Funches v. Russo et al

Filing 43

DECISION AND ORDER. ORDERED, that the Report-Recommendation (Dkt. No. 39 ) is APPROVED and ADOPTED in part. ORDERED, that Defendants Motion to Dismiss (Dkt. No. 30 ) is GRANTED in part and DENIED in part. ORDERED, that Plaintiff� 39;s First Amendment retaliation claim against McKoy is DISMISSED. ORDERED, that defendant McKoy is DISMISSED from this action. ORDERED, that Plaintiffs Fourteenth Amendment due process claims against Polizzi and Greene, as well as Plaintiff's First Amendment retaliation claims against Russo and Morris, SURVIVE Defendants motion. Signed by Senior Judge Lawrence E. Kahn on 12/6/2018. (rar)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TREVIS L. FUNCHES,
Plaintiff,
-against-

9:17-CV-1292 (LEK/DJS)

ANTHONY RUSSO, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
This matter comes before the Court following a report-recommendation filed on

November 2, 2018, by the Honorable Daniel J. Stewart, U.S. Magistrate Judge, pursuant to
28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 39 (“Report-Recommendation”). Defendants
Jeremy Greene, Jeff McKoy, Cheryl Morris, A. Polizzi, and Anthony Russo timely filed
objections. Dkt. No. 40 (“Objections”); see also Dkt. No. 42 (“Opposition to Objections”).
II.

LEGAL STANDARD
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 objections are
timely filed, 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.” § 636(b).
However, 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-857,

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), abrogated on other grounds by Widomski v. State Univ. of
N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014); 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.” § 636(b).
III.

DISCUSSION
The Court assumes familiarity with the facts relevant to the present dispute, which were

described in the Report-Recommendation. See R. & R. at 2–3.
On August 13, 2018, Defendants filed a Rule 12(b)(6) motion, which argued that both
Plaintiff’s Fourteenth Amendment due process claims against Polizzi and Greene and Plaintiff’s
First Amendment retaliation claims against Russo, Morris, and McKoy should be dismissed. Dkt.
No. 30 (“Motion to Dismiss”); see also Dkt. Nos. 33 (“Opposition”); 34 (“Reply”). The
Magistrate Judge disagreed, and recommended that the Motion to Dismiss be denied in its
entirety. R. & R. at 13. Specifically, the Report-Recommendation found with regard to Plaintiff’s
due process claim that the amended complaint, Dkt. No. 10 (“Amended Complaint”), sufficiently
alleged a protected liberty interest and deprivation of due process to survive Defendants’ motion,
R. & R. at 4–8. The Magistrate Judge also held that Plaintiff’s allegation that Defendants
interfered with his privacy and correspondence privileges satisfied Plaintiff’s burden for pleading

