Vincent v. Sitnewski et al

Filing 101

OPINION AND ORDER re: 73 MOTION for Summary Judgment . filed by Sitnewski, Frederick J. Kovas, Schmidt, Stetson, M. Relf, Carter, Depo. For the foregoing reasons, the Government's motion for summary judgment is GRANTED in part and DENIED in part. The Clerk of the Court is directed to close this motion (Dkt. No. 73). Furthermore, because this case is proceeding to trial, and because Vincent's claims satisfy the standard set forth in Hodge v. Police Officers, th e Clerk of the Court is also directed to find pro bono counsel to represent Vincent. A status conference is set for July 21, 2015 at 4:30 PM. SO ORDERED. (Status Conference set for 7/21/2015 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 6/25/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDCSDNY

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DAMON VINCENT,

DOCUMENT
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Plaintiff,
OPINION AND ORDER
- against 10-cv-3340 (SAS)
SITNEWSKI, C.O.; FREDERICK, J.
KOVACS, C.O.; CARTER, C.O.;
STETSON, C.O.; DEPO, C.O.;
SCHMIDT, LT. ofGREENHAVEN, in
his individual and official capacities,
Defendants.

·--------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
This is a section 1983 action for five constitutional violations

allegedly suffered by Damon Vincent while he was incarcerated Green Haven
Correctional Facility ("Green Haven"). 1 The first four claims are for retaliation
under the First Amendment. The fifth claim is for failure to protect under the
Eighth Amendment. On February 11, 2013, Defendants moved for judgment on

Vincent also raised a sixth claim - under state law - which was
dismissed on September 20, 2011. See Vincent v. Sitnewski, No. 10 Civ. 3340,
2011WL4552386 (S.D.N.Y. Sept. 10, 2011).
-1-

the pleadings, which the Court denied on September 20, 2013, holding that
Vincent’s claims were too fact-bound to be resolved as a matter of law.2 Since
then, the record has ripened. Defendants now move for summary judgment on all
five claims. For the reasons set forth below, defendants’ motion is GRANTED in
part and DENIED in part.3

See Vincent v. Sitnewski, No. 10 Civ. 3340, 2013 WL 5299027
(S.D.N.Y. Sept. 20, 2013).
2

This case was originally assigned to another judge of this District,
who — in an abundance of caution — appears to have construed Vincent’s
allegations of retaliatory conduct as giving rise both to traditional First
Amendment claims and to freestanding Eighth Amendment claims. See id. at *1
(“[Vincent’s] complaint alleges that defendants took adverse action against
Sitnewski in retaliation for certain grievances and lawsuits which Vincent filed,
and also alleges violations of Eighth Amendment rights.”). Read holistically,
however, the claims arising from the adverse actions that Greenhaven officers
allegedly took against Vincent are uniformly retaliation claims. Cf. Johnson v.
City of Shelby, 135 S.Ct. 346 (2014) (per curiam) (explaining that allegations
should be construed for substance, not form). This is how defendants, in their
papers, have parsed Vincent’s claims. And it is even how Vincent himself
describes those claims, in the preliminary statement of his opposition papers. After
tallying a list of ostensibly independent constitutional causes of action, Vincent
explains that “all [of the foregoing]” was “in retaliation for [my] filing of lawsuits
and grievances.” Memorandum of Law in Opposition to Defendants’ Motion for
Summary Judgment (“Opp. Mem.”), at 1 (emphasis added). See also id.
(describing the same incidents as “the unlawful acts against [me] of retaliation”). I
hold, therefore, that Vincent brings only retaliation claims, not freestanding claims
under constitutional provisions other than the First Amendment. The analysis
proceeds accordingly.
3

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II.

BACKGROUND4
Vincent asserts constitutional violations in connection with five

incidents, all of which allegedly occurred during the Spring and Summer of 2009.
Incidents one, three, four, and five are based on retaliation. Incident two is based
on the failure to protect. For clarity’s sake, they will be presented in chronological
order.
A.

Claim One
Vincent alleges that on March 11, 2009, Corrections Officer (“CO”)

Sitnewski sexually assaulted him because of his pending lawsuits. Specifically,
Vincent alleges that Sitnewski conducted a pat and frisk search, groping Vincent’s
genital area, and remarking: “Isn’t one of your lawsuits about this, can’t nobody
see if I fuck you in the ass.”5 On March 16, 2009, Vincent filed an internal
complaint outlining this allegation.
B.

