Waters v. Prack et al
DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 123 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Waters's Motion for Summary Judgment (Dkt. No. 116 ) is DENIED. ORDERED, that Defendants' Motion for Summary Judgment (Dkt. No. 110 ) is GRANTED in part and DENIED in part as follows: (1) Waters's due process claims asserted against defendants Gutwein and Prack are DISMISSED; (2) Waters's retaliation claim asserted against defendant Gutw ein is DISMISSED; (3) Waters's retaliation claims asserted against defendant Dirie regarding his failure to undertake a review of the disciplinary hearing determination and his alleged transfer of plaintiff to a different correctional facility a re DISMISSED; (4) Waters's retaliation claim asserted against defendant Dirie regarding his removal of plaintiff as a law library clerk at Greene Correctional Facility survives Defendants' motion and shall proceed to trial; (5) Waters's retaliation claims asserted against defendant Prack are DISMISSED. Signed by Senior Judge Lawrence E. Kahn on 3/30/17. (served on plaintiff by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ALBERT PRACK, et al.,
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on
February 24, 2017, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 123 (“Report-Recommendation”). Pro se plaintiff
Keith Waters and Defendants timely filed Objections. Dkt. Nos. 124 (“Plaintiff’s Objections”),
125 (“Defendants’ Objections”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven a pro se party’s objections to a Report and Recommendation must be specific and
clearly aimed at particular findings in the magistrate’s proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior argument.”). “A [district] judge . . . 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). Otherwise, a court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id.
A. Defendants’ Objections
Defendants object to Judge Peebles’s finding that summary judgment was not appropriate
with respect to Waters’s First Amendment retaliation claim against defendant A.W. Dirie. Defs.’
Objs. at 1. According to Defendants, the evidence is overwhelming that Dirie did not remove
Waters from his position in the law library, and that Deputy Superintendent for Programs Marie
Hammond, who is not a defendant in this case, was in fact responsible for his removal. Id.
Defendants also suggest that because Waters was removed from the position before Dirie
received any complaints from Waters, “there [was] no temporal proximity giving rise to a
question regarding the reason for the removal.” Id. at 2. The question is close, but the Court
agrees with Judge Peebles’s recommendation that it deny Defendants’ motion for summary
judgment on this issue.
Defendants point to two pieces of evidence suggesting that Dirie did not remove Waters
from the law library position. First, Dirie himself says he was not involved. Id. at 1–2. Second,
Waters wrote Dirie a letter on February 28, 2013, complaining that he had been removed from
his position at the law library by Hammond. Id. at 2. The only evidence Waters has offered to
suggest that Dirie removed him from the position is his own sworn testimony to that effect. Dkt.
No. 42 (“Verified Amended Complaint”) ¶ 46.1 Waters’s evidence on this point certainly appears
weaker than Defendants’. But as Judge Peebles pointed out in a different case, “the weighing of
such competing evidence, no matter how weak plaintiff’s claim may appear, presents a question
of credibility that must be left to the trier of fact.” Cirio v. Lamora, No. 08-CV-431, 2010 WL
1063875, at *8 (N.D.N.Y. Feb. 24, 2010), adopted by 2010 WL 1063864 (N.D.N.Y. Mar. 22,
2010). And while it is true that the only piece of evidence Waters offers on this score is his own
self-serving testimony, that “can establish a genuine dispute of fact so long as [it] does not
contradict the witness’s prior testimony.” Dye v. Kopiec, No. 16-CV-2952, 2016 WL 7351810,
at *3 (S.D.N.Y. Dec. 16, 2016) (collecting cases). The affidavit does differ from the letter in
suggesting that Dirie, rather than Hammond, removed Waters from the law library position, but
Waters was not testifying when he wrote the letter, so these two pieces of conflicting evidence do
not prevent the Court from allowing Waters to establish a genuine dispute of material fact on the
basis of his self-serving testimony.2
“A verified complaint is to be treated as an affidavit for summary judgment purposes,
and therefore will be considered in determining whether material issues of fact exist . . . .” Colon
v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
As this Court has previously noted, a plaintiff’s self-serving affidavit also need not be
credited at the summary-judgment stage if the “plaintiff’s factual assertion is contradicted by
such overwhelming evidence that no reasonable factfinder could credit the plaintiff’s account.”
Bader v. Special Metals Corp., 985 F. Supp. 2d 291, 321 n.22 (N.D.N.Y. 2013) (Kahn, J.). That
is not the case here, because the evidence suggesting that Hammond rather than Dirie removed
Waters from the law library position is far from “overwhelming.” As discussed above, all the
Court has on this score is Dirie’s own testimony and a letter written by Waters.
Defendants also argue that Dirie could not have retaliated against Waters because the
alleged adverse action—Waters’s removal from the law library position—took place before
Waters complained to Dirie. Defs.’ Objs. at 2. As Defendants note, the record makes it clear that
Waters was removed from the position on February 17, 2013. Id. Indeed, Waters himself
concedes as much in his statement of material facts. Dkt. No. 116-2 (“Waters Statement of
Material Facts”) ¶ 46 (“Plaintiff remained assigned to the law library clerk position at Greene
from the period of February 11, 2013 until February 17, 2013 before he was ‘REMOVED FOR
GOOD OF DEPARTMENT.’”), and his inmate program assignment history confirms this
concession, Dkt. No. 116-3 (“Plaintiff’s Bates Material”) at 59. Defendants emphasize that
Waters complained to Dirie on February 28, 2013, and March 18, 2013. Defs.’ Objs. at 2. If these
were the only two complaints received by Dirie, Defendants would be correct that the Court
could not infer that Dirie retaliated against Waters by removing him from the law library
position. See Butler v. City of Batavia, 545 F. Supp. 2d 289, 293 (W.D.N.Y. 2008) (dismissing a
First Amendment retaliation claim because “the adverse conduct started before” the plaintiff
made her complaint).
