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Crenshaw v. Herbert

August 21, 2006

WILLIAM CRENSHAW, PLAINTIFF,
v.
VICTOR HERBERT, RANDY JAMES, KEVIN ARNONE, THOMAS BARTKOWIAK, RICHARD TRYKOWSKI, AND JENNIFER ROBBINS, DEFENDANTS.



The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

Plaintiff, William Crenshaw, appearing pro se, commenced this action pursuant to 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS") alleges that defendants, all of whom were at all relevant times employed by DOCS at Attica Correctional Facility ("Attica"), have violated his constitutional rights in a number of respects, primarily by retaliating against plaintiff for having engaged in activity protected by the First Amendment. Five of the six defendants have moved for summary judgment. For the reasons that follow, the motion is granted.

FACTUAL BACKGROUND

Plaintiff alleges that in May 2001, he got into an argument with Correction Officer Thomas Bartkowiak (who is the only non-moving defendant in this action) concerning plaintiff's pay for his position as a nurse's aide. Plaintiff alleges that during, or just after, this argument, Bartkowiak assaulted him.

Plaintiff filed a grievance against Bartkowiak. Deputy Superintendent of Security Randy James and Correction Officer Kevin Arnone investigated the grievance and "f[ou]nd no wrongdoing by staff as alleged." Dkt. #53 at 19. The grievance was therefore denied.

Plaintiff alleges that several days after the incident with Bartkowiak, plaintiff's job assignment was put on hold, and that he was then removed from his job. He was later assigned a job working in the laundry, but was eventually removed from that job as well.

Plaintiff grieved those job actions, alleging that they had been taken in retaliation for his grievance against Bartkowiak. These grievances were denied as well.

Plaintiff then commenced this action, based on Bartkowiak's alleged assault against plaintiff, and on the allegedly retaliatory job actions. Defendants include Bartkowiak, James, Arnone, Attica Superintendent Victor Herbert, and Richard Trykowski and Jennifer Robbins, who according to plaintiff are "civilians who run [the] laundry ... ." Dkt. #53 at 17 ¶ 1.

DISCUSSION

I. Summary Judgment--General Standards

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Where the plaintiff is proceeding pro se, the court will liberally construe his pleadings, and "interpret them 'to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citing Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). "Nevertheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment." Hernandez v. McGinnis, 272 F.Supp.2d 223, 226 (W.D.N.Y. 2003).

II. First Amendment Retaliation Claims--General Principles

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 defendants 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). The filing of lawsuits or prison grievances is a constitutionally protected activity. Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996); Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988).

Courts approach prisoner retaliation claims "with skepticism and particular care," however, 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. See also Graham, 89 F.3d at 79 ("Retaliation claims by prisoners are 'prone to abuse' since prisoners can ...


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