Claim Two
Vincent alleges that on May 8, 2009, a fight occurred in the prison

courtyard, at which time Vincent, a non-participant, was assailed from behind by

Unless otherwise noted, the facts set forth in this section are
incorporated from the Rule 12(c) decision. See Vincent, 2013 WL 5299027, at *12.
4

5

Complaint and Jury Trial Demand (“Complaint”) at 7.
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an unidentified inmate in the prison yard. Vincent alleges that defendants watched
the fight proceed for nearly five minutes before intervening, and that in the interim,
Vincent suffered severe facial lacerations. Accordingly, Vincent argues that C.O.
Kovacs — who was stationed in the courtyard observation tower — and C.O.
Frederick and C.O. Relf — who were among the officers called to break up the
fight — did not take sufficient steps to protect him from injury, thereby violating
his Eighth Amendment rights. On May 20, 2009, Vincent filed an internal
grievance outlining this allegation.
Prison records make clear that C.O. Kovacs, upon witnessing the
fight, called for a response team, and that C.O. Frederick and C.O. Relf (among
other officers) responded in a timely manner.6 Vincent offers no evidence to rebut
the version of events memorialized in the records. Instead, he relies on his own
view that the officers did not proceed as quickly as they could have.7
C.

Claim Three

See Defendants’ 56.1 Statement of Undisputed Material Facts (“Def.
56.1”) ¶¶ 26-33.
6

See Opp. Mem. at 13-14. Vincent also maintains that no one came to
assist him the yard, but this assertion is belied by the undisputed facts (1) that the
fight was eventually broken up, and (2) that C.O. Frederick escorted Vincent out of
the courtyard. See Def. 56.1 ¶¶ 29-32.
7

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Vincent alleges that on May 28, 2009, he was retaliated against for
filing grievances in connection with Claims One and Two. Specifically, Vincent
alleges that at approximately 2 PM, C.O. Carter, with the cooperation of C.O.
Stetson, handcuffed Vincent to his bedpost, telling him “[t]hat will keep you from
complaining, you will learn asshole.”8
Vincent was allegedly left in this position for almost eighteen hours,
unable to move around his cell and deprived of access to the toilet. Vincent further
alleges that another officer — whose name he did not know — witnessed him
handcuffed to the bed and did nothing. Neither officer on duty in Vincent’s
housing block the evening and night of May 28 — C.O. Lalonde and C.O. Coccitti
— testified to seeing him (or any other inmate) handcuffed in the manner described
by Vincent.9
D.

Claim Four
Vincent alleges that on June 8, 2009, C.O. Depo and Lt. Schmidt

intruded on him while showering, and left him in the shower room nude, removing
both his clothes and the shower curtain. Lt. Schmidt explained that the point was
to see what “kind of man” Vincent was “without his pen” — allegedly a reference

8

Complaint at 15.

9

Def. 56.1 ¶¶ 16-17.
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to Vincent’s complaints in connection with Claims One and Two. Vincent was
allegedly left in the shower for approximately an hour, during which time various
other officers — including at least one female officer — passed by and viewed his
naked body. On June 10, 2009, Vincent filed an internal grievance outlining this
allegation.
E.

Claim Five
Finally, Vincent alleges that on June 25, 2009, C.O. Relf entered his

cell and verbally harassed him. Relf allegedly admonished Vincent not to file any
more grievances, and warned him that if Relf caught Vincent doing “any of that
Muslim stuff around here,” he was going to return to Vincent’s cell and “jump”
him.10 On July 1, 2009, Vincent filed an internal grievance outlining this
allegation.
F.

Defendants’ Response
Defendants have moved for summary judgment on the grounds that all

of Vincent’s allegations either (1) are factually baseless or (2) fail to satisfy the
elements of the relevant constitutional claim. Alternatively, defendants argue that

10

Complaint at 21.
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they are entitled to qualified immunity in connection with every incident alleged by
Vincent.
III. STANDARD OF REVIEW
Summary judgment is appropriate “only where, construing all the
evidence in the light most favorable to the non-movant and drawing all reasonable
inferences in that party’s favor, there is ‘no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.’”11 “A fact is
material if it might affect the outcome of the suit under the governing law, and an
issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”12
In deciding a motion for summary judgment, “[t]he role of the court is
not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.”13 “‘Credibility determinations, the weighing of the evidence,

Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 19 (2d
Cir. 2014) (quoting Fed. R. Civ. P. 56(c)) (some quotation marks omitted).
11

Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), aff’d, 133
S. Ct. 2675 (2013) (quotations and alterations omitted).
12

13

Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.

