United States District Court, W.D. New York
September 20, 2005.
PEDRO ALICEA, Plaintiff,
WADE HOWELL, Vocational Supervisor, Tier III Disciplinary Hearing Officer, NYS DOCS, Orleans County Correctional Facility, et al., Defendants.
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Pedro Alicea, appearing pro se, commenced this
action under 42 U.S.C. § 1983. Plaintiff, an inmate in the
custody of the New York State Department of Correctional Services
("DOCS"), alleges that his constitutional rights were violated in
a number of respects in connection with a disciplinary proceeding
against him in January and February 2003 at Orleans Correctional
Facility ("Orleans"), after a urine sample provided by plaintiff
tested positive for opiates. Defendants, all of whom at all
relevant times were DOCS employees, have moved for summary
On January 20, 2003, pursuant to DOCS regulations, plaintiff
was directed by a correctional officer to provide a urine sample
for drug testing. Plaintiff alleges that after he gave the urine
sample to the officer, a white powdery substance could be
observed in the urine. The urine was then tested, and came up positive for opiates.
Plaintiff was issued a misbehavior report for drug use, and a
Tier III disciplinary hearing was commenced on January 27. After
the hearing ended on February 4, 2003, Hearing Officer Wade
Howell found plaintiff guilty of using drugs, and imposed a
penalty of 545 days' confinement in the Special Housing Unit
("SHU"), 36 months' loss of privileges, and a recommendation of
24 months' loss of good time.
Plaintiff filed an administrative appeal of Howell's decision,
alleging various defects in the hearing procedures. Donald
Selsky, the DOCS Director of Inmate Discipline and Special
Housing, upheld the determination of guilt on March 19, 2003, but
modified the penalty to 365 days of SHU confinement, 12 to 36
months' loss of various privileges, and a recommendation of 24
months' loss of good time.
Plaintiff, both pro se and through Prisoners' Legal Services
of New York, requested Selsky to reconsider his determination
because of alleged defects in the urinalysis procedures that had
been followed. Plaintiff also advised Selsky that he was going to
commence an Article 78 proceeding over these matters, which he
did in Orleans County Supreme Court in June 2003. Selsky states
that "[a]fter the Article 78 proceeding had been filed, [he] took
a further look at the hearing record and issued an administrative
reversal of the tier III hearing, . . . in which [Selsky]
determined that reversal of the tier III hearing was warranted in
light of the `inconsistent testimony at the hearing concerning
test procedures' that were not resolved to [his] satisfaction."
Selsky Decl. (Dkt. #41) ¶ 14. Selsky directed that "records
containing references to [plaintiff's] hearing are to be
expunged." Selsky Decl. Ex. FF. Selsky's decision reversing the determination of guilt was
issued on August 13, 2003. Plaintiff alleges that at that point,
he had been confined to SHU since February 4, 2003, and was
released on August 18, 2003, for a total of 195 days' confinement
in SHU as a result of the determination of guilt on the drug
Plaintiff filed the complaint in this action on October 16,
2003. He alleges that he was denied his rights to due process and
to equal protection in a number of ways in connection with the
disciplinary hearing, and that one defendant, Barbara Gautieri,
retaliated against him for having exercised his right to petition
the government for redress, in violation of his rights under the
First Amendment to the United States Constitution. In addition to
Gautieri, plaintiff has sued Hearing Officer Howell, Director
Selsky, Orleans Superintendent John Beaver, and DOCS Commissioner
I. Due Process Claims
Plaintiff alleges that he was denied procedural due process
during the disciplinary proceedings, for a host of reasons.
Analysis of these claims "proceeds with two questions. `[T]he
first asks whether there exists a liberty or property interest
which has been interfered with by the State; the second examines
whether the procedures attendant upon that deprivation were
constitutionally sufficient.'" Shakur v. Selsky, 391 F.3d 106,
118 (2d Cir. 2004) (quoting Kentucky Dep't of Corrs. v.
Thompson, 490 U.S. 454, 460 (1989)). Prison discipline
implicates a liberty interest when it "imposes atypical and significant hardship on
the inmate in relation to the ordinary incidents of prison life."
Sandin v. Conner, 515 U.S. 472, 484 (1995).
