Youngs v. Orange County Sherrifs Organization et al
Filing
46
OPINION & ORDER re: 39 MOTION to Dismiss . filed by Riccardo Laudato, Orange County, K. Mann, Della Pia, Gessner. The Court GRANTS Defendants' motion to dismiss Plaintiff's Amended Complaint in its entirety. Pl aintiff's claims are dismissed without prejudice. Plaintiff is granted leave to file a Second Amended Complaint on or before July 8, 2024. Plaintiff is advised that the Second Amended Complaint will replace, not supplement, his Amended Complai nt, and so any claims that he wishes to pursue must be included in, or attached to, the Second Amended Complaint. Should Plaintiff not file a Second Amended Complaint by this date, Plaintiff's claims will be dismissed with prejudice. In the event Plaintiff files a Second Amended Complaint on or before July 8, 2024, Defendants are directed to answer, or otherwise respond to, the Second Amended Complaint on or before July 29, 2024. The Clerk of Court is directed to mail a copy of this O pinion & Order to Plaintiff at the address listed on ECF, to show service on the docket, and to terminate the motion at ECF No. 39. Gessner answer due 7/29/2024; Riccardo Laudato answer due 7/29/2024; K. Mann answer due 7/29/2024; Della Pia answer due 7/29/2024.( Amended Pleadings due by 7/8/2024.) (Signed by Judge Nelson Stephen Roman on 5/9/2024) (ate)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
05/09/2024
ROBERT M. YOUNGS,
-against-
Plaintiff,
SERGEANT GESSNER, OFFICER RICCARDO
LAUDATO, SERGEANT DELLA PIA, and
SEGEANT K. MANN,
No. 22 Civ. 4918 (NSR)
OPINION & ORDER
Defendants.
NELSON S. ROMÁN, United States District Judge
Plaintiff Robert M. Youngs (“Plaintiff”), proceeding pro se, brings this action against
Defendants Sergeant Nicholas Gessner, Officer Riccardo Laudato, Sergeant Armond Della Pia,
and Sergeant Kyle Mann (together, the “Defendants”). Plaintiff asserts claims for violation of due
process and retaliation arising from his incarceration at the Orange County Correctional Facility
(“OCCF”). 1
Before the Court is Defendants’ motion to dismiss Plaintiff’s Amended Complaint. For the
following reasons, the Court grants Defendants’ motion in its entirety and dismisses Plaintiff’s
claims with prejudice.
BACKGROUND
I.
Factual Allegations
The following facts are drawn from Plaintiff’s Amended Complaint (“AC,” ECF No. 8),
its accompanying exhibits, and his Opposition to Defendants’ motion to dismiss (“Pl. Opp.,” ECF
1
Plaintiff is currently incarcerated at Shawangunk Correctional Facility.
No. 42), and are taken as true for the purposes of this motion. 2 See Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009).
The following events occurred at the OCCF, where Plaintiff was housed between October
30, 2019 and December 31, 2021. (See ECF No. 40, Declaration of Stephanie T. Midler ¶ 4.)
a. December 2021 Incident
At 6:10 A.M. on December 2, 2021, Plaintiff requested a grievance form from Defendant
Officer Laudato. (AC at 1.) Laudato ignored his request and instead issued an instant adjudication
warning, which Plaintiff refused to sign. (Id.) Non-party Sergeant J. Miller was called, and Plaintiff
advised him of the situation. (Id.) Plaintiff alleges that Miller then wrote a false report about the
situation. (Id.) In his report, Miller wrote that Laudato told him he was going to give Plaintiff an
instant adjudication warning for “not dressing properly and for using the microwave at chow after
being ordered not to” and that Plaintiff refused to sign the warning. (Pl. Ex. C.) Miller also denied
that Plaintiff requested a grievance form from him. (Id.)
