Kotler v. Boley et al
Filing
29
OPINION & ORDER re: 20 MOTION to Dismiss filed by C. Boley, J. Carreras, S. Reams: For the reasons stated above, Defendants' Motion To Dismiss is granted. This Opinion does not impact Plaintiff's outstanding claims against Defenda nt Chauvin. Moreover, because this is the first adjudication of Plaintiff's claims on the merits, the dismissal is without prejudice. If Plaintiff wishes to file an amended complaint, Plaintiff must do so within 30 days of the date of this Opini on. Plaintiff should include within the amended complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is advised that the amended complaint will replace, not supplement, th e original complaint. The amended complaint must contain all of the claims against all Defendants, including those who have not joined in this Motion to Dismiss. The Court will not consider factual allegations contained in supplemental letters, decla rations, or memoranda. If Plaintiff fails to abide by the 30-day deadline, his claims against the moving Defendants may be dismissed with prejudice. Moreover, Chauvin remains unserved and unrepresented. It appears that Chauvin was not served because she "retired," and is no longer able to be served at Fishkill. (Dkt. No. 18.) Accordingly, Defendants are instructed to inform the Court of the proper service address for Chauvin within 30 days of the issuance of this Opinion. The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No. 20), and mail a copy of this Opinion to Plaintiff at the address listed on the docket. (Signed by Judge Kenneth M. Karas on 9/28/2018) (jwh) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KERRY KOTLER,
Plaintiff,
-vNo. 17-CV-239 (KMK)
C. BOLEY, CORRECTION OFFICER; J.
CARRERAS, SERGEANT; K. CHAUVIN,
SENIOR COUNSELOR; AND S. REAMS,
INMATE GRIEVANCE PROGRAM
SUPERVISOR,
OPINION & ORDER
Defendants.
Appearances:
Kerry Kolter
Bellport, NY
Pro se Plaintiff
Jennifer R. Gashi, Esq.
Office of the New York State Attorney General
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiff Kerry Kotler (“Plaintiff”), an inmate at Fishkill Correctional Facility
(“Fishkill”), filed this pro se Action, under 42 U.S.C. § 1983, against C. Boley, Correction
Officer (“Boley”); J. Carreras, Sergeant (“Carreras”); K. Chauvin, Senior Counselor “SORC”
(“Chauvin”) and S. Reams, Inmate Grievance Program Supervisor (“Reams”) (collectively
“Defendants”), alleging violations of his constitutional rights under the First and Fourteenth
Amendments. (Compl. (Dkt. No. 2).) Before the Court is a Motion To Dismiss on behalf of
Defendants Boley, Carreras, and Reams pursuant to Federal Rule of Civil Procedure 12(b)(6). 1
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Chauvin is named in the lawsuit as a Defendant, however she remains unserved and
unrepresented.
(Defs.’ Mot. To. Dismiss Pursuant to Rule 12(b)(6) (“Defs.’ Mot.”) (Dkt. No. 21).) For the
reasons to follow, the Motion is granted.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Complaint and Plaintiffs Opposition to the
Motion to Dismiss (Pl.’s Opp’n to Defs.’ Mot. To Dismiss (“Pl.’s Opp’n”) (Dkt. No 26)), and are
taken as true for the purpose of resolving the instant Motion. During the time of the alleged
events, Plaintiff was a convicted prisoner at Fishkill.
On June 3, 2016, Plaintiff appeared before the Inmate Grievance Resolution Committee
(“IGRC”) regarding a grievance he submitted. (Compl. ¶ 2.) That same day, another inmate,
whom Plaintiff alleges he assisted in writing a grievance, also went before IGRC. (Id. ¶ 3.) The
next day, following Plaintiff’s appearance before the IGRC, Carreras directed Boley to conduct a
search of Plaintiff’s cell. (Id. ¶ 4.) During this search, Boley informed Plaintiff that “the search
was the result of an enemy stating Plaintiff was ‘advocating for other inmates.’” (Id. ¶ 7.) Boley
located a pair of tweezers that had been broken and altered, which “would normally be
considered a minor item of contraband.” (Id. ¶ 8.) Carreras thereafter instructed Boley to issue a
misbehavior report related to the tweezers, and Plaintiff was “immediately confined . . . to the
special disciplinary unit.” (Id. ¶ 12.) In the misbehavior report, Boley “falsely claimed that the
piece of the tweezers had been sharpened to a ‘razor[’]s edge,’” (id. ¶ 13), and, as a result,
Plaintiff was “confined to a special disciplinary unit for 90 days.” (Pl’s Opp’n ¶ 10.)