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a First Amendment retaliation claim. Id. at 8–12. Finally, the Magistrate Judge found that
Defendants were not entitled to qualified immunity. Id. at 12–13.
Defendants now raise four sets of objections to the Report-Recommendation. Defendants’
first, second, and fourth sets of objections assert that the Magistrate Judge “applie[d] the
incorrect standards” with regard to (1) Plaintiff’s due process claim; (2) Plaintiff’s retaliation
claim against Russo and Morris; and (3) Defendants’ qualified immunity argument. Objs. at 1–6,
8–10. Defendants’ third set of objection asserts that the Report-Recommendation “err[ed] in
recommending that Plaintiff’s First Amendment claim against [] McKoy [should] survive,”
because the Amended Complaint nowhere alleged that McKoy retaliated against Plaintiff. Id.
at 6–8.
A. First Set of Objections: Due Process
Defendants’ first set of objections raise certain due process arguments that are the mirror
image of arguments already made in the Motion to Dismiss. Compare Mot. Dismiss at 9–10
(“[Plaintiff] alleges only that the water for drinking and bathing [in the SHU] was ‘discolored.’
. . . This is insufficient to state a liberty interest. Moreover, the Exhibits to the Complaint . . .
demonstrate that the water in the SHU was no different from the water in the entire [prison]
water system, which was tested and had met all New York State Department of Health
requirements for potable water.”), with Objs. at 2 (“[T]he sole allegation made by Plaintiff is that
the water in the [Special Housing Unit (“SHU”)] was discolored, and the exhibits to the
Complaint demonstrate, conclusively, that the allegedly discolored water in the SHU . . . was
present at the entire facility . . . and was not unsafe. Accordingly, the Complaint itself refutes
Plaintiff’s claim that he was subjected to atypical and significant hardship in the SHU.”), and
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Mot. Dismiss at 13 (“By setting forth the evidence relied on at Plaintiff’s disciplinary hearing,
the Complaint itself demonstrates that the ‘some evidence’ standard is met.”), with Objs. at 3
(“[T]he Complaint itself and the exhibits to the Complaint set forth the evidence relied on for
Plaintiff’s disciplinary conviction[, which is] more than enough to satisfy due process.”). Those
portions of Defendants’ first set of objections therefore constitute “mere reiteration[s] of []
argument[s] made to the magistrate judge,” and are subject to review only for clear error. Barnes,
2013 WL 1121353, at *1. Having reviewed both the record and Judge Stewart’s reasoning, the
Court finds none.
However, Defendants’ first set of objections also explicitly identifies two alleged failures
in the Magistrate Judge’s reasoning that are not related to arguments presented in the Motion to
Dismiss. Those portions of the first set of objections are therefore subject to de novo review.
First, Defendants contend that the Report-Recommendation erred in declining to dismiss
Plaintiff’s due process claim against Greene. Objs. at 2. The Magistrate Judge made that
recommendation after finding that, “[a]t this early stage of this litigation,” it would be impossible
to determine “what documents were and were not provided” to Plaintiff in advance of his
disciplinary hearing as well as “the relevance of those [documents] allegedly not provided.”
R. & R. at 6. According to Defendants, the Amended Complaint expressly identifies the withheld
documents as “the Unusual Incident Report and related To/From Memos, and Plaintiff’s medical
records,” most of which were read into evidence at Plaintiff’s hearing. Id. at 2–3; see also Am.
Compl. at 15. Therefore, noting that due process does not require “that every document need . . .
be provided to an inmate in advance of a disciplinary hearing,” id. at 2, Defendants argue that the
Motion to Dismiss should have been granted, since “Plaintiff cannot prove a due process
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violation based on the fact that these documents were read into evidence at his disciplinary
hearing rather than being given to him in hard copy,” id. at 3 (citing Freeman v. Rideout,
808 F.2d 949, 953 (2d Cir. 1986)).
The Court disagrees. The passage from Freeman cited by Defendants examines the
Supreme Court’s holding in Wolff v. McDonnell, 418 U.S. 539 (1974), that
[p]rison officials must have the necessary discretion . . . to refuse to
call witnesses that may create a risk of reprisal or undermine
authority, as well as to limit access to other inmates to collect
statements or to compile other documentary evidence. . . . The
operation of a correctional institution is at best an extraordinarily
difficult undertaking. Many prison officials, on the spot and with the
responsibility for the safety of inmates and staff, are reluctant to
extend the unqualified right to call witnesses; and in our view, they
must have the necessary discretion without being subject to unduly
crippling constitutional impediments.
Id. at 566–67. Thus, the Wolff court determined that prison officials would not offend due
process when withholding evidence that was, for example, irrelevant or unnecessary, or that
could result in a hazardous condition. Id. at 566; see also Kingsley v. Bureau of Prisons, 937 F.2d
26, 30 (2d Cir. 1991) (“[A] prisoner’s request for a witness can be denied on the basis of
irrelevance or lack of necessity.”). But as the Magistrate Judge rightly pointed out, there is no
reason on the face of the Amended Complaint to believe that the documents identified by the
Amended Complaint were withheld for a permissible reason. R. & R. at 6–7. Given that they
were presented in evidence at the hearing, it is plausible that there was no good reason not to
disclose them in advance.
Moreover, even bearing in mind prison officials’ need for discretion, multiple courts in
this Circuit have nonetheless held that the failure by an inmate’s designated employee assistant to

