Tirado v. Shutt et al
Filing
153
MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION IN PART re: 100 FIRST MOTION for Summary Judgment . filed by Stacy Dominic, B. Shutt, Kyle Jackson, R. Lassiter, S. Holiday. For the foregoing reasons, Plaintiff's objections to Judge Peck's Report are sustained in part. The Report is adopted with the exception of section III.C.3 thereof. Accordingly, Plaintiff's claims against Defendants Dominic and Jackson are DISMISSED in their entirety; Defendant s' motion for partial summary judgment is DENIED with respect to (1) Tirado's claim that the remaining Defendants retaliated against him on April 19, 2012, for requesting to speak to a sergeant by assaulting him and issuing a false misbehav ior report based on the assault, (2) his claim that the remaining Defendants planted contraband in his cell as a further act of retaliation, and (3) his claim that Defendant Holliday intimidated him and his parents on March 23, 2014, as part of a pat tern of retaliatory actions. The motion is GRANTED in all other respects. The three claims enumerated in the foregoing paragraph remain for trial, along with the following claims: (4) Plaintiff's claim that a March 16, 2014, misbehavior report w as retaliatory, and (5) Plaintiff's claim that Defendants used and/or failed to intervene in the use of excessive force against Plaintiff on April 19, 2012, in violation of Plaintiff's Eighth Amendment rights. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Accordingly, any application to proceed on appeal in forma pauperis with respect to the claims addressed in the Report and this Order is denied. See Cop pedge v. United States, 369 U.S. 438, 444 (1962). The final pre-trial conference in this action is rescheduled to September 18, 2015, at 11:45 a.m. and the related deadlines are modified accordingly. SO ORDERED. (As further set forth within this Order.) Party Stacy Dominic and Kyle Jackson terminated. (Signed by Judge Laura Taylor Swain on 7/22/2015) (ajs) Modified on 7/22/2015 (ajs).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
MIGUEL TIRADO,
Plaintiff,
No. 13CV2848-LTS-AJP
-againstSERGEANT BRIAN SHUTT et al.,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION IN PART
On April 15, 2013, Plaintiff Miguel Tirado (“Plaintiff”) filed the initial pro se
complaint in this action asserting claims against Defendants Sergeant Brian Shutt, Lieutenant
Stacy Dominic and Corrections Officers Steven Holliday (“Holliday”), Rodney Lassiter
(“Lassiter”) and Kyle Jackson (collectively, “Defendants”) arising from a series of alleged
constitutional violations. On January 24, 2014, the case was referred to Magistrate Judge Debra
C. Freeman for dispositive motion practice and, on August 6, 2014, it was reassigned to
Magistrate Judge Andrew J. Peck. Plaintiff, now represented by counsel, filed an Amended
Complaint on August 27, 2014 (See Amended Complaint (“Am. Compl.”), Docket Entry No.
80), and on December 29, 2014, Defendants moved for partial summary judgment. (See
Defendants’ Motion For Summary Judgment, Docket Entry No. 100.)
On February 23, 2015, Judge Peck issued a Report and Recommendation
(“Report”) recommending, inter alia, that the Court grant Defendants’ motion for partial
summary judgment dismissing three of Plaintiff’s First Amendment retaliation claims, namely:
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(1) that Plaintiff was assaulted in April 2012 in retaliation for filing a January 2012 grievance;
(2) that an unknown officer told him to “hold it down” in response to his attempt to report the
April 2012 assault; and (3) that he and his parents were intimidated and menaced in retaliation
for the filing of the instant lawsuit.1 (See Docket Entry No. 115.) On March 9, 2015, Plaintiff
filed objections to the Report, specifically objecting to Judge Peck’s recommendations
concerning his “hold it down” and parental intimidation claims, and urging the Court to adopt
the remainder of Judge Peck’s analysis. (See Plaintiff’s Partial Objections to Report and
Recommendation (“Pl. Objections”), Docket Entry No. 123.) The Court has carefully reviewed
the Report, the parties’ submissions and the record relied upon by Judge Peck in his
determination of the summary judgment motion. For the following reasons, Plaintiff’s
objections are sustained in part and the Court adopts the Report in part.