During Plaintiff’s confinement in the special disciplinary unit, he was subject to a
Disciplinary Hearing held between June 10, 2016 and July 25, 2016 and presided over by
Chauvin. (Compl. ¶ 18.) Plaintiff alleges that “Chauvin conducted the hearing in a manner that
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was bias[ed] and unfair,” (id. ¶ 19), and that Boley and Carreras falsely testified in order to
provide “the requisite justification for having conducted [the] search” in the first place. (Pl’s
Opp’n ¶ 11). Specifically, Boley testified that the search was “random,” while Carreras testified
that the search was a result “of information . . . advising him that [P]laintiff was in possession of
‘a weapon.’” (Compl. ¶ 15.) Moreover, Chauvin allowed other unnamed staff to interfere with
the proceedings, (id. ¶ 20), including, inter alia, allowing those staff to “direct what evidence
was and was not to be deemed relevant,” (id. ¶ 21), allowing Carreras to “tell [Chauvin] that
questions she asked him, at [P]laintiff’s request, were not relevant,” (id. ¶ 22), denying Plaintiff’s
request to call a witness, Sergeant Guarino, the supervisor of his housing area, (id. ¶¶ 24–26),
attempting to convince Plaintiff to plead guilty, (id. ¶ 26), and then offering Plaintiff a deal
wherein she would “impose a penalty” that would get him “immediate[ly] release[d] from the
box,” (id. ¶ 27). Chauvin also had “off the record conversations” that “were improper and
prohibited.” (Id. ¶ 31.)
After the search and hearing, Plaintiff “repeatedly attempted” to file grievances against
Defendants. (Id. ¶ 48.) However, Reams, the Supervisor of the Inmate Grievance Program,
made it “[e]xtremely difficult for [him] to file a grievance,” and “orchestrated [a] concerted
effort to keep Plaintiff from securing relief and exhausting his remedies.” (Id. ¶ 49.) Plaintiff
then filed this Complaint, alleging that the actions of Defendants “in searching [his] [cell], giving
false testimony . . . , conducting the hearing in an unfair and bias[ed] manner, and in frustrating
[his] efforts to the process due through the inmate grievance program,” were retaliatory actions
based upon Plaintiff’s filing of a grievance, as well as his assisting another inmate with the
submission of that inmate’s grievance. (Id. ¶ 51.)
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B. Procedural History
Plaintiff filed the Complaint on January 11, 2017. (See Compl.) Plaintiff’s request to
proceed in forma pauperis was granted on April 28, 2017. (See Dkt. No. 5.) The Court issued an
Order of Service on May 4, 2017, directing the U.S. Marshals to effect service on the named
Defendants. (See Dkt. No. 7.) On August 28, 2017, Defendants submitted a Letter Motion for
Extension of Time to File an Answer, naming only Boley, Carreras, and Reams as defendants
because Chauvin “to date . . . remains unserved and unrepresented.” (See Letter from Jennifer
Gashi, Esq. to Court (Aug. 28, 2017) (Dkt. No. 13).) The Court granted the request and, on
September 6, 2017, the Court set the answer date for September 30, 2017. (See Dkt. No. 16.)
On September 14, 2017, Defendants filed a letter seeking leave to file a Motion To Dismiss the
Complaint. (See Letter from Jennifer Gashi, Esq. to Court (Sept. 14, 2017) (Dkt. No. 17).) The
Court set a briefing schedule, (see Dkt. No. 19), and Defendants thereafter filed their Motion to
Dismiss and accompanying papers on October 30, 2017, (see Dkt. Nos. 20–21). On January 16,
2018, Plaintiff filed an Opposition to the Motion, (Pl.’s Opp’n), and Defendants filed their Reply
on January 19, 2018, (Defs.’ Reply in Supp. of Mot. To Dismiss (“Defs.’ Reply”) (Dkt. No. 27)).
