Jackson v. Conway et al

Filing 113

DECISION AND ORDER, FINDINGS OF FACT AND CONCLUSIONS OF LAW. The Clerk of Court is hereby directed to enter judgment in favor of defendants and to close this case. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 9/15/2017. (APG)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
JOSEPH JACKSON (05-B-1287),
Plaintiff,
v.

DECISION AND ORDER
1:13-CV-4(LJV)

CHRISTOPHER MONIN,
ERIC WAGNER,
Defendants.
____________________________________
The plaintiff, Joseph Jackson, has brought this action pursuant to 42 U.S.C.
Section 1983 for injuries that he allegedly sustained while he was incarcerated at the
Attica Correctional Facility. Jackson alleges that two prison guards, defendants
Christopher Monin and Eric Wagner, violated his civil rights by threatening and
assaulting him in retaliation for his having filed grievances against another prison guard,
Sergeant Daniel O'Connell. 1
On April 25 and 26, 2017, this Court conducted a non-jury trial. Now that the
Court has heard the testimony, reviewed the transcript of the trial and the exhibits, and
given the plaintiff's claim careful consideration, the Court finds in favor of the
defendants.

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The plaintiff's excessive force claim and his claims against several defendants in their
official capacities were dismissed prior to trial. His claim against O'Connell also was
dismissed. The only claim at trial, therefore, was the retaliation claim against Monin and
Wagner.

FINDINGS OF FACT
Procedural Facts
1.

On January 2, 2013, Jackson commenced this action by filing a pro se

complaint. Docket Item 1.
2.

Jackson filed and served an amended complaint on September 24, 2013.

Docket Item 8.
3.

The defendants moved for summary judgment on October 19, 2015, and

Jackson cross-moved for summary judgment on January 27, 2016. Docket Items 42
and 61.
4.

On March 11, 2016, United States Magistrate Judge Michael J. Roemer

issued a report and recommendation finding that the defendants' motion for summary
judgment should be granted in part and denied in part and that Jackson's cross-motion
for summary judgment should be denied. Docket Item 66.
5.

On July 11, 2016, this Court adopted Judge Roemer's report and

recommendation. Docket Item 72.
6.

On April 25 and 26, 2017, a non-jury trial addressed Jackson's only

remaining claim: that Monin and Wagner retaliated against him for filing grievances
against O'Connell. Docket Items 105 and 106.
7.

On April 25, 2017, the attorneys for the plaintiff and the defendants gave

opening statements, and the plaintiff presented his case consisting of his own testimony
and the testimony of the defendants. Docket Item 107.
8.

The defendants began presenting their case on April 25, 2017, with the

direct examination of Monin. Id.

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9.

The defense case continued on April 26, 2017, with the cross-examination

of Monin, the testimony of Wagner, and the testimony of non-parties O’Connell and
Patrick Galloway; in addition, the plaintiff also took the stand for a second time to
answer some questions from the Court. Docket Item 108.
10.

The following exhibits were admitted during the trial: plaintiff's exhibits 1,

2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12A, 12B, 13, and 20; and defendants' exhibits A, B, C, D,
E, F, G, H, I, and Z. See Docket Items 107 and 108.
Substantive Facts
11.

Jackson drafted a grievance against O'Connell, incorrectly named as

"O'Connors," allegedly for punishing Jackson for no reason and for harassing
Jackson's visitors. See Exhibit 1.
12.

The grievance is dated November 7, 2011, but was never filed. See id.;

Docket Item 108 at 65.
13.

The copy of the unfiled grievance that was marked and admitted as a trial

exhibit came from Jackson’s own papers. See Docket Item 108 at 65.
14.

On December 1, 2011, Jackson filed a grievance dated November 20,

2011, in which he alleged that an unnamed "officer" harassed his family members when
they tried to visit him, allegedly in "retaliation" for his having submitted grievances
regarding "visiting room staff in the past." See Exhibit 2.
15.

Jackson drafted a letter dated November 25, 2011, addressed to

"Superintendent," complaining that the unfiled grievance marked as Exhibit 1, see
above, had not been addressed by the facility. See Exhibit 3.

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16.

There is no record of this letter ever having been sent or received, and the

copy of this letter that was marked and admitted as a trial exhibit came from Jackson’s
own papers. See Docket Item 108 at 65.
17.