The duration of SHU confinement is a relevant, but not the
only, factor with respect to whether such confinement is
"atypical." Ortiz v. McBride, 380 F.3d 649, 654-55 (2d Cir.
2004); see also Palmer v. Richards, 364 F.3d 60, 64-65 (2d Cir.
2004) ("we have explicitly avoided a bright line rule that a
certain period of SHU confinement automatically fails to
implicate due process rights") (citing Sims v. Artuz,
230 F.3d 14, 23 (2d Cir. 2000); Colon v. Howard, 215 F.3d 227, 234 (2d
Cir. 2000)). Here, plaintiff's 195-day confinement falls within
what the Second Circuit has described as an "intermediate" range,
Palmer, 364 F.3d at 65, which ordinarily would require
"`development of a detailed record' of the conditions of the
confinement relative to ordinary prison conditions is required."
Id. In the case at bar, however, plaintiff has alleged that his
conditions of confinement were harsher in a number of respects
from other inmates' within SHU, and at least for purposes of
their summary judgment motion, defendants do not appear to
dispute those allegations, nor do they appear to dispute that
plaintiff had a protected liberty interest in not being confined
to SHU. Accordingly, the Court will proceed to consider whether
plaintiff received the process that was due him.
In general, "due process requires that a prisoner be given
specific factual notice of the charged misbehavior for which he
faces discipline, a summary of the substance of any adverse
evidence reviewed ex parte by the hearing officer, and a
statement of reasons for the discipline imposed." United States
v. Abuhamra, 389 F.3d 309, 326 (2d Cir. 2004) (citing Sira v.
Morton, 380 F.3d 57, 70, 74-76 (2d Cir. 2004)). The Court of
Appeals for the Second Circuit has described these requirements as "minimal." Richardson v. Selsky, 5 F.3d 616,
621 (2d Cir. 1993) (citing Wolff v. McDonnell, 418 U.S. 539
Here, plaintiff has set forth a laundry list of alleged
procedural defects at the disciplinary hearing, including lack of
legal assistance, insufficiency of the evidence, denial and
exclusion of certain evidence and witnesses, hearing officer
bias, and failure to follow certain DOCS regulations. Plaintiff
also alleges that the urine sample that he provided had been
adulterated and was unreliable.
Having reviewed the evidence in the light most favorable to
plaintiff, I conclude that, even drawing all reasonable
inferences in his favor, plaintiff has not shown the existence of
any genuine issue of material fact as to these allegations, and
that defendants are entitled to summary judgment. First, as to
plaintiff's right to assistance, the Second Circuit has "note[d]
that an inmate's right to assistance is limited." Silva v.
Casey, 992 F.2d 20, 22 (2d Cir. 1993). For example, there may be
"circumstances [in which] an inmate will be unable to marshal
evidence and present a defense without some assistance," such as
where the inmate is "illiterate, confined to an SHU, or unable to
grasp the complexity of the issues." Id.
Here, plaintiff was not confined to SHU until February 4, 2003,
and he has not alleged any reasons why he was unable to present a
defense to the misbehavior report, or any prejudice stemming from
a lack of adequate assistance. Moreover, plaintiff was provided
with an assistant, defendant Gautieri (a teacher at Orleans), and
he expressly stated at the disciplinary hearing that he was
satisfied with the assistance that he had received from her.
Plaintiff told the hearing officer, "I was not dissatisfied with
my assistance in any way," that he "did get the help [he]
wanted," that he was "not dissatisfied with [Gautieri] and the
assistance capability whatsoever," and that he was "not dissatisfied with the assistance issue whatsoever." Dkt. #43 Ex.
N at 3-4. The record also indicates that Gautieri did in fact
provide plaintiff with substantial assistance, as reflected in
Gautieri's contemporaneous records. See Gautieri Decl. (Dkt.
#40), Exs. B and C. Plaintiff does allege some other problems
that he had with Gautieri, which are discussed below, but there
is no basis for his allegation that he was denied legal
As for the sufficiency of the evidence to support Howell's
determination of plaintiff's guilt, the Second Circuit has stated
that "[f]or a prison disciplinary proceeding to provide due
process there must be, among other things, `some evidence' to
support the sanction imposed." Ortiz, 380 F.3d at 655 (citing
Gaston v. Coughlin, 249 F.3d 156, 163 (2d Cir. 2001)).