BACKGROUND
The following facts are, unless characterized as claims or allegations, undisputed.2
Plaintiff Miguel Tirado is currently incarcerated by the New York State Department of
Corrections at Sing Sing Correctional Facility. (Defendants’ Local Civil Rule 56.1 Statement
1
Defendants have thus moved for summary judgment dismissing all of Plaintiff’s
First Amendment retaliation claims with the exception of the claim that a March 16,
2014, misbehavior report was filed “to advance Defendants’ conspiracy to destroy
[Plaintiff’s] credibility and cover up Defendants’ bad acts.” Defendants have not
moved for summary judgment on Plaintiff’s Eighth Amendment excessive force
claim.
2
The undisputed facts are identified as such in the parties’ statements pursuant to
S.D.N.Y. Local Civil Rule 56.1 or drawn from evidence as to which there is no nonconclusory factual proffer. Citations to the parties’ respective Local Civil Rule 56.1
Statements (Pl. 56.1 St.; Defs. 56.1 St.) incorporate by reference the parties’
citations to underlying evidentiary submissions.
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(“Defs. 56.1 St.”), Docket Entry No. 101, ¶ 1; Plaintiff’s Local Civil Rule 56.1 Statement (“Pl.
56.1 St.”), Docket Entry No. 105, ¶ 1.) On January 13, 2012, Plaintiff’s cell was searched by two
Sing Sing corrections officers. (Defs. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.) During the course of the
search, Plaintiff felt sick and laid down on the floor. (Defs. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.)
Plaintiff claims that he was dragged from his cell and down two flights of stairs to the infirmary.
(Defs. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.) In connection with this incident, Plaintiff filed an inmate
grievance alleging staff misconduct and harassment. (Defs. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.)
Plaintiff’s grievance was denied by the Superintendent at Sing Sing. (Defs. 56.1 St. ¶¶ 8-9; Pl.
56.1 St. ¶¶ 8-9.) On appeal, the Central Officer Review Committee upheld the Superintendent’s
denial. (Defs. 56.1 St. ¶¶ 8-9; Pl. 56.1 St. ¶¶ 8-9.) In his Amended Complaint, Plaintiff alleges
that Defendants were aware of his January 2012 grievance. (Am. Compl. ¶ 15.) Defendants,
however, have denied any knowledge of the grievance. (See generally Declaration of Neil
Shevlin in Support of Motion for Summary Judgment (“Shevlin Decl.”), Docket Entry No. 102,
Attachments 1-5: Declarations of Brian Shutt (“Shutt Decl.”), Kyle Jackson (“Jackson Decl.”),
Steven Holliday (“Holliday Decl.”), Rodney Lassiter (“Lassiter Decl.”) and Stacy Dominic
(“Dominic Decl.”).)3
Plaintiff further claims that, on April 19, 2012, Corrections Officers Holliday and
Lassiter assaulted him when he requested to speak with a sergeant about being denied his
recreation time. (Plaintiff’s Opposition to Motion for Summary Judgment (“Pl. Opp.”), Docket
Entry No. 104 ¶¶ 3-4; See generally Declaration of Paul Kremer (“Kremer Decl.”, Docket Entry
No. 106, Ex. C (“Tirado Dep.”) at 40-47.) Three fellow Sing Sing inmates, Anthony Cassidy,
3
The corrections officers and nurse who were the subject of Plaintiff’s January 2012
grievance are not defendants in this suit. (Pl. 56.1 St. ¶ 7; Def. 56.1 St. ¶ 7.)
