Simmons v. Adamy et al
Filing
62
-CLERK TO FOLLOW UP-ORDER granting defendants' 55 Motion for Summary Judgment; denying plaintiff's 58 Motion for Summary Judgment and dismissing the amended complaint in its entirety, with prejudice. Signed by Hon. David G. Larimer on 12/17/13. (EMA)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ALPHONSO SIMMONS,
Plaintiff,
DECISION AND ORDER
08-CV-6147L
v.
CORRECTION OFFICER DAVID ADAMY,
et al.,
Defendants.
________________________________________________
INTRODUCTION
Plaintiff Alphonso Simmons (“plaintiff”), proceeding pro se, brings this action against Attica
Correctional Facility Corrections Officer David Adamy (“Adamy”), Department of Correctional
Services (“DOCS”) Deputy Superintendent of Programs Sandra Dolce (“Dolce”), and DOCS Deputy
Commissioner and Counsel Anthony Annucci (“Annucci”). Plaintiff alleges that the defendants
subjected him to unlawful retaliation pursuant to 42 U.S.C. §1983. (Dkt. #19). He requests money
damages and injunctive relief.
Plaintiff commenced the instant action on April 2, 2008. (Dkt. #1). An amended complaint
was filed August 31, 2009. (Dkt. #19). Plaintiff claims that during his incarceration at Attica, his
constitutional rights were violated when: (1) the defendants retaliated against him for his pursuit of
internal grievances and/or showed deliberate indifference toward such retaliation, by denying
plaintiff reasonable access to Attica’s law library; (2) defendants retaliated against plaintiff by
interfering with plaintiff’s access to religious services, via a schedule for law library access that
conflicted with religious classes and observances; and (3) Adamy retaliated against plaintiff by
issuing a false misbehavior report.
On July 15, 2011, the defendants moved for summary judgment dismissing plaintiff’s claims,
pursuant to Fed. R. Civ. Proc. 56. (Dkt. #55). On August 15, 2011, plaintiff cross moved for
summary judgment. (Dkt. #58).
For the reasons set forth below, the defendants’ motion (Dkt. #55) is granted, plaintiff’s cross
motion for summary judgment (Dkt. #58) is denied, and the amended complaint is dismissed.
DISCUSSION
I.
Summary Judgment
Summary judgment is appropriate where the record demonstrates that “there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Where
the party opposing summary judgment is proceeding pro se, the Court must “read the pleadings ...
liberally and interpret them to raise the strongest arguments that they suggest.” Corcoran v. New
York Power Auth., 202 F.3d 530, 536 (2d Cir.1999). However, “proceeding pro se does not
otherwise relieve [an opposing party] from the usual requirements of summary judgment.”
Fitzpatrick v. N.Y. Cornell Hosp., 2002 U.S. Dist. LEXIS 25166 at *5 (S.D.N.Y. 2003). Those
requirements include the obligation not to rest upon mere conclusory allegations or denials, but
instead to set forth “concrete particulars” showing that a trial is needed. R.G. Group, Inc. v. Horn
& Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984).
II.
Plaintiff’s Retaliation Claims
In order to prove a First Amendment retaliation claim under Section 1983, a prisoner must
show that: (1) he engaged in protected speech or activity; (2) the defendant took adverse action
against him; and (3) there was a causal connection between the protected speech or activity and the
adverse action. See Espinal v. Goord, 554 F.3d 216, 227 (2d Cir. 2009). An adverse action is
“conduct that would deter a similarly situated individual of ordinary firmness from exercising . . .
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constitutional rights.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (internal quotation marks
omitted). To show retaliation, a plaintiff must demonstrate that constitutionally protected conduct
was a substantial or motivating factor for a prison official’s adverse action. See Bennett v. Goord,
343 F.3d 133, 137 (2d Cir. 2003). Although temporal proximity is often relied-upon for this
purpose, 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 between the exercise of a
federal constitutional right and an allegedly retaliatory action,” and courts are therefore free to draw
permissible inferences based upon the “context of particular cases.” Espinal, 554 F.3d 216 at 228.
Nonetheless, courts 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)
(internal quotation marks omitted).
It appears undisputed that the plaintiff engaged in the protected activity of pursuing
grievances at least six times between September 2007, just a few weeks after his arrival at Attica,
and his transfer to another facility in February 2009, and that the alleged adverse actions occurred
during the same time period. See generally Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)
(pursuit of grievances is an activity that Section 1983 was meant to protect). It is equally undisputed
that Adamy was the law library officer responsible for scheduling inmate access to Attica’s law
library, and that Dolce was the Deputy Superintendent of Programs empowered to direct Adamy to
schedule inmates for “special access” (additional, prioritized access) to the law library.1 However,
1
Plaintiff makes no allegations of personal involvement by Annucci, except to allege
that he was responsible for developing “policy for all [Department of Correctional Services]
libraries.” (Dkt. #58 at ¶4). Plaintiff makes no claim that the library policies allegedly
established by Annucci are unconstitutional or otherwise deficient. As such, his claims against
Annucci are dismissed in their entirety, with prejudice, for failure to state a claim. Even
assuming arguendo that plaintiff had stated claims against Annucci, the Court would grant
summary judgment to Annucci on those claims for the reasons discussed hereinafter.