Accordingly, "judicial review of the written findings required by
due process is limited to determining whether the disposition is
supported by `some evidence.'" Sira, 380 F.3d at 69 (citing
Superintendent v. Hill, 472 U.S. 445, 455 (1985)). "This
standard is extremely tolerant and is satisfied if `there is any
evidence in the record that supports' the disciplinary ruling."
Id. (quoting Friedl v. City of New York, 210 F.3d 79, 85 (2d
Cir. 2000). See also Luna v. Pico, 356 F.3d 481, 488 (2d Cir.
2004) ("some evidence" standard requires some "reliable
In this case, I find that Howell's determination of guilt, and
the later administrative decisions upholding that determination,
met this "some evidence" standard. First, although the
determination was ultimately reversed by Selsky, that is not
dispositive, since "New York law requires prison disciplinary
rulings to be supported by `sufficiently relevant and probative'
information `to constitute substantial evidence,'" which is a
"sterner [requirement] than the `some evidence' standard
necessary to afford due process." Sira, 380 F.3d at 76 n. 9
(noting that "Director Selsky's reversal of Sira's disciplinary ruling therefore does not automatically establish
Sira's federal claim") (quoting Foster v. Coughlin,
76 N.Y.2d 964, 966 (1990)).
In his determination of guilt, Howell stated that he relied on
"the misbehavior report, the urinalysis test, [and] the testimony
of Officers Bennett, Kurke, Penko and Lt. Brown." Dkt. #41 Ex. E.
Howell also recited the substance of the testimony of some of the
witnesses, to the effect that plaintiff had been given a "clean,
freshly packaged sample jar," and that when Officer Bennett asked
plaintiff what the powdery substance was in the urine, plaintiff
responded, "I don't know, I must of pissed it out." Id. Howell
"conclude[d] that [the] first urine sample was not contaminated
by a foreign substance" and that "a second sample was not
This certainly meets the "some evidence" standard. While it is
not clear what "inconsistent testimony" Selsky was referring to
in his decision reversing the determination of guilt, the Supreme
Court has stated that "[a]scertaining whether [the `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. Instead, the relevant
question is whether there is any evidence in the record that
could support the conclusion reached by the [hearing officer]."
Superintendent, Massachusetts Corr. Inst. v. Hill,
472 U.S. 445, 455-56 (1985). I find that the evidence relied upon by
Howell did support his finding that plaintiff had used drugs in
violation of DOCS rules. I likewise find that Selsky's initial
affirmance of Howell's decision was supported by at least a
"modicum of evidence," id. at 455, and that therefore no due
process violation occurred. See Rivera v. Wohlrab,
232 F.Supp.2d 117, 124 (S.D.N.Y. 2002) (alleged improprieties in
urinalysis procedure and documentation did not render the results of inmate's drug
test impermissible at his disciplinary hearing, since hearing
officer was entitled to conclude that test results were valid).
Plaintiff also contends that the procedures that were followed
in testing and preserving his urine sample did not comport with
DOCS regulations concerning inmate drug tests. Even if that were
so, however, that would not give rise to a due process claim.
"[R]egardless of state procedural guarantees, the only process
due an inmate is that minimal process guaranteed by the
Constitution. . . ." Shakur, 391 F.3d at 119. "[S]tate statutes
do not create federally protected due process entitlements to
specific state-mandated procedures." Holcomb v. Lykens,
337 F.3d 217, 224 (2d Cir. 2003). Likewise, plaintiff's contention
that he should have been allowed to provide a second urine sample
on January 20, 2003, does not support his due process claim. See
Swint v. Vaughn, No. CIV. A. 94-3351, 1995 WL 366056, at *6
(E.D.Pa. June 19, 1995) ("An inmate has no due process right to
submit a second sample for drug testing") (citing Allen v.
Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993), cert. denied,
513 U.S. 829 100 (1994)), aff'd, 72 F.3d 124 (3d Cir. 1995).
Plaintiff next asserts that Howell violated plaintiff's due
process rights by refusing to call a facility doctor or an
employee of the Syva company, which makes the drug-testing
equipment used in plaintiff's urinalysis. This also fails to make
out a due process claim.