2012).
-7-

and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge.’”14
IV.

APPLICABLE LAW15
A.

Retaliation
“‘To prevail on a First Amendment retaliation claim brought under 42

U.S.C. § 1983, a prisoner must demonstrate (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.’”16 “[C]ourts must approach prisoner claims of retaliation with
skepticism and particular care.”17 “Only retaliatory conduct that would deter a

Barrows v. Seneca Foods Corp., 512 Fed. App’x 115, 117 (2d Cir.
2013) (quoting Redd v. New York Div. of Parole, 678 F.3d 166, 174 (2d Cir.
2012)).
14

To prevail on a claim under section 1983, “a plaintiff must allege (1)
‘that some person has deprived him of a federal right,’ and (2) ‘that the person who
has deprived him of that right acted under color of state . . . law.’” Velez v. Levy,
401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640
(1980)). Here, this element in indisputably satisfied — the Government has not
contested that the officers in question were acting under the color of state law when
they allegedly violated Vincent’s rights.
15

Ford v. Palmer, 539 Fed. App’x 5, 6 (2d Cir. 2013) (quoting Espinal
v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)).
16

17

Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001).
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similarly situated individual of ordinary firmness from exercising his or her
constitutional rights constitutes an adverse action for a claim of retaliation.”18
In other words, the fact that adverse action was taken against an
inmate is not enough to sustain a retaliation claim. Rather, the inmate must
demonstrate that the adverse action was of a sufficiently serious nature to deter a
reasonable inmate from exercising his or her constitutional rights.19 This question,
like “the question of causation, [] is factual in nature.”20 In determining whether an
individual of ordinary firmness would be deterred from exercising his or her
constitutional rights, “the court's inquiry must be ‘tailored to the different
circumstances in which retaliation claims arise,’ bearing in mind that ‘[p]risoners
may be required to tolerate more . . . than average citizens, before a [retaliatory]
action taken against them is considered adverse.’”21

18

Id. at 493 (citations omitted).

19

See id.

Davidson v. Chestnut, 193 F.3d 144, 149 (2d Cir. 1999). Accord Ford
v. Palmer, 539 Fed. App’x 5, 7 (2d Cir. 2013) (summary order) (treating the
“adverse action” question as a factual issue, and explaining that “The district court
erred in reasoning, as a matter of law, that verbal threats must be more definite and
specific than [defendant’s] alleged threat in order to constitute ‘adverse action’”).
20

21

Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (citing Dawes, 239

F.3d at 493).
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Furthermore, the fact that an inmate has filed a lawsuit should not be
taken to imply that the retaliatory conduct was not sufficient to deter a person of
ordinary firmness from exercising his or her rights. As the Second Circuit has
explained, “that a particular plaintiff . . . responded to retaliation with greater than
‘ordinary firmness’ does not deprive him of a cause of action.”22 And this is
especially so in cases — like this one — where the plaintiff “is no stranger either to
the grievance system or to the federal courts.”23
B.

Failure to Protect
To establish an Eighth Amendment violation based on an official’s

failure to protect, an inmate must satisfy a two-pronged test. First, an inmate
“must show that he is incarcerated under conditions posing a substantial risk of
serious harm.”24 Second, an inmate must show that prison officials acted with
“deliberate indifference” to the inmate’s “health or safety.”25 A prison official can
only be said to act with deliberate indifference insofar as he or she “has knowledge
that an inmate faces a substantial risk of serious harm and he disregards that risk by

22

Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004).

23

Id.

24

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

25

Id.
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failing to take reasonable measures to abate the harm.”26 To satisfy this standard in
the context of an altercation, an inmate must show that “(1) the officer had a
realistic opportunity to intervene and prevent the harm; (2) a reasonable person in
the officer’s position would know that the victim’s constitutional rights were being
violated; and (3) the officer [did] not take reasonable steps to intervene.”27
C.

Qualified Immunity
“The doctrine of qualified immunity protects government officials

‘from civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’”28 A court must consider “both the clarity of the law establishing the right
allegedly violated as well as whether a reasonable person, acting under the
circumstances then confronting a defendant, would have understood that his

26

Hayes v. New York City Dep’t of Corrs., 84 F.3d 614, 620 (2d Cir.

