Rosales v. Kikendall et al
Filing
50
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 34 Defendants' Motion for Summary Judgment; finding as moot 40 Plaintiff's Motion to Compel; and dismissing Plaintiff's complaint with prejudice. (Clerk to close case.). Signed by Hon. Michael A. Telesca on 7/24/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
LUIS ROSALES,
DECISION AND ORDER
No. 08-CV-6113(MAT)
Plaintiff,
-vsSELSKY, KIELISZEK, HIGLEY, ANDRUSZ,
BENSON, STREIT and KENNEDY,
Defendants.
I.
Introduction
Pro se plaintiff Luis Rosales (“Rosales” or “Plaintiff”)
instituted this action (Dkt #1) pursuant to 42 U.S.C. § 1983
alleging
that
Defendants,
employees
of
the
New
York
State
Department of Corrections and Community Supervision (“DOCCS”),
violated his constitutional rights while he was incarcerated at
Wende
Correctional
Facility.
On
January
6,
2010,
the
Court
(Larimer, D.J.) granted Defendants’ partial motion to dismiss,
terminating several of the defendants, along with Plaintiff’s
verbal harassment/threats claims, his conspiracy claims, and his
official capacity claims. See Dkt #22. On September 7, 2010, the
United States Court of Appeals for the Second Circuit dismissed
Plaintiff’s appeal. See Dkt #26.
There was no further action in this matter until a scheduling
order was issued by Magistrate Judge Marian W. Payson on June 14,
2012. See Dkt #27. On January 22, 2013, Defendants filed a motion
for summary judgment (Dkt #34) pursuant to Federal Rule of Civil
Procedure
(“F.R.C.P.”)
56(c)
dismissing
the
complaint
in
its
entirety. Plaintiff has opposed the motion.
On
March
12,
2013,
Plaintiff
filed
a
motion
to
compel
discovery (Dkt #40) seeking, inter alia, the pleadings and order
from
Plaintiff’s
state
court
challenge
to
the
disciplinary
proceeding at issue in this action. Magistrate Judge Payson issued
a scheduling order on May 14, 2013.
On
June
19,
2013,
the
matter
was
transferred
to
the
undersigned. On June 26, 2013, the Court issued an order (Dkt #48)
directing Defendants to produce the documents from Plaintiff’s
state court action referenced above, which Defendants previously
had refused to produce, claiming they were either irrelevant or not
in their possession. Defendants produced the requested documents on
July 9, 2013. See Dkt. #49.
The summary judgment motion is now fully submitted and ready
for decision, as is the motion to compel.
II.
Background
Rosales
was
elected
as
a
representative
on
the
Inmate
Grievance Program (“IGP”) at Wende Correctional Facility (“Wende”)
on July 28, 2006. Also on July 28, 2006, Rosales filed a grievance
against defendants Ken Kielisvek, IGP Supervisor (“IGPS Kielisvek”)
and Lawrence Higley, Inmate Grievance Sergeant (“Sgt. Higley”)
raising
allegations
Superintendent
of
Robert
harassment
Kirkpatrick
-2-
and
retaliation.
(“Sup’t
Wende
Kirkpatrick”)
acknowledged
receipt
of
the
grievance
and
stated
that
an
investigation would be conducted. Sup’t Kirkpatrick noted that to
his knowledge, Rosales was treated in the same matter that all new
IGP inmate representatives are treated, insofar as he met with IGPS
Kielisvek and Sgt. Higley to be welcomed to the IGP, and was
provided appropriate orientation in which the Inmate Grievance
Resolution Committee (“IGRC”) Code of Ethics was reviewed.
On August 2, 2006, Rosales attended an IGP meeting, also
attended
by
Ryan
English,
Albany
Inmate
Grievance
Program
Coordinator; Sgt. Higley; Supervisor Kieliszek; and another new
inmate representative.
After the meeting, Rosales and the other
new representative were given the opportunity to ask any questions
and
voice
concerns.
According
to
William
R.
Smith,
Deputy
Superintendent for Program Services (“DSPS Smith”, Rosales was
asked repeatedly if he had any concerns, and each time he said that
he no longer had any issues, and that all his complaints had been
resolved.
DSPS
Smith
notified
Rosales’
wife,
Barbara
Rosales
(“Mrs. Rosales”) of what transpired at the meeting in an attempt to
assuage her concerns about her husband.
