The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Divine Allah, 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 various violations of his constitutional rights during 2003 and 2004, while plaintiff was confined at Five Points Correctional Facility ("Five Points").
There are five defendants in this action, all of whom were employed by DOCS at Five Points at all times relevant to this lawsuit: Superintendent Thomas Poole; Deputy Superintendent of Security David Napoli; Sergeant Joseph Keefe; Program Committee Chairman Mark Mogavero; and Commissary Supervisor Crystal Colvin.*fn1 All defendants have moved for summary judgment pursuant to Fed. R. Civ. P. 56.
Plaintiff is a wheelchair-bound, English- and Spanish-speaking inmate of Latino descent.*fn2 In July 2003, shortly after his arrival at Five Points from Green Haven Correctional Facility ("Green Haven"), plaintiff was assigned to the horticulture and commissary work programs. Complaint ¶ 13. At the commissary, plaintiff sometimes conversed in Spanish with other inmates who were working or making purchases there.
In August 2003, however, defendant Colvin ordered plaintiff and his inmate co-workers at the commissary to stop speaking in Spanish, and to use English only while they were working. Complaint ¶ 18; Colvin Decl. (Dkt. #19) ¶ 6. Plaintiff alleges that when he asked Colvin the reason for her order, she responded that a DOCS policy prohibited inmates from conversing in Spanish while at work, and that defendants Poole and Napoli had told other supervisors to enforce that policy because "speaking spanish in work areas [presented] a security threat." Complaint ¶ 19. At plaintiff's request, Colvin provided him with a copy of the commissary rules, none of which mentioned inmates' use of Spanish, or any other language. Id. ¶¶ 21, 22.
Colvin admits that she told plaintiff and the other inmates to speak English, but claims that she did so on her own initiative, for her own safety, because she was alone in the commissary with the inmates and "was not comfortable having the inmates speak without [her] being able to understand what was being discussed." Colvin Decl. ¶ 7. She states that she is unaware of any DOCS directive or policy concerning these matters. Id. ¶ 8.
Plaintiff alleges that in the days immediately following this exchange between him and Colvin, Colvin "suddenly started ordering [plaintiff] to lift" heavy objects such as boxes and mop buckets, despite plaintiff's physical disability. Complaint ¶ 24. In addition, plaintiff alleges that several days later, Colvin was informed that plaintiff had filed a grievance (which was ultimately denied, Dkt. #26-2 at 8) about Colvin's refusal to allow him to speak Spanish in the commissary. Shortly thereafter, plaintiff alleges, he was removed from his job at the commissary and reassigned to an educational program. Plaintiff alleges that this transfer was ordered in retaliation for his complaints and filing of the above-mentioned grievance. Complaint ¶ 31. Defendants contend that the transfer was routine for inmates who, like plaintiff, lacked a high school diploma or its equivalent, and that plaintiff was transferred to an educational program as soon as a spot became available for him. Mogavero Decl. (Dkt. #21) ¶¶ 4-6.
The remaining allegations in the complaint mostly relate to alleged acts of retaliation during a period in 2004 when plaintiff was housed in what he refers to as "8 block." Complaint ¶ 33. During the nine months he spent there, plaintiff alleges that he filed grievances about a number of matters, including "the lack of handicap accessibility of his cell," and of officers' unspecified "conduct towards him ... ." Id. Plaintiff alleges that defendant Keefe was assigned to investigate many of these grievances, but that Keefe "will not go against his fellow officers," with the result that "the matters were not resolved and many situations escalated." Id. ¶¶ 34, 35. Plaintiff also alleges that because he had been unable to obtain any relief through the grievance procedure, in January 2004 he became a plaintiff in a lawsuit ("ADA action") that had been filed by other wheelchair-bound inmates, asserting claims under the Americans with Disabilities Act and the Rehabilitation Act of 1973.*fn3
In September 2004, plaintiff was transferred to Involuntary Protective Custody ("IPC").*fn4 Complaint ¶¶ 38-40. Defendants allege that the transfer stemmed from an alleged incident of arson that had occurred at Green Haven involving plaintiff and another inmate, Abdul Shariff, which gave rise to concerns about plaintiff's safety.*fn5 Id. ¶ 39; Keefe Decl. (Dkt. #20) ¶¶ 4-7. Plaintiff alleges that the transfer was initiated by Keefe in retaliation for plaintiff's grievances and participation in the ADA action, and that it was based on falsified reports concerning the prior incident. Plaintiff remained in a hospital ward (presumably because of his disability) in IPC for seventeen days, until, following a hearing, the hearing officer determined that there was no imminent threat to plaintiff's safety warranting IPC confinement. Dkt. #26-2 at 24.