Plaintiff further alleges that Laudato filed a false inmate misbehavior report to retaliate
against him for requesting a grievance form. (AC at 1.) That report—dated December 2, 2021 and
signed by Laudato and non-party Sergeant V. Murphy—contains the following description of
events (Pl. Ex. A): During chow service, at 6:10 A.M., Laudato advised Plaintiff to pull his jumper
over both of his shoulders in accordance with facility rules for dress. Plaintiff ignored this
instruction. Plaintiff then informed Laudato that he would be using the microwave, which Laudato
informed him was not permitted during chow service. Plaintiff again ignored Laudato and began
using the microwave, so Laudato instructed Plaintiff to return to his cell. After a verbal exchange,
Plaintiff returned to his cell. Plaintiff was then placed on cell confinement. Murphy attested to the
2
Citations to “Pl. Ex.” refer to the exhibits attached to Plaintiff’s Amended Complaint.
2
truth and accuracy of the report, noting that Plaintiff had stated Laudato had not told him he could
not use the microwave until he was already doing so. In response to the grievance filed by Plaintiff,
Laudato wrote a memorandum, dated December 8, 2021, containing substantially the same version
of events as the misbehavior report. (Pl. Ex. B.) Laudato’s memorandum states that Plaintiff was
issued an instant adjudication for “being disrespectful and not following jail rules.” Plaintiff
eventually filed a grievance with the above facts. Plaintiff did not attach said grievance to his
Amended Complaint.
At the disciplinary hearing, Defendant Sergeant Gessner reviewed the video tape and
admitted that Laudato’s report contained false statements. Plaintiff claims that Gessner “had been
chosen specifically to find [him] guilty by [the] administration and therefore chose to ignore [his]
right to due process for the hearing.” Plaintiff alleges that Gessner denied his constitutional right
to due process by denying his request to call witnesses for the hearing.
Plaintiff filed an appeal, 3 issued on December 8, 2021 and received by the Chief
Administrative Officer on December 9, 2021. (Pl. Ex. D.) In his appeal, Plaintiff states that
Laudato “lied several times in his statement” and contests certain details regarding the December
2021 incident. Plaintiff further wrote that he had a “two page list of witnesses with questions to
provide,” and that he was denied his right to call witnesses for his disciplinary hearing. (Pl. Exs.
D-E.) On December 9, 2021, Plaintiff’s appeal was denied. (Pl. Ex. F.)
b. October 2020 and November 2020 Incidents
On October 11, 2020 and October 18, 2020, Defendant Sergeant Della Pia authored
statements wherein he recommended Plaintiff remain in cell confinement because Plaintiff
requested access to grievance forms. (AC at 2.) On October 18, 2020, Defendant Sergeant Mann
The New York State minimum standards provides that an inmate has the right to appeal a hearing officer’s
disposition and any sanctions. N.Y. Comp. Codes R. & Regs. tit. 9, § 7006.10(a).
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authored a similar statement. (Id.) On the Administrative Segregation / Confinement Review forms
(the “Admin. Seg. Form”), Della Pia commented that “each time [Plaintiff] is told he must follow
the rules he cries and asks for a grievance, he was written for refusing to lock in.” (Pl. Exs. G-H.)
In his comment on the form, Mann wrote that “[Plaintiff] refuses to accept responsibility for his
actions and requests grievances daily.” (Pl. Ex. H.)
On November 15, 2020 and November 16, 2020, Della Pia and Mann authored statements
on similar forms recommending Plaintiff remain in cell confinement after he was written up for
fighting on November 12, 2020. (Pl. Ex. I.) After a hearing, Plaintiff was found not guilty of
fighting, disobeying a correction officer, violating general rules, and disrupting/interfering with
the facility. (Pl. Ex. J.) Plaintiff alleges that Della Pia and Mann retaliated against him for
requesting grievance forms which he ultimately never received. (AC at 2.)
II.
Procedural History
Plaintiff commenced the instant action on June 10, 2022 via Complaint. (“Compl.,” ECF
No. 1.) The Complaint initially named the Orange County Sheriffs Organization and Carl DuBois
as defendants and asserted various claims under the Fourteenth Amendment pursuant to 42 U.S.C.