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provide the inmate with “specific documents that [the inmate] requested,” and for which no
permissible excuse existed, could give rise to a due process claim. Brooks v. Prack, 77 F. Supp.
3d 301, 316 (W.D.N.Y. 2014); see also Ayers v. Ryan, 152 F.3d 77, 81 (2d Cir. 1998) (finding
that an employee assistant violated an inmate’s due process rights “by undertaking to act as [the
inmate’s] assistant and then doing nothing to assist,” including by failing to provide “any of
plaintiff’s requested documents”). Defendants do not provide any reason for the Court to
overlook those holdings.
Furthermore, the Court rejects Defendants’ argument that Plaintiff’s due process rights
were satisfied because the documents he requested, though not provided in advance of his
disciplinary proceeding, were read into evidence during that proceeding. Defendants provide no
support for such a proposition, and cite to no cases in which a court has made such a
determination. Defendant’s objection is therefore rejected.
Second, Defendants contest the Report-Recommendation’s holding that Plaintiff’s due
process claim against Polizzi should survive the Motion to Dismiss. Objs. at 4. The Magistrate
Judge so held for two reasons: First, “Polizzi did not remedy Greene’s failure to provide
documents that Plaintiff needed in support of his defense,” despite the recognized right of
inmates to “‘present documentary evidence in [their] defense’ at a prison disciplinary hearing.”
R. & R. at 7 (quoting Wolff, 418 U.S. at 566). Second, the Amended Complaint identified
“several factors—the absence of a weapon and the lack of testimony regarding certain injuries
allegedly inflicted by Plaintiff, for example—as potential grounds for concluding that there was
insufficient evidence for [Polizzi’s] guilty determination.” Id. Defendants argue that, in coming
to those conclusions, the Magistrate Judge improperly “‘examin[ed] the entire record . . . [and]
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weigh[ed] the evidence,’” Objs. at 4 (quoting Superintendent, Mass. Corr. Inst., Walpole v. Hill,
472 U.S. 445, 455 (1985)), despite the Second Circuit’s guidance that “a court should not
overturn a prison disciplinary board’s finding of guilt if there is any evidence to support the
board’s conclusion,” Franco v. Kelly, 854 F.2d 584, 588 (2d Cir. 1988); see also Hill, 472 U.S.
at 455 (“Ascertaining whether the ‘some evidence’ standard is satisfied does not require
examination of the entire record, independent assessment of witnesses’ credibility, or weighing
of the evidence, but, instead, the relevant question is whether there is any evidence in the record
to support the disciplinary board’s conclusion.”).
The Court agrees with Defendant that the Magistrate Judge’s second rationale—regarding
the insufficiency of the evidence presented at Plaintiff’s hearing—does not provide a sufficient
basis for allowing Plaintiff’s due process claim against Polizzi to proceed. The relevant inquiry is
not whether some evidence was missing from the record, but rather whether any of the evidence
that was presented could support the disciplinary board’s conclusion. Hill, 472 U.S. at 455.
However, that finding has no bearing on the outcome of Defendants’ Motion to Dismiss. Only
“[u]pon determining that the[] procedural due process requirements [related to an inmate’s
disciplinary hearing] have been met” should a reviewing court move on to determine “‘whether
there is some evidence which supports the decision of the prison disciplinary board.’” Hamilton
v. Fischer, No. 12-CV-6449, 2013 WL 3784153, *9 (W.D.N.Y. July 18, 2013) (quoting
Freeman, 808 F.2d at 954–55). Before discussing the sufficiency of the evidence presented at the
hearing, the Magistrate Judge had already determined on other grounds that Plaintiff properly
pled that Polizzi infringed his due process rights. For that reason, Plaintiff’s claim survives and
Defendants’ objection is rejected.
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B. Second Set of Objections: Retaliation—Russo and Morris
In their second set of objections, Defendants first argue that the Report-Recommendation
was wrong to find that Russo’s alleged order to search Plaintiff’s cell and confiscate his hot pot
constituted an adverse action for First Amendment purposes. Objs. at 5; see also R. & R. at 9.
Effectively, Defendants ask the Court to reconsider the Magistrate Judge’s decision in light of the
holding in Jones v. Harris, 665 F. Supp. 2d 384 (S.D.N.Y. 2009), rather than the “contrary case
law” cited in the Report-Recommendation. In dismissing an inmate plaintiff’s claim for First
Amendment retaliation, the district court in Jones found that
[p]laintiff alleges that the retaliatory searches resulted in the seizure
of some of his property and the “trashing” of his cell. Perhaps he is
suggesting that these searches were unusually punitive and so were
out of the ordinary. But plaintiff alleges no facts tending to show that,
in an ordinary random cell search, property is not seized and cells are