1996).
Jean-Laurent v. Wilkinson, 540 F. Supp. 2d 501, 512 (S.D.N.Y.
2008). Accord Stubbs v. Dudley, 849 F.2d 83, 86-87 (2d Cir. 1988) (explaining
that an official’s decision not to intervene only qualifies as deliberately indifferent
if the official had a fair opportunity to protect the inmate with no risk to himself).
27

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)).
28

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actions were unlawful.”29 Qualified immunity is not properly granted where the
facts alleged show that the official’s conduct violated a constitutional right and the
right was clearly established.30 “A right is clearly established if (1) the law is
defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has
recognized the right, and (3) ‘a reasonable defendant [would] have understood
from the existing law that [his] conduct was unlawful.’”31
V.

DISCUSSION
A.

Failure to Protect
Vincent’s failure to protect claim fails as a matter of law. Beyond

mere speculation, Vincent has not offered a single piece of evidence to support his
contention that C.O. Kovacs was dilatory in calling a response team to the prison
yard. Nor has he offered evidence that C.O. Frederick or C.O. Wolf, once they
arrived in the yard, failed to discharge their responsibilities. What is more, Vincent
has also failed to show that C.O. Kovacs, C.O. Frederick, or C.O. Wolf had actual
or constructive knowledge that Vincent, in particular, faced harm in the prison

Hanrahan v. Doling, 331 F.3d 93, 98 (2d Cir. 2003) (per curiam)
(internal quotation marks omitted).
29

30

See Erlich v. Town of Glastonbury, 348 F.3d 48, 55 (2d Cir. 2003).

Pugh v. Goord, 571 F. Supp. 2d 477, 510 (S.D.N.Y. 2008) (quoting
Anderson v. Recore, 317 F.3d 194, 197 (2d Cir. 2003)).
31

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yard.32 No reasonable finder of fact could hold C.O. Kovacs, C.O. Frederick, or
C.O. Wolf liable for failure to protect.
B.

Retaliation Claims
Vincent’s retaliation claims are another story. All four claims —

Claims One, Three, Four, and Five — raise issues of fact sufficient to render
summary judgment inappropriate.33
1.

Claim One

Defendants do not deny the core allegation of Vincent’s first claim —
that C.O. Sitnewski groped Vincent’s genitals while making a threatening
reference to his past complaints. Instead, they focus on the legal sufficiency of
Vincent’s retaliation claim. First, defendants argue that genital groping, as

See Jean-Laurent, 540 F. Supp. 2d at 512 (explaining that a failure to
protect claim only gives rise to liability if “a reasonable person in the officer’s
position would know that the victim’s constitutional rights were being violated”).
See also Ricciuti v. NYC Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (an
“officer has an affirmative duty to intercede on the behalf of a citizen whose
constitutional rights are being violated,” but only if the violation is “one of which a
reasonable person would have known”).
32

With respect to all four of Vincent’s retaliation claims, defendants
concede that the first element is satisfied. The conduct for which Vincent was
allegedly retaliated against — filing grievances — is protected under the First
Amendment. See Memorandum of Law in Support of Defendants’ Motion for
Summary Judgment (“Def. Mem.”) at 7 (“Defendants do not dispute that the First
Amendment protects an inmate’s decision to file a grievance or a lawsuit, but
plaintiff fails to prove the remaining elements of his claim.”).
33

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described in Vincent’s complaint, is insufficiently serious to “constitute an adverse
action” as a matter of law.34 Second, they point to the fact that Vincent’s lawsuits
were filed years before the alleged retaliation, and they addressed incidents that
happened elsewhere. Accordingly, defendants argue that Vincent has not shown
the necessary “indicia of a causal connection” between his protected expression
(the filing of lawsuits) and the allegedly retaliatory act.
Both of these arguments fail. With respect to the first, defendants rely
heavily on Boddie v. Schneider,35 a Second Circuit case holding that plaintiff’s
allegation of being verbally harassed and sexually touched without consent “did
not involve a harm of federal constitutional proportions as defined by the Supreme
Court.”36 Likewise here, argue defendants — because Vincent has failed to allege
anything more severe than what occurred in Boddie, there is no “adverse action” to
support his retaliation claim.
What the Government fails to mention is that Boddie concerned an
Eighth Amendment claim, which — for good reason — carries a more stringent
burden than First Amendment retaliation. For an officer to be liable under the

34

Id. at 9.

