Nelson v. McGrain
Filing
25
DECISION AND ORDER declining to grant summary judgment on Plaintiff's First Amendment retaliation claim and reinstating Plaintiff's Eighth Amendment claims previously dismissed based on the failure to exhaust administrative remedies. Signed by Hon. Michael A. Telesca on 11/24/15. Copy of Decision and Order sent by first class mail to Plaintiff. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JEFFREY NELSON,
Plaintiff,
DECISION AND ORDER
No. 6:12-CV-6292(MAT)
-vsCORRECTION OFFICER MARC McGRAIN,
Defendant.
I.
Introduction
On March 5, 2015, a panel of the United States Court of
Appeals for the Second Circuit issued an order (Dkt #19) vacating
in part this Court’s decision and order granting summary judgment
in favor of Defendant and dismissing Plaintiff’s complaint alleging
various civil rights violations. See Nelson v. McGrain, No. 134226-pr (2d Cir. Mar. 5, 2015) (summary order).1 In particular, the
Second Circuit “vacate[d] the judgment insofar as it awarded
judgment on [Plaintiff]’s First Amendment claim and remand[ed] for
[this Court] to consider that claim in the first instance[,]” and
it “further directed [this Court] to consider whether [Plaintiff]’s
allegations, understood as retaliation claims, excused any failure
to exhaust administrative remedies as to his [1] sexual assault
allegations and his [2] claim that false misbehavior reports were
filed against him.” Dkt #19, p. 4 (citing Hemphill v. New York, 380
F.3d 680, 686-90 (2d Cir. 2004)). The Court requested that the
1
The Second Circuit’s order was issued as a mandate on April 9, 2015, and
entered on this Court’s docket (Dkt #19) on April 10, 2015.
parties submit additional briefing on the issues identified by the
Second Circuit in its order, namely, (1) the merits of Plaintiff’s
First Amendment retaliation claim that the Second Circuit has
discerned in Plaintiff’s pleadings, (2) whether Plaintiff’s First
Amendment retaliation claim excuses, under Hemphill, 380 F.2d at
686-90,2 Plaintiff’s failure to exhaust his administrative remedies
as to the following claims (a) his Eighth Amendment claim based on
the alleged sexual assault upon him by Defendant, and (b) his due
process claim that false misbehavior reports were filed against
him. The parties submitted the additional briefing as requested.
II. Discussion
A.
First Amendment Retaliation Claim
To state a First Amendment retaliation claim, a prisoner must
demonstrate (1) protected speech or conduct, (2) adverse action by
the defendant, and (3) a causal connection between the two. Davis
v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (citation omitted).
1.
Because
Protected Speech
the
filing
of
prison
grievances
is
a protected
activity, Davis, 320 F.3d at 352–53 (citations omitted), Plaintiff
meets the first prong of the test.
2.
“Only
Adverse Action
retaliatory
conduct
that
would
deter
a
similarly
situated individual of ordinary firmness from exercising his or her
2
To assist Plaintiff, who is acting pro se, the Court is sending a copy of
the Hemphill decision to Plaintiff along with this order.
-2-
constitutional rights constitutes an adverse action.” Davis, 320
F.3d at 353 (internal quotation marks omitted; citation omitted).
In determining whether the retaliatory conduct is de minimis or
sufficient to deter a similarly situated person from asserting his
rights, the court “must . . .
tailor[ ] [its inquiry] to the
different circumstances in which retaliation claims arise, bearing
in mind that prisoners may be required to tolerate more than
average citizens before a retaliatory action taken against them is
considered adverse.” Id. (internal quotation marks and alterations
omitted).
It
is
well
settled
that
“a
prisoner
can
state
a
retaliation claim in the absence of actual deterrence.” Nelson, 596
F. App’x at 38 (citing Gill v. Pidlypchak, 389 F.3d 379, 384
(2d Cir. 2004) (“[T]he fact that a particular plaintiff . . .
responded to retaliation with greater than ‘ordinary firmness’ does
not deprive him of a cause of action.”).
Here, Plaintiff alleges six separate instances of alleged
retaliation over the course of 18 days. First, on
August 29, 2011,
Plaintiff alleges that Defendant stated to him, “Stop writing
complaints on the staffs [sic]! Do you hear me you deaf retard!
Cause I can make your stay here very miserable!” Defendant then
“pull[ed] his pants down and jam[med] his buttock[s] in the feed up
slot and pass[ed] gas[,]” while stating, “[I]f you don’t hear that
you will sure smell it!” Plaintiff’s Affidavit (“Pl’s Aff.”) at 2.
According to Plaintiff, these threats “intimidated [him] with
fearful panic attack of worrying about being set up with unlawful
-3-
contraband.” Id. (citing Declaration of Assistant Attorney General
Hillel Deutsch, Esq. (“Deustch Decl.”), Exhibit (“Ex.”) B).
Second, on September 3, 2011, Defendant served him a meal that
was contaminated with chewing tobacco-laden saliva.