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I find that on the facts presented here, the plaintiff has failed to adequately plead or prove that any
of the defendants’ actions toward him were “adverse actions” within the meaning of Section 1983,
or that they were taken against him under circumstances implying a retaliatory motive.
Initially, plaintiff offers no evidence that he was ever subjected to “conduct that would deter
a similarly situated individual” from exercising his constitutional rights. Gill, 389 F.3d 379 at 381.
As discussed in greater detail below, there is no evidence that plaintiff was treated differently from
other inmates who had not pursued grievances, that he was afforded less than reasonable (or less than
typical) access to the prison law library, that his free exercise rights were affected in more than de
minimus fashion by the scheduling of his law library call-outs, that the allegedly false misbehavior
report authored by Adamy was motivated by a desire to retaliate, or that he was unfairly disciplined
or restricted as a result of it. There is simply no evidence that plaintiff was subjected to a materially
adverse action which might have dissuaded a person of ordinary firmness from pursuing additional
grievances. Although inferences must be drawn in favor of the non-moving party on a motion for
summary judgment, “the non-moving party may not rely on conclusory allegations or unsubstantiated
speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Plaintiff’s retaliation claims are
accordingly dismissed.
III.
Plaintiff’s Constitutional Claims
Plaintiff characterizes the denial of access to the courts and denial of religious freedom as
“adverse actions” in support of a retaliation claim, and not as standalone claims that his
constitutional rights were violated. However, to the extent that the complaint could be construed to
assert such claims, they are dismissed for the reasons that follow.2
2
In contrast, plaintiff’s claim concerning the false misbehavior report cannot be pursued
as a standalone claim. See Brooks v. Jackson, 2013 U.S. Dist. LEXIS 136537 at *31-*32
(S.D.N.Y. 2013) (“it is well established that ‘a prison inmate has no general constitutional right
to be free from being falsely accused in a misbehavior report’ . . . the only way in which the
filing of a false misbehavior report can violate a prisoner’s constitutional rights is if the report is
(continued...)
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A.
Denial of Access to the Courts
Plaintiff claims that during his incarceration at Attica, he was denied adequate access to the
law library, which allegedly caused him to have to request multiple extensions of court-imposed
deadlines relative to twelve separate civil and criminal matters in which he was involved. (Dkt. #58
at ¶4).
In order to state a claim for denial of access to the courts, “a plaintiff must allege that the
defendant took or was responsible for actions that ‘hindered [his] efforts to pursue a legal claim.’”
Davis v. Goord, 2003 U.S. App. LEXIS 13030 at *7 (2d Cir. 2003), quoting Monsky v. Moraghan,
127 F.3d 243, 247 (2d Cir. 1997). “Because law libraries and legal assistance programs do not
represent constitutional rights in and of themselves, but only the means to ensure a reasonably
adequate opportunity [to access the courts], prisoners must demonstrate ‘actual injury’ in order to
have standing.” Benjamin v. Fraser, 264 F.3d 175, 185 (2d Cir. 2001) (quoting Lewis v. Casey, 518
U.S. 343 at 351 (1996)).
Initially, the undisputed facts establish that plaintiff was not denied reasonable access to the
prison law library. Defendants contend in a sworn affidavit, and plaintiff does not dispute, that
during the year-and-a-half that plaintiff was incarcerated at Attica, he was scheduled for more than
100 law library “call-outs,” and was granted “special access” (additional, priority law library access
to meet upcoming court deadlines) by Dolce on eight different occasions. (Dkt. #28 at 5).
According to Dolce’s sworn responses to interrogatories, plaintiff received more frequent access to
the law library during his incarceration at Attica than any other inmate, visiting the law library as
many as 63 times in 7 months. (Dkt. #28 at 4, 5). By plaintiff’s own reckoning, he received an
average of at least one or two library call-outs per week (Dkt. #58 at ¶6, ¶40). I find that this
frequency of access, which was undisputedly far greater than the average access afforded to inmates
2
(...continued)
filed in retaliation for the exercise of some other constitutional right, such as the filing of a
grievance”) (quoting Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)).
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at Attica, was inherently reasonable. Based on plaintiff’s significant access to the library, his claim
that he was denied reasonable access is frivolous.
Moreover, plaintiff offers no evidence that he was harmed by the lack of more frequent law
library access. Although plaintiff does allege that delay in a matrimonial matter caused him to be
“abandoned by a woman who was interested in marrying the plaintiff because of his inability to
secure a divorce [more quickly],” (Dkt. #58 at ¶42), this allegation is unsupported hearsay, and the
harm it describes is wholly speculative.