35

105 F.3d 857 (2d Cir. 1997).

36

Id. at 861. Accord Farmer, 511 U.S. at 833-34.
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Eighth Amendment, not only must he have a “culpable” mental state; he must
subject an inmate to an “unnecessary and wanton infliction of pain.”37 By holding
that verbal harassment and non-consensual sexual touching did not rise to that
level, the Second Circuit had no occasion to address whether it constituted an
“adverse action” for First Amendment purposes.
If anything, the reasoning in Boddie cuts against defendants’ position.
In the same breath that it dismissed Boddie’s claim, the Second Circuit also called
the alleged groping “despicable,” and took care to emphasize that even if “the
episodes of harassment and touching alleged by Boddie” did not support an Eighth
Amendment claim, they could nevertheless support other causes of action —
including “state tort actions.”38 Here, the question is whether Vincent’s
allegations, which are strikingly similar to the “episodes” in Boddie, suffice to
sustain a retaliation claim. Is sexual groping by an officer who is simultaneously
issuing verbal threats the kind of action that would deter a person of “ordinary
firmness” from exercising his or her constitutional rights? This is plainly a
question of fact. Defendants can certainly raise their “person of ordinary firmness”

37

Boddie, 105 F.3d at 861. Accord Hudson v. McMillian, 503 U.S. 1, 6-

7 (1992).
38

Boddie, 105 F.3d at 861.
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argument at trial — and if the argument succeeds, Vincent’s retaliation claim will
fail. But it would be inappropriate for the Court to resolve the issue at this stage.
Defendants’ second argument fares no better. “Even assuming
arguendo that the alleged groping constitutes an adverse action,” defendants argue
that Vincent has failed to “proffer any facts to support the requisite causal
connection between the alleged groping and a previously filed lawsuit.” For
support, defendants point to the fact that Vincent’s previous lawsuits — the
lawsuits for which C.O. Sitnewski was supposedly retaliating — concerned
incidents that occurred at different correctional facilities, and that C.O. Sitnewski
was not a named defendant in any of them.
This argument is puzzling. Although defendants are certainly correct
that “[a]s a general matter, it is difficult to establish . . . retaliation [by one officer]
for complaints against another [officer],”39 generalities do not resolve particular
cases. According to Vincent, C.O. Sitnewski, in the midst of groping his genitals,

Hare v. Hayden, No. 09 Civ. 3135, 2011 WL 1453789, at *4
(S.D.N.Y. Apr. 14, 2011). Accord Wright v. Goord, 554 F.3d 255, 274 (2d Cir.
2009) (dismissing a retaliation claim whose only causal basis was a letter that
plaintiff wrote many weeks before the allegedly retaliatory acts, implicating
officers other than named defendants). See also Def. Mem. at 11 (“[A] claim that
one defendant took action against the plaintiff in retaliation for a complaint made
against a different [officer] [should be] viewed with particular skepticism.”).
39

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said, “Isn’t one of your lawsuits about this, can’t nobody see if I fuck you in the
ass.” This might not be true, of course. But if it is true, a trier of fact could
certainly infer that C.O. Sitnewski was motivated by a retaliatory purpose — i.e.,
that the groping was meant to penalize Vincent for bringing past grievances, and to
dissuade future grievances. The claim cannot be dismissed as a matter of law.
2.

Claim Four

Claim Four is amenable to essentially the same analysis as Claim One.
Vincent alleges that C.O. Depo and Lt. Schmidt intruded on his shower, removing
the shower curtain and his clothes, leaving Vincent naked in the shower room for
approximately an hour. Furthermore, Lt. Schmidt allegedly told Vincent that he
wanted to see “what kind of man” Vincent was “without his pen” — a thinly-veiled
reference, Vincent argues, to his previous complaints.
As with Claim One, defendants’ strategy here is to argue that
Vincent’s allegations, even if true, fail to satisfy the elements of retaliation. First,
the Government argues that whatever psychological harm Vincent suffered as a
result of the shower incident, it was only de minimus — and therefore insufficient
to ground a First Amendment claim.40 Once again, however, defendants have
confused the injury required in the retaliation context — adverse action — with the
40