Third,
Plaintiff
complains
that
on
September
4,
2011,
Defendant “threw [his] noon meal through the feed-up slot and
walked away.” Complaint (“Comp.”), ¶ 10.
Fourth, on September 5, 2011, Defendant served him only hot
dog buns and not the rest of his noon meal. Plaintiff further
contends the hot dog buns he received were contaminated with H.
Pylori bacteria. According to Plaintiff, after eating the hot dog
buns, he began suffering nausea and stomachaches and was treated
with an over-the-counter heartburn medication.
Fifth, on September 12, 2011, Defendant approached Plaintiff’s
cell and yelled, “[N]obody believe [sic] you! It’s not over!”
Comp., ¶ 13. Plaintiff interpreted this as a threat that Defendant
was going to frame him for possession of an unlawful weapon.
On September 16, 2011, Plaintiff alleges he sustained injuries
from having handcuffs applied too tightly. He also alleges that
Defendant forced Plaintiff to bend over while Defendant pulled
Plaintiff’s
underwear
down
and
“force[d]
his
finger
into
[Plaintiff’s] anal cavity while stating, ‘stop resisting!’” Pl’s
Aff. at 5. Plaintiff states that the assault was interrupted when
another correction office called out that a sergeant was coming
back with a group of inmates. Id.
-4-
Finally,
Plaintiff
asserts
that
Defendant
filed
a
false
misbehavior report against him for allegedly calling him a “fucking
faggot” during a facility count.
The Second Circuit has stated that the issue of whether the
alleged retaliation reached the threshold of actionability under
Section 1983 “is factual in nature.” Davidson v. Chestnut, 193 F.3d
144, 150 (2d Cir. 1999) (citations omitted). The Court finds that
the instances of alleged retaliation described above, are, at
least, “‘capable of deterring a person of ordinary firmness’ from
exercising the constitutional right in question[,]” Hill v. Lappin,
630 F.3d 468, 472 (6th Cir. 2010) (emphasis in original; citation
omitted). See Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983)
(“[T]he Eighth Amendment prohibition against cruel and unusual
punishment does require that prisoners be served ‘nutritionally
adequate food that is prepared and served under conditions which do
not present an immediate danger to the health and well being of the
inmates who consume it.’”) (quotation omitted); Baskerville v.
Blot, 224 F. Supp.2d 723, 731 (S.D.N.Y. 2002) (“Baskerville’s claim
regarding the retaliatory assault sufficiently describes adverse
conduct that would deter a reasonable inmate from exercising his
constitutional rights.”) (citing, inter alia, Rivera v. Goord, 119
F.
Supp.2d
327,
339–40
(S.D.N.Y.
2000)
(retaliatory
assault
constitutes adverse action)); Mateo v. Fischer, 682 F. Supp.2d 423,
434 (S.D.N.Y. 2010) (“It is true that some verbal threats, even if
not
serious
enough
to
implicate
-5-
the
Eighth
Amendment,
can
constitute an adverse action.”). At this stage of the proceeding,
the Court concludes that the claimed retaliatory acts were not
merely de minimis acts of harassment, which “is all that is
required to reach a jury on the issue of whether the retaliatory
actions could deter a person of ordinary firmness from engaging in
protected conduct.” Bell v. Johnson, 308 F.3d 594, 606-07 (6th Cir.
2002).
3.
Causal Connection
Defendant has not addressed this element of a retaliation
claim, relying solely on his argument that the adverse conduct
alleged is de minimis.
“A plaintiff can establish a causal connection that suggests
retaliation by showing that protected activity was close in time to
the adverse action.” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.
2009). Records submitted by Defendant indicate that Plaintiff filed
a grievance (SPT-51824-11: Denied MD Follow Up) on July 8, 2011,
which was 52 days before the first instance of adverse conduct on
August 29, 2011. Dkt #7-4, p. 4 of 5. Plaintiff alleges in his
Complaint
that
he
is
hearing
impaired
and
filed
grievances
regarding the inadequacy of medical care he received regarding his
hearing problems. During the incident in which Defendant directed
flatulence into his cell, Defendant called Plaintiff a “deaf
retard” and told him to stop filing grievances.
remainder
of
the
time-period
in
which
Then, during the
adverse
conduct
was
occurring, Plaintiff concomitantly was filing grievances. Under
-6-
these
circumstances,
viewing
the
evidence
in
the
light
most
favorable to Plaintiff, there is a legitimate inference of a causal
connection between Plaintiff’s filing of grievances and the alleged
retaliatory course of conduct. See Espinal, 558 F.3d at
(“[T]he passage
of
only
six
months between
the
dismissal
129
of
Espinal’s lawsuit and an allegedly retaliatory beating by officers,
one of whom (Surber) was a defendant in the prior lawsuit, is
sufficient to support an inference of a causal connection.”)
