Keitz v. Kickbush et al
Filing
40
-CLERK TO FOLLOW UP-DECISION AND ORDER granting 38 Motion for Summary Judgment. Defendants motion for summary judgment [#38] is granted and this action is dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure. Signed by Hon. Charles J. Siragusa on 4/9/15. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________________
MICHAEL JAMES KEITZ,
Plaintiff,
DECISION AND ORDER
-vs13-CV-6284 CJS
S. KICKBUSH, OFFICIALLY & INDIVIDUALLY,
J. MATHIS, OFFICIALLY & INDIVIDUALLY,
Defendants.
__________________________________________
INTRODUCTION
This is an action under 42 U.S.C. § 1983 brought by Michael Keitz (“Plaintiff”), a
prison inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”) at Collins Correctional Facility (“Collins”). Now before
the Court is Defendants’ motion (Docket No. [#38]) for summary judgment. The application
is granted.
BACKGROUND
The following are the facts viewed in the light most-favorable to Plaintiff. At all
relevant times Plaintiff was housed at Collins, where Defendant S. Kickbush (“Kickbush”)
was the First Deputy Superintendent for Programs and Deputy J. Mathis (“Mathis”) was a
drug counselor. At all relevant times Plaintiff resided in a dormitory-style housing area and
attended group counseling meetings presided over by Mathis. On or about May 24, 2013,
Plaintiff sent an anonymous letter to Kickbush, complaining about Mathis. Mathis learned
of the anonymous letter, and spent the next week verbally berating Plaintiff’s therapy group
about the fact that some member of the group had complained about him.
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On May 31, 2013, during a meeting between Plaintiff, Mathis and two other
counselors, Plaintiff admitted, in response to questioning by Mathis, that he wrote the
anonymous letter. Later that day, during a group meeting, Mathis informed the group
members that Plaintiff had written the letter, and stated that Plaintiff was a liar and a snitch.
While doing so, Mathis “screamed” and “gesticulated wildly” at Plaintiff. Plaintiff responded
by telling Mathis to “produce the letter,” presumably so that he could show the other
inmates that the contents of the letter were true. However, Mathis continued to yell at
Plaintiff and then ordered Plaintiff to go to his cubicle. Shortly thereafter, upon seeing
Plaintiff outside the cubicle, Mathis continued to verbally berate Plaintiff, and accused
Plaintiff of “being out to get him.” Further, Mathis moved toward Plaintiff in a physically
threatening manner and stated that he was “not afraid to fight,” whereupon Plaintiff fled
from the cubicle. During the ensuing ten days, Plaintiff contends that he experienced
“constant anxiety,” though there is no contention that Mathis said anything more to Plaintiff.
On June 4, 2013, Plaintiff commenced this action. The Complaint [#1] purports to
state two causes of action based upon Mathis’ conduct: 1) a First Amendment retaliation
claim; and 2) an Eighth Amendment claim for cruel and unusual punishment. In the
Complaint, Plaintiff admits that he did not exhaust his administrative remedies, but
contends that he was afraid to file an inmate grievance because of how Mathis might react.
The Complaint demands injunctive relief and $100,000.00 in money damages.
Shortly after filing this action, on June 19, 2013, Plaintiff filed an inmate grievance
against Mathis, based upon the same alleged conduct discussed above. See, Docket No.
[#38-3] at pp. 4-11. In the grievance, Plaintiff demanded an investigation of the incident
and an apology from Mathis.
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On January 20, 2015, Defendants filed the subject motion for summary judgment,
including the required Irby notice. Defendants maintain that Mathis’ alleged conduct,
consisting of screaming and yelling at Plaintiff and threatening to fight him, cannot as a
matter of law constitute a violation of the First Amendment or Eighth Amendment.
Additionally, Defendants contend that Plaintiff has not alleged any personal involvement
by Kickbush.
On February 4, 2015, Plaintiff responded to the summary judgment motion. Plaintiff
admits that Kickbush had no personal involvement in the alleged constitutional violations,
and indicates that he only named Kickbush as a defendant because he thought that he
needed to because he was seeking injunctive relief. Further, Plaintiff admits that his
allegations fail to establish an Eighth Amendment violation. Accordingly, Kickbush is
entitled to summary judgment on all claims, and Mathis is entitled to summary judgment
on the Eighth Amendment claim.