Def. Mem. at 17.
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more exacting standard of harm required under the Eighth Amendment.41
Vincent’s allegations do not rise to the level of the latter. But do they describe
action that would make a person of “ordinary firmness” disinclined to exercise his
rights? Defendants find this proposition “[im]plausibl[e].”42 Vincent clearly
thinks otherwise. Which side is right is a question of fact.
Second, defendants dispute Vincent’s theory of causation. Citing to
the same case law invoked as to Claim One,43 defendants argue that “[t]here is
nothing in the record to indicate which grievance or grievances” Lt. Schmidt was
referring to when he made reference to Vincent’s “pen,” or whether he was
“talking about [Vincent’s] grievances at all, if in fact [Lt. Schmidt] said what he is
alleged to have said.”44 But both questions — whether Lt. Schmidt made the
remark about the pen, and, assuming he did, what the remark meant — are issues
of fact. Defendants are correct that “nothing in the record” supports Vincent’s
allegation. But given the nature of that allegation, what evidence (apart from
Vincent’s own testimony) plausibly could support it? Greenhaven likely does not

41

See id. (citing exclusively to Eighth Amendment cases).

42

Id.

43

See Wright, 554 F.3d at 274.

44

Def. Mem. at 18.
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keep records about the humiliation tactics employed by officers against inmates,
and Vincent had no opportunity to perform an investigation to secure physical
evidence. Ultimately, the viability of Vincent’s claim comes down to the
credibility of his account. That is for the jury to decide.
3.

Claim Five

The same basic analysis applies to Claim Five. Vincent alleges that
C.O. Relf entered his cell and warned Vincent that if he filed any more grievances,
or if Relf caught him doing “any of that Muslim stuff around here,” Relf was going
to “jump” him. Defendants do not argue — nor could they argue — that Relf’s
threat was not causally connected to Vincent’s past grievances. Relf drew the
connection explicitly. Instead, defendants focus on the severity of the retaliatory
conduct. According to defendants, Vincent’s “allegation that C.O. Relf threatened
to jump him, without anything more, does not constitute [] an adverse action,”
because under Second Circuit law, “[i]t is well-established that insulting or
disrespectful comments directed at an inmate generally do not rise to the level of
conduct that would deter [the exercise of] constitutional rights.”45

45

Def. Mem. at 19.
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Defendants are right on the law, but they misrepresent the facts of this
case. The Second Circuit has explained that “insulting or disrespectful comments
directed at an inmate,”46 as well as “verbal responses of resentment or even ridicule
[in response to inmate complaints],”47 do not give rise to retaliation claims. Here,
however, Vincent does not allege that C.O. Relf insulted or ridiculed him — he
alleges that Relf threatened him with physical harm. As to that kind of comment,
the Second Circuit has not definitively spoken, and courts in this District are split.48
In the absence of further guidance, I decline to grant summary judgment on Claim
Five. A reasonable juror could find that the prospect of being “jumped” by an

46

Davis, 320 F.3d at 353.

47

Dawes, 239 F.3d at 493.

Compare Hofelich v. Ercole, No. 06 Civ. 1369, 2010 WL 1459740, at
*2 (S.D.N.Y. Apr. 10, 2010) (holding that “verbal threats,” if they are “specific[],”
can “constitute adverse action” for retaliation purposes), with Rembert v. Cheverko,
No. 12 Civ. 9196, 2014 WL 3384629, at *9 (S.D.N.Y. July 10, 2014) (allegation
that officers “intimidated [plaintiff]” after he filed a grievance was “insufficient to
allege adverse action”). See also Mateo v. Fischer, 682 F. Supp. 2d 423, 434
(S.D.N.Y. 2010) (collecting cases in both directions).
48

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officer, even if no physical altercation actually occurred,49 would deter an inmate
of “ordinary firmness” from asserting his or her constitutional rights.
4.

Claim Three

Finally, Vincent alleges that C.O. Stetson and C.O. Carter handcuffed
him to a bedpost for eighteen hours, as payback, they explained, for his grievances.
Here, defendants change their tack. Although they make a faint-hearted attempt to
suggest that being handcuffed to a bedpost does not qualify as an adverse action,50

Defendants emphasize that “[Relf’s] threats never amounted to
anything” to bolster the view that those threats did not rise to the level of adverse
action. Def. Mem. at 20. Some judges in this District have agreed with this
reasoning. See, e.g., Fischer, 682 F. Supp. 2d at 434 (citing the fact that defendant
“never followed through on [his] threats” as support for dismissal). But it is
difficult to see why the materialization of a threat (or not) bears on its chilling
effect. The latter turns on whether a threat is perceived as serious, not on whether
it actually turns out to be serious.
49

