Senior Judge Norman A. Mordue on 9/23/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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VINCENT MICHAEL MARINO,
Plaintiff,
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9:12-CV-801 (NAM/RFT)

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HARRELL WATTS, General Counsel/BOP/DOJ,
DEBORAH SCHULT, Warden/BOP/DOJ, ROBERT
HELMS, SIS Lieutenant/BOP/DOJ, JASON
POIRIER, Correctional Officer/BOP/DOJ, D. RYAN,
Disciplinary Hearing Officer/BOP/DOJ, MS.
SEPANEK, Counselor/BOP/DOJ, MR. LUCAS, Case
Manager/BOP/DOJ, JOSEPH SMITH, Correctional
Officer/BOP/DOJ, JOHN and JANE DOES 1-20;
Defendants.
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APPEARANCES:
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Vincent Michael Marino
14431-038
FCI HAZELTON
PO Box 5000
Bruceton Mills, West Virginia 26525
Plaintiff, pro se

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Hon. Eric T. Schneiderman, Attorney General of the State of New York
Karen Folster Lesperance, Esq., Assistant New York State Attorney
James T. Foley U.S. Courthouse
445 Broadway, Room 218
Albany, New York 12207
Attorney for Defendants

Hon. Norman A. Mordue, Senior U.S. District Judge:

MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate in the federal correctional system, brought this civil rights action
pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S.

388 (1971). Defendants moved (Dkt. No. 34) to dismiss the action for failure to state a claim
and/or res judicata. Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c),
United States Magistrate Judge Randolph F. Treece issued a Report-Recommendation and Order
(Dkt. No. 47) recommending dismissal. After reviewing plaintiff’s objections (Dkt. No. 48), this
Court granted dismissal of the complaint but granted plaintiff leave to replead certain claims.
(Dkt. No. 49). Plaintiff filed a timely Amended Complaint (Dkt. No. 52) which was returned to
the magistrate judge for review pursuant to this Court’s Memorandum-Decision and Order. Judge
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Treece has prepared a Report-Recommendation and Order (Dkt. No. 56) again recommending
dismissal. Plaintiff has filed objections. (Dkt. No. 58).1 Given the extensive nature of plaintiff’s
objections, the Court conducts a de novo review. See 28 U.S.C. § 636(b)(1)(C). As set forth
below, the Report-Recommendation and Order is adopted in part and rejected in part.
BACKGROUND
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The factual background has been set forth in detail in both Judge Treece’s previous
Report-Recommendations and in the Memorandum-Decision and Order. (See Dkt. Nos. 47, 49,
56). Therefore, the Court assumes familiarity with the background and only briefly summarizes it
here as necessary to its decision.
Plaintiff alleges that on April 8, 2008, while incarcerated at Ray Brook Federal
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Correctional Institute (“Ray Brook”), he provided a sworn affidavit in support of a fellow
inmate’s anticipated litigation. Plaintiff’s affidavit was filed as part of the inmate’s federal

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Plaintiff has also filed a letter motion (Dkt. No 59) requesting that the court order “the
Defendants to release the block/Under Sealment of this civil action, allowing it to be viewed on
PACER.GOV.” This Court has reviewed the docket on Pacer, and found that plaintiff’s action is
not sealed, and is indeed available to be viewed. Therefore, plaintiff’s request is DENIED as
moot. If plaintiff is having trouble accessing Pacer at his facility, he should address those
concerns through administrative channels at the facility.
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pleading. According to plaintiff, defendants Helms and Poirier found a copy of this affidavit in
plaintiff’s cell on December 2, 2009.
Plaintiff alleges that on December 3, 2009, defendants Helms and Poirer planted betting
slips in his cell and confiscated unused stamps, and also found ten gallons of homemade
intoxicants. Plaintiff was subsequently charged with making, possessing, or using intoxicants,
possessing gambling paraphernalia, conducting a gambling pool, and possessing unauthorized
items. On December 15, 2009, after a disciplinary hearing, plaintiff was found guilty. Plaintiff
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was sanctioned with sixty days in disciplinary segregation, lost thirty-six days of good time jail
credit, and was restricted from using the telephone, visitation, and commissary.
According to plaintiff, while in the Special Housing Unit (“SHU”) he did not have
window ventilation, sunshine, or fresh air, was only permitted to shower “every three days,” his
lights were left on all night, and sometimes all day, and he did not have access to flush the toilet
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which was only flushed once a day, if at all. Plaintiff further claims that his security classification
was changed from eleven to twenty-four points, that he was transferred to a facility with a
“history of over 15 murders, over 300 stabbings & over 300 knife shots[,]” placed in a Diesel
Therapy Program, and that his legal mail, legal work, and Civil Procedure Book were confiscated
all following the discovery of his affidavit.
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As discussed in detail in this Court’s Memorandum-Decision and Order, plaintiff also
filed a habeas corpus petition pursuant to 28 U.S.C. § 2241, in which he alleged nearly verbatim
the claims raised in this civil rights complaint. Consequently, some of plaintiff’s claims were
dismissed without leave to replead.2 (See Dkt. No. 49 at 9-10). The claims plaintiff was