§ 1983 (“Section 1983”). On June 14, 2022, Chief Judge Swain granted Plaintiff’s request to
proceed in forma pauperis. (ECF No. 4.) On September 2, 2022, Chief Judge Swain issued an
Order to Amend that dismissed Plaintiff’s (1) due process claim for denying him access to a
grievance and (2) FOIL request for video footage. (“Swain Order,” ECF No. 5.) The Order also
granted Plaintiff leave to file an amended complaint to state additional facts in support of his
surviving claims as well as name the defendants who allegedly violated his rights. His surviving
claims included: (1) denial of due process during a disciplinary hearing; (2) retaliation by filing a
false misbehavior report; (3) excessive force from a correctional officer spitting on him; (4)
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conditions of confinement also arising from the correctional officer spitting on him; (5) failure to
protect arising from other inmates’ assaults; and (6) municipal liability against Orange County.
(Id. at 5-11.) Finally, the Order provided that failure to amend his pleadings within 60 days would
result in the dismissal of the action.
On November 16, 2022, Plaintiff filed his Amended Complaint. (ECF No. 8.) On April 25,
2023, the case was reassigned to Judge Román. 4 (See Minute Entry dated 04/25/2023.) On April
26, 2023, the Court issued an Order of Service that (1) added Sergeant Gessner, Sergeant Della
Pia, Sergeant Mann, and Officer Laudato as Defendants; (2) dismissed Plaintiff’s claims on behalf
of his minor child and himself arising out of an incident on October 30, 2019; and (3) directed the
U.S. Marshals service to effect service upon Defendants Orange County, Gessner, Laudato, Della
Pia, and Mann. (ECF No. 15.)
On July 28, 2023, Defendants sought leave to file a motion to dismiss. (ECF No. 26.) In
his letter in response, dated October 8, 2023, Plaintiff stated that he would withdraw his Amended
Complaint if the associated filing fees were “dismissed.” (See ECF No. 29.) On October 23, 2023,
the Court issued a memorandum endorsement informing Plaintiff that any funds paid to the Clerk
of Court could not be re-issued to him and directing him to inform the Court of his intention to
prosecute the action within 30 days. (ECF No. 31.) Plaintiff filed a letter stating that if the filing
fees cannot be cancelled, he intended to prosecute the action, and so the Court set a briefing
scheduled for Defendants’ motion to dismiss. (ECF No. 36.) The parties fully briefed the instant
motion on February 16, 2024.
Plaintiff’s Amended Complaint was not received by the Clerk of Court until November 16, 2022, one day after the
Court had dismissed the action because it had not received Plaintiff’s Amended Complaint. (See ECF No. 13.) On
April 21, 2023, upon learning that Plaintiff did file an Amended Complaint, the Court issued an order vacating the
order of dismissal and civil judgment and reopening the action. (Id.)
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LEGAL STANDARD
I.
Federal Rule of Civil Procedure 12(b)(6)
To survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Factual
allegations must “nudge [a plaintiff’s] claim from conceivable to plausible.” Twombly, 550 U.S.
at 570. A claim is plausible when the plaintiff pleads facts which allow the court to draw a
reasonable inference the defendant is liable for the unlawful activity alleged. Iqbal, 556 U.S. at
678. “In considering a motion to dismiss for failure to state a claim, the district court is normally
required to look only to the allegations on the face of the complaint . . . the court may [also]
consider documents that are attached to the complaint, incorporated in it by reference, [or] integral
to the complaint.” United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020) (quotation marks
omitted).
In assessing the sufficiency of the claims, the court is “not required to credit conclusory
allegations or legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d
82, 94 (2d Cir. 2013). While legal conclusions may provide the “framework of a complaint,”
“threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678-79. “[T]he tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678.