Jackson drafted a letter dated December 5, 2011, addressed to "Mail

Room Supervisor," complaining that his family was not receiving the mail he was
sending to them and asking that this be investigated; the letter does not mention any
individual responsible for this. See Exhibit 4.
18.

There is no record of this letter ever having been sent or received, and the

copy of this letter that was marked and admitted as a trial exhibit came from Jackson’s
own papers. See Docket Item 108 at 65.
19.

Jackson drafted a letter addressed to "Superintendent" dated

December 13, 2011, complaining about “Sgt. D. O'Connell” and stating that prior
complaints about O'Connell had not been responded to. See Exhibit 5.
20.

There is no record of this letter ever having been sent or received, and the

copy of this letter that was marked and admitted as a trial exhibit came from Jackson’s
own papers. See Docket Item 108 at 65.
21.

Jackson drafted a grievance dated January 24, 2012, complaining of

"retaliation," and complaining that because of his "past [g]rievances and [l]itigating," he
was being denied "all call-outs including access to the law-library." See Exhibit 6.
22.

There is no record of this grievance ever having been filed, and the copy

of this grievance that was marked and admitted as a trial exhibit came from Jackson’s
own papers. See Docket Item 108 at 65.

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23.

Jackson filed an inmate grievance dated January 30, 2012, and labeled

"Harassment," complaining that O'Connell denied Jackson’s fiancée a visit with him.
See Exhibit 7.
24.

In response, Jackson was advised that his fiancée's privileges to visit him

had been suspended as a result of a prior incident. See id. More specifically,
Jackson’s fiancée, who then went by the name Brandy Crawley, had lost all visiting
privileges at the prison because she allegedly smuggled contraband to an inmate other
than Jackson. See id. When Ms. Crawley petitioned to have her visiting privileges
restored, the superintendent restored those privileges but limited them to non-contact
visitation. See id. Three days later, and again about a week after that, Jackson’s
fiancée visited him using the name Brandy Adams, not Brandy Crawley, and therefore
was permitted full-contact visitation with Jackson. See id. When prison officials learned
that Brandy Crawley and Brandy Adams were the same person, they suspended
Jackson’s visitation privileges because both he and his fiancée had failed to notify
prison officials of the fiancée's name change or that her visits were limited to noncontact visits. See id. Jackson was advised that because of this, he lost visitation
privileges until May 6, 2012. See id.
25.

At trial, Jackson testified that he wrote the grievance in Exhibit 7 because

at that time he believed that he was wrongfully denied visitation with his fiancée; he
testified, however, that he now realizes that he was incorrect and that he understands
why the visit was not permitted. See Docket Item 107 at 39-40.
26.

On February 15, 2012, Jackson wrote a memo, received by the Attica

correctional facility on February 16, 2012, complaining that his certified legal mail may

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not have been sent. See Exhibit 8. In response, the facility notified Jackson that his
legal mail was being returned to him because he had expended more than the
authorized postal advances to which he was entitled—that is, that he did not have
enough money in his account to send the legal mail. See id.
27.

Jackson filed a grievance dated February 17, 2012, again complaining

that he was improperly denied non-contact visitation with his fiancée. See Exhibit 9. As
noted above, Jackson later learned that he was incorrect about the status of his ability
to visit with his fiancée and now admits that this misunderstanding led him to file the
grievance. See Exhibit 9; Docket Item 107 at 39-40, 45-47.
28.

On March 6, 2012, Jackson’s cell was searched by Monin and Wagner

and by Officer Galloway. See Docket Item 107 at 48.
29.

During the course of the search, the prison officials took a wedding band

that Jackson had found in another facility a few years earlier, as well as a beard trimmer
and electronic adapter that had been altered so that the trimmer could work without
batteries. See id. at 48-51. Both the wedding band (which Jackson had found and was
not from his own marriage) and the altered electronics violated prison policy. See id. at
49; Docket Item 108 at 25-27.
30.

Jackson claims that during the course of this search he was struck by

Monin and threatened by Wagner in retaliation for his prior grievances against
O'Connell. See id. at 53-59.
31.

The defendants admit that the cell search took place but deny that either

of them struck or threatened Jackson or that they even knew about his prior grievances
directed toward O'Connell. See id. at 134-35; Docket Item 108 at 16-18.

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CONCLUSIONS OF LAW
1.