The main support for this argument — which the Government wisely
does not press — comes from cases about tightly-applied handcuffs. See Def.
Mem. at 16 (collecting cases). Putting aside that these cases uniformly involve
Eighth Amendment challenges, not retaliation claims, the bigger problem is that
apart from involving handcuffs, they have nothing to do with Vincent’s allegations.
Even “extremely tight” handcuffing is not the same as — is not even in the same
vicinity as — the serious liberty deprivation alleged here. See Bender v. City of
New York, No. 09 Civ. 3286, 2011 WL 4344203 (S.D.N.Y. Sept. 14, 2011). In
Vincent’s words, “[t]his is not a case of excessively tight handcuffs. . . . [It] is a
case of [an inmate] being handcuffed for seventeen hours to his bed.” Opp. Mem.
at 22.
50

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and to dispute Vincent’s theory of causation,51 these arguments are only briefly
presented. Instead, defendants spend considerable time and energy arguing that
Vincent’s allegation “strains credulity,”52 and should be dismissed as “‘wholly
incredible.’”53 For support, defendants point to the fact that other officers — such
as C.O. Coccitti, who was assigned to patrol Vincent’s cell block the night of the
alleged incident — did not “not[e]” any “unusual activity” during their rounds.54
That no officer has come forward to inculpate C.O. Stetson and C.O.
Carter is hardly a surprise. Even if other Greenhaven officers had witnessed
something out of the ordinary, the likelihood of their saying so is slight — “[t]he
notion of a corrections officer trying to protect [his or her] own is hardly

See Def. Mem. at 15 (describing Vincent’s view of causation as mere
“guess work”). As with Claims One and Four, however, the trouble with the
Government’s position is that Vincent has clearly alleged that C.O. Stetson and
C.O. Carter made verbal reference to his grievances. To deem this allegation
“guess work” — and grant summary judgment on that basis — would, in practice,
be nothing more than a determination of Vincent’s credibility. At this stage, that is
precisely what this Court is supposed to avoid. See Jeffreys v. Rossi, 275 F. Supp.
2d 463, 475 (S.D.N.Y. 2003) (“It is axiomatic that courts should not assess
credibility on summary judgment.”).
51

52

Def. Mem. at 11.

Id. at 12 (citing Denton v. Hernandez, 504 U.S. 25, 33 (1992)).
Accord Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 364 (2d
Cir. 2000) (holding that “frivolous” actions should be dismissed so as to “preserve
scarce judicial resources”).
53

54

Def. Mem. at 13.
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fantastical.”55 Furthermore, the cases cited by defendants deal with contradictory
allegations, not allegations that seem unlikely as a matter of fact. For example, in
Jeffreys v. Rossi56 — a case presided over by this Court, and ultimately affirmed by
the Second Circuit57 — plaintiff’s theory of the case required him to deviate from,
and at times blatantly contradict, the story that he originally relayed to law
enforcement. After admitting numerous times (to multiple officials) that he had
jumped out of a third-story window, and that his injuries stemmed from the
resulting fall, plaintiff changed his version of events nine months later, weaving an
intricate tale of excessive force, which included, inter alia, forcible defenestration
by the police.58 This revisionist account of events was “so replete with
inconsistencies,” and so plainly grated against the rest of the record, that “[no]
reasonable jury could [have found] that excessive force was used against
[plaintiff].”59

55

Barrington v. New York, 806 F. Supp. 2d 730, 750 (S.D.N.Y. 2011).

56

275 F. Supp. 2d 463 (S.D.N.Y. 2003).

57

See Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005).

58

See Jeffreys, 275 F. Supp. 2d at 475-78.

59

Id. at 475.
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Here, by contrast, Vincent has not contradicted himself, or otherwise
given the Court reason to doubt the coherence of his allegations. Defendants have
made clear that they find those allegations improbable. But improbability is not
the same as inconsistency. Where the latter concerns the relationship between
allegations (or different versions of the same allegation), the former ultimately
requires a determination of credibility — and “it is axiomatic,” of course, “that
courts should not assess credibility on summary judgment.”60 As the Supreme
Court has explained, claims should only be dismissed as “factually frivolous” at
the summary judgment stage if they are “fanciful,” “fantastic,” or “delusional,” not
because “the court finds [a] plaintiff’s allegations unlikely.”61
The allegations here are quite serious. If Vincent’s version of events
is true, two officers used their position of power to threaten and dehumanize an
inmate they were supposed to protect. According to defendants, Vincent’s story is
“incredible, if not absurd.”62 But that is not a judgment I can make — particularly
Id. at 476. In affirming the result in Jeffreys, the Second Circuit was
careful to emphasize that its holding was limited to “the rare circumstances where
[a] plaintiff relies almost exclusively on his own testimony, much of which is
contradictory and incomplete,” making it necessary for the district court to
“assess[] [] the plaintiff’s account” at the summary judgment stage. Jeffreys, 426
F.3d at 554.
60

61

Denton, 504 U.S. at 32-33.