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claim[] across the line from
conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679
(“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
is entitled to relief.’” (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a
plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam), and “draw[] all reasonable inferences in favor of the plaintiff,” Daniel v. T&M Prot.
Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC,
699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a
district court must confine its consideration to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
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matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d
99, 107 (2d Cir. 1999) (internal quotation marks omitted); see also Wang v. Palmisano, 157 F.
Supp. 3d 306, 317 (S.D.N.Y. 2016) (same). However, when the complaint is from a pro se
plaintiff, the Court may consider “materials outside the complaint to the extent that they are
consistent with the allegations in the complaint.” Alsaifullah v. Furco, No. 12-CV-2907, 2013
WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted).
Where, as here, a plaintiff proceeds pro se, the court must “construe[] [his] [complaint]
liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga Cty., 517 F.3d
601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding
procedural rules and to comply with them.” (italics and internal quotation marks omitted)).
B. Analysis
1. First Amendment Retaliation Claim
Plaintiff’s Complaint alleges that Defendants Boley and Carrera retaliated against him for
having “exercised protected speech in filing earlier grievances . . . and/or as a result of [P]laintiff
advising and assisting another inmate with the submission of a grievance.” (Compl. ¶ 51.)
A plaintiff asserting a First Amendment retaliation claim must allege “(1) that the speech
or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff,
and (3) that there was a causal connection between the protected speech and the adverse action.”
Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal quotation marks omitted).
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“[B]ecause virtually any adverse action taken against a prisoner by a prison official—even those
otherwise not rising to the level of a constitutional violation—can be characterized as a
constitutionally proscribed retaliatory act,” the Second Circuit has instructed district courts to
“approach prisoner retaliation claims with skepticism and particular care.” Dolan v. Connolly,
794 F.3d 290, 295 (2d Cir. 2015) (internal quotation marks omitted); see also Graham v.
Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“Retaliation claims by prisoners are prone to abuse
since prisoners can claim retaliation for every decision they dislike.” (internal quotation marks
omitted)). Accordingly, First Amendment retaliation claims brought by prisoners must “be
supported by specific and detailed factual allegations, not stated in wholly conclusory terms.”
Dolan, 794 F.3d at 295 (internal quotation marks omitted).
Plaintiff’s filing of a grievance is protected conduct and therefore meets the first prong of
the inquiry. See id. at 294 (“It is well established that ‘retaliation against a prisoner for pursuing
a grievance violates the right to petition government for the redress of grievances guaranteed by
the First and Fourteenth Amendments and is actionable under § 1983.’” (quoting Henderson, 89
F.3d at 80)); Franco v. Kelly, 854 F.2d 584, 589 (2d Cir. 1988) (“[I]ntentional obstruction of a
prisoner’s right to seek redress of grievances is precisely the sort of oppression that [§] 1983 is
intended to remedy.” (internal quotation marks and alterations omitted)); Baskerville v. Blot, 224
F. Supp. 2d 723, 731 (S.D.N.Y. 2002) (noting that a “prisoner’s filing of a grievance” and “the
filing of a lawsuit” are “constitutionally protected activit[ies]”).
Although Plaintiff has adequately alleged that he engaged in protected conduct, he has
failed to allege that Defendants took an “adverse action” against him in retaliation for that
conduct. An action qualifies as an “adverse action” for purposes of a retaliation claim only if the
action would “deter a prisoner of ordinary firmness from vindicating his or her constitutional
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rights through the grievance process and the courts.” Gill v. Pidlypchak, 389 F.3d 379, 384 (2d
Cir. 2004); see also Muhammad v. Jenkins, No. 12-CV-8525, 2013 WL 5225573, at *9
(S.D.N.Y. Sept. 13, 2013) (same).