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Plaintiff’s habeas petition was denied, therefore the Court held that he was unable to
collaterally attack the duration of his confinement by arguing in a Bivens action that the filing of
an incident report against him was retaliatory. Any such claim was dismissed without leave to
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permitted to replead that are currently before the court are:
1. Eighth Amendment conditions of confinement based on the treatment he
received while in SHU;
2. Denial of access to the courts as a result of the confiscation of his legal
materials;
3. Retaliation as a result of the confiscation of his legal materials;
4. Retaliation as a result of his transfer to FCI Pollock;
5. Intentional infliction of emotional distress;
6. Equal protection; and
7. Other claims not specifically addressed in this Court’s Memorandum Decision
and Order.
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As noted above, Judge Treece has recommended dismissal of all of these claims. After thorough
review of the record and applicable law, the Court agrees with Judge Treece’s analysis of all but
plaintiff’s retaliation claims.
To state a retaliation claim, a plaintiff must allege “(1) that the speech or conduct at issue
was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there

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was a causal connection between the protected speech and the adverse action.” Gill v.
Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004). In light of the early stage of the proceedings and
plaintiff’s pro se status, the court must construe the complaint liberally, accept all factual
allegations in the complaint as true, view the facts alleged in the light most favorable to plaintiff,
draw all reasonable inferences in the plaintiff’s favor, and interpret plaintiff’s factual allegations

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to raise the strongest arguments that they suggest. See Grullon v. City of New Haven, 720 F.3d
133, 139 (2d Cir. 2013).
In his amended complaint, plaintiff alleges that defendants Helms and Poirer discovered a
copy of his affidavit during a cell search on December 2, 2009. (Dkt. No. 52 at 12; see also id. at
16 (“Helms[] admitted to Marino . . . that he and Defendant[] Poirier[] found the above affidavit

replead. Similarly, any challenge to plaintiff’s SHU sentence was dismissed without leave to
replead.
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in Marino’s cell . . . .”)). He further alleges that defendants Helms and Schult specifically told
him that he would be placed in the “Diesel Therapy Program” for filing the affidavit. (Dkt. No.
52 at 14; see also id. at 21 (stating that defendant Schult informed plaintiff that “because Marino
filed [the affidavit,] “she & “Defendant” Watts[] will make sure Marino will experience the
BOP’s ‘Diesel Therapy Program’”)). Plaintiff also contends that Helms admitted that it was
because of this affidavit that “the intentional retaliation happen[]ed against Marino,” that
defendants Helms and Schult told him that he was “going to rot in this SHU for extra punishment
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for filing a[n] Affidavit on our staff,” and that when the correctional officers “failed to either
flush Marino’s toilet & or shut off or put on the lights for days” they “would state we know what
you did, filed a[] Court Affidavit against [a correctional officer.]” (Dkt. No. 52 at 16, 24, 33).
Plaintiff also contends, with regard to the alleged confiscation of his legal mail, legal work, and
Civil Procedure book, that defendant Sepanek said “you like to read books so that you can file
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Affidavit[s] against BOP employee[s], kiss that Federal Rules of Civil Procedure book good bye .
. . ;” defendant Lucas told him that “Defendant Helms is having a great time ripping up your legal
mail & legal work . . . ;” and that defendant Helms “chimed in ‘do not say that to him he likes to
write things down so that he [can] sue us lat[]er.’”
It is true, as Judge Treece notes, that a plaintiff often fails to demonstrate the causal
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connection element of a retaliation claim when a defendant is not personally named in the
grievance or complaint constituting the protected activity. However, plaintiff provides additional
factual allegations, described above, which, if true, would be a basis for inferring that these
defendants retaliated against plaintiff despite not being named in the affidavit. In light of
plaintiff’s factual allegations regarding defendants’ statements to him and the early stage of the
proceedings, the Court cannot say that there is no basis to infer a causal connection. Therefore,

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Judge Treece’s dismissal of plaintiff’s retaliation claims against defendants Helms, Schult, Watts,
Sepanek and Lucas3 is rejected, and the Report-Recommendation and Order is otherwise adopted.

It is therefore
ORDERED that the Report-Recommendation and Order (Dkt. No. 56) is accepted in part
and rejected in part as set forth herein; and it is further
ORDERED that plaintiff’s amended complaint (Dkt. No. 52) is accepted as set forth
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herein; and it is further
ORDERED that defendants Poirier, Ryan, and Smith are dismissed from this action; and it
is further
ORDERED that plaintiff’s letter motion (Dkt. No. 59) is denied as moot as set forth
herein; and it is further
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ORDERED that the Clerk of the Court is directed to serve copies of this MemorandumDecision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
Date:

September 23, 2015

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As detailed above, these are the defendants named with respect to plaintiff’s allegations
of retaliation in his amended complaint. Although defendant Poirier is alleged to have found the
affidavit with defendant Helms, his name is not mentioned in connection with any of the alleged
retaliatory actions.
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