Although a New York inmate has a due process right to call
witnesses, see N.Y.C.R.R. § 254.5(b), this right is not
absolute. See Ponte v. Real, 471 U.S. 491, 495 (1985); Wolff,
418 U.S. at 566 (1974). A prisoner's right to call witnesses is
available only "when permitting him to do so will not be unduly
hazardous to institutional safety or correctional goals."
Wolff, 418 U.S. at 566. Prison officials must be accorded the
discretion necessary to keep a hearing within reasonable limits and to refuse to call witnesses when summoning them may create a
risk of reprisal or undermine authority. Id. A hearing officer
may also refuse to call a witness "on the basis of irrelevance or
lack of necessity." Kingsley v. Bureau of Prisons, 937 F.2d 26,
30 (2d Cir. 1991); see also Scott v. Kelly, 962 F.2d 145,
146-47 (2d Cir. 1992) ("It is well settled that an official may
refuse to call witnesses as long as the refusal is justifiable").
In addition, "prison officials may be required to explain, in a
limited manner, the reason why witnesses were not allowed to
testify. . . ." Ponte, 471 U.S. at 497. They need not give a
detailed explanation, however, and "may do so . . . by making the
explanation a part of the `administrative record' in the
disciplinary proceeding. . . ." Id.
Here, plaintiff stated during the course of the hearing,
I want to call the SYVA company OK, it's my right to
do that, and they're the people that manufactured
this machine. And I would like to ask one of their
people is there anything that is their reason for not
being able to test the sample that has something
inside. Because will it alter the test reading, could
it possibly alter the test reading. So I would like
to say on record that I would like to call SYVA
company and in this room also.
Dkt. #43 Ex. N at 31.
Howell deferred deciding plaintiff's request until after
hearing the testimony of Officer Kurek, who had conducted the
urinalysis. After Kurek testified, Howell stated that he was
denying plaintiff's request to call a representative from Syva on
the ground that "Officer Kurek, the certified Officer
sufficiently addressed the substance in the urine sample as well
as the test procedure. Contact with SYVA company is unwarranted."
Id. at 50. I find that Howell's stated reasons for refusing to
call a witness from Syva were sufficient and that his refusal did
not violate plaintiff's due process rights. See Carlisle v.
Snyder, No. 02-CV-6662, 2004 WL 1588209, at *6 (W.D.N.Y. July 14, 2004) ("The Court concludes that the refusal to call a
representative from Syva as plaintiff's witness does not meet the
standard for a due process violation under the
As for Howell's alleged refusal to call a facility physician,
the record does not even show that plaintiff expressly made such
a request, or that he objected to the alleged denial. At one
point in the hearing, plaintiff began arguing that the urine
sample that he gave must have been adulterated. When plaintiff
rhetorically asked "where did [the powdery substance] come from,"
the following colloquy ensued:
Howell: [The officer who took the sample] said . . .
you have urinated it out. So it could have come from
Alicea: Ok, then we can call a Doctor and see if I
can urinate powder.
Howell: It wasn't a powder, it was a crystalllized
substance, and people do that. They're taking . . .
Let's not go off on that tangent. What we need to do
it [sic] get other witnesses in here. OK?
Howell: Anything else you'd like to say?
Alicea: No, not right now.
Dkt. #43, Ex. N at 22-23. At the end of the hearing, plaintiff
also stated that he had no further witnesses. Id. at 49.
Plaintiff, then, never clearly requested that a physician be
called as a witness, nor did he object when Howell indicated that
he did not intend to "go off on that tangent." Furthermore,
Officer Kurek, who conducted the urinalysis, had testified that
he sometimes received urine samples that were cloudy, and that
the substances causing the cloudiness would generally settle out
after sitting for a while. Id. at 34-35. In light of that
testimony, as well as the evidence that the sample bottle had been clean and sealed prior to plaintiff providing the
urine sample, Howell was justified in not seizing upon
plaintiff's offhand reference to "call[ing] a doctor" and
summoning a physician to testify, particularly since plaintiff
had not previously indicated any desire to call a physician
witness. See Sweeney v. Parke, 113 F.3d 716, 720 (7th Cir.
1997) (noting various risks, such as delay and disruption of
penal institution's disciplinary process, inherent in
day-of-hearing witness requests by inmates, and concluding that
"prison officials are justified in summarily denying such
requests"), overruled on other grounds by White v. Indiana
Parole Bd., 266 F.3d 759 (7th Cir. 2001).