Yet Defendants ignore Waters’s assertion that he had complained to Dirie around late
January 2013 about “the dorm sanction policy” at the prison. Pl.’s SMF ¶¶ 9, 15; Verified Am.
Compl. ¶ 16. Since “a temporal gap of less than two months is sufficient to give rise to an
inference of causation,” Dushane v. Leeds Hose Co. #1 Inc., 6 F. Supp. 3d 204, 212 (N.D.N.Y.
2014) (Kahn, J.), the gap between Waters’s complaints to Dirie in January and his removal from
the law library position in February raises the inference that Dirie was motivated by retaliatory
animus. And while Dirie says he does not remember Waters’s complaining to him orally about
the dorm sanction policy, conflicting testimony cannot establish the nonexistence of a genuine
dispute of material fact. See Molinaro v. Sears, Roebuck & Co., 478 F. Supp. 818, 822–23
(S.D.N.Y. 1979) (noting that summary judgment “cannot be resolved on the basis of conflicting
affidavits”). In sum, the Court is not convinced by Defendants’ objections.
B. Waters’s Objections
Waters objects to Judge Peebles’s finding that defendant Eric G. Gutwein would have
disciplined Waters for providing unauthorized legal assistance even if Gutwein had lacked
retaliatory animus. Pl.’s Objs. at 2.3 Waters challenges the sufficiency of the evidence Gutwein
relied on to discipline him, pointing out that Sergeant Melendez could not specify the type of
legal assistance Waters provided to the other inmate or the form of compensation he received. Id.
at 3. But as Melendez testified, Waters had received a letter from the inmate in which the inmate
suggested that “he would compensate [Waters] for assisting him with a legal matter in the same
way he had in the past.” Rep.-Rec. at 22. When Melendez spoke to the inmate, he “admitted that
he had paid [Waters] in the past for legal assistance.” Id. Melendez did not testify that Waters
advised the inmate about, say, federal habeas law as opposed to municipal liability under 42
U.S.C. § 1983, but that does not mean Gutwein lacked a solid basis for finding that Waters had
violated the rule prohibiting the provision of unauthorized legal assistance. The same goes for the
kind of compensation Waters received for his legal work. Judge Peebles was therefore correct to
conclude that Gutwein would have imposed discipline even in the absence of any retaliatory
motive, especially because this kind of inference is “readily drawn in the context of prison
The page numbers for Waters’s Objections refer to those generated by this Court’s
electronic filing system (“ECF”).
administration where we have been cautioned to recognize that ‘prison officials have broad
administrative and discretionary authority over the institutions they manage.’” Sher v. Coughlin,
739 F.3d 77, 82 (2d Cir. 1984) (quoting Hewitt v. Helms, 459 U.S 460, 467 (1983), abrogated in
part on other grounds by Sandin v. Connor, 515 U.S. 472 (1995)); see also Parks v. Blanchette,
144 F. Supp. 3d 282, 331 (D. Conn. 2015) (noting that courts take special care in evaluating First
Amendment retaliation claims brought by prisoners “because they can easily be fabricated”).4
As part of his challenge to the sufficiency of the evidence relied on to punish him, Waters
appears to assert that his right to procedural due process was violated. Pl.’s Objs. at 3–7. Yet as
Judge Peebles pointed out, Waters’s due process claim fails because “no reasonable factfinder
could conclude that plaintiff was deprived of a cognizable liberty or property interest.” Rep.-Rec.
at 29. Since the Court agrees with that finding, any argument about the sufficiency of the
evidence is irrelevant.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 123) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Waters’s Motion for Summary Judgment (Dkt. No. 116) is DENIED;
and it is further
The Court also disagrees with Waters’s claim that it was a “quintessential non sequitur”
for him to be found guilty of providing unauthorized legal assistance and not guilty of violating a
direct order. Pl.’s Objs. at 3. Perhaps Waters was never directly ordered to refrain from providing
legal advice. Yet if he was caught doing just that, it would be appropriate to find him guilty for
providing unauthorized legal assistance.
ORDERED, that Defendants’ Motion for Summary Judgment (Dkt. No. 110) is
GRANTED in part and DENIED in part as follows: (1) Waters’s due process claims asserted
against defendants Gutwein and Prack are DISMISSED; (2) Waters’s retaliation claim asserted
against defendant Gutwein is DISMISSED; (3) Waters’s retaliation claims asserted against
defendant Dirie regarding his failure to undertake a review of the disciplinary hearing
determination and his alleged transfer of plaintiff to a different correctional facility are
DISMISSED; (4) Waters’s retaliation claim asserted against defendant Dirie regarding his
removal of plaintiff as a law library clerk at Greene Correctional Facility survives Defendants’
motion and shall proceed to trial; (5) Waters’s retaliation claims asserted against defendant Prack
are DISMISSED; and it is further
ORDERED, that the Clerk of the Court shall serve a copy of this Decision and Order on
all parties in accordance with the Local Rules.
IT IS SO ORDERED.
March 30, 2017
Albany, New York
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