On
September
detailing
threats
13,
2006,
allegedly
Mrs.
made
Rosales
towards
filed
her
a
complaint
husband
by
Sgt. Andrusz, and Correction Officers Mann (“CO Mann”), Benson
(“CO Benson”) and Turnbull (“CO Turnbull”) in B-Block. According to
Rosales, these officers had been continuously harassing him since
-3-
he became an IGP representative. In particular, Rosales claimed,
the harassment was directly related to his filing of complaints
about threats allegedly made by Sgt. Higley.
On October 24, 2006, Rosales was written up in a misbehavior
report by CO Benson based upon an incidents which occurred while he
and nine other inmates were being escorted to the special housing
unit (“SHU”) from the Regional Medical Unit (“RMU”) at about 10:45
a.m. According to CO Benson, he gave the inmates a verbal direction
not to talk and to maintain formation. Because Rosales was talking
loudly, however, CO Benson was forced to stop the group. CO Benson
asked Rosales if he understood his order not to talk while being
escorted.
Rosales
stepped
out
of
formation,
walked
toward
CO Benson, and stated in a “loud[,] threatening tone[,]” “‘I want
your name!’” CO Benson issued two direct orders to Rosales to get
back into formation and stop talking. Although Rosales initially
complied, he began talking loudly again as they were passing
Building #6.
Sgt. Andrusz was walking near the building’s rear dock and
encountered CO Benson and his group of inmates. Rosales approached
Sgt. Andrusz and yelled, “‘I want that officer’s name right now or
I’m writing up you and him both!’” Sgt. Andrusz ordered Rosales to
return to formation, but Rosales instead pulled out a pen and
approached CO Benson again. CO Benson ordered Rosales to return to
formation.
-4-
At this point, the other inmates turned around and began
falling out of formation because Rosales had walked between several
of them. Sgt. Andrusz and CO Benson returned the inmates to
formation and Rosales followed suit. Rosales and the rest of the
inmates were returned to B-Block without further incident.
CO Benson filed a misbehavior report against Rosales charging
him
with
the
following
infractions:
Rule
104.13
(creating
a
disturbance); Rule 107.10 (interference with employee); Rule 107.11
(harassment); Rule 106.10 (refusing direct order); and Rule 102.10
(making threats).
Commissioner’s
conducted
the
Tier
Hearing
III
Officer
disciplinary
Kennedy
hearing
(“CHO
on
CO
Kennedy”)
Benson’s
misbehavior report. CHO Kennedy was forced to obtain several
extensions of the hearing because he was not satisfied with the
level of employee legal assistance Rosales had received. At the
conclusion of the hearing on November 22, 2006, CHO Kennedy found
sufficient evidence on the charges of creating a disturbance,
interference with an employee, refusing a direct order, and making
threats. CHO Kennedy found the evidence insufficient to support the
harassment charge, however. The sanctions recommended were four
months in SHU from the date of the incident (October 24, 2006),
until February 24, 2007; the loss of package, commissary and phone
privileges for this four-month period; and removal from the IGRC
for a two-year period.
-5-
Rosales
finding.
pursued
Donald
Disciplinary
an
administrative
Selsky,
Program
Director
(“Director
of
appeal
Special
Selsky”),
of
the
guilty
Housing/Inmate
reviewed
the
Superintendent’s hearing and affirmed it on February 9, 2007.
Reconsideration was denied on February 26, 2007.
Rosales then instituted a proceeding pursuant to New York
Civil Practice Law and Rules (“C.P.L.R.”) Article 7803, arguing
that he was denied adequate employee and prisoner legal assistance,
in violation of 7 N.Y.C.R.R. § 251-4.2; he was denied the right to
call witnesses because he was denied the necessary assistance to
ascertain the names of inmate witnesses such that they could be
interviewed,
and
he
was
denied
certain
other
witnesses
for
insufficient reasons, in violation of 7 N.Y.C.R.R. § 254.5(a); he
was denied certain documents relevant to his defense, in violation
of 7 N.Y.C.R.R. § 254.6(c); and the hearing officer obtained
extensions in violation of 7 N.Y.C.R.R. § 251-5.1.
