Dowling v. Annucci et al
Filing
31
DECISION AND ORDER: ORDERS that Magistrate Judge Stewart's 28 Report-Recommendation and Order is ADOPTED in its entirety. ORDERS that Defendants' 22 motion to dismiss is DENIED as to Plaintiff's First Amendment retaliation claim against Defendants Schleicher and Barkman; and the Court further ORDERS that Defendants' motion to dismiss is GRANTED as to Plaintiff's First Amendment retaliation claim against Defendant Fredrickson. Signed by U.S. District Judge Mae A. D'Agostino on 9/18/18. (served on plaintiff by regular and certified mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JAVON DOWLING,
Plaintiff,
vs.
9:17-CV-0647
(MAD/DJS)
C.O. E. SCHLEICHER, et al.,
Defendants.
____________________________________________
APPEARANCES:
OF COUNSEL:
JAVON DOWLING
261 Malcolm X Blvd. Apt. 2A
Brooklyn, New York 11233
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants
DAVID ROSENBERG, AAG
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
I. INTRODUCTION
Plaintiff brings this action, pursuant to 42 U.S.C. § 1983, asserting a claim arising from
his incarceration at Greene Correctional Facility ("Greene C.F.") while in the custody of the
Department of Corrections and Community Supervision ("DOCCS"). See Dkt. No. 11 at 1. In his
amended complaint, Plaintiff alleges that Defendants violated his civil rights by filing a false
report against him and confining him to Special Housing Unit ("SHU") for his attempt to seek
redress through a superior officer and grievance in violation of the First Amendment of the
United States Constitution. See Dkt. No. 11. On February 1, 2018, Defendants filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 22. On February 22,
2018, Plaintiff wrote to the Court advising that he had not received a copy of the motion and
requested additional time to respond. See Dkt. Nos. 23 & 24. On March 6, 2018, the Court
granted Plaintiff an extension of time until April 6, 2018 and further ordered him to notify the
Court on or before March 16, 2018 as to whether he had received a copy of the motion. See Dkt.
No. 25. Plaintiff failed to provide notice to the Court and was sua sponte granted a final
extension until June 4, 2018 to respond to Defendants' motion. See Dkt. No. 26. Plaintiff has not
opposed Defendants' motion.
In an August 3, 2018 Report-Recommendation and Order, Magistrate Judge Stewart
recommended that the Court deny the motion as to Plaintiff's First Amendment retaliation claim
against Defendants Schleicher and Barkman, because Plaintiff pled sufficient facts to state a
claim. Further, Magistrate Judge Stewart recommended that Defendants' motion be granted as to
Plaintiff's First Amendment retaliation claim against Defendant Fredrickson for failure to allege
facts that would support a claim of retaliation. See Dkt. No. 28.
II. DISCUSSION
A.
Standard of Review
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
2
pleading, the court may consider documents that are integral to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim" with sufficient factual "heft to 'sho[w] that the pleader is entitled to relief[.]'" Fed. R. Civ.
P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this
standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the
speculative level," Twombly, 550 U.S. at 555, and present claims that are "plausible on [their]
face." Id. at 570 (citation omitted). "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). Ultimately, "when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief," or where a plaintiff has "not
nudged [her] claims across the line from conceivable to plausible, the . . . complaint must be
dismissed[.]" Twombly, 550 U.S. at 558, 570.
"[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. See id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
3
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 declines to file objections or files "[g]eneral or conclusory objections or objections
which merely recite the same arguments [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) (citations and footnote omitted); see also McAllan v. Von Essen 517
F. Supp. 2d 672, 679 (S.D.N.Y. 2007). 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).
B.
First Amendment Retaliation
"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
4
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).
In the present matter, the Court finds that Magistrate Judge Stewart correctly determined
that Defendants' motion to dismiss should be granted in part and denied in part. In their motion,
Defendants' sole contention is that Plaintiff failed to allege any causal nexus or retaliatory motive.
As Magistrate Judge Stewart noted, Plaintiff filed a grievance on September 2, 2016. Further,
Plaintiff asked Defendant Schleicher to speak with Defendant Barkman, a supervising officer, for
redress involving a separate incident on October 26, 2016. Immediately following his request for
redress from Defendant Barkman, Plaintiff claims that Defendants Schleicher, Barkman, and
Fredrickson "jointly and severally filed a false misbehavior report" in retaliation for his attempt to
speak to Defendant Barkman and for his earlier grievance. On November 9, 2016, Plaintiff was
found guilty following a disciplinary hearing. Such a short period of time is sufficient to support
an inference of a causal nexus between the protected activity and alleged retaliation.
5
Additionally, the Court finds that Magistrate Judge Stewart correctly determined that
Plaintiff failed to plausibly allege facts that would support a claim of retaliation as to Defendant
Fredrickson. While Plaintiff does allege that Defendant Fredrickson filed the false misbehavior
report against him, Plaintiff fails to allege any facts suggesting that Defendant Fredrickson was
aware of his protective activity. See Levola v. Bellinger, No. 9:09-cv-833, 2011 WL 13273630,
*5 (N.D.N.Y. July 20, 2011). As such, the Court grants Defendants' motion as to Defendant
Fredrickson and he is dismissed from this case.
III. CONCLUSION
Having carefully reviewed Magistrate Judge Stewart's Report-Recommendation and
Order, the parties' submissions and the applicable law, and for the above-stated reasons, the Court
hereby
ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order is
ADOPTED in its entirety; and the Court further
ORDERS that Defendants' motion to dismiss is DENIED as to Plaintiff's First
Amendment retaliation claim against Defendants Schleicher and Barkman; and the Court further
ORDERS that Defendants' motion to dismiss is GRANTED as to Plaintiff's First
Amendment retaliation claim against Defendant Fredrickson; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 18, 2018
Albany, New York
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?