Quezada v. Fischer et al
DECISION AND ORDER adopting Report and Recommendations re 157 Motion for Summary Judgment; granting in part and denying in part 190 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks' Order and Report-Recommen dation is ADOPTED in its entirety for the reasons set forth therein; and the Court further ORDERS that Defendants' motion for summary judgment (Dkt. No. 157) is GRANTED in part and DENIED in part; and the Court further ORDERS that the Clerk of t he Court shall terminate Defendants Gutwein, Lordi, Brousseau, Lee, and Beaudette as Defendants in this action; 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. Signed by U.S. District Judge Mae A. D'Agostino on 9/27/2017. (Copy served via regular mail)(ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GUTWEIN; RILEY; KING; BROWN;
CROSS; MONACELLI; LORDI; CHASE;
LAROQUE; BOUCHEY; STREETER;
BROUSSEAU; LEE; BEAUDETTE,
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany, New York 12224
Attorneys for Defendants
CHRISTOPHER J. HUMMEL, AAG
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
Plaintiff pro se Jose Quezada, an inmate in the custody of the New York State Department
of Corrections and Community Supervision ("DOCCS"), commenced this civil rights action
brought pursuant to 42 U.S.C. § 1983 asserting claims arising from a series of incidents that
occurred in 2011 and 2012, when he was incarcerated at the Upstate and Clinton Correctional
On February 8, 2017, Defendants filed a motion seeking summary judgment on Plaintiff
Quezada's First Amendment retaliation claims against Defendants Brousseau, Brown, Cross, Lee,
and Beaudette; Eighth Amendment excessive force claims against Defendants Monacelli,
Laroque, Chase, King, Bouchey, and Streeter; Eighth Amendment medical indifference claim
against Defendant Beaudette; Eighth Amendment conditions of confinement claim against
Defendant Beaudette; Eighth Amendment sexual assault claim against Defendant Lee; Fourteenth
Amendment procedural due process claim against Defendant Gutwein; and Americans with
Disabilities ("ADA") and Rehabilitation ("RA") Acts claims against Defendant Cross. See Dkt.
No. 190 at 2. Defendants argue that Plaintiff failed to exhaust all administrative remedies
available to him under the Prison Litigation Reform Act ("PLRA"), and failed to comply with the
procedural requirements of opposing a summary judgment motion according to Local Rule
7.1(a)(3). See id. at 5. Magistrate Judge Dancks recommended granting in part and denying in
part Defendants' motion for summary judgment. See Dkt. No. 190.
In reviewing a report and recommendation, a district 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)(C). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See id.; Farid v. Bouey,
554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008). When a party fails to make specific objections, the
court reviews the magistrate judge's report for clear error. See Farid, 554 F. Supp. 2d at 307; see
also Gamble v. Barnhart, No. 02-CV-1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004).
Here, Defendants objected to Magistrate Judge Dancks's report and order-recommendation
to the extent that it denied defendants' motion for summary judgment on the First Amendment
claim against Defendant Brown. See Dkt. No. 193. The Court will therefore conduct a de novo
review of the record pertaining to that claim.
A court may grant a motion for summary judgment only if "the court 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 moving party as a matter of law." 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).
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 factual inferences in favor of
the nonmoving party. See id. 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 nonmovant 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 statement of material facts; 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).
"[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, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). "Indeed, the Second Circuit has stated that '[i]mplicit in the
right to self-representation is an obligation on the part of the court to make reasonable allowances
to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of
legal training.'" Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). "This liberal
standard, however, does not excuse a pro se litigant from following the procedural formalities of
summary judgment." Id. (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, *2
(S.D.N.Y. May 16, 2001)).
"Courts properly approach prisoner retaliation claims 'with skepticism and particular care,'
because 'virtually any adverse action taken against a prisoner by a prison official – even those
otherwise not rising to the level of a constitutional violation – can be characterized as a
constitutionally proscribed retaliatory act.'" Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003)
(quotation and other citation omitted). "To prove a First Amendment retaliation claim under
Section 1983, a prisoner must show . . . '(1) that the speech or conduct at issue was protected, (2)
that the defendant took adverse action against the plaintiff, and (3) that there was a causal
connection between the protected speech and the adverse action.'" Espinal v. Goord, 558 F.3d
119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)).
"Only retaliatory conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights constitutes an adverse action for a claim
of retaliation." Davis, 320 F.3d at 353 (internal quotation marks and citation omitted). In making
this determination, courts are to "bear in mind" that "prisoners may be required to tolerate more
than average citizens, before a retaliatory action taken against them is considered adverse."
Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds, Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002) (internal quotation marks and
citations omitted). The "test is objective, not subjective, and must be so, since the very
commencement of a lawsuit would otherwise be dispositive on the issue of chilling." Davidson v.
Bartholome, 460 F. Supp. 2d 436, 447 (S.D.N.Y. 2006) (citations omitted).
In determining whether a causal connection exists between the plaintiff's protected activity
and a prison official's actions, factors to be considered include: "(i) the temporal proximity
between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good
disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the
defendant concerning his or her motivation." Cole v. New York State Department of Correctional
Services, No. 9:10-CV-1098, 2012 WL 4491825, *11 (N.D.N.Y. Aug. 31, 2012) (citing Colon, 58
F.3d at 872-73).
Upon satisfying his initial burden, "the burden shifts to defendants to establish that the
same adverse action would have been taken even in the absence of the plaintiff's protected
conduct, i.e., 'even if they had not been improperly motivated.'" Davidson v. Desai, 817 F. Supp.
