The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
Plaintiff commenced this action pro se, asserting First and Fourteenth Amendment claims pursuant to 42 U.S.C. § 1983 against the defendant correctional officers. In this regard, Plaintiff, a prisoner in the custody of the New York State Department of Correctional Services ("DOCS"), contends that he filed a grievance against Defendant Cook and that Cook and the other defendants then retaliated against him by interfering with his legal mail, filing false misbehavior reports against him, physically threatening him, spitting in his food, putting objects and substances in his food, urinating on his sheets and pillow case during a cell search, and destroying his personal property. See Compl. [dkt. # 1]. Plaintiff alleges that Defendants' conduct violated his Fourteenth Amendment right to substantive due process, was improper retaliation under the First Amendment, and constituted interference with his First Amendment rights to free speech and to petition the government for redress of grievances. Following an appeal from the Magistrate Judge's discovery order that revealed an extremely contentious period of discovery, the Court appointed pro bono counsel for Plaintiff. See May 21, 2004 Decision and Order [dkt. # 34]. The matter is now before the Court on Defendants' motion for summary judgment. For the reasons that follow, the is motion denied with leave to renew.
It is well settled that on a motion for summary judgment, the Court must construe the evidence in the light most favorable to the non-moving party, see Tenenbaum v. Williams, 193 F.3d 581, 592 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the Court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). While the Court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in his favor, Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002), a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d. Cir. 1998). As one legal treatise has succinctly stated, summary judgment requires the parties to "put up or shut up." Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)(quoting Fleming James, Jr. & Geoffrey C. Hazard, Jr., Civil Procedure 150 (2d ed. 1977)).
The Local Rules of the Northern District provide a mechanism for the efficient resolution of summary judgment motions. See N.D.N.Y.L.R. 7.1(a)(3). This mechanism places the onus on the parties to marshal the evidence that either supports, or defeats, the motion. Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 291 (2d Cir. 2000)(The Court's Local Rules require the parties "to clarify the elements of the substantive law which remain at issue because they turn on contested facts."). The competing Local Rule 7.1(a)(3) statements are where the parties are to present the evidence that either supports or defeats a motion for summary judgment. Facts that are not in these statements or not supported by specific citations to the record need not be considered. See id. (The Court "is not required to consider what the parties fail to point out.")(internal quotation marks and citations omitted); Amnesty America v. Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002)("We agree with those circuits that have held that FED. R. CIV. P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.")(citations omitted).
In the instant case, Defendants have submitted a Local Rule 7.1 Statement of Material Facts ("7.1 Statement") that, except for facts related to Defendants' collateral estoppel defense (discussed infra), is nothing more than a list of exhibits. See Def. 7.1 Stat. [dkt. # 47-3].*fn1 Thus, except for the few paragraphs addressed to the prior state court proceeding, id. at ¶¶ 1, 2, 7, 9, and 10, Defendants' 7.1 Statement sets forth no factual assertions.
Plaintiff's responding 7.1 Statement does not do much better in complying with the Local Rules. See Dkt. 9-1. Plaintiff submitted a mirrored 7.1 Statement that admits or denies the "allegations" in the Defendant's 7.1 Statement, but that provides no citations to the record. That being the case, the facts set forth in Defendants' 7.1 Statement at paragraphs 1, 2, 7, 9, and 10 are deemed admitted for purposes of this motion.*fn2 See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005)(upholding grant of summary judgment where "[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the non-movant submitting a responsive Rule 7.1(a)(3) statement that "offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations."); Meaney v. CHS Acquisition Corp., 103 F. Supp.2d 104, 108 (N.D.N.Y. 2000)(deeming movant's Rule 7.1(a)(3) Statement admitted where non-movant's response "set forth no citations -- specific or otherwise -- to the record")(emphasis in original); McKnight v. Dormitory Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y. 1999)(McAvoy, J.)("deem[ing] the portions of Defendants' 7.1(a)(3) statement that are not specifically controverted by Plaintiff to be admitted").
In support of summary judgment, Defendants contend that (a) the instant action is barred by the doctrine of collateral estoppel; (2) Plaintiff's constitutional rights were not violated because Defendants did not retaliate against Plaintiff; (3) Plaintiff's First Amendment Rights were not violated; and (4) Defendants are entitled to qualified immunity. The Court will start by examining the collateral estoppel defense.
There exists no dispute that Plaintiff filed a Claim in the New York State Court of Claims alleging a state common law tort based on the same facts and circumstances as are alleged in this action. There is also no dispute that the Claim was dismissed by the Court of Claims as untimely under the applicable statute of limitations, and that the dismissal was affirmed by the New York State Supreme Court, Appellate Division, Third Department. Defendants assert that the dismissal in state court operates to bar the instant action under the doctrine of collateral estoppel, contending that the dismissal was "on the merits." The Plaintiff argues that collateral estoppel does not apply in this situation.
It is beyond question that the federal courts must honor the preclusive effect of a state court's decisions on the merits of a case. Hoblock v. Albany County Bd. of Elections, 422 F.3d 77, 93 (2d Cir. 2005)(citing the Full Faith and Credit Act, 28 U.S.C. §1738). In New York, a dismissal on the statute of limitations is a decision on the merits with "full res judicata effect." Pharr v. Evergreen Garden, Inc., 123 Fed. Appx. 420, 423 (2d Cir. 2005)(citing, inter alia, Bray v. New York Life Ins. 851 F.2d 60, 63-64 (2d Cir. 1988)). However, the same result is not reached with regard ...