Based on these allegations, plaintiff asserts two causes of action. The first alleges that defendants' restriction on plaintiff's use of Spanish while he was working at the commissary violated plaintiff's right to free speech under the First Amendment to the United States Constitution, and that plaintiff's transfer to IPC was in retaliation for plaintiff's filing of grievances and complaints. Complaint ¶ 48. The second cause of action, which is presumably asserted against the supervisory defendants, alleges their "failure to correct and condemn the tactics of harassment and retaliation" to which plaintiff was subjected. Complaint ¶ 51.
I. Summary Judgment: General Principles
Summary judgment will be granted if the pleadings and supplemental evidentiary materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). No genuine issue of material fact exists if "the record as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The burden of showing the absence of any genuine issue of material fact rests on the moving party, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), and all ambiguities and inferences that may reasonably be drawn from the facts must be viewed in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
Where the party opposing summary judgment is proceeding pro se, the Court must "read the pleadings ... liberally and interpret them to raise the strongest arguments that they suggest." Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir. 1999). Nevertheless, "proceeding pro se does not otherwise relieve [opposing party] from the usual requirements of summary judgment." Fitzpatrick v. N.Y. Cornell Hosp., No. 00-Civ.-8594, 2002 U.S. Dist. LEXIS 25166, at *5 (S.D.N.Y. Jan. 9, 2003); see also Bumpus v. Canfield, ___ F.Supp.2d ___, 2007 WL 2071607, at *2 (W.D.N.Y. July 20, 2007) (stating that the liberal standard accorded to pro se pleadings "is not without limits, and all normal rules of pleading are not absolutely suspended") (quoting Stinson v. Sheriff's Dep't of Sullivan County, 499 F.Supp. 259, 262 (S.D.N.Y. 1980)).
II. Exhaustion of Administrative Remedies
Defendants contend that plaintiff's claim of retaliation based on his removal from his job at the commissary and transfer to an educational program should be dismissed based on plaintiff's failure to exhaust his administrative remedies as required by the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). The PLRA provides in part that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." Id.
"DOCS's grievance process consists of three stages. First, a grievance is filed with the Inmate Grievance Resolution Committee ('IGRC'). Next, an inmate may appeal an adverse decision to the prison superintendent. Finally, an inmate may appeal the superintendent's decision to the Central Office Review Committee ('CORC')." Brownell v. Krom, 446 F.3d 305, 309 (2d Cir. 2006).
The mere fact that an inmate plaintiff filed some grievance prior to filing suit is not enough. The grievance must also have related to the subject matter of the federal lawsuit. See Curry v. Fischer, No. 02 CIV.4477, 2004 WL 766433, at *7 (S.D.N.Y. Apr. 12, 2004) ("But it is not enough to satisfy the PLRA's exhaustion requirement that some issue has been exhausted: there must be a connection between the administrative grievance and the matters raised in the federal court complaint"). Claims relating to matters that are outside the scope of the inmate's grievance, therefore, are not exhausted for purposes of the PLRA. See, e.g., Donahue v. Bennett, No. 02-CV-6430, 2004 WL 1875019, at *7 (W.D.N.Y. Aug. 17, 2004) (where plaintiff's grievance was narrower than the allegations in his complaint, plaintiff's claim would be limited to what was contained in the grievance).
Here, plaintiff filed grievances about not being allowed to speak Spanish at the commissary and about his placement in IPC. Dkt. #26-2 at 10, 27. There appears to be no dispute that he also pursued those grievances fully, since the denial of both grievances was upheld by CORC. Dkt. #26-2 at 8, 25. Thus, those claims are exhausted.
There is no evidence, however, that plaintiff filed a grievance with regard to the alleged retaliatory transfer from his commissary job to an educational program. There is also no evidence that the DOCS officials who reviewed his grievances were aware of, investigated, or ruled on any such claim. Cf. Baskerville v. Blot, 224 F.Supp.2d 723, 730 (S.D.N.Y. 2002) (PLRA exhaustion requirement was satisfied despite the fact that "[t]he scope of the grievance that plaintiff filed ... was much narrower than the issues he [was] raising in the instant complaint," since the broader assault claim raised in the federal suit had been investigated and ruled upon by the CORC, even though the underlying facts of the assault were not explicitly laid out in the grievance). Plaintiff's claims based upon his transfer out of the commissary are therefore barred for failure to exhaust administrative remedies.
III. Restriction on Use of Spanish
With respect to plaintiff's claim concerning his use of Spanish to converse with other inmates, defendants contend that inmates have no constitutional right to converse with each other in a particular language while they are working, and that Colvin's directive to plaintiff and his ...