This matter comes before the Court following a Report-Recommendation filed on February 23, 2010 by the Honorable David R. Homer, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. Report-Rec. (Dkt. No. 42). After ten days from the service thereof, the Clerk has sent the entire file to the undersigned, including Plaintiff Frederick Diaz' Objections, (Dkt. No. 43) ("Objections"), which were filed on March 8, 2010.
It is the duty of this Court to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
This Court has considered the Objections, undertaken a de novo review of the record, and determined that, except as specifically noted and for the reasons discussed below, the findings of the Report-Recommendation are adopted. As detailed below, Defendants' Motion to dismiss (Dkt. No. 25) is partially granted; Plaintiff may pursue his retaliation and due process claims against Defendant Quinn; and Plaintiff's Complaint (Dkt. No. 1) is dismissed in its entirety as to Defendants Fischer; Graham; Redmond; Burdick; and Merville. The Court does not reach any conclusions with regard to Plaintiff's claims against Defendants Byrne and Cady,*fn1 who are not party to the instant Motion. See Mem. of Law in supp. of Defs.' Mot. to Dismiss (Dkt. No. 25-1) ("Defs.' Mem.").
The Report-Recommendation correctly noted the standard of review applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. In short, when considering a motion to dismiss under 12(b)(6), a district court must accept the factual allegations made by the non-moving party as true and "draw all inferences in the light most favorable" to the non-moving party. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007). In order to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"
Ashcroft v. Iqbal, U.S. , 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. If a plaintiff provides well-pleaded factual allegations, "a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.
A. Loss of Property and Conditions of Confinement
The Report Recommendation, noting Plaintiff's pro se status, entitled Plaintiff to special solicitude and construed his pleadings liberally. Report-Rec. at 12 (citing Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). The Magistrate thus considered the pleadings to include a due process claim for lost property and an Eighth Amendment claim based on the conditions of Plaintiff's keeplock cell. While Plaintiff objects to certain findings associated with the Magistrate's analysis of these issues, his Objections make clear that he is not asserting these claims. Objections at 4. Moreover, the Court finds no error in the Report-Recommendation's treatment of these claims. They are dismissed.
B. Personal Involvement of Defendants Fischer, Quinn, and Graham
Defendants claim that Plaintiff has failed to allege facts showing the personal involvement of Defendants Fischer, Quinn, and Graham in the constitutional violations he alleges. See Defs.' Mem. at 4-7. Upon de novo review of the record and consideration of Plaintiff's Objections, the Court has determined that the Report-Recommendation's findings on this issue should be approved for the reasons stated therein. Thus, Defendants' Motion to dismiss is granted with regard to Defendant Fischer for lack of personal involvement, but denied on this ground as to Defendants Quinn and Graham.
C. Plaintiff's Retaliation Claims
To state a claim of unconstitutional retaliation, a plaintiff must allege "(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001) overruled on other grounds; Gill v. Pidlypchak, 389 F.3d 379, 381-83 (2d Cir. 2004). Given the relative ease with which claims of retaliation can be alleged, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983).
The Report-Recommendation correctly noted that even where a plaintiff alleges retaliation for a constitutionally protected activity, any "'adverse action taken for both proper and improper reasons may be upheld if the action would have been taken based on the proper reasons alone.'" Report-Rec. at 17 (quoting Jackson v. Onondaga County, 549 F. Supp. 2d 204, 215 (N.D.N.Y. 2008) (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). Thus, where a plaintiff shows that he was engaged in a constitutionally protected activity and that protected conduct was a "substantial or motivating factor in the prison officials' decision to discipline the plaintiff," the state action may still be upheld if defendants "show by a preponderance of the evidence that they would have disciplined the plaintiff 'even in the absence of the protected conduct.'" Graham, 89 F.3d at 79 (quoting Mount Healthy Sch. Dist. v. Doyle, 429 U.S. 274, 287 (1977)). This showing may be properly made upon a motion for summary judgment, as the cases cited in the Report-Recommendation indicate. See also Sher v. Coughlin, 739 F.2d 77, ...