However, Plaintiff contends that his allegations are sufficient to establish a First
Amendment retaliation claim against Mathis. More specifically, Plaintiff maintains that his
anonymous letter to Kickbush was “protected activity,” and that the totality of Mathis’
conduct, including his attempt to determine who wrote the anonymous letter, his verbal
tirade directed at Plaintiff, and his “attempted assault” of Plaintiff, amount to an “adverse
action” sufficient to support a retaliation claim. Plaintiff contends that the summary
judgment motion should therefore be denied.
Accordingly, the only issue before the Court is whether Mathis is entitled to summary
judgment on Plaintiff’s retaliation claim.
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DISCUSSION
Rule 56
Summary judgment may not be granted unless "the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed.R.Civ.P. 56(a). The underlying facts contained in affidavits, attached exhibits,
and depositions, must be viewed in the light most favorable to the non-moving party. U.S.
v. Diebold, Inc., 369 U.S. 654, 655 (1962). Summary judgment is appropriate only where,
"after drawing all reasonable inferences in favor of the party against whom summary
judgment is sought, no reasonable trier of fact could find in favor of the non-moving party."
Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). Moreover, since Plaintiff is proceeding
pro se, the Court is required to his submissions liberally, “to raise the strongest arguments
that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
Retaliation Under Section 1983
The legal principles pertaining to claims for First Amendment retaliation in the prison
setting are well settled:
To state a First Amendment retaliation claim, a prisoner must demonstrate
(1) protected speech or conduct,1 (2) adverse action by the defendant, and
(3) a causal connection between the two. While the filing of prison
grievances is a protected activity, only retaliatory conduct that would deter
a similarly situated individual of ordinary firmness from exercising his or her
constitutional rights constitutes an adverse action. In making the latter
determination, a court's inquiry must be tailored to the different
1
For purposes of the instant motion, Defendants do not dispute that Plaintiff’s letter complaining
about Mathis is protected speech. See, e.g., Guillory v. Haywood, No. 9:13–cv–01564 (MAD/TWD),
2015 WL 268933 at *17 -18 (N.D.N.Y. Jan. 21, 2015) (“The filing of a grievance has been found to
constitute protected First Amendment conduct for purposes of a retaliation claim. Inmate's verbal
complaints to corrections officers and prison officials have also been found to constitute activity
protected by the First Amendment.”) (citations omitted). Nor do they dispute that there was a causal
connection between the protected activity and Mathis’ alleged response.
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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.2 Nevertheless, a prisoner
can state a retaliation claim in the absence of actual deterrence.3 See 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.”).
Nelson v. McGrain, — Fed.Appx. — , 2015 WL 921639 at *1 (2d Cir. Mar. 5, 2015)
(internal quotation marks and some citations omitted).
Accordingly, the issue is whether all of the conduct alleged by Plaintiff, consisting
of Mathis complaining about the anonymous letter writer in a group setting, yelling at
Plaintiff, threatening to fight Plaintiff, and moving toward Plaintiff in a threatening manner,
is sufficient “adverse action” to support a retaliation claim. Put another way, the question
is whether, viewing the facts in the light most-favorable to Plaintiff, this Court can say as
a matter of law that Mathis’ conduct would not deter a similarly situated inmate of ordinary
firmness from exercising his constitutional rights.
Defendants contend that verbal threats such as those allegedly made by Mathis are
insufficient to establish retaliatory “adverse action.” For support of that proposition,
Defendants cite Kemp v. LeClaire, No. 03-CV-844S, 2007 WL 776416 at *1, 7 (W.D.N.Y.
Mar. 12, 2007) (Skretny, J.), in which the Court granted summary judgment, finding that
2
The “objective inquiry” into whether particular conduct qualifies as an “adverse action” “is not
static across contexts, but rather must be tailored to the different circumstances in which retaliation
claims arise.” Ford v. Palmer, 539 Fed.Appx. 5, 7 (2d Cir. Sep. 24, 2013) (citation omitted).
3
Here, Plaintiff was not actually deterred from making further complaints about Mathis. In that
regard, while Plaintiff claims that the reason he did not exhaust his administrative remedies before
commencing this action is that he was fearful of how Mathis would respond, he in fact filed an inmate
grievance against Mathis, demanding an apology from him, shortly after he commenced this action.
However, the Court does not consider such fact when attempting to determine whether Mathis’ conduct
was, objectively, sufficient to constitute an adverse action. See, Ford v. Palmer, 539 Fed.Appx. at 7
(“[T]he district court's reliance on the fact that Ford continued to file grievances was in error.”) (citation
omitted).
