Thomas v. Waugh et al

Filing 69

ORDER: ORDERED that Magistrate Judge Dancks' Order and Report-Recommendation (Dkt. No. 64 ) is ADOPTED in its entirety for reasons set forth therein. ORDERED that Plaintiff's retaliation claim against Defendant Leifeld in his Second Amend ed Complaint (Dkt. No. 63) is DISMISSED WITH PREJUDICE for failure to state a claim. ORDERED that Plaintiff's claims in his Second Amended Complaint for violation of his procedural and substantive due process rights, previously dismissed with prejudice by the Court (Dkt. No. 58), are STRICKEN. ORDERED that Defendants Waugh, Leifeld, Larkin, Morris, Antonelli, and Bly are directed to answer Plaintiff's claims under the Free Exercise Clause of the First Amendment and RLUIPA in the S econd Amended Complaint. ORDERED that Plaintiff's letter motion requesting that the Court direct the remaining Defendants to answer the Second Amended Complaint (Dkt. No. 67 ) is DENIED as moot. John N. Antonelli answer due 7/25/2016; Bly ans wer due 7/25/2016; Ronald D. Larkin answer due 7/25/2016; Leifeld answer due 7/25/2016; Cheryl Morris answer due 7/25/2016; F. Waugh answer due 7/25/2016. Signed by U.S. District Judge Mae A. D'Agostino on 7/11/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ERROL THOMAS,
Plaintiff,
vs.

9:13-cv-00321
(MAD/TWD)

F. WAUGH, Eastern Correctional Facility;
LEIFELD, Sergeant, Eastern Correctional Facility;
RONALD D. LARKIN, Superintendent, Eastern
Correctional Facility; CHERYL MORRIS, New York
State Department of Corrections and Community Services;
JOHN N. ANTONELLI, IGP Coordinator, Eastern
Correctional Facility; and BLY, Assistant Commissioner,
NYS DOCCS,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ERROL THOMAS
96-A-7903
Woodbourne Correctional Facility
99 Prison Road
PO Box 1000
Woodbourne, New York 12788
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants

LOUIS JIM, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff Errol Thomas, an inmate currently in custody at Woodbourne Correction Facility,
commenced an action pro se pursuant to 42 U.S.C. § 1983. See Dkt. No. 1; Dkt. No. 26. Plaintiff

claims, among other things, a cause of action for retaliation against Defendant Leifeld. See Dkt.
No. 26 at ¶¶ 17-68.
On November 6, 2014, Defendants filed a motion to dismiss for failure to state a claim.
See Dkt. No. 47. Subsequently, Plaintiff's retaliation claim was dismissed with leave to amend.
Dkt. No. 58 at 11. On December 16, 2015, Plaintiff filed a Second Amended Complaint, which
includes additional allegations regarding his retaliation claim against Defendant Leifeld. See Dkt.
No. 63. In a December 29, 2015 Order and Report-Recommendation, Magistrate Judge Dancks
recommended that Plaintiff's retaliation claim against Defendant Leifeld in his Second Amended
Complaint be dismissed with prejudice for failure to state a claim. See Dkt. No. 64. Specifically,
Magistrate Judge Dancks found that "Plaintiff has still failed to plausibly allege that his filing a
grievance against [Defendant] DiCairano was a 'substantial or motivating factor' in Leifeld's
actions for purposes of showing a causal connection on his retaliation claim." Id. at 9. Neither
party objected to Magistrate Judge Dancks' Order and Report-Recommendation.
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
argument [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) (citation 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 should not dismiss a complaint if the plaintiff has stated "enough facts to state a
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claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2001).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although the court should construe the factual
allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true
all of the allegations contained in a complain is inapplicable to legal conclusions." Id.
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Thus, "where the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the complaint
has alleged — but it has not 'show[n]' — 'that the pleader is entitled to relief.'" Id. (quoting Fed.
R. Civ. P. 8(a)(2)).
"[I]n 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 (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. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Furthermore, when a pro se complaint fails to state a cause of action, the court generally "should
not dismiss without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112
(2d Cir. 2000) (internal quotation marks and citations omitted). Nonetheless, an opportunity to
amend is not required where "[t]he problem with [the plaintiff's] cause of action is substantive"
such that "better pleading will not cure it." Id.
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In the present matter, Magistrate Judge Dancks correctly determined that Plaintiff has
failed to plausibly allege a causal connection between Defendant Leifeld's action and Plaintiff's
protected speech. As Magistrate Judge Dancks explained, temporal proximity alone is
insufficient to establish an inference of retaliation. See Dkt. No. 64 at 10 (citing Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)). There are no allegations in the Second
Amended Complaint that Defendant Leifeld made any statements suggesting that he denied
Plaintiff's grievance or sought an opinion from Albany regarding the appropriateness of Plaintiff's
head covering because Plaintiff had filed a grievance against another individual – i.e., Defendant
DiCairano. Without such allegations, temporal proximity alone is insufficient to plausibly allege
a causal connection between Plaintiff's protected activity and Defendant Leifeld's alleged
retaliatory conduct.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Order and Report-Recommendation (Dkt. No.
64) is ADOPTED in its entirety for reasons set forth therein; and the Court further
ORDERS that Plaintiff's retaliation claim against Defendant Leifeld in his Second
Amended Complaint (Dkt. No. 63) is DISMISSED WITH PREJUDICE for failure to state a
claim; and the Court further
ORDERS that Plaintiff's claims in his Second Amended Complaint for violation of his
procedural and substantive due process rights, previously dismissed with prejudice by the Court
(Dkt. No. 58), are STRICKEN; and the Court further
ORDERS that Defendants Waugh, Leifeld, Larkin, Morris, Antonelli, and Bly are
directed to answer Plaintiff's claims under the Free Exercise Clause of the First Amendment and
RLUIPA in the Second Amended Complaint; and the Court further
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ORDERS that Plaintiff's letter motion requesting that the Court direct the remaining
Defendants to answer the Second Amended Complaint (Dkt. No. 67) is DENIED as moot; and
the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: July 11, 2016
Albany, New York

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