Pro se litigants are not exempt from these pleading standards, but courts are “obligated to
construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Pro se
complaints are read with a “special solitude” to raise the “strongest [claims] that they suggest.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474–75 (2d Cir. 2006) (internal quotation
6
marks and citations omitted). Moreover, pro se complaints should only be dismissed when the
plaintiff can prove “no set of facts in support of his claim which would entitle him to
relief.” Estelle, 429 U.S at 106 (quoting Conley v. Gibson, 335 U.S. 41, 45–46 (1957)). This “is
particularly so when the pro se plaintiff alleges that [his] civil rights have been violated.” Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008).
DISCUSSION
Plaintiff asserts claims for (1) violation of his due process rights against Gessner for
denying his request to call witnesses during his December 8, 2021 disciplinary hearing; (2)
retaliation against Laudato for filing a false misbehavior report after he requested grievance forms;
and (3) retaliation against Della Pia and Mann for recommending cell confinement after he
requested grievance forms. 5 (AC at 2-3.)
Defendants argue that Plaintiff’s claims should be dismissed because Plaintiff’s (1)
violation of due process claim fails to satisfy either prong of the applicable test; and (2) retaliation
claims fail to satisfy the heightened pleading requirements for retaliation claims filed by inmates.
Defendants further argue Plaintiff should not be permitted to further amend his pleadings.
For the foregoing reasons, Plaintiff’s claims are dismissed in their entirety.
A. Violation of Due Process Claim
Plaintiff alleges that Gessner denied him the right to call witnesses at his disciplinary
hearing in violation of his due process rights. Defendants argue that Plaintiff fails to establish either
prong of a procedural due process claim. (“Def. Mem.” at 6-11, ECF No. 41.) The Court agrees
with Defendants.
To state a procedural due process claim, Plaintiff must show “(1) that Defendants deprived
The Court’s Order dated April 26, 2023 terminated Orange County as a Defendant. (ECF No. 15.) Accordingly, the
Court need not address Defendants’ arguments regarding a municipal liability claim against Orange County.
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him of a cognizable interest in life, liberty, or property, (2) without affording him constitutionally
sufficient process.” Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (internal quotation
marks omitted). First, to determine whether a disciplinary action violates Plaintiff’s protected
liberty interest, this Court must consider whether the “discipline imposes [an] atypical and
significant hardship on the inmate in relation to the ordinary incidents of prison life.” Davis v.
Barrett, 576 F.3d 129, 133 (2d Cir. 2009) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).
Specifically, the Court should weigh “the extent to which the conditions of the disciplinary
segregation differ from other routine prison conditions” as well as the “duration of the disciplinary
segregation compared to discretionary confinement.” Id.
Plaintiff’s Amended Complaint is completely devoid of any facts relating to the disposition
of the December 8, 2021 hearing. With regards to his due process claim, Plaintiff only alleges that
Gessner (1) admitted that Laudato’s report contained false statements and (2) chose to ignore
Plaintiff’s right to due process by denying his request to call witnesses for the hearing. (AC at 2.)
There are no allegations relating to the outcome of the disciplinary hearing. Without any facts
regarding the discipline imposed on Plaintiff, the Court cannot determine whether Plaintiff
suffered an “atypical or significant hardship.” Plaintiff therefore fails to allege he was deprived of
a protected liberty interest in violation of his due process rights. George v. County of Westchester,
No. 20-CV-1723 (KMK), 2021 WL 4392485, at *12 (S.D.N.Y. Sept. 24, 2021) (dismissing
plaintiff’s procedural due process claim based on his sentence of “several days of cell
confinement” because Plaintiff did not offer factual allegations regarding the severity or atypicality
of the confinement) (collecting cases).
Even if Plaintiff had sufficiently pled that he was deprived of a liberty interest, his due
process claim still fails. Plaintiff also fails to allege Gessner denied him constitutionally sufficient
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process. In connection with a disciplinary hearing, due process dictates that an inmate is entitled
to “a reasonable opportunity to call witnesses and present documentary evidence . . . .” 6 Sira v.