Here, Plaintiff’s retaliation claim rests on the fact that he, and a fellow inmate, appeared
before the IGRC on June 3, 2016, and, the next day, Carreras ordered Boley to conduct the cell
search. (Compl. ¶ 4.) However, the Supreme Court has held that an inmate’s cell can be
searched at any time because “society is not prepared to recognize as legitimate any subjective
expectation of privacy that a prisoner might have in his prison cell and that, accordingly,
[the] . . . proscription against unreasonable searches does not apply within the confines of the
prison cell.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). Post-Hudson, courts in the Second
Circuit have reasoned that because “a prisoner has no reasonable expectation of privacy in his or
her prison cell . . . a search of an inmate’s cell, even for retaliatory reasons, . . . does not
implicate a constitutional right.” Battice v. Phillip, No. 04-CV-669, 2006 WL 2190565, at *7
(E.D.N.Y. Aug. 2, 2006) (collecting cases); see also Harnage v. Brighthaupt, No. 12-CV-1521,
2016 WL 10100763, at *6 (D. Conn. June 3, 2016) (holding that “even if [the plaintiff] could
demonstrate a retaliatory motive for the search, his claim would be legally insufficient,” because
a “retaliatory cell search is insufficient to support a First Amendment retaliation claim”), aff’d,
720 F. App’x 79 (2d Cir. 2018); Carl v. Griffin, No. 08-CV-4981, 2011 WL 723553, at *5
(S.D.N.Y. Mar. 2, 2011) (“A cell search is not considered to be an adverse action.”) (internal
quotation marks omitted); McClenton v. Menifee, No. 05-CV-2844, 2009 WL 195764, at *4
(S.D.N.Y. Jan. 12, 2009) (“Courts in this district have held that a search of an inmate’s cell, even
if retaliatory, is insufficient to establish a First Amendment retaliation claim.”); Salahuddin v.
Mead, No. 95-CV-8581, 2002 WL 1968329, at *5 (S.D.N.Y. Aug. 26, 2002) (“Many courts in
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this district have concluded that a retaliatory cell search is insufficient to support a First
Amendment retaliation claim.”); Walker v. Keyser, 98-CV-5217, 2001 WL 1160588, at *9
(S.D.N.Y. Oct. 2, 2001) (“Even retaliatory searches are not actionable under § 1983.”); Walker v.
Goord, 98-CV-5217, 2000 WL 297249, at *4 (S.D.N.Y. Mar. 22, 2000) (holding that searches of
cells do not implicate a constitutional right even if the search is arbitrary or retaliatory); Gadson
v. Goord, No. 96-CV-7544, 1997 WL 714878, *7 (S.D.N.Y. Nov. 17, 1997) (“[S]earches of cells
implicate no constitutional rights, even if the search is arbitrary or retaliatory in nature.”);
Higgins v. Artuz, No. 94-CV-4810, 1997 WL 466505, at * 4 (S.D.N.Y. Aug. 14, 1997)
(“Searches of cells implicate no protected constitutional rights, even if the search is arbitrary or
retaliatory in nature.”). Accordingly, a prisoner, whose cell can be searched at any time, has
suffered no “special deprivation” that is “substantial enough” to deter an inmate of ordinary
firmness from continuing to exercise his First Amendment rights where his or her cell is
searched. Salahuddin, 2002 WL 1968329 at *3. Thus, because the cell searches “cannot be the
basis of a retaliation claim,” Corley v. City of New York, No. 14-CV-3202, 2017 WL 4357662, at
*20 (S.D.N.Y. Sept. 28, 2017), the Court dismisses Plaintiff’s retaliation claim against Boley and
Carreras. 2
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Plaintiff admits that the search revealed “a minor item of contraband, consisting of a
broken and altered piece of a pair of tweezers,” (Compl. ¶ 8), for which Plaintiff was issued a
misbehavior report, (id. ¶ 12). To the extent that the Court were to assume that the misbehavior
report and/or false testimony was the adverse action at issue, Plaintiff only alleges that “the
search was the result of an enemy stating plaintiff was ‘advocating for other inmates.’” (Id. ¶ 7.)