Because plaintiff was not denied reasonable access to the prison law library, his claim based
on denial of access to the courts is dismissed.
B.
Denial of Religious Freedom
Plaintiff also alleges that the defendants denied him the ability to practice his religion while
imprisoned at Attica.3 Specifically, plaintiff alleges that during an approximately one-year period,
Adamy scheduled many of plaintiff’s library call-outs for times which conflicted with Muslim
celebrations and/or classes, and that Dolce, although notified of the problem, failed to address it.
The First Amendment guarantees the right to the free exercise of religion. See Cutter v.
Wilkinson, 544 U.S. 709, 719, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005). “Prisoners have long
been understood to retain some measure of the constitutional protection afforded by the First
Amendment’s Free Exercise Clause.” Ford v. McGinnis, 352 F.3d 582, 588 (2d Cir. 2003). The
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) also protects inmates’ rights to
3
Although defendants move for summary judgment dismissing the complaint in its
entirety, they appear to characterize the “adverse action” underlying plaintiff’s retaliation claims
as denial of access to the courts. However, construing the amended complaint liberally and
granting plaintiff all favorable inferences as a pro se litigant, it is clear that the amended
complaint also alleges as an adverse action the denial of religious liberty, based on the Hobson’s
choice allegedly presented to plaintiff: whether to make use of his library call-outs, or attend
religious services allegedly essential to the practice of his Muslim faith, which were sometimes
scheduled for the same times. See generally Salahuddin v. Goord, 467 F.3d 263, 278-79 (2d Cir.
2006) (questioning whether forcing an inmate to choose between law library access and
attendance at religious meals and services could possibly serve a penalogical interest sufficient to
justify the burden on the inmate’s free exercise, and denying qualified immunity on that issue).
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free exercise. RLUIPA prohibits the government from imposing a substantial burden on a prisoner’s
religious exercise unless it is the least restrictive means to further a compelling governmental
interest. See 42 U.S.C. § 2000cc-l(a). For a burden to be substantial, a plaintiff must demonstrate
that the government’s action pressures him to commit an act forbidden by his religion or prevents
him from engaging in conduct or having a religious experience mandated by his faith. This
interference must be more than an inconvenience; the burden must be substantial and an interference
with a tenet or belief that is central to religious doctrine. See Pugh v. Goord, 571 F.Supp.2d 477,
504-05 (S.D.N.Y.2008); Graham v. Mahmood, 2008 U.S. Dist. LEXIS 33954 (S.D.N.Y. 2008).
The undisputed facts establish that there was some overlap between scheduled Muslim
classes, services and observances, and plaintiff’s law library call-out schedule (less than 20% of the
time). However, plaintiff has failed to demonstrate that this overlap placed a substantial burden on
his ability to practice his religion.
Initially, the Court notes that several of the occasions upon which plaintiff claims his library
call-outs were deliberately scheduled to conflict with religious observances occurred during the
Muslim holy month of Ramadan. Because Ramadan occupies an entire 29-30 day period in or
around September, and because plaintiff was requesting library access during this time, it would have
been impossible for Adamy or any other official to have scheduled plaintiff’s September library callouts at times which did not coincide with Ramadan.
As to the remaining thirteen occasions over an approximately one-year period when
plaintiff’s library call-outs allegedly conflicted with weekly Quranic Studies classes or Jumu’ah (a
weekly worship service), I find that the scheduling of 13 occasions out of over 100 (13% of the
time), which conflicted with religious services and classes being held two days out of every week
(29% of the time) is not indicative of a deliberate effort to interfere with plaintiff’s religious
practices. Indeed, although there is no bright-line rule concerning the frequency with which missing
religious services and classes becomes a burden of constitutional significance, limits on an inmate’s
religious exercise which prevent attendance at classes or services once a week or less have routinely
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been held not to comprise a burden on religious exercise. See e.g., O’Lone v. Estate of Shabazz, 482
U.S. 342, 349 (1986) (regulation which prevents Muslin inmates from attending weekly services
does not impinge on freedom of religion, where other religious opportunities are available); Graham
v. Mahmood, 2208 U.S. Dist. LEXIS 33954 at *43-*44 (S.D.N.Y. 2008) (prison regulation resulting
in inmate’s inability to participate in weekly Islamic studies classes presents a de minimus burden
on the inmate’s free exercise of his religion). I therefore find that to the extent that plaintiff has
alleged a claim of denial of religious freedom, that claim must be dismissed.
I have considered the remainder of plaintiff’s arguments, and find them to be without merit.
CONCLUSION
For the foregoing reasons, I find that there are no material issues of fact, and that defendants
are entitled to judgment as a matter of law. Accordingly, defendants’ motion for summary judgment
dismissing the complaint (Dkt. #55) is granted, plaintiff’s cross motion for summary judgment (Dkt.
#58) is denied, and the amended complaint is dismissed in its entirety, with prejudice.
IT IS SO ORDERED.
_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
December 17, 2013
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