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Fullwood v. Vosper

January 9, 2007

JAMES FULLWOOD, PLAINTIFF,
v.
ROBERT N. VOSPER, JR., INMATE GRIEVANCE PROGRAM SUPERVISOR; AND LT. O'ROURKE, DEFENDANTS.



The opinion of the court was delivered by: Lyle E. Strom, Senior Judge United States District Court

MEMORANDUM OPINION

This matter is before the Court on defendants' motion for summary judgment (Filing No. 112), plaintiff's response in opposition (Filing No. 119), and plaintiff's filing, labeled as an affidavit, which is actually a series of evidentiary submissions (Filing No. 120). The Court notes that neither plaintiff's response nor plaintiff's affidavit were properly attested to. Further, the filing labeled as an affidavit was out of time, and plaintiff's response and affidavit will not be considered. Having carefully reviewed the motion and the applicable law, the Court will grant defendants' motion.

I. Summary Judgment Standard

On a motion for summary judgment, all reasonable factual inferences must be drawn in favor of the non-moving party. See, e.g., Savino v. City of New York, 331 F.3d 63, 71 (2d Cir. 2003)(citing Anderson, 477 U.S. at 255). However, to survive a motion for summary judgment, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)(emphasis omitted)(quoting Fed. R. Civ. P. 56(e))(citation omitted). "Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)(citation omitted). Thus, "statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999)(citations omitted), cert. denied, 530 U.S. 1242 (2000).

"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir. 1995)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). A party "moving for summary judgment must prevail if the [non-movant] fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996)(citing Anderson, 477 U.S. at 247-48). While the submissions of pro se litigants are liberally construed, see, e.g., Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the fact that the plaintiff is "proceeding pro se does not otherwise relieve [him] from the usual requirements of summary judgment." Fitzpatrick v. New York Cornell Hosp., 2002 U.S. Dist. LEXIS 25166, 2003 WL 102853, at *5 (S.D.N.Y. Jan.9, 2003)(citing cases).

II. FACTS

Plaintiff James Fullwood ("Fullwood") brings this action alleging that the defendants retaliated against him because Fullwood had filed a grievance complaint against defendant Robert Vosper ("Vosper"), alleging that Vosper lacked the requisite minimum qualifications required for appointment to his position as Inmate Grievance Program Supervisor at Shawangunk Correctional Facility ("Shawangunk")(Complaint, ¶ 6). Fullwood's grievance was filed on February 12, 1998 (Complaint, ¶ 6). That same day, another inmate, Charles Dingle ("Dingle"), initiated an investigation into Fullwood's complaint in Dingle's role as an Inmate Grievance Resolution Committee ("IGRC") representative (Complaint, ¶ 7).

On February 17, 1998, Vosper filed impeachment charges against Dingle, placed Dingle on suspension and ordered Dingle to turn over Fullwood's grievance to him (Complaint, ¶ 8). On February 22, 1998, Vosper completed his investigation of Fullwood's complaint and exonerated himself (Complaint, ¶ 9).

On February 25, 1998, Fullwood took documents to Vosper to be notarized (Fullwood Deposition 21:17-22:3). Vosper looked through the documents given to him by Fullwood and noticed that Fullwood had a copy of Vosper's investigative report into Fullwood's grievance complaint against Vosper (Fullwood Dep. 25:2-12). Vosper asked Fullwood how he came into possession of the report, and Fullwood said he obtained it through a Freedom of Information Law ("FOIL") request (Fullwood Deposition 21:17-22:3). Vosper knew this to be untrue because any FOIL request for the document would have had to come to Vosper, and Vosper had not received any such request. Therefore, Vosper issued Fullwood a misbehavior report ("MR") for allegedly violating rules 113.23 (for possession of contraband), 116.21 (distributing facility documents) and 107.20 (for lying).

Defendant O'Rourke ("O'Rourke") presided at Fullwood's subsequent Tier II disciplinary hearing. Fullwood was given written notice of his disciplinary hearing four days before the commencement of the hearing. Fullwood was allowed to present evidence at his hearing. In addition, all witnesses that Fullwood requested testified at the hearing. While O'Rourke did not make Directive 4040 a part of the record, he did allow Fullwood to read the provisions of 4040 into the record upon which he was relying. At the conclusion of the hearing, O'Rourke found Fullwood guilty of the charges of possession of contraband and lying and not guilty of the charge of distribution of facility documents. O'Rourke sentenced Fullwood to thirty (30) days keeplock and deprived Fullwood of packages, commissary and telephone privileges for thirty (30) days. Fullwood acknowledged receipt of the Disciplinary Hearing Disposition Rendered form.

From March 11, 1998, to April 10, 1998, Fullwood served his thirty-day keeplock sentence in his own cell. During his keeplock, Fullwood was allowed one hour of recreation outside of his cell each day, two showers per week, and could obtain two books each day from the law library. Fullwood also was able to file grievances throughout his keeplock confinement. Though he could worship in his cell, Fullwood was not allowed to leave his cell to attend religious services during his keeplock confinement.

Fullwood appealed the sentence imposed by O'Rourke in a State Article 78 proceeding before Justice Bradley where Fullwood ultimately prevailed on the charge of possession of contraband, resulting in the annulment of Vosper's February 26, 1998, MR which was the basis for his thirty-day keeplock sentence. Justice Bradley did not address Fullwood's constitutional retaliation claim or the charge and conviction for lying.

III. DISCUSSION

A. Retaliation ...


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