not turned upside down and inside out[.] It is to be expected that cell
searches will disrupt, not only the prisoner’s life, but also the living
conditions inside the cell; and since one purpose of a cell search is to
locate and recover contraband, the court cannot turn a blind eye to the
fact that prisoner property is sometimes seized when cells are
searched.
Id. at 398. Accordingly, because “courts have long recognized that periodic cell searches are such
an integral part of prison life that only cell searches that rise to the level of an Eighth Amendment
violation are actionable,” id., Defendants contend that the Magistrate Judge’s recommendation
should be modified and Plaintiff’s claim dismissed, Objs. at 5.
The Court disagrees. The Jones passage quoted above is consistent with the cases cited by
the Magistrate Judge. See R. & R. at 9 (“[A] retaliatory cell search accompanied by the
confiscation of personal property states a plausible claim for retaliation sufficient to withstand
dismissal.” (internal quotation marks omitted) (citing Guillory v. Haywood, No. 13-CV-1564,
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2015 WL 268933 (N.D.N.Y. Jan. 21, 2015); Yunus v. Jones, No. 16-CV-1282, 2017 WL
9511176 (N.D.N.Y. Aug. 23, 2017), report and recommendation adopted, 2017 WL 5956762
(Dec. 1, 2017))). Taken together, those cases stand for the proposition that periodic cell
searches—and any confiscation of contraband property resulting therefrom—cannot provide a
foundation for a First Amendment retaliation claim, whereas retaliatory cell searches that result
in the unwarranted confiscation of non-contraband personal property may provide such a
foundation. Therefore, because the Amended Complaint properly pleads that the Russo’s cell
search was premised on retaliatory motives, Am. Compl. at 6–7 (pleading that “Russo personally
questioned [Plaintiff]” about certain grievances he had filed, and immediately thereafter “ordered
[another correctional officer] to have [Plaintiff’s] cell searched” and his hot pot confiscated), and
because there is no indication in the record that Plaintiff’s hot pot was contraband, Defendant’s
first objection is rejected.
Defendants also object to the Magistrate Judge’s holding regarding Plaintiff’s retaliation
claim against Morris. Objs. at 5–6. In the Amended Complaint, Plaintiff alleged that his
correspondence privilege with his son was “abruptly discontinued” at the direction of Morris and
the “Executive Team” he led. Am. Compl. at 18–20. The Magistrate Judge accepted that
Defendants could defend against such a claim by arguing that Plaintiff’s correspondence
privileges would have been revoked “regardless of any protected activity or retaliatory motive,”
but held that “discovery is needed to determine whether” that was the case. Objs. at 6 (citing
R. & R. at 10). Defendants now object that “no discovery is needed here because the [Amended]
Complaint itself . . . demonstrates that Plaintiff’s correspondence privileges would have been
temporarily denied regardless of any protected activity.” Id.
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Defendants’ argument rests on an improperly unfavorable interpretation of Plaintiff’s
allegations. True, the Amended Complaint states that, between April and September 2017,
certain prison officials informed Plaintiff, often through formal letters using DOCCS’s official
letterhead, see Dkt. No. 10-1 (“Exhibits”) at 15–17, that his correspondence privileges were
suspended “according to Directive 4422” because the prison was unable to verify Plaintiff’s
relationship with his son. Am. Compl. at 20. But the Amended Complaint also describes a March
2017 incident between Plaintiff and Morris, which indicates that Morris’s involvement in the
suspension process may nonetheless have been motivated by retaliation, and that Plaintiff’s
privilege would not have been suspended absent his First Amendment activity:
Defendant Morris . . . while doing rounds approached [Plaintiff] . . .
and inquired about [Plaintiff’s] approved correspondence with [his]
incarcerated kids. [Plaintiff,] finding Morris[’s] inquiry to be rather
strange since he’[d] been approved [to engage in that
correspondence,] asked why . . . there [was] a problem. Morris said
yes there is [a problem], you have been writing numerous staff
complaints and that needs to stop[, then] walked away.
Am. Compl. at 19. Although Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) instructs courts
to “approach prisoner claims of retaliation with skepticism and particular care,” it remains the
case that a court presented with “two plausible inferences that may be drawn from factual
allegations . . . may not properly dismiss a complaint that states a plausible version of the events
merely because the court finds a different version more plausible.” Anderson News, L.L.C. v.
Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012). The Court therefore rejects Defendants’
objection, and will allow Plaintiff’s First Amendment retaliation claim against Morris to proceed.