Plaintiff's claim that Howell was biased against him also lacks
support in the record. It is true that "[a]n inmate subject to a
disciplinary hearing is entitled to, inter alia, an impartial
hearing officer." Patterson v. Coughlin, 905 F.2d 564, 569 (2d
Cir. 1990); see also Francis v. Coughlin, 891 F.2d 43, 46 (2d
Cir. 1989) ("it would be improper for prison officials to decide
the disposition of a case before it was heard"). This claim is
unsubstantiated, however. Plaintiff infers bias merely from the
fact that Howell tended to credit the correction officers'
testimony rather than plaintiff's. If that were enough, every
inmate who is found guilty of a disciplinary infraction would be
able to state a claim for bias. While it does appear that Howell
had spoken to Gautieri concerning plaintiff's complaints about
Gautieri prior to the hearing, there is no evidence that their
conversation was in any way improper or that Howell became biased
against plaintiff as a result. See Campo v. Keane,
913 F.Supp. 814, 825 (S.D.N.Y. 1996) ("There is no evidence in the record to
support any inference that [the hearing officer's] factual
findings were biased or that defendant had prejudged the case
before it was heard"). Plaintiff's other allegations of due process violations are
also meritless and warrant scant comment. He claims that certain
information, such as a so-called "urine destruction log," or the
names of other correction officers who were not involved in
collecting or testing his urine sample, was not provided to him
prior to the hearing, and that the DOCS witnesses failed to
establish an adequate chain of custody for admission of the
urinalysis results. As stated, I find that Howell was entitled to
find, on the evidence before him, that the urinalysis results
were reliable. With respect to plaintiff's allegation that he was
not provided with various items of information which he had
requested, those items, if they even existed, were either
irrelevant or of so little importance that any prejudice to
plaintiff was de minimis and did not give rise to a
II. Equal Protection Claim
Plaintiff alleges that he was denied his right to equal
protection because he was treated differently from similarly
situated inmates, and that there was no rational basis for this
difference in treatment. This "class of one" claim is meritless.
To state a valid equal protection "class of one" claim, a
plaintiff must allege (1) that he has been intentionally treated
differently from others similarly situated, and (2) that there is
no rational basis for the difference in treatment. Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000); DeMuria v.
Hawkes, 328 F.3d 704, 706 (2d Cir. 2003). "In order to succeed
on a `class of one' claim, the level of similarity between
plaintiffs and the persons with whom they compare themselves must
be extremely high." Neilson v. D'Angelis, 409 F.3d 100, 104 (2d
Cir. 2005). "[T]he standard for determining whether another person's circumstances are
similar to the plaintiff's must be . . . whether they are `prima
facie identical.'" Id. at 105 (quoting Purze v. Village of
Winthrop Harbor, 286 F.3d 452, 455 (7th Cir. 2002)).
Here, plaintiff has not even identified any similarly situated
inmates who were treated differently from him, much less shown an
"extremely high" level of similarity between him and them. He
simply alleges that the various due process violations he has
alleged such as the refusal to call witnesses, the lack of
legal assistance, etc. were not inflicted on other inmates. He
provides no evidence for that assertion, and in any event the
Court has already determined that none of those matters violated
plaintiff's rights in the first place. Plaintiff's attempt to
shoehorn his due process claim into an equal protection claim
III. Retaliation Claim
Plaintiff alleges that defendant Gautieri retaliated against
him for having exercised his rights under the First Amendment.
Specifically, plaintiff alleges that on January 22, 2003, he
filed a grievance against Gautieri, complaining that she was not
providing him with adequate assistance in the disciplinary
proceeding against plaintiff. He alleges that on January 24,
Gautieri summoned plaintiff to her office, where she told
plaintiff that Howell had shown her a copy of plaintiff's
grievance against her. Plaintiff alleges that Gautieri told him
that there were "no secrets in prison," that plaintiff "should be
more careful as to what he writes and who he writes it about,"
and that plaintiff would "have to pay the consequences for
writing that letter to the superintendent." Complaint ¶ 39. Plaintiff alleges that by "verbally attacking" him in this
manner, Complaint ¶ 38, Gautieri retaliated against plaintiff for
having exercised his First Amendment right to seek redress of
grievances from the government. Plaintiff also alleges that
Gautieri attempted to influence Howell to find plaintiff guilty,
also out of retaliatory motives. Gautieri admits that Howell did
show her plaintiff's grievance, and that she spoke about it with
Howell as well as with plaintiff, but she denies making any
threats against plaintiff or attempting to influence Howell's
In order to establish a First Amendment retaliation claim, a
plaintiff must show (1) that he engaged in constitutionally
protected speech or conduct, (2) that the defendant took adverse
action against the plaintiff, and (3) that there was a causal
connection between the protected activity and the adverse action.
Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001), overruled
on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002). 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." Dawes, 239 F.3d at 491.
Since the filing of prison grievances is a constitutionally
protected activity, see Graham v. Henderson, 89 F.3d 75, 80 (2d
Cir. 1996); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988),
plaintiff meets the first prong of the test. The question, then,
is whether he has adduced sufficient evidence to give rise to an
issue of fact as to the adverse-action and causal-connection
prongs of the test set forth in Dawes.
As to the meeting between Howell and Gautieri, I find the
evidence insufficient to support plaintiff's allegations, and
that Gautieri is entitled to summary judgment. The only evidence
relied upon by plaintiff are the facts that Howell and Gautieri
spoke about plaintiff's grievance against Gautieri, and that
Howell subsequently found plaintiff guilty of the drug charge
against him. To infer that Gautieri prejudiced Howell against plaintiff, however,
or that there was a causal connection between her conversation
with Howell and his finding of plaintiff's guilt, is based on
I see nothing improper about Howell's informing Gautieri of
plaintiff's grievance against her, or with their discussing the
substance of the grievance. If an inmate complains that he is not
receiving adequate assistance concerning an upcoming disciplinary
hearing against him, it is in the inmate's best interests to have
the matter addressed before the hearing, to ensure that the
proceedings are fair.
I also see no evidence that Gautieri attempted to, or did,
influence Howell to find plaintiff guilty of the drug charge. To
infer otherwise, a factfinder would have to rely on pure
speculation. Howell stated his reasons for his finding on the
record, and that finding was, as stated earlier, supported by
evidence presented at the hearing. There is simply no evidence
that his conversation with Gautieri had anything to do with the
determination of guilt. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986) (to survive well-founded motion for
summary judgment, non-moving party must come forward with
"concrete evidence from which a reasonable juror could return a
verdict in his favor").
I likewise find that Gautieri's alleged statements to plaintiff
about there being "no secrets in prison" and that plaintiff would
"have to pay the consequences" for filing a grievance against
Gautieri do not give rise to a First Amendment retaliation claim.
Courts have found that prison officials' conduct constitutes an
"adverse action" when it "would deter a similarly situated
individual of ordinary firmness from exercising his or her
constitutional rights." Dawes, 239 F.3d at 493. The alleged
retaliation must be more than de minimis for it to be
actionable. Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003).
In addition, the fact that a threat was never carried out, while
not necessarily dispositive, is a factor weighing against a finding
of adverse action. See, e.g., Dick v. Phone Directories Co.,
Inc., 397 F.3d 1256, 1268-69 (10th Cir. 2005); Newby v.
Whitman, 340 F.Supp.2d 637, 663 (M.D.N.C. 2004).
Here, even if Gautieri did make the statements alleged by
plaintiff, I do not believe that any rational factfinder could
conclude that her actions would have "deter[red] a similarly
situated individual of ordinary firmness from exercising his or
her constitutional rights." There is no indication that she ever
made good on her unspecified threat, nor was she, as a teacher
and inmate assistant, in a position to take any real action
against plaintiff. Cf. Lashley v. Wakefield, 367 F.Supp.2d 461,
467 (W.D.N.Y. 2005) (material issues of fact existed concerning
inmate's retaliation claims against guards who were alleged to
have repeatedly filed false disciplinary charges against
plaintiff, resulting in keeplock confinement and loss of
privileges). Her alleged statements to plaintiff on this one
occasion, then, even if made for retaliatory motives, were no
more than a de minimis act that does not give rise to a
Defendants' motion for summary judgment (Dkt. #37) is granted,
and the complaint is dismissed.
IT IS SO ORDERED.
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