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the following “verbal and physical threats” were not actionable:
[Plaintiff] was told at various times that he would be hanged in his cell, that
all of the bones in his body would be broken, that he would be sent to his
mother in a black box, and that he would have his “black ass kicked,” all
because he repeatedly filed grievances against prison staff. Plaintiff further
maintains that he was called a “black nigger bitch,” a rat, and a “pain in the
ass.” He also maintains that Defendants Morris and Mezydlo told other
inmates that they would not receive any favors because of Plaintiff's
complaints about prison staff.
In that case the Court found that such conduct was insufficient to support a retaliation
claim, id. at *15. District Court decisions similarly finding that verbal harassment and
threats of physical violence are insufficient to establish “adverse action” in the prison
setting are legion in this Circuit. See, e.g., Mateo v. Fisher, 682 F.Supp.2d 423, 432-433,
434 (S.D.N.Y. 2010) (Finding no “adverse action” where corrections officer twice
threatened inmate with physical violence for writing grievances, including one incident
where the officer entered the inmate’s cell, “held his right gloved fist [to the inmate’s] face,
[and] threatened [him] by saying that one day he and [the inmate-plaintiff] would party.”)
(collecting cases).
Nevertheless, the Second Circuit has indicated that certain verbal threats may
constitute “adverse action.” For example, in Ford v. Palmer, 539 Fed.Appx. at 7, the
Second Circuit held that a prison inmate plausibly alleged “adverse action” where, after the
inmate complained about a corrections officer’s failure to provide him with hot water for his
“Ramadan breakfast,” the officer threatened to “poison” the inmate by putting “some kind
of substance” in his water. The Circuit panel further indicated that to qualify as “adverse
action,” a correction officer’s threat need not be “definite and specific,” but could be
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“vague,” such as where the corrections officer in Ford did not indicate when or how he
might poison or taint the inmate’s water. Id. at *7.
In the instant case, Plaintiff indicates that Mathis was unreasonably angry at what
he believed were untrue accusations made about him to his “boss.” See, Complaint [#1]
at p. 3. Specifically, after Mathis learned that someone had written an anonymous
complaint against him, he engaged in “excessive tirades” concerning the letter for a week.
Then, after Mathis learned that Plaintiff had written the complaint, he “screamed,” to the
other inmates in the group counseling session, that Plaintiff was “a liar” and that he “could
prove it.” Id. When Plaintiff challenged Mathis to produce the actual letter, presumably to
show that Plaintiff had not lied about anything, Mathis told Plaintiff to go to his dorm
cubicle. Later, when Mathis saw that Plaintiff had left his cubicle, the following took place:
Mr. Mathis exited the meeting screaming “Who are you to write [his] (sic) f---ing boss?!” and that Plaintiff was “out to get [him] (sic).” As Mr. Mathis yelled
he kept approaching the slowly retreating Plaintiff toward the back of the
dorm. Plaintiff back up as far as he could go from the clearly enraged
Defendant. Defendant then stated “...[He’s] (sic) not afraid to fight, in fact ...
I’ll kick your ...” (sic) Mr. Mathis then started a brisk menacing approach
toward this Plaintiff with fists clenched as if to attack me. The cornered
Plaintiff was forced to hurdle over other inmates’ cubicle separation walls to
flee (running) (sic) back into the community meeting, still in progress. Mr.
Mathis, in pursuit, shouted “Get back here, that’s a direct order!” Plaintiff
begged C.O. Bridgers, then in the meeting, to “Please tell Mr. Mathis to get
away from me ... (sic) he’s out of control & chasing me through the dorm.”
The entire dorm witnessed and heard this.
Complaint [#1] at p. 4.
Accepting Plaintiff’s statements as true, as the Court must on a summary judgment
motion, it appears that Mathis was hyper-sensitive to criticism and acted unprofessionally
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in front of inmates and corrections staff. Nevertheless, viewing the situation objectively,
the Court cannot say that Mathis’ tantrum, in front of a roomful of witnesses, rises to the
level of “adverse action” sufficient to support a constitutional violation. Accordingly, Mathis
is entitled to summary judgment on the retaliation claim.
CONCLUSION
Defendants’ motion for summary judgment [#38] is granted and this action is
dismissed with prejudice. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a), that
any appeal from this Order would not be taken in good faith and leave to appeal to the Court
of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962).
Further requests to proceed on appeal in forma pauperis should be directed on motion to the
United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.
So Ordered.
Dated: Rochester, New York
April 9, 2015
ENTER:
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
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