62

Def. Mem. at 12.
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given the state of correctional facilities right here in New York. Just this month,
the City agreed to a far-reaching settlement with inmates from Rikers Island, after
the U.S. Attorney’s Office of Manhattan “issued a blistering report that found
rampant use of unnecessary and excessive force by correction officers against
adolescent inmates and the widespread violation of their civil rights.”63 What if
one these inmates had filed a 1983 claim and — as here — offered no evidence
beyond his own version of events? Presumably — as here — defendants would
have waved off the allegation as “frivolous.” But that just underscores why
credibility determinations are best left to finders of fact. What seems “fanciful” or
“delusional” to one person may seem perfectly reasonable to another. Vincent
should have an opportunity to relay his story to a jury.
C.

Qualified Immunity
Finally, the officers are not entitled to qualified immunity on any of

the three surviving claims. Defendants argue that their conduct, regardless of its

“New York City Settles Suit Over Abuses at Rikers Island,” N.Y.
TIMES (June 22, 2015). Nor is this the only example of inmate abuse in the New
York state prison system that has come light in recent months. See, e.g., “Three
Attica Guards Resign in Deal to Avoid Jail,” N.Y. TIMES (Mar. 2, 2015)
(documenting the resignation of three former corrections officers who, while at
Attica, beat an inmate until he was “drenched in blood”).
63

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constitutionality, “[did] not violate [a] clearly established . . . right[].”64 But if
Vincent succeeds in demonstrating that retaliation occurred, the right imperiled by
officers at Greenhaven — the right to speak out without fear of reprimand — was
well-ingrained at the time of the disputed conduct. Retaliation claims have long
been a fixture of First Amendment law. Only a “plainly incompetent” officer — or
one who was intentionally violating the Constitution — would think it permissible
to single out an inmate for adverse action because he spoke out against something
that happened (to him or someone else) in the prison.65
Defendants’ secondary argument also fails. Even assuming that the
law grounding Vincent’s claims “could be deemed to have been clearly
established,” defendants nevertheless contend that “it was reasonable for an official
in [their] position to have believed that no such law existed.”66 Whether or not that
is true, it is irrelevant. Qualified immunity does not permit an “ignorance of the
law” defense. For good reason — allowing officials to escape liability because
they do not know what the law requires of them would set exactly the wrong

64

Def. Mem. at 24 (emphasis added).

Ashcroft v. Al-Kidd, 131 S.Ct. 2074, 2085 (2011) (“[Qualified
immunity] protects all but the plainly incompetent or those who knowingly violate
the law.”) (internal citations omitted).
65

66

Def. Mem. at 24.
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incentives. And it would undermine the key virtue of qualified immunity doctrine
- that if nothing else, the "clearly established" test is objective. The defendants in
this case either violated Vincent's well-established rights, or they did not. Either
way, qualified immunity affords them no shield.

VI.

CONCLUSION
For the foregoing reasons, the Government's motion for summary

judgment is GRANTED in part and DENIED in part. The Clerk of the Court is
directed to close this motion (Dkt. No. 73). Furthermore, because this case is
proceeding to trial, and because Vincent's claims satisfy the standard set forth in
Hodge v. Police Officers, 67 the Clerk of the Court is also directed to find pro bono
counsel to represent Vincent. A status conference is set for July 21, 2015 at 4:30
PM.
SO ORDERED:

hira A. Scheindlin
U.S.D.J.

Dated:

67

New York, New York
June 25, 2015

See 802 F.2d 58, 61-62 (2d Cir. 1986).
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- Appearances Plaintiff (Pro Se):
Damon Vincent
02-A-2314
Fishkill Correctional Facility
Box 1245
Beacon, NY 12508
For Defendants:
Julia Lee
Assistant Attorney General
New York State Department of Law
120 Broadway, 24th Floor
New York, NY 10271
[phone]

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