Morton, 380 F.3d 57, 69 (2d Cir. 2004). Plaintiff fails to allege any facts that he was denied a
reasonable opportunity to call witnesses. Instead, Plaintiff makes the conclusory statement that he
had “two pages of witnesses” to testify for “different reasons” and was denied the ability to call
any of those witnesses. Without more, these conclusory allegations are insufficient to plausibly
state claim for violation of due process. George, 2021 WL 4392485, at *13 (“Courts have long
held that [] vague, conclusory allegations are insufficient to establish the second prong of a
procedural due process claim.”) (collecting cases); see also Richard v. Fischer, 38 F. Supp. 3d
340, 360 (W.D.N.Y. 2014) (dismissing plaintiff’s procedural due process claim where plaintiff
alleged in conclusory fashion that he should have been allowed to present witness testimony). The
Court thus dismisses Plaintiff’s due process claim for failure to state a claim upon which relief can
be granted.
B. Retaliation Claims
Plaintiff alleges he was retaliated against for filing grievances. Specifically, Plaintiff
alleges (1) Laudato retaliated against him by filing a false misbehavior report and (2) Mann and
Dell Pia retaliated against him by recommending cell confinement after he was written up. (Pl.
Exs. A, G-I.) Defendants argue that Plaintiff cannot satisfy the heightened pleading standard for
retaliation claims by inmates. (Def. Mem. at 12.) The Court again agrees with Defendants.
The Second Circuit has repeatedly held that a court must assess a claim of retaliation with
“skepticism and particular care” because such claims are “easily fabricated” by inmates. Dawes,
Due process also entitles an inmate in a disciplinary hearing to “advance written notice of the charges; a fair and
impartial hearing officer; . . . and a written statement of the disposition, including supporting facts and reasons for
the action taken.” Sira, 380 F.3d at 69.
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239 F.3d at 491. Such claims create a “substantial risk of unwarranted judicial intrusion into
matters of general prison administration” because:
[V]irtually 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 . . . . Given that such
adversity is an ever-present concomitant of prison life, the opportunities to
characterize its manifestations as actionable retaliation are far greater than that for
society at large.
Id. (internal citations and quotations omitted). Accordingly, “[t]o survive a motion to
dismiss, such claims must be supported by specific and detailed factual allegations, not stated in
wholly conclusory terms.” Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (internal
quotations omitted). “[A] complaint which alleges retaliation in wholly conclusory terms may
safely be dismissed on the pleadings alone.” Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983).
With these principles in mind, a plaintiff asserting a retaliation claim has the burden of
demonstrating: “(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.” Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003). An
inmate’s filing of a grievance is activity protected by the First Amendment. Richard v. Fischer, 38
F. Supp. 3d at 356.
“Only retaliatory conduct that would deter a similarly situated individual of ordinary
firmness from exercising his or her constitutional rights constitutes an adverse action for a claim
of retaliation . . . . Otherwise the retaliatory act is simply de minimis and therefore outside the
ambit of constitutional protection.” Dawes v. Walker, 239 F.3d 489,493 (2d Cir. 2001), overruled
on other grounds, Swierkewicz v. Sorema, 534 U.S. 506 (2002) (citations omitted). “Prisoners may
be required to tolerate more than public employees, who may be required to tolerate more than
average citizens, before a [retaliatory] action taken against them is considered adverse.” Id. While
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“[a] prison inmate has no general constitutional right to be free from being falsely accused in a
misbehavior report[,] . . . it is well established that prison officials may not retaliate against inmates
for exercising their constitutional rights.” Williams v. Goord, 111 F. Supp. 2d 280, 290 (S.D.N.Y.
2000) (internal quotations and citations omitted). Accordingly, the filing of a false disciplinary
report constitutes an adverse action when “the report was issued in retaliation for exercising a
constitutionally protected right.” George, 2021 WL 4392485, at *6 (quoting Willey v. Kirkpatrick,
801 F.3d 51, 63 (2d Cir. 2015)) (collecting cases).
Finally, the “casual connection” element requires a plaintiff to prove that an adverse action
relates to protected First Amendment activity—that is, the plaintiff must present evidence from
which a jury could conclude that the plaintiffs’ protected First Amendment activity was “a
substantial or motivating factor” in the prison official’s adverse action against the plaintiff.
Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996). Circumstantial evidence of retaliatory intent
include: “(i) the temporal proximity between the protected activity and the alleged retaliatory act;
(ii) the inmate’s prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv)
statements by the defendant concerning his motivation.” Baskerville v. Blot, 224 F. Supp. 2d 723,
732 (S.D.N.Y. 2002) (citing Colon v. Coughlin, 58 F.3d 865, 872–73 (2d Cir. 1995)).
As a threshold matter, Defendants argue Plaintiff did not engage in activity protected by
the First Amendment because requesting a grievance is not constitutionally protected speech or
conduct. (Def. Mem. at 14.) Defendants cite to Savage v. Perez, No. 09 CIV. 5208 PKC HBP,
2010 WL 4739811 (S.D.N.Y. Nov. 17, 2010) to support their argument. However, Savage does
not stand for the proposition that requesting a grievance form is not constitutionally protected
speech or conduct. Rather, the court in Savage found that a correctional officer refusing to provide
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a grievance form does not itself constitute an actionable claim under Section 1983. 7 Id. at *4. That
said, while requesting a grievance form may constitute protected activity, Plaintiff fails to establish
the necessary causal connection to plausibly assert a claim for retaliation.
1. Retaliation Claim against Officer Laudato
Plaintiff relies on the temporal proximity between his requests for grievance forms and
Laudato’s false report. (Pl. Opp. at 1 (“[T]he fact that a misbehavior report happened only after
the request for a grievance form . . . shows a clearly causal link between the report and the
grievance.”) While the Second Circuit has held that “temporal proximity of an allegedly retaliatory
misbehavior report to a grievance may serve as circumstantial evidence of retaliation,” Gayle v.
Gonyea, 313 F.3d 677, 683 (2d Cir. 2002), courts may “exercise [their] judgment about the
permissible inferences that can be drawn from temporal proximity in the context of particular
cases.” Espinal v. Goord, 558 F.3d 119 (2d Cir. 2009) (citations omitted). Here, temporal
proximity is insufficient to plausibly give rise to retaliatory intent.
Plaintiff’s Amended Complaint does not clearly articulate why he filed a grievance form,
but he clarifies in his Opposition that “the requested grievance form was specifically due to the
incident involving the microwave.” 8 (Pl. Opp. at 2.) Thus, the same incident gave rise to both
Plaintiff’s request for a grievance and Laudato’s disciplinary report. Accordingly, the protected
activity and the alleged adverse event happened seemingly contemporaneously. Based on
The Savage court dismissed plaintiff’s retaliation claim against the officer-defendant for failure to allege an
adverse action. Savage, 2010 WL 4739811 at *3. The court based its decision on the grounds that Plaintiff alleged
the officer-defendant conspired with another officer to “lock him in” and “made statements about locking him in for
voicing his opinion.” Id. The court further found that the sergeant who did lock him in had a valid, non-retaliatory
motive for doing so. Id.
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Plaintiff also asserts it is immaterial whether the grievance form was connected to the incident between him and
Laudato regarding the microwave, as the party advised of the grievance request can retaliate against inmates. (Id. at
2-3.) This is incorrect. Hare v. Hayden, No. 09 CIV. 3135 RWS, 2011 WL 1453789, at *4 (“As a general matter, it
is difficult to establish one defendant's retaliation for complaints against another defendant.”) (S.D.N.Y. Apr. 14,
2011) (citing Wright v. Goord, 554 F.3d 255, 274).
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Plaintiff’s appeal, Plaintiff does not dispute the basic facts of the incident. Plaintiff denies that he
used certain language and disputes whether he began using the microwave after Laudato told him
not to use it. Even more, Plaintiff implies that he has had some issues with his dress, stating that
he had requested to speak with a deputy “regarding providing proper size jumpers.” (Pl. Ex. E.)