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Elias Otero and Kelvin Vazquez, all provided deposition testimony in which they claimed to have
seen Officer Holliday approach Plaintiff’s cell as he called out to speak with a sergeant. (See
Kremer Decl., Ex. E (“Cassidy Dep.”) at pp. 4, 6, 17-18; Ex. I (“Vazquez Dep.”) at pp. 6-7; Ex. J
(“Otero Dep.”) at pp. 15, 25.) Inmates Anthony Cassidy and Kelvin Vazquez corroborate
Plaintiff’s claim that he requested to speak to a sergeant in connection with the denial of his
recreation time. (Cassidy Dep. at 6:3-9; Vazquez Dep. at 6:4-10.) During this interaction,
Officer Holliday allegedly had Plaintiff exit his cell and walk down to the center gate area of the
gallery. (Tirado Dep. at 40:17-22; Cassidy Dep. at 7:4-7:16; Vazquez Dep. at 6:4-7:6.) Officer
Holliday knew that the area near the center gate was not visible to any cameras or other inmates.
(Kremer Decl., Ex. D (“Holliday Dep.”) at 144:17-145:13.) Inmates Vazquez and Cassidy
testified that, without provocation, Officer Holliday pushed and struck Plaintiff after ordering him
to the center gate area. (Cassidy Dep. at 7:16-25, 20:2-21:24; Vazquez Dep. at 7:7-9, 12:3-25.)
Plaintiff has alleged that Officer Holliday pinned him against a wall while Officer Lassiter
repeatedly punched him in the face. (Tirado Dep. at 40:7-41:1, 43:2-45:18, 87.) Defendants
concede that an altercation took place and that Officers Holliday and Lassiter used force against
Plaintiff. (Defs. 56.1 St. ¶ 12.) They claim, however, that the use of force was in response to
Plaintiff refusing to follow a direct order and striking Officer Holliday in the face. (Holliday
Decl. ¶ 4.)
Following the altercation, Plaintiff was taken to the infirmary (Defs. 56.1 St. ¶ 12;
Pl. 56.1 St. ¶ 12), where he claims that he tried to explain the assault to Lieutenant Stacy
Dominic. (Am. Compl. ¶ 35; Tirado Dep. at 50:2-14.) Plaintiff further alleges that, after
Lieutenant Dominic left the medical facility, an unidentified corrections officer instructed him to
“hold it down” in response to his attempt to explain his version of the assault. (Am. Compl. ¶ 35;
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Tirado Dep. at 51:7-22.) Plaintiff contends that he understood “hold it down” to mean that he
should not tell anyone that he had been assaulted or why. (Tirado Dep. at 55:1-56:22; Kremer
Decl., Ex. L: Benjamin Weiser and Michael Schwirtz, U.S. Inquiry Finds a ‘Culture of Violence’
Against Teenage Inmates at Rikers Island, N.Y. TIMES, Aug. 4, 2014, http://nyti.ms/1zNzLO9)
(reporting that “hold it down” is a coded phrase used by corrections officers to pressure inmates
into not reporting beatings under threat of violence or disciplinary sanction). Plaintiff has
admitted that none of the Defendants named in this suit were at the medical facility when the
alleged threat was made. (See generally Tirado Dep. at 48:13-24, 51:7-20, 55:12-13, 56:6-13.)
Plaintiff was sentenced to ninety days in the Special Housing Unit (“SHU”) in
connection with the April 2012 altercation and resulting misbehavior reports. (Defs. 56.1 St. ¶
18; Pl. 56.1 St. ¶ 18.) Plaintiff was transferred from Sing Sing to Mid-State Correctional Facility
on May 4, 2012, to serve this time. (Defs. 56.1 St. ¶ 24; Pl. 56.1 St. ¶ 24.) After completing his
SHU sentence at Mid-State, Plaintiff was transferred to Auburn Correctional Facility on August
1, 2012, and then back to Sing Sing on February 10, 2014. (Defs. 56.1 St. ¶¶ 25-26; Pl. 56.1 St.