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C. Third Set of Objections: Retaliation—McKoy
Defendants’ third set of objections argues that the Report-Recommendation “ma[de] an
overarching error with respect to the claim against Defendant McKoy”—which relates to
McKoy’s involvement in the denial of Plaintiff’s correspondence privileges, Am. Compl.
at 19–20—“by characterizing that claim as a retaliation claim,” Objs. at 6 (citing R. & R. at 11).
Instead, Defendants assert that the Court should interpret Plaintiff’s claim as one for “First
Amendment denial of correspondence privileges.” Id. at 7. They further contend that such a claim
cannot survive the Motion to Dismiss, because McKoy’s “compliance with the DOCCS directive
regarding correspondence privileges is demonstrated in the [Amended] Complaint and exhibits
thereto.” Id.
As the Court made clear in its June 7, 2018 Memorandum-Decision and Order, Dkt.
No. 19 (“June Order”), “allegations that a supervisory official failed to remedy an ongoing
violation of an inmate’s constitutional rights after becoming aware of the violation are sufficient
to plausibly suggest personal involvement in the violation,” id. at 18 (citing Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995)). As explained earlier, the Amended Complaint plausibly alleges
that Morris terminated Plaintiff’s correspondence privilege in retaliation for certain staff
complaints Plaintiff had filed. Am. Compl. at 19. The Amended Complaint also pleads that
McKoy failed to remedy Plaintiff’s correspondence issue until November 1, 2017, despite
learning of it directly from Plaintiff on September 5, 2017. Am. Compl. at 19; see also Exs.
at 19, 22. Defendants have not raised any other challenges to Plaintiff’s claim, and do not
question whether the nature and/or duration of McKoy’s delay was sufficient to satisfy Colon’s
failure to remedy standard. Therefore, Defendants’ third set of objections is rejected.
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D. Fourth Set of Objections: Qualified Immunity
The doctrine of qualified immunity, as explained by the Magistrate Judge in the
Report-Recommendation, “provides a ‘shield[] . . . from civil damages liability unless the official
violated a statutory or constitutional right that was clearly established at the time of the
challenged conduct.’” R. & R. at 12 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).
Thus, qualified immunity provides an affirmative offense to government officials against civil
liability in the event that they have violated a right that was not “clearly established,” such that it
was not “sufficiently clear that every reasonable official would have understood that what [the
official did] violates that right.” Id.
As was true of Defendant’s first set of objections, many of the arguments raised in
Defendants’ fourth set of objections—regarding qualified immunity—are identical to those
presented in the Motion to Dismiss. Compare Mot. Dismiss at 23 (“There is no clearly
established law stating that Plaintiff must be provided with copies of specific documents.”), with
Objs. at 8 (“It is not clearly established that Plaintiff was required to be provided with the
specific documents he identifies.”), and Mot. Dismiss at 25 (“[T]he law is clearly established that
Plaintiff cannot prove a retaliation claim when the legitimate motives for Morris’s action are set
forth in the pleadings and demonstrate that Morris would have taken the same actions regardless
of any grievances Plaintiff may have filed.”), with Objs. at 9–10 (“The law is clearly established
that a plaintiff cannot prove a retaliation claim when the defendant would have taken the same
actions regardless of any grievances the plaintiff may have filed. Here, the legitimate motives for
Morris’s action are set forth plainly in the pleadings.”). Those arguments are therefore subject to
review only for clear error; the Court finds none.
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However, Defendants also raise two new arguments not considered by the Magistrate
Judge. First, they contend that the Report-Recommendation erred in finding that Russo was not
entitled to qualified immunity on Plaintiff’s First Amendment retaliation claim, because there is