On October 26, 2007, Acting Justice Shirley Troutman of
New York State Supreme Court (Erie County) granted the Article 78
petition, annulled the adverse disciplinary finding, and remitted
the matter to DOCCS for further proceedings. A.J. Troutman found
that there was a lack of substantial evidence supporting the guilty
determination and that a reasonable effort had not been made to
identify and interview potential witnesses. On November 9, 2007,
-6-
Rosales’ disciplinary hearing was reversed by Director Selsky. All
references to it were expunged from his record.
III. General Legal Principles
A.
42 U.S.C. § 1983
In order to state a claim under 42 U.S.C. § 1983, the
plaintiff
must
establish
the
following
elements:
(1)
conduct
attributable at least in part to a person acting under color of
state law; and (2) deprivation, as the result of the challenged
conduct,
of
a
right,
privilege,
or
immunity
secured
by
the
Constitution or laws of the United States. Dwares v. City of
New York, 985 F.2d 94, 98 (2d Cir. 1993). Section 1983 “is not
itself a source of substantive rights,” but merely provides “a
method for vindicating federal rights elsewhere conferred.” Graham
v. Connor, 490 U.S. 386, 393–94 (1989) (quoting Baker v. McCollan,
443 U.S. 137, 144, n. 3 (1979)).
B.
Summary Judgment
Summary judgment pursuant to F.R.C.P. 56(c) is appropriate “if
the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). A fact is “material” only if it has some effect on
the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute regarding a material fact is genuine “if
-7-
the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248; see also, e.g.
Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied, 502 U.S.
849 (1991).
Once the moving party has met its burden of “demonstrating the
absence of a genuine issue of material fact, the nonmoving party
must come forward with enough evidence to support a jury verdict in
its favor, and the motion will not be defeated merely upon a
‘metaphysical doubt’ concerning the facts, or on the basis of
conjecture or surmise.” Bryant, 923 F.2d at 982 (internal quotation
omitted). As the Second Circuit has observed,
[a] party seeking to defeat a motion for summary judgment
must do more than make broad factual allegations and
invoke the appropriate statute. The [party] must also
show, by affidavits or as otherwise provided in Rule 56
of the Federal Rules of Civil Procedure, that there are
specific factual issues that can only be resolved at
trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
Pursuant to F.R.C.P. 56(e), affidavits in support of or in
opposition to a motion for summary judgment “shall be made on
personal
knowledge,
shall
set
forth
such
facts
as
would
be
admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.”
Thus, affidavits “must be admissible themselves or must contain
evidence that will be presented in an admissible form at trial.”
-8-
Santos v. Murdock, 243 F.3d 681, 683 (2d Cir. 2001) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
IV.
Discussion
A.
Denial of Procedural Due Process at the Disciplinary
Hearing
To award damages under 42 U.S.C. § 1983 for an alleged
violation of procedural due process, the reviewing court must find
that, as the result of conduct performed under color of state law,
the inmate was deprived of life, liberty, or property without due
process of law. Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir.
1996). It is undisputed that CHO Kennedy acted under color of state
law. The remaining inquiry comprises two prongs: (1) whether
Rosales had a protected liberty interest in not being confined
pursuant to the SHU sentence he served; and, if so, (2) whether the
deprivation of this liberty interest occurred without due process
of law. Id. at 351-52 (citing Kentucky Dep’t of Corr. v. Thompson,
490 U.S. 454, 460-61 (1989)). Defendants have assumed arguendo that
Rosales had a protectible liberty interest in being free from the
SHU sentence imposed by CHO Kennedy following the disciplinary
hearing, and the Court has done the same.
Due process under the Fourteenth Amendment requires that an
inmate charged with a disciplinary violation be given (1) advance
written notice of the charges at least 24 hours before the hearing;
(2) the opportunity to appear at the hearing, to call witnesses,
and to present rebuttal evidence; and (3) a written statement by
-9-
the hearing officer as to the evidence relied on for his decision,
and the reasons for the disciplinary action taken. Freeman v.
Rideout, 808 F.2d 949, 953 (2d Cir. 1986), reh’g en banc denied,
826 F.2d 194 (2d Cir. 1987), cert. denied, 485 U.S. 982 (1988)
(citing Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974)). Upon
determining that these procedural due process requirements have
been met, the reviewing court must determine “whether there is some
evidence which supports the decision of the prison disciplinary
board.” Id. at 954-55 (citing Superintendent, Mass. Corr. Inst.,
Walpole v. Hill, 472 U.S. 445, 453-55 (1985) (emphasis added)).