The Court therefore may reasonably infer that Plaintiff did verbally engage with Laudato regarding
the use of the microwave and his dress. The facts as alleged thus indicate that Laudato filed the
“false” misbehavior report in response to the incident itself rather than Plaintiff’s request for a
grievance form. Under these circumstances, and without additional circumstantial evidence, the
Court finds Plaintiff has failed to plausibly allege Laudato had a retaliatory motive in filing the
misbehavior report. If the Court held otherwise, it would allow inmates to merely request a
grievance form or announce their intent to file a grievance during or immediately after a
disciplinary incident and then manufacture a retaliation claim by claiming the disciplinary report
subsequently filed regarding that incident was false.
Plaintiff’s claim could be bolstered by other circumstantial evidence of retaliatory intent,
but he fails to provide any. While Plaintiff proffers several documents to the Court, he does not
provide a copy of the grievance form he submitted or even a description of the claims he made
therein. Plaintiff does not include evidence of his good disciplinary record or any statements by
Laudato regarding his requests for grievance forms. Moreover, as Defendants note, that Plaintiff
filed an appeal after the hearing suggests that he was not vindicated. (“Def. Reply” at 5, ECF No.
44.) Weighing Plaintiff’s claim “with skepticism and particular care,” Plaintiff has failed to plead
sufficient facts for the Court to plausibly infer that Laudato retaliated against him. See Trapani v.
Dagostino, No. 918CV0805DNHCFH, 2019 WL 5149795, at *12 (N.D.N.Y. June 10, 2019) (no
inference of a causal connection between the alleged adverse action and plaintiff engaging in
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protected activity where plaintiff requested grievance while the adverse action was in progress).
2. Retaliation Claim against Sergeant Della Pia and Sergeant Mann
As with Plaintiff’s retaliation claim against Laudato, the Amended Complaint is devoid of
any facts sufficient to establish a causal connection between Plaintiff’s requests for grievance
forms and Della Pia’s and Mann’s recommendations for cell confinement. Here, Plaintiff’s claims
are neither specific or detailed. Plaintiff fails to plead any facts connecting Della Pia’s and Mann’s
reports to his attempt to access the grievance process. There are no factual allegations with regards
to when he requested grievance forms, who he sought to file grievances against, and why he sought
to file them. In particular, Plaintiff does not allege that he requested grievance forms from Della
Pia or Mann or sought to file any grievance forms for incidents involving them. Plaintiff only
alleges facts establishing that Della Pia and Mann were aware of Plaintiff’s attempts to access the
grievance process. As noted above, it is difficult to establish one correctional officer’s retaliation
for complaints against another correctional officer. See Hare v. Hayden, 2011 WL 1453789, at *4
(citing Wright, 554 F.3d at 274). That is particularly true where, as here, Plaintiff does not
otherwise provide circumstantial evidence of retaliatory intent. Beyond Plaintiff’s vague and
conclusory assertions, no factual allegations plausibly establish that Della Pia’s or Mann’s alleged
adverse action was motived by, or temporally connection to, Plaintiff’s request for grievances.
In his Opposition, Plaintiff contends Defendants clearly retaliated against him because they
did not provide any other reason for determining that he should stay in cell confinement other than
his use of the grievance process. (Pl. Opp. at 1.) With regards to the October 2020 Admin. Seg.
Form, Della Pia and Mann both indicate they recommend cell confinement due to Plaintiff’s
behavior and not merely due to his attempts to access the grievance process. (Pl. Ex. H (“[Plaintiff]
thinks the rules don’t apply to him, each time he is told he must follow the rules he cries and asks
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for a grievance.”); Id. (“[Plaintiff refuses to take responsibility for his actions and requests
grievances daily.”).) With regards to the November 2020 Admin. Seg. Form, the Amended
Complaint is devoid of any facts connecting the incident giving rise to this report to Plaintiff’s
request for grievance forms. (See Pl. Ex. I; AC at 2.) The Court further notes that these
recommendations occurred after Plaintiff had been written up for an infraction. The Court agrees
that, without more, Della Pia’s and Mann’s mere mentioning of Plaintiff’s repeated grievance
requests is insufficient to raise a plausible inference of retaliation.