“no clearly established law” that Russo allegedly violated. Objs. at 9. In support of that argument,
Defendants once again refer to Jones for the proposition that “the search of Plaintiff’s cell and
[the] confiscation of his hot pot . . . was not an adverse action.” Id. But Defendants now argue
that the discrepancies between Jones and the cases cited by the Magistrate Judge (e.g., Guillory
and Yunus), “only emphasize[] that there is no clearly established law governing the issue,”
meaning qualified immunity should apply. Id. (internal citation omitted). However, the Court has
already determined that the holdings in Jones, Guillory, and Yunus are consistent, and that the
Amended Complaint sufficiently pleads a claim pursuant to the standards they have set. See
supra Part III.B. As a result, there are no discrepancies in the caselaw that would have rendered
its application sufficiently unclear for qualified immunity purposes. Defendants’ objection is
therefore rejected.
Second, Defendants argue that “McKoy is entitled to qualified immunity because no
clearly established law holds that he was required to approve Plaintiff’s correspondence request.”
Objs. at 10. The Court agrees that McKoy is entitled to qualified immunity and that the
Magistrate Judge erred in finding otherwise, but not for the reasons Defendants cite. McKoy’s
liability under the First Amendment depends on the Colon test, which provides that the personal
involvement of a supervisory defendant is established if
(1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation
through a report or appeal, failed to remedy the wrong, (3) the
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defendant created a policy or custom under which unconstitutional
practices occurred, or allowed the continuance of such a policy or
custom, (4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of [plaintiffs] by failing
to act on information indicating that unconstitutional acts were
occurring.
58 F.3d at 873. As made clear above, the second of those five categories applies in McKoy’s
case. See supra Part III.C. However, the Supreme Court’s decision in Ashcroft v. Iqbal,
556 U.S. 662 (2009), “engendered conflict within our Circuit about the continuing vitality of the
supervisory liability test set forth in Colon,” Reynolds v. Barrett, 685 F.3d 193, 205 n.14 (2d
Cir. 2012). On the one hand, some courts have found that “[o]nly the first and part of the third
Colon categories pass Iqbal’s muster,” Bellamy v. Mt. Vernon Hosp., No. 07-CV-1801, 2009
WL 1835939, at *6 (S.D.N.Y. June 26, 2009), while others have held that “all five categories
under Colon are still valid unless and until the Second Circuit holds otherwise,” Aponte v.
Fischer, No. 14-CV-3989, 2018 WL 1136614, at *8 n.5 (S.D.N.Y. Feb. 28, 2018).
As applicable to Defendants’ qualified immunity defense, the uncertainty inherent in the
continued viability of the Colon test implies that “regardless of whether Colon’s second category
of supervisory liability survived Iqbal . . . , [D]efendants are entitled to qualified immunity based
on the very uncertainty of the governing law.” Ojo v. United States, No. 15-CV-6089,
2018 WL 3863441, at *10 (E.D.N.Y. Aug. 14, 2018). The Court therefore finds that McKoy is
entitled to qualified immunity on Plaintiff’s First Amendment retaliation claim, and will modify
the Report-Recommendation to that effect.

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IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 39) is APPROVED and

ADOPTED in part; and it is further
ORDERED, that Defendants’ Motion to Dismiss (Dkt. No. 30) is GRANTED in part
and DENIED in part; and it is further
ORDERED, that Plaintiff’s First Amendment retaliation claim against McKoy is
DISMISSED; and it is further
ORDERED, that defendant McKoy is DISMISSED from this action; and it is further
ORDERED, that Plaintiff’s Fourteenth Amendment due process claims against Polizzi
and Greene, as well as Plaintiff’s First Amendment retaliation claims against Russo and Morris,
SURVIVE Defendants’ motion; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on the
parties in accordance with the local rules.
IT IS SO ORDERED.

DATED:

December 06, 2018
Albany, New York

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