Plaintiff contends that he was not given sufficient assistance
in identifying witnesses; that he was denied the right to call
other
witnesses
based
on
the
hearing
officer’s
erroneous
conclusions that they were unavailable or their testimony would be
redundant; and that he was denied certain documents relevant to his
defense. The state court found that Rosales had not received a
“meaningful hearing” because he was “not given adequate assistance
or a reasonable opportunity to locate unknown inmate witnesses to
the incidents.” Article 78 Decision at 5 (Dkt #49). The state court
found that since the only evidence on which the hearing officer
relied was that offered by the complaining witness (CO Benson), the
“result
was
arbitrary
and
the
manner
in
which
the
requests
pertaining to the incidents was handled violated due procedure and
constituted an abuse of discretion which clearly prejudiced [him].”
-10-
Article 78 Decision at 6 (citing Matter of Shipman v. Coughlin,
98 A.D.2d 823 (3d Dept. 1983)).
With regard to the claim that Rosales was not supplied with
the
“evidence
requested
on
the
issue
of
motive
and
lack
credibility[,]” the state court found it to be “without merit as
the evidence adduced on this issue was sufficient . . . despite the
lack of significant portions of it.” Article 78 Decision at 6. The
state court found that additional evidence “along those lines”
would have been redundant, and Rosales was not prejudiced by its
absence. Id.
The fact that the state court reversed Rosales’ disciplinary
hearing
is
not
dispositive,
because
the
standard
applied
by
New York State courts in reviewing prison disciplinary proceedings
is
much
stricter
proceeding.
than
the
applicable
standard
in
a
§
1983
See Sira v. Morton, 380 F.3d 57, 76 n. 9 (2d Cir.
2004) (“New York law requires prison disciplinary rulings to be
supported by sufficiently relevant and probative information to
constitute substantial evidence. This requirement is stricter than
the ‘some evidence’ standard necessary to afford due process.” )
(internal and other citation omitted); see also id. (stating that
the administrative reversal of inmate’s disciplinary hearing did
not automatically establish his federal claim). In general, a court
reviewing
a
§
1983
complaint
“should
not
overturn
a
prison
disciplinary board’s finding of guilt if there is any evidence to
-11-
support the board’s conclusion.” Franco v. Kelly, 854 F.2d 584, 588
(2d Cir. 1988) (citing Hill, 472 U.S. at 455-56; Freeman, 808 F.2d
at 955; emphasis in original). “Ascertaining whether th[e] [‘some
evidence’] standard is satisfied does not require examination of
the entire record, independent assessment of the credibility of
witnesses, or weighing of the evidence.” Hill, 472 U.S. at 454.
In Hill, respondents-inmates were disciplined for assaulting
another inmate based upon the testimony of a prison guard who
observed a bloodied inmate with a swollen eye lying on the ground,
and three other inmates jogging away from the area, which was
enclosed by a chain-link fence. No other inmates were present. Id.
at
447-48.
characterized
Conceding
as
that
meager,
“the
and
evidence
there
was
.
no
.
.
direct
might
be
evidence
identifying any one of three inmates as the assailant,” the Supreme
Court upheld the disposition because the record was “not so devoid
of evidence that the findings of the disciplinary board were
without support or otherwise arbitrary.” Id. at 457. It bears
noting that the “substantial evidence” standard that must be met in
the context of a proceeding pursuant to C.P.L.R. Article 78 places
a much heavier burden on prison officials. Contrast Gaston v.
Coughlin, 182 A.D.2d 1085, 582 N.Y.S.2d 878 (4th Dept. 1992)
(granting
Article
78
petition
because
the
“proof
[did]
not
constitute substantial evidence and is insufficient to support the
determination”) with Gaston v. Coughlin, 249 F.3d 156, 163-64
-12-
(2d Cir. 2001) (affirming dismissal of inmate’s § 1983 due process
claim; noting “[it] cannot conclude that there was not ‘some
evidence’ to support the hearing officer’s ruling”); see also
Nicholas v. Davis, 74 F. App’x 131, 134, 2003 WL 22056224, at *2
(2d Cir. Sept 4, 2003) (unpublished opn.) (fact that disciplinary
determination against inmate was administratively overturned based
upon lack of evidence does not establish due process violation
because “substantial, rather than ‘some,’ evidence was required”
under state law) (citation omitted).