¶¶ 25-26.)
On April 25, 2013, Plaintiff filed a pro se complaint outlining the facts of the
alleged April 19, 2012, assault by Officers Holliday and Lassiter. (Complaint (“Compl.”),
Docket Entry No. 2 ¶¶ 6-13.) Plaintiff also alleged that Steven Slivinski, a corrections officer at
Auburn Correctional Facility, filed an inmate misbehavior report against him to retaliate for filing
the April 2013 complaint. (Am. Compl. ¶ 69-70; Tirado Depo. at 64-65.) At a deposition taken
following the filing of this suit, and in his Amended Complaint, Plaintiff claimed that on March
16, 2014, Officer Holliday harassed him by “talking to [him] about this case and why [he is]
doing it” (Tirado Dep. at 110:2-13) and “menacing him in the hospital waiting room.” (Am.
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Compl. ¶ 76.) Officer Holliday filed a misbehavior report against Plaintiff on or around March
17, 2014, allegedly stemming from the March 16, 2014, incident, in which he claimed that
Plaintiff had engaged in harassing and violent conduct in the emergency room. (Kremer Decl.,
Ex. V.) Plaintiff was subsequently found guilty of all charges filed against him. (Id.)
Plaintiff has further alleged that, during a visit with his parents on March 23, 2014,
Officer Holliday intimidated and menaced them by pacing behind his father while glaring as they
conversed in the visiting room. (Am. Compl. ¶ 81; Tirado Dep. at 91:3-20.) On August 2, 2014,
Officer Holliday filed another misbehavior report against Plaintiff, claiming that he made threats,
harassed a corrections officer and violated visiting procedures. (Kremer Decl., Ex. W.) Plaintiff
was found guilty only of the visiting violation, and the hearing disposition officer found that
Officer Holliday’s testimony “failed to corroborate” the other charges. (Id.)4 Plaintiff has not,
however, filed a grievance in connection with the August 2014 misbehavior report. (Declaration
of Quandera Quick ¶ 3 (attached to Supplemental Declaration of Neil Shevlin), Docket Entry No.
113.)
DISCUSSION
Standard of Review
When reviewing a magistrate judge’s report and recommendation, the Court “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate.” 28 U.S.C.S. § 636(b)(1)(C) (LexisNexis 2012). In reviewing those portions of a
report to which no timely objection has been made, “a district court need only satisfy itself that
4
Officer Holliday has since admitted that he issued the August 2, 2014, misbehavior
report “to protect [his] interests, [his] job.” (Id.)
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there is no clear error on the face of the record.” Carlson v. Dep’t of Justice, No. 10CV5149PAE-KNF, 2012 WL 928124, at *1 (S.D.N.Y. Mar. 19, 2012) (internal citation omitted).
Furthermore, objections that “simply reiterate original arguments” need only be subjected to clear
error review. See e.g., Pineda v. Masonry Const. Inc., 831 F. Supp. 2d 666, 671 (S.D.N.Y. 2011).
However, where specific objections are made, the Court must make a de novo determination as to
those aspects of the report. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In
making its de novo determination of a matter specifically objected to, a district judge “has
discretion in the weight placed on proposed findings and recommendations and may afford a
degree of deference to the Report and Recommendation.” Vaccariello v. XM Satelite Radio Inc.,
