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Butler v. LaBarge

September 30, 2010

KEITH TERRELL BUTLER, PLAINTIFF,
v.
L. LABARGE, CORRECTION OFFICER, DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pro se plaintiff Keith Terrell Butler brings this action under 42 U.S.C. § 1983, alleging that defendant L. LaBarge violated his First, Eighth, and Fourteenth Amendment rights. (See Compl., Dkt. No. 1.) Specifically, Butler, an inmate formerly housed at Upstate Correctional Facility, alleged that during rounds, LaBarge, a corrections officer, stared at Butler's genitalia, licked his lips, and made a lewd comment referencing Butler's genitalia. (See id. at 5.) In addition, Butler alleged that during a frisk, LaBarge felt his genitalia and aggressively rubbed his buttocks. (See id.) On November 12, 2009, LaBarge moved to dismiss Butler's complaint. (Dkt. No. 11.) In a Report-Recommendation and Order (R&R) filed May 21, 2010, Magistrate Judge David R. Homer recommended that LaBarge's motion be granted. (Dkt. No. 22.) Pending are Butler's objections to the R&R. (Dkt. No. 23.) For the reasons that follow, the court adopts the R&R and dismisses Butler's claims.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge.

If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In cases in which no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.

III. Discussion

A. Request for Counsel

In his objections, Butler claims that he should have been afforded counsel due to his mental illness. (See Pl. Objections at ¶ 7, Dkt. No. 23.) Although Judge Homer did not address this issue in the R&R, the court is satisfied that the denial of Butler's request for counsel provides no basis for rejecting the R&R's recommended dismissal. In his denial of Butler's request, Judge Homer directed Butler to attempt to obtain counsel on his own or make another motion for appointment of counsel accompanied by the required documentation. (See May 10, 2010 Order at 2, Dkt. No. 19.) Because Butler has failed to pursue either of these options, the court declines to reject the R&R on these grounds.

B. First Amendment Claim

Judge Homer recommended dismissal of Butler's First Amendment retaliation claim, reasoning that Butler failed to allege any facts demonstrating an adverse action taken in response to his engagement in a constitutionally protected act. (See R&R at 3 n.3, Dkt. No. 22.) In his objections, Butler merely reiterates that LaBarge's conduct constituted retaliation. (See Pl. Objections at ¶ 12, Dkt. No. 23.)

To state an actionable retaliation claim, the plaintiff must show that "the conduct at issue was constitutionally protected and that the protected conduct was a substantial or motivating factor in the prison official's decision to discipline the plaintiff." Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citation omitted). "[A] retaliation claim supported by specific and detailed factual allegations" will ordinarily withstand a motion to dismiss. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). "However, a complaint which alleges retaliation in wholly conclusory terms may safely be dismissed on the pleadings alone." Id.

Here, Butler alleges that he has been "reminded of [his] most recent adjudication and targeted because [his] most recent crime was against an employee." (See Pl. Resp. Mem. of Law at 2-3, Dkt. No. 13.) He also alleges that several types of abuse were "in somewhat retaliation." (See id. at 3.) Such allegations, unsupported by any specific factual details, fail to establish that Butler's constitutionally protected conduct was a substantial factor in causing an adverse action by LaBarge. See ...


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