2d 166, 194 (W.D.N.Y. 2011) (quoting Graham, 89 F.3d at 80). "At the summary judgment
stage, if the undisputed facts demonstrate that the challenged action clearly would have been
taken on a valid basis alone, defendants should prevail." Davidson v. Chestnut, 193 F.3d 144,
149 (2d Cir. 1999); see also Murray v. Hulihan, 436 Fed. Appx. 22, 23 (2d Cir. 2011)
("Defendants cannot be liable for First Amendment retaliation if they would have taken the
adverse action even in the absence of the protected conduct").
In their objections, Defendants contend that Magistrate Judge Dancks erred in denying the
motion for summary judgment as to Defendant Brown with respect to Plaintiff's First Amendment
retaliation claim. See Dkt. No. 193 at 1. Specifically, Defendant Brown claims that Magistrate
Judge Dancks erred in determining that Defendant Brown's alleged threat to prevent Plaintiff's
transfer to a cell that would accommodate his disability was sufficient to constitute an adverse
action. See id. Rather, Defendant Brown contends that this verbal harassment, absent any
additional action, is insufficient to constitute an adverse action. See id. at 1-2 (citing cases).
In the Order and Report-Recommendation, Magistrate Judge Dancks found that Defendant
Brown's threats to Plaintiff were both specific and vague. See Dkt. No. 190 at 51. The report
found that Defendant "Brown's alleged threat was specific in the sense that Plaintiff was
threatened with being unable to move to 4 Company unless his conduct met certain standards for
six months." Id. The report found that the threats were "vague in the sense that Plaintiff was
allegedly told generally that he would be required not to cause any more problems or file
grievances for 'petty shit' for six months, without being given any specific guidance as to what
would be considered a problem or a grievance for 'petty shit.'" Id. (quoting Dkt. No. 111 at ¶ 224).
Defendant Brown concedes that, under Ford v. Palmer, "vague verbal harassment may be
sufficient to constitute adverse action," but argues that "such cases should be limited to those
where the actual conduct threatened posed a serious risk to the safety of the inmate." Dkt. No.
193 at 2 (citing Ford v. Palmer, 539 Fed. Appx. 5, 5 (2d Cir. 2013)). According to Defendant
Brown, "[t]he threatened conduct in this case, preventing a cell transfer, is not nearly as serious as
the conduct threatened in Ford, regardless of the threat's directness." Id.
In Ford, the court concluded that the district court "erred in reasoning, as a matter of law,
that verbal threats must be more definite and specific than [the defendant's] alleged threat in order
to constitute 'adverse action.'" Ford, 539 Fed. Appx. at 7. In that case, the plaintiff had submitted
record evidence that the defendant had threatened to poison plaintiff by putting "'some kind of
substance in plaintiff's hot water'" in retaliation for filing a grievance against him. Id. The Second
Circuit noted that "the vague nature of the alleged threat — i.e., not telling [the plaintiff] when or
how [the defendant] planned to poison him — could have enhanced the effectiveness as a threat
and increased the likelihood that a person of ordinary firmness would be deterred from filing
additional grievances." Id.
In the present matter, the Court declines to limit the result reached in Ford to cases in
which "the actual conduct threatened posed a serious risk to the safety of the inmate," as
Defendant Brown urges. Generally, preventing a cell transfer would likely be insufficient to
satisfy the objective test for a first amendment retaliation claim. Here, however, the cell transfer
was related to medical necessity in light of Plaintiff's disability. Both the direct threat and the
uncertainty created by the absence of any guidelines for Plaintiff's conduct might reasonably be
found to deter a "similarly situated individual of ordinary firmness from exercising . . .
constitutional rights." Pidlypchak, 389 F.3d at 381. As Magistrate Judge Dancks correctly
determined, questions of fact preclude the Court from granting summary judgment as to the First
Amendment retaliation claim against Defendant Brown.
Having reviewed the relevant papers herein, including Magistrate Judge Dancks' thorough
and well-reasoned Order and Report-Recommendation, the Court finds no clear error. Magistrate
Judge Dancks employed the proper standards, accurately recited the facts, and reasonably applied
the law to those facts. Accordingly, the Order and Report-Recommendation is accepted and
adopted in its entirety for the reasons set forth therein.
Having carefully reviewed Magistrate Judge Dancks' Order and Report-Recommendation,
the underlying papers and the applicable law, the Court hereby
ORDERS that Magistrate Judge Dancks' Order and Report-Recommendation is
ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendants' motion for summary judgment (Dkt. No. 157) is GRANTED
in part and DENIED in part;1 and the Court further
ORDERS that the Clerk of the Court shall terminate Defendants Gutwein, Lordi,
Brousseau, Lee, and Beaudette as Defendants in this action; 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: September 27, 2017
Albany, New York
As a result of this Order, the following claims remain: (1) Plaintiff's Eighth Amendment
excessive force claims against Defendants Monacelli, Laroque, Chase, King, Bouchey, and
Streeter; (2) Plaintiff's Eighth Amendment failure to intervene claim against Defendant Riley; (3)
Plaintiff's First Amendment retaliation claim against Defendant Brown; (4) Plaintiff's Eighth
Amendment medical indifference claim against Defendant Cross; and (5) Plaintiff's ADA and RA
claims against Defendant Cross in his official capacity relating to the denial of housing in 4
Company, forcing him to sit on the floor in the back of his cell to put on his knee brace, and
denying him a shower chair.
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