To prove a First Amendment retaliation claim under Section 1983, a

plaintiff must show by a preponderance of the evidence that (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).
2.

Petitioning for redress of grievances is protected conduct. See Colon v.

Coughlin, 58 F.3d 865, 872 (2d Cir.1995) (holding that prison officials are prohibited
from retaliating against prisoners who exercise the right to file grievances).
3.

For incarcerated plaintiffs, the Second Circuit defines “adverse action”

objectively, as retaliatory conduct “that would deter a similarly situated individual of
ordinary firmness from exercising constitutional rights.” Gill v. Pidlypchak, 389 F.3d
379, 381 (2d Cir. 2004) (citation omitted).
4.

The causal connection must be sufficient to support the inference that the

speech played a substantial part in the adverse action. See Diesel v. Town of
Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000).
5.

Jackson has failed to meet his burden of proving his retaliation claim by a

preponderance of the evidence.
ANALYSIS
This case boils down to a credibility determination. Jackson says that the
defendants slapped him, threatened him, and ripped his legal papers in retaliation for
grievances that he had filed against O'Connell. The defendants admit that they
searched Jackson’s prison cell and that they do not recall the particulars of the search,
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but they deny striking him, threatening him, or ripping his legal papers. For several
reasons, the Court credits the defendants' version and not the plaintiff's.
First, and most important, the Court had the opportunity to observe the demeanor
of the witnesses when they testified. Based on those observations, the Court believes
that the defendants testified candidly and honestly and that Jackson did not. That alone
is good and sufficient reason for the Court's verdict.
In addition, there are several parts of Jackson’s story that simply do not hold
together. For example, Jackson filed a grievance against the defendants, dated the
same day as the alleged incident, in which he claimed that Monin "ripped up [his] legal
work" that was supposed to be submitted the next day. See Exhibit 10. Jackson was
quite savvy about the grievance process, having written and/or filed several grievances,
several of which were marked as exhibits at trial. But he never produced the allegedly
ripped legal mail as evidence of what he said took place, instead testifying that he
simply "threw [the ripped legal papers] out." See Docket Item 108 at 67. The Court
finds it difficult to believe that an inmate who is well schooled in the grievance process
would do that, especially when the grievance was prepared on the same day as the
incident in question. See Gill, 389 F.3d at 381.
Moreover, while Jackson testified that the defendants struck and threatened him,
and ripped his papers, in retaliation for filing grievances, and that the incident made him
"scared for [his] life," he nevertheless filed another grievance "that same day" and
appealed that grievance when it was denied. See Docket Item 107 at 57-58. And
Jackson claims that Monin slapped him on the right side of his face with enough power
to knock him down, but the Court finds it difficult to believe that Monin, who is right-

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handed, would have used his non-dominant hand to slap Jackson (as would have been
the case if he slapped the right side of Jackson’s face) or that an open-handed slap with
Monin’s non-dominant hand would have been powerful enough to knock an apparently
healthy and fit young man such as Jackson off his feet. See id.
What is more, Jackson’s claim that his grievances against O'Connell were the
reason for the defendants’ harassment also does not fit with the other evidence. The
defendants both testified that they were unaware of any grievances that Jackson had
filed against O’Connell, and that is not surprising given that O'Connell is mentioned by
name in only one of the filed grievances. See Exhibit 7. And Jackson now admits that
even that grievance was mistaken and based on his misunderstanding at the time. In
other words, as the basis for his claim that he was retaliated against for grievances he
previously filed against O'Connell, Jackson relies on (1) several grievances and letters
that he has no evidence of submitting or filing and that there is no evidence anyone ever
received; (2) several filed grievances that he claims involve areas or departments for
which O'Connell was responsible but that do not mention O'Connell by name; and (3) a
single grievance, that Jackson now admits was mistaken, directed against O'Connell.
The Court credits the defendants’ testimony that they did not know anything about any
of this. And the Court finds it hard to believe that even if they did, that would trigger
retaliation as Jackson claims. See Diesel, 232 F.3d at 107.

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The Court heard testimony for two days and paid careful attention to each of the
witnesses as each witness testified. Based on its evaluation of the credibility of the
witnesses, as well as on the above-mentioned gaps in the plaintiff’s story, the Court
finds in favor of the defendants.

SO ORDERED.

DATED:

September 15, 2017
Buffalo, New York

s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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