Although
the
incriminating
evidence
against
Rosales
was
direct, rather than circumstantial as was the case in Hill, it was
offered only by interested witnesses–the two corrections officers
involved in the incident. However, the judge in the Article 78
proceeding specifically found that adequate evidence was presented
regarding Rosales’ defense that he was a target of harassment based
upon
his
activism
as
an
IGP
representative,
and
that
the
misbehavior report was issued in retaliation for his filing of
complaints against Sgt. Higley. The evidence directly supporting
the charges in the misbehavior report may have been less than
overwhelming, but the record was “not so devoid of evidence that
the findings of the disciplinary board were without support or
otherwise arbitrary[,]” Hill, 472 U.S. at 457; see also Nicholas,
74 F. App’x at 134 (“[W]here prison officials had credible cause to
fear a major and coordinated act of civil disobedience in the
-13-
prison, such a letter, along with the statements that the plaintiff
made to the Village Voice, suffice-if barely-as “some evidence,”
that plaintiff was organizing or encouraging other inmates to
participate
in
such
a
strike.”)
(internal
citation
omitted).
Measured in light of the Supreme Court’s pronouncements in Hill,
the “some evidence” standard was met in Rosales’ case.
With regard Plaintiff’s other claims of constitutional error
at the disciplinary hearing, e.g., inadequate legal assistance in
assisting him in discovering the names of witnesses and obtaining
their testimony, the Court finds that any alleged deficiencies
amount to harmless error not warranting denial of summary judgment.
See Hernandez v. Selsky, 572 F. Supp.2d 446, 454 (S.D.N.Y. 2008)
(“[A]ssuming
the
employee
assistant
provided
at
least
some
assistance, ‘the adequacy of inmate assistance is subject to
harmless error analysis.’”) (quotations omitted; citing Powell v.
Coughlin, 953 F.3d 744, 750 (2d Cir. 1991) (“If a person may be
convicted and obliged to serve a substantial prison sentence
notwithstanding a constitutional error determined to be harmless,
surely the conditions of confinement of a sentenced prisoner may be
made temporarily more severe as discipline for a prison rules
infraction
despite
a
harmless
violation.”) (citations omitted).
-14-
error
in
adjudicating
the
B.
First Amendment Retaliation Claim
“Courts properly approach prisoner retaliation claims ‘with
skepticism and particular care,’ because ‘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.’” Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting
Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on
other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002);
other citation omitted). 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.” Dawes, 239
F.3d
at
492.
Since
the
filing
of
prison
grievances
is
a
constitutionally protected activity, Rosales meets the first prong
of the test. Davis, 320 F.3d at 352-53 (citations omitted). The
Court accordingly turns to the second and third prongs of the test
set forth in Dawes, 239 F.3d at 491, namely, whether Rosales
suffered
an
adverse
action
and
whether
there
was
a
causal
connection between the events in question.
Rosales
asserts
that
the
misbehavior
report
issued
by
CO Benson on October 24, 2006, was made in retaliation for his July
28, 2006 grievance against IGPS Kielisvek and Sgt. Higley alleging
-15-
that these individuals harassed him and retaliated against him for
his actions as an IGP representative. Defendants argue that there
is no proof that IGPS Kielisvek and Sgt. Higley “chilled [his]
exercise of a constitutionally protected right or were causally
linked to an adverse action taken by them [sic].” Defendants’
Memorandum of Law at 6. Defendants cite cases standing for the
proposition that the passage of time between the protected activity
and
the
adverse
action
can
defeat
a
plaintiff’s
ability
to
establish a causal connection. Id. (citations omitted).
Contrary to Defendants’ suggestion, the appropriate test is
not whether Rosales himself was chilled, for if that were the
standard, it is unlikely that any plaintiff could prevail. The
plaintiff’s continued filing of grievances or commencement of a
lawsuit, such as the instant one, could be used by prison officials
to argue that the inmate was not chilled. Rather, the test is
whether the allegedly retaliatory conduct “would deter a similarly
situated individual of ordinary firmness from exercising his or her
constitutional right.” Dawes, 239 F.3d at 493. The Court need not
resolve these issues surrounding the “adverse action” component of
the test, because Rosales has failed to raise a genuine issue of
material fact as to causation.