Plaintiff does not allege that he himself filed a grievance against Boley or Carreras, nor does he
allege that he “advocate[ed] for other inmates” against them. (Id.) “As a general matter, it is
difficult to establish one defendant’s retaliation for complaints against another defendant.” Hare
v. Hayden, No. 09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011); see also
Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009) (dismissing retaliation claim against a
corrections officer when the only alleged basis for retaliation was a complaint about a prior
incident by another correctional officer); Jones v. Fischer, No. 10-CV-1331, 2013 WL 5441353,
at *21 (N.D.N.Y. Sept. 27, 2013) (dismissing the plaintiff’s retaliation claims and noting such
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2. Due Process Claim
Plaintiff alleges that Boley and Carreras deprived him of due process during his
disciplinary hearing by providing false testimony, (see Compl. ¶ 15), while Reams “interfered
with the grievance process,” (id. ¶ 51). Regarding the process an inmate is due, a disciplinary
hearing comports with due process when an inmate receives “advance written notice of the
charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and
present documentary evidence; and a written statement of the disposition, including supporting
facts and reasons for the action taken.” Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). Plaintiff
alleges that, as witnesses in the disciplinary hearing, “both defendants Boley and Carreras made
specific claims . . . that they knew were false.” (Compl ¶ 15.) Specifically, Boley testified that
the search was “[r]andom,” while Carreras testified the search was “the result of information . . .
advising him that [P]laintiff was in possession of ‘a weapon.’” (Id.) Plaintiff claims the
testimony was false because “the search was not a legitimately selected ‘random’ search” and
Carreras never received information before the search that “[P]laintiff had a ‘weapon.’” (Id.
¶¶ 16–17.)
Assuming that Boley and Carreras indeed testified falsely, as the Court must at this stage,
these allegations are insufficient to state a claim. The Second Circuit has determined that “a
“claims have been dismissed when they are supported only by conclusory allegations that the
retaliation was based upon complaints against another officer”); Roseboro v. Gillespie, 791 F.
Supp. 2d 353, 369 (S.D.N.Y. 2011) (finding the plaintiff failed to provide any basis to believe
that a defendant would retaliate for a grievance in which the defendant was not named). This is
coupled with the lack of any retaliatory statements or behaviors attributed to Defendants.
Indeed, the extent of Plaintiff’s allegations of retaliation related to the testimony and misbehavior
report is that “[t]he actions of the defendants in . . . giving false testimony . . . were retaliatory in
nature.” (Compl. ¶ 51.) Given the general “skepticism and particular care” with which
retaliation claims are to be treated, Plaintiff should take this into account if he files an amended
complaint.
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prison inmate has no general constitutional right to be free from being falsely accused.” Boddie
v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); see also Bey v. Griffin, No. 16-CV-3807, 2017
WL 5991791, at *7 (S.D.N.Y. Dec. 1, 2017) (“It is well settled that a prison inmate has no
constitutionally guaranteed immunity from being falsely or wrongly accused of conduct which
may result in the deprivation of a protected liberty interest.” (alteration and internal quotation
marks omitted)). “Rather, the inmate must show something more, such as that he was deprived
of due process during the resulting disciplinary hearing, or that the misbehavior report was filed
in retaliation for the inmate’s exercise of his constitutional rights.” James v. Gage, No. 15-CV106, 2018 WL 2694436, at *14 (S.D.N.Y. June 5, 2018) (internal quotation marks omitted).