295 F.R.D. 62, 67 (S.D.N.Y. 2013).
A movant is entitled to summary judgment where “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Thus, to succeed at the summary judgment stage, the movant must demonstrate “the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). “The plain language of Rule 56[] mandates the entry of summary judgment . . . against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Id. If such a
showing is disputed, the court must determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
The Court reviews de novo Judge Peck’s recommendations that Plaintiff’s First
Amendment retaliation claims that he was told to “hold it down” by an unknown officer in
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response to his attempt to report the April 2012 assault, and that he and his parents were
intimidated and menaced in response to the filing of the instant lawsuit, should be dismissed.5
Plaintiff’s First Amendment Retaliation Claims
Legal Standards
To make out a First Amendment retaliation claim, a plaintiff must establish: (1)
that the speech or conduct in which he engaged was constitutionally protected; (2) that the
defendant took adverse action against him; (3) and that there was a causal connection between the
adverse action and the protected speech or conduct. See Holland v. Goord, 758 F.3d 215, 225 (2d
Cir. 2014). The First Amendment’s freedom of speech protection extends to complaints filed by
inmates against prison officials. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996) (finding an
inmate’s filing of a grievance to be constitutionally protected and retaliation against a prisoner for
pursuing such a grievance a violation of a right guaranteed by the First Amendment); Ayers v.
Roberts, No. 05CV0889A, 2008 WL 2079921, at *6 (W.D.N.Y. May 15, 2008) (“The filing of
formal prisoner grievances is among the conduct protected by the First Amendment and thus
actionable under § 1983.”). Inmates are similarly protected when they file lawsuits against prison
officials. See, e.g., Espinal v. Goord, 558 F.3d 119, 128-29 (2d Cir. 2009) (finding that
defendant’s federal lawsuit was a protected activity). In some circumstances this protection
extends beyond the filing of formal grievances to oral complaints made to corrections officers.
Smith v. Woods, No. 03CV0480, 2006 WL 1133247, at *10 (N.D.N.Y. Apr. 24, 2006) (extending
First Amendment protection to prisoner’s oral complaints to correction officers), aff’d, 219 F.
5
Plaintiff has raised no specific objection with respect to Judge Peck’s
recommendation that his claim that the April 2012 assault was carried out in
retaliation for his grievance filed against corrections officers on January 18, 2012,
should be dismissed and, as indicated above, urges this Court to adopt the remainder
of Judge Peck’s Report and Recommendation. (See Pl. Objections at p. 2.)
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App’x 110 (2d Cir. 2007). Defendants do not dispute that Plaintiff’s April 2012 request to speak
with a sergeant, and the filing of this suit, are constitutionally protected actions. (See generally
Defendant’s Reply to Plaintiff’s Opposition to Defendant’s Motion for Summary Judgment
(“Defs. Reply Br.”), Docket Entry No. 112, at p. 4.)
To establish an adverse action under the First Amendment retaliation analysis, a
plaintiff must demonstrate that a person of ordinary firmness would have been deterred from the
exercise of his constitutional rights by the action taken against him. Davis v. Goord, 320 F.3d
346, 353 (2d Cir. 2003). Such actions must be more than trivial to meet the ‘ordinary firmness’
threshold; otherwise they are regarded as de minimis and fail to meet the adverse action prong of
the First Amendment retaliation analysis. Id.
Courts will consider a number of factors in determining whether a causal
connection exists between the plaintiff’s protected activity and an adverse action, such as: (1) the
outcome of any hearing concerning the allegedly retaliatory charges; (2) the inmate’s prior
disciplinary record; (3) any statements made by the defendant concerning his motivation; and (4)
the temporal proximity between the protected activity and the defendant's adverse action. See
Williams v. Muller, No. 98CV5204-BSJ, 2001 WL 936297, at *3 (S.D.N.Y. Aug. 17, 2001); see
also Colon v. Coughlin, 58 F.3d 865, 872-73 (2d Cir. 1995).
Plaintiff’s “Hold it Down” Claim
In his Report, Judge Peck concludes that the “hold it down” threat made against
Plaintiff by an unknown corrections officer was too vague to constitute an adverse action because
the statement lacked enough specificity to deter Plaintiff from reporting the alleged assault.