(citation omitted); Reynolds-Bey v. Harris, 428 F. App’x 493, 2011
WL 1396786, at *11 (6th Cir. 2011) (unpublished opn.) (district
court erroneously failed to credit, as evidence of intent, inmate’s
allegation that corrections officer made specific reference to
protected activity when he conducted alleged retaliatory shakedown
and used
racial slur against inmate); Barrington v. N.Y., 806 F.
Supp.2d 730, 748
(S.D.N.Y. 2011) (“Barrington alleges that he was
assaulted five days after he filed a grievance and Titka made a
threat that he and his ‘boys’ would ‘get’ Barrington while waving
a copy of the grievance. While the threat alone cannot sustain a
claim for retaliation, the same breadth that renders the threat
insufficient
per
se
makes
it
probative
of
more
widespread
retaliatory intent.”).
Summary judgment accordingly is not warranted on Plaintiff’s
First Amendment claim for retaliatory treatment.
-7-
B.
Exhaustion
On remand, the Second Circuit instructed the Court to consider
whether Plaintiff’s allegations, understood as retaliation claims,
excused any failure to exhaust administrative remedies as to his
sexual assault allegations and his claim that false misbehavior
reports were filed against him. Nelson, 596 F. App’x at 38 (citing
Hemphill v. N.Y., 380 F.3d 680, 686-90 (2d Cir. 2004)). Under
Hemphill,
the
district
court
must
“must
ask
whether
[the]
administrative remedies [not pursued by the prisoner] were in fact
‘available’ to the prisoner.” 380 F.3d at 686 (citation omitted).
This is an objective test, i.e., whether a “similarly situated
individual
of
ordinary
firmness”
would
have
found
it
to
be
“unavailable.” Id. at 688 (citation omitted). Second, the district
court must determine if the defendant should be estopped from
presenting non-exhaustion as an affirmative defense because he
prevented the plaintiff inmate from exhausting his administrative
remedies by “beating him, threatening him, denying him grievance
forms and writing implements, and transferring him to another
correctional facility.” Hemphill, 380 F.3d at 688 (citing Ziemba v.
Wezner, 366 F.3d 161, 162 (2d Cir. 2004)). Third, there are certain
“special
circumstances”
in
which
even
though
administrative
remedies may have been available and the defendant may not be
estopped from asserting a non-exhaustion defense, the inmate's
failure to exhaust may be justified. Hemphill, 380 F.3d at 686.
-8-
Here, Plaintiff alleges, in his supplementary briefing and
attached exhibits, that after the assault on September 16, 2011,
and subsequent false misbehavior report, he was in a state of
“anxiety of fear and depression” and had “a mental and emotional
breakdown and was admitted into Elmira Correctional Facility mental
health clinical where he stay as a patient for 28 days without any
access to any writing material. . . .” The attached records
indicate that he was admitted to the Central New York Psychiatric
Center on October 12, 2011, and treated for threats of self-harm.
Following his discharge, he was transferred to Clinton Correctional
Facility, where he wrote a letter to the Southport grievance
supervisor.
He
subsequently
was
beaten
in
his
sleep
by
two
corrections officers, sustaining 2 ½-inch long lacerations to his
right eyelid requiring sutures, as well as contusions on his left
deltoid, right upper back, lower back, left upper chest, right side
of face, above right eye, left posterior arm above elbow, left
upper chest, and right chest. After that, Plaintiff sliced open a
vein in his arm with a facility shaving razor, which required 12
sutures and resulted in his re-admission to the Central New York
Psychiatric Center.
Apart from a conclusory assertion that Plaintiff is not
entitled to be excused from exhaustion, Defendant has not addressed
in a meaningful manner the Hemphill exceptions to exhaustion, or
Plaintiff’s specific allegations as to why they are applicable
here. Under the circumstances, the Court concludes that, at the
-9-
very least, the first two Hemphill exceptions apply. As discussed
above, Plaintiff has a viable First Amendment retaliation claim, a
component of which is adverse conduct by a defendant that could
deter a person of ordinary firmness from exercising his rights;
this is essentially the same standard for showing unavailability of
remedies
under
unavailable
by
Hemphill,
a
i.e.,
similarly
the
remedy
situated
would
individual
be
of
deemed
ordinary
firmness. The second exception applies when the defendant’s own
wrongful conduct estops him from asserting non-exhaustion as a
defense. Based on the allegations and documentation submitted in
connection with Plaintiff’s supplementary briefing, which Defendant
has failed to address, the Court concludes that Defendant is
equitably
estopped
from
asserting
the
failure
to
exhaust.
Accordingly, the Court reinstates Plaintiff’s Eighth Amendment
claims previously dismissed for failure to exhaust.
III. Conclusion
For the foregoing reasons, the Court declines to grant summary
judgment on Plaintiff’s First Amendment retaliation claim. In
addition, the Court reinstates Plaintiff’s Eighth Amendment claims
previously dismissed based on the failure to exhaust administrative
remedies.
SO ORDERED.
S/Michael A. Telesca
__________________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:
November 24, 2015
Rochester, New York
-10-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?