Plaintiff fails to satisfy this standard as to Boley and Carreras, because he does not allege that
they testified in retaliation for Plaintiff attempting to exercise a constitutional right; rather,
construing Plaintiff’s submissions liberally, he contends that Boley and Carreras testified falsely
to justify their search, as Plaintiff claims that the search was “not permitted . . . [a]s a matter of
departmental policy.” (Compl. ¶ 14.) In effect, Plaintiff alleges that Boley and Carreras testified
the way that they did “[t]o satisfy the cause requirement [] and to justify the search,” (id. ¶ 15),
and not as a way to retaliate against Plaintiff. As explained above, Plaintiff does not have a
constitutional right to be free from a cell search, thus lying to justify a search that itself was not
unlawful does not make out a retaliation claim. Compare Walker, 2001 WL 1160588, at *9
(“[R]etaliatory searches are not actionable under § 1983.”) with Willey v. Kirkpatrick, 801 F.3d
51, 65–66 (2d Cir. 2015) (reversing summary judgment on retaliation claim where the plaintiff
alleged that the false reports were filed in response to his refusing to provide false information to
police officers, which may be a constitutional right). In any event, in the absence of “specific
and detailed factual allegations” that Boley and Carreras filed these reports in retaliation, the
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Court approaches this claim with “skepticism and particular care” and thus dismisses the due
process claims against them. See James, 2018 WL 2694436, at *14 (quoting Dolan, 794 F.3d at
295)).
Moreover, Plaintiff’s claim that Defendant Reams violated his right to due process by
“[interfering] with the grievance process . . . [and] [making] it extremely difficult for [P]laintiff
to file a grievance in this matter,” also fails. “[I]t is well-established that inmates do not have a
protected liberty interest in the processing of their prison grievances.” Crichlow v. Fischer, No.
15-CV-6252, 2017 WL 920753, at *7 (W.D.N.Y. Mar. 7, 2017); see also Corley, 2017 WL
4357662, at *7 (“[The p]laintiff did not have a liberty interest to access the [prison] grievance
program that would provide a basis for a constitutional due process claim here.”); Njasang Nji v.
Heath, No. 13-CV-200, 2013 WL 6250298, at *6 (S.D.N.Y. Dec. 2, 2013) (“[I]nmate grievance
programs created by state law are not required by the Constitution and consequently allegations
that prison officials violated those procedures does not give rise to a cognizable § 1983 claim.”
(internal quotation marks omitted)); Mimms v. Carr, No. 09-CV-5740, 2011 WL 2360059, at *10
(E.D.N.Y. June 9, 2011), aff’d, 548 F. App’x 29 (2d Cir. 2013) (“It is well-established that
prison grievance procedures do not create a due-process-protected liberty interest.”); Torres v.
Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003) (“Prison grievance procedures do not confer
any substantive right upon an inmate requiring the procedural protections envisioned by the
Fourteenth Amendment.”). Consequently, “courts regularly dismiss claims brought to remedy
alleged violations of inmate grievance procedures.” Martinez v. Schriro, No. 14-CV-3965, 2017
WL 87049, at *3 (S.D.N.Y. Jan. 9, 2017) (alteration and internal quotation marks omitted).
Thus, Plaintiff’s due process claim regarding Reams’ alleged interference in the grievance
procedures fails as a matter of law.
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III. Conclusion
For the reasons stated above, Defendants' Motion To Dismiss is granted. This Opinion
does not impact Plaintiffs outstanding claims against Defendant Chauvin. Moreover, because
this is the first adjudication of Plaintiffs claims on the merits, the dismissal is without prejudice.
If Plaintiff wishes to file an amended complaint, Plaintiff must do so within 30 days of the date
of this Opinion. Plaintiff should include within the amended complaint any changes to cotTect
the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is
advised that the amended complaint will replace, not supplement, the original complaint. The
amended complaint must contain all of the claims against all Defendants, including those who
have not joined in this Motion to Dismiss. The Court will not consider factual allegations
contained in supplemental letters, declarations, or memoranda. If Plaintiff fails to abide by the
30-day deadline, his claims against the moving Defendants may be dismissed with prejudice.
Moreover, Chauvin remains unserved and unrepresented. It appears that Chauvin was
not served because she "retired," and is no longer able to be served at Fishkill. (Dkt. No. 18.)
Accordingly, Defendants are instructed to inform the Court of the proper service address for
Chauvin within 30 days of the issuance of this Opinion.
The Clerk of Court is respectfully directed to terminate the pending Motion, (Dkt. No.
20), and mail a copy of this Opinion to Plaintiff at the address listed on the docket.
SO ORDERED.
DATED:
September 151._, 2018
White Plains, New York
KENNETH M. KARAS
UNITED STATES DISTRICT JUDGE
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