A plaintiff can establish a causal connection that suggests
retaliatory intent by showing that his protected activity was close
in time to the complained-of adverse action. Espinal v. Goord, 558
-16-
F.3d 119, 129 (2d Cir. 2001) (citations omitted)). The Second
Circuit has “not drawn a bright line to define the outer limits
beyond which a temporal relationship is too attenuated to establish
a
causal
relationship
constitutional
right
between
and
an
the
exercise
allegedly
of
a
retaliatory
federal
action.”
Gorman-Bakos v. Cornell Coop. Extn. of Schenectady Cty., 252 F.3d
545, 554 (2d Cir. 2001). Compare Hollander v. American Cyanamid
Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (finding a lack of evidence
that an adverse action, taken three months after the plaintiff’s
EEOC complaint, was in response to the plaintiff’s protected
activity) with Gorman-Bakos, 252 F.3d at 555 (suggesting the lapse
of five months between protected activity and retaliation may show
a causal connection where plaintiffs provided evidence of exercises
of free speech and subsequent retaliatory actions occurring between
December 1997 and April 1998).
Here,
two
months
and 26
days
(88 days)
elapsed
between
Rosales’ protected activity (the July 28, 2006 grievance) and the
allegedly adverse action (the October 24, 2006 misbehavior report).
In this Circuit, claims of retaliation are routinely dismissed when
as few as three months elapse between the protected activity and
the alleged act of retaliation. Nicastro v. Runyon, 60 F. Supp.2d
181, 185 (S.D.N.Y. 1999) (citing, inter alia, Ponticelli v. Zurich
Am.
Ins.
Group,
16
F.
Supp.2d
414,
436
(S.D.N.Y.
1998)
(two-and-a-half months between employee’s protected activity and
-17-
discipline insufficient to establish a causal link)); see also
Ruhling v. Tribune Co., No. CV 04–2430(ARL), 2007 WL 28283, at *23
(E.D.N.Y. Jan. 3, 2007) (collecting cases).
In Ponticelli, the district court found that even if the
terminated plaintiff could show that the employer was aware of her
complaints of sexual harassment, she offered no evidence from which
a reasonable jury could find that the decision to terminate her was
causally connected to her prior complaints. 16 F. Supp.2d at 436.
In particular, the person about whom she complained, and the person
with whom she registered her complaint, had nothing to do with her
termination. Id. The district court found it significant that the
plaintiff’s complaint was made at least two-and-a-half months
before her termination, which was “hardly the close proximity of
time contemplated by Manoharan [v. Columbia Univ. College of
Physicians and Surgeons, 842 F.2d 590 (2d Cir. 1988)], for allowing
a
plaintiff
to
establish
the
‘causal
connection’
element
of
retaliation claim.”).
This case is similar on the facts to Ponticelli. The elapsed
time here was only a few days shy of three months. On the issue of
temporal proximity, then, this case appears to be on the borderline
when compared to other district court cases in this Circuit. As in
Ponticelli,
there
proximity–from
is
which
no
a
evidence–apart
reasonable
jury
from
could
the
find
temporal
that
the
misbehavior report was causally connected to Rosales’ filing of
-18-
grievances. Neither of the officers (Sgt. Andrusz and CO Benson)
involved in the underlying incident were on the IGRC or otherwise
connected with the IGP. Sgt. Andrusz stated that he had no previous
interaction with Rosales and had not been told anything about
Rosales
by
Sgt.
Higley,
the
subject
of
Rosales’
grievance.
Sgt. Higley denied involvement with the misbehavior report and
stated that he never told CO Benson or Sgt. Andrusz “to get rid of”
Rosales. See Defendants’ F.R.C.P. 26 Disclosure, Dkt. #30, Bates
#000137-138). Under the present circumstances, summary judgment on
Rosales’ retaliation claim is appropriate because he has not
established a genuine issue of material fact on the element of
causation.
V.
Conclusion
For the foregoing reasons, Defendants’ motion for summary
judgment (Dkt #34) is granted, and Plaintiff’s complaint (Dkt #1)
is dismissed with prejudice. Plaintiff’s motion to compel (Dkt #40)
is dismissed as moot. The Clerk of the Court is requested to close
this case.
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
DATED:
July 24, 2013
Rochester, New York
-19-
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