(Report at p. 22.) In his Objections, Plaintiff cites a newspaper report as corroboration for the
proposition that it is well known that “hold it down” is a coded phrase used by corrections
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officers to instruct inmates not to report beatings and conveys a threat of physical violence or
disciplinary sanction. (Pl. Objections at p. 4.) Furthermore, Plaintiff argues that he has raised a
disputed issue of material fact with respect to the causal connection between the reporting of the
alleged assault and the “hold it down” threat. (Pl. Objections at p. 5.)
Courts generally approach First Amendment retaliation claims brought by inmates
“with skepticism and particular care.” Davis, 320 F.3d at 352. Though certain verbal threats may
rise to the level of adverse actions, such threats are generally either quite specific or made on a
repeated basis. Hepworth v. Suffolk County, No. 02CV6473-ENV-ETB, 2006 WL 2844408, at
*8-9 (E.D.N.Y. Sept. 29, 2006) (holding that “a reasonable jury could find that [correction
officers] unconstitutionally retaliated against [inmate] ... for exercising his First Amendment”
rights where there were “continued verbal threats” that the inmate would be subjected to “another
beating or be killed.”).
Plaintiff has tendered insufficient admissible evidence to raise a genuine issue as
to whether the alleged “hold it down” comment was anything more than a vague and unspecific
threat that was de minimis in nature. Hostile statements of prison guards, though made in
connection with an inmate’s exercise of free speech, do not presumptively violate the First
Amendment. Davis, 320 F.3d at 353 (noting that a prisoner may be required to tolerate more than
an average citizen before a retaliatory action taken against him is considered adverse); See e.g.,
Bartley v. Collins, No. 95CV10161-RJH, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006)
(noting that “verbal threats such as ‘we going to get you, you better drop the suit,’ do not rise to
the level of adverse action.”). The Court therefore agrees with Judge Peck’s determination that an
unknown officer’s “hold it down” statement to Plaintiff does not rise above the level of a de
minimis action.
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Furthermore, Plaintiff has failed to raise a genuine issue of material fact as to
whether any defendant named in this suit caused the “hold it down” threat to be made. In order to
support his First Amendment retaliation claim, Plaintiff must proffer facts sufficient to support a
finding of Defendants’ involvement in the alleged retaliation. Rosales v. Fischer, No.
07CV10554 -LAP, 2011 WL 253392, at *10 (S.D.N.Y. Jan. 24, 2011) (granting summary
judgment where plaintiff failed to point to any evidence to counter named defendant’s denial of
his alleged role in a retaliatory action). Although Plaintiff argues that an issue of material fact
exists as to whether Defendants caused the unknown officer to instruct him to “hold it down,” he
has made no evidentiary proffer placing any of the Defendants in the medical facility at the time
the statement was made, nor has he proffered any evidence from which a non-speculative
conclusion could be drawn that Defendants colluded with the unknown officer or induced him to
make the alleged threat. Plaintiff has thus failed to raise a genuine issue of material fact with
respect to the personal involvement of any of the Defendants in the unknown officer’s “hold it
down” threat, and thus cannot satisfy the causation element of the relevant analysis.
The Court has reviewed de novo the Report’s recommendation that the retaliation
claim based on the “hold it down” statement made by the unknown officer should be dismissed
for lack of any genuine issue of material fact. Because there is no evidence connecting the
statement to any of the named Defendants, the Court concurs in Judge Peck’s conclusion that
Defendants are entitled to summary judgment dismissing this claim.
Plaintiff’s Intimidation Claim
The Report further recommends dismissal of Plaintiff’s claim that Officer Holliday
intimidated and menaced him and his parents during their March 23, 2014, visit. (Report at p.
14.) In the Report, Judge Peck treats the alleged visiting room incident as a stand-alone claim and
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concludes that Officer Holliday’s alleged pacing behind Plaintiff’s parents was too vague a threat
to constitute an adverse action. (Report at p. 24.) In his objections, Plaintiff contends that
Officer Holliday’s conduct was calculated to intimidate Plaintiff from exercising his right of
access to the court and, therefore, a reasonable jury could find that it rose to the level of an
adverse action. (Pl. Objections at p. 6.) Plaintiff also contends that Officer Holliday’s conduct,
even if not an adverse action standing alone, should be considered within the context of an
alleged campaign of harassment perpetrated against him, beginning with the April 2012 assault
and concluding with Officer Holliday’s August 2014 misbehavior report. (Pl. Objections at p. 5.)