LEAVE TO AMEND
“Generally, leave to amend should be freely given, and a pro se litigant in particular should
be afforded every reasonable opportunity to demonstrate that he has a valid claim.” Matima v.
Celli, 228 F.3d 68, 81 (2d Cir.2000) (internal quotation marks and citation omitted). “A pro se
complaint should not be dismissed without the Court granting leave to amend at least once when
a liberal reading of the complaint gives any indication that a valid claim might be stated.” Chavis
v. Chappius, 618 F.3d 162, 170 (2d Cir.2010) (internal brackets and quotation marks omitted).
However, “leave to amend a complaint may be denied when amendment would be futile.” Tocker
v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir.2006).
Plaintiff has been afforded the opportunity to amend his pleadings and the Court provided
clear instructions on how to properly do so. (See Swain Order.) Chief Judge Swain gave Plaintiff
the opportunity to amend his Complaint to state additional facts in support of his due process claim.
She even specifically advised Plaintiff that his allegations do not suggest that Gessner or Laudato
denied him his due process rights during the hearing. (Swain Order at 7.) Despite this clear
instruction, Plaintiff filed an Amended Complaint containing the same conclusory statement made
in his Complaint. (c.f. Compl. at 7 (“I was . . . denied the minimum standard right of calling
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witnesses during a disciplinary hearing” and AC at 2 “Gessner . . . den[ied] my request for
witnesses to be called during my hearing.”).) Chief Judge Swain provided the same guidance and
opportunity for Plaintiff to bolster his retaliation claims. (Swain Order at 7 (advising Plaintiff that
to assert a claim for false disciplinary charges, he would need to allege more, “such as that the
misbehavior report was filed in retaliation for the prisoner’s exercise of his constitutional rights”).)
Moreover, Plaintiff indicated to the Court that he was willing to abandon his claims if the
Clerk of Court would reimburse any fees. In his response to Defendants’ letter seeking leave to
file a motion to dismiss, Plaintiff indicated that he only filed federally “because the Orange County
Court refused to advise [him] where to file an Article 78” petition. (ECF No. 29-1, Pl. Opp. at 1.)
In his Opposition, Plaintiff stated he would “be more than happy” to avail himself of that remedy
if it is still available. (Pl. Opp. at 1.) Finally, Plaintiff also stated he intended for the original claim
to bring light to the October 30, 2019 incident involving his minor child, which the Court dismissed
for lack of subject matter jurisdiction (ECF No. 15 at 6-8). These representations indicate to the
Court that Plaintiff is not prosecuting his claims for the appropriate reasons.
That said, in light of the liberal standard applied to pro se litigants, the Court will afford
Plaintiff one more opportunity to amend his complaint to state additional facts in support of his
claims. The Court therefore grants Plaintiff leave to file a Second Amended Complaint.
CONCLUSION
The Court GRANTS Defendants’ motion to dismiss Plaintiff’s Amended Complaint in its
entirety. Plaintiff’s claims are dismissed without prejudice. Plaintiff is granted leave to file a
Second Amended Complaint on or before July 8, 2024. Plaintiff is advised that the Second
Amended Complaint will replace, not supplement, his Amended Complaint, and so any claims that
he wishes to pursue must be included in, or attached to, the Second Amended Complaint. Should
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Plaintiff not file a Second Amended Complaint by this date, Plaintiff’s claims will be dismissed
with prejudice. In the event Plaintiff files a Second Amended Complaint on or before July 8, 2024,
Defendants are directed to answer, or otherwise respond to, the Second Amended Complaint on or
before July 29, 2024.
The Clerk of Court is directed to mail a copy of this Opinion & Order to Plaintiff at the
address listed on ECF, to show service on the docket, and to terminate the motion at ECF No. 39.
Dated: May 9, 2024
White Plains, NY
SO ORDERED.
________________________________
NELSON S. ROMÁN
United States District Judge
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