Plaintiff argues that the temporal proximity between “a hearing period” associated with the
instant suit, in which Plaintiff testified that Officer Holliday had harassed him, and the pacing
incident establishes that Officer Holliday’s pacing “was part of this retaliation campaign.” (Pl.
Objections at p. 6.)
Although the incident is, standing alone, insufficient to constitute an adverse
action, a claim of retaliation may be made out based on a series of actions motivated by
retaliation that are, collectively, sufficient to deter a person of ordinary firmness from exercising
his First Amendment rights. See Thaddeus-X v. Blatter, 175 F.3d 378, 398-99 (6th Cir. 1999)
(remanding for determination as to whether alleged harassment and cold meals would have
sufficient deterrent effect, and noting that harassment, physical threats, and relocation “would
likely have a strong deterrent effect”); see also Dabney v. Maddock, No. 10CV0519-GTS-DEP,
2011 WL 7479164, at *4 (N.D.N.Y. Nov. 29, 2011), report and recommendation adopted, No.
10CV0519-GTS-DEP, 2012 WL 760748 (N.D.N.Y. Mar. 7, 2012) (noting finding that, even if
none of plaintiff’s allegations rise “to a level sufficient to support a finding of adverse action,
collectively they could suffice to constitute adverse action.”).
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Plaintiff has raised genuine issues of fact concerning other allegedly retaliatory
conduct by Officer Holliday, specifically the April 19, 2012, beating, false charges, and alleged
planting of contraband in Plaintiff’s cell. The alleged pacing and glaring in the visiting room
took place shortly after the allegedly retaliatory March 16, 2014, misbehavior report was made,
and followed the filing of this lawsuit. Under these circumstances, it is not properly viewed only
as an isolated incident, and the jury may consider whether, if the Plaintiff proves that the incident
occurred, it was part of a pattern of retaliatory conduct that, collectively, rose to the level of
adverse action.
Plaintiff’s objection to this aspect of the Report is sustained.
CONCLUSION
For the foregoing reasons, Plaintiff’s objections to Judge Peck’s Report are
sustained in part. The Report is adopted with the exception of section III.C.3 thereof.
Accordingly, Plaintiff’s claims against Defendants Dominic and Jackson are DISMISSED in their
entirety; Defendants’ motion for partial summary judgment is DENIED with respect to (1)
Tirado’s claim that the remaining Defendants retaliated against him on April 19, 2012, for
requesting to speak to a sergeant by assaulting him and issuing a false misbehavior report based
on the assault, (2) his claim that the remaining Defendants planted contraband in his cell as a
further act of retaliation, and (3) his claim that Defendant Holliday intimidated him and his
parents on March 23, 2014, as part of a pattern of retaliatory actions. The motion is GRANTED
in all other respects.
The three claims enumerated in the foregoing paragraph remain for trial, along
with the following claims: (4) Plaintiff’s claim that a March 16, 2014, misbehavior report was
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retaliatory, and (5) Plaintiff’s claim that Defendants used and/or failed to intervene in the use of
excessive force against Plaintiff on April 19, 2012, in violation of Plaintiff’s Eighth Amendment
rights.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
Order would not be taken in good faith. Accordingly, any application to proceed on appeal in
forma pauperis with respect to the claims addressed in the Report and this Order is denied. See
Coppedge v. United States, 369 U.S. 438, 444 (1962).
The final pre-trial conference in this action is rescheduled to September 18, 2015,
at 11:45 a.m. and the related deadlines are modified accordingly.
SO ORDERED.
Dated: New York, New York
July 22, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
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