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Cesar Mateo v. Brian Fischer

August 16, 2011


The opinion of the court was delivered by: Richard J. Holwell, District Judge:


This is one of several actions that plaintiff pro se Cesar Mateo, currently incarcerated at Coxsackie Correctional Facility, has filed challenging the conditions of his confinement in New York's prisons. Many have been dismissed without for failure to exhaust administrative remedies. See Mateo v. Corebine, No. 09 Civ. 4811, 2010 WL 3629515 (S.D.N.Y. Sept. 17, 2010); Mateo v. Ercole, No. 08 Civ. 10450, 2010 WL 3629520 (S.D.N.Y. Sept. 17, 2010); Mateo v. O'Connor, No. 08 Civ. 11053, 2010 WL 3199690 (S.D.N.Y. Aug. 12, 2010); Mateo v. Alexander, No. 08 Civ. 8797, 2010 WL 431718 (S.D.N.Y. Feb. 9, 2010). Of these actions, some have been re-filed and defendants have again moved to dismiss, see Mateo v. O'Connor, No. 10 Civ. 8426, ECF No. 16; Mateo v. Alexander, No. 10 Civ. 8427, ECF No. 8, some are pending a decision on appeal, see Mateo v. Corebine, No. 09 Civ. 4811, ECF No. 41; Mateo v. Ercole, No. 08 Civ. 10450, ECF No. 33, and this action has spawned another arising out of correctional officers' conduct regarding Mateo's deposition, Mateo v. Heath, No. 11 Civ. 636. In this action, on defendants' motion to dismiss, the Court previously dismissed all of Mateo's claims except his First Amendment retaliation claim against defendant Michael Miller, a correction officer, for filing a false misbehavior report. Mateo v. Fischer, 682 F. Supp. 2d 423, 435 (S.D.N.Y. 2010). Now before the Court is Miller's motion for summary judgment. For the reasons that follow, that motion is DENIED.


Mateo claims that Miller filed a false and retaliatory misbehavior report because of his grievance alleging that Miller conducted an inappropriate pat frisk.

By letter dated November 14, 2007, Mateo complained to the Inmate Grievance Resolution Committee ("IGRC") at Green Haven Correctional Facility ("Green Haven"), where he was then incarcerated, that an unidentified officer "slid his hands caressing my body instead of performing a professional standard pat frisk." (Wen Decl. Ex. A at unnumbered pg. 8.) The Inmate Grievance Program Supervisor received that letter on November 15, 2007, and filed a Report of Sexual Assault. (Id. at 11.) That day, non-party Sgt. Robert Clerc investigated Mateo's grievance, concluding that it lacked merit. (Id. at 14.) His investigation included an interview of Mateo, just prior to which defendant Miller allegedly pat-frisked Mateo in a manner similar to the November 10, 2007 pat frisk of which Mateo complained. (Id.)

Mateo testified that he sent another letter to the IGRC on November 15, 2007, complaining of Miller's pat frisk, although this letter does not appear in the record. (Wen Decl. Ex. K ("Mateo Dep.") at 37-40; see also Def.'s Rule 56.1 Stmt. ¶ 17 n.2.) In any event, Miller was eventually added to Mateo's November 14, 2007 grievance. (See Miller Decl. ¶ 10.) Mateo also wrote two letters dated November 16, 2007, to the IGRC. The first complained that Miller, after taking Mateo's request for lunch, said Mateo "should not have written him up," and "wait till I put my hands on you." (Wen Decl. Ex. A at 9.) The second complained more generally of Green Haven's "homosexualizing frisk" procedures which, according to Mateo, correction officers used "to obtain sexual gratification during performance of slide hands-caressing frisk on me." (Id. at 10.) Those letters, along with the November 14, 2007 letter, were included in a single grievance file; the grievance was denied by Green Haven's superintendent on December 17, 2007, and the Central Office Review Committee ("CORC") denied Mateo's appeal of that grievance on January 30, 2008. (Id. at 1, 4.)

On November 16, 2007, Miller filed an Inmate Misbehavior Report ("IMR") charging Mateo with soliciting a sexual act and lewd conduct. (Wen Decl. Ex. B at 13; Ex. E.) The IMR stated that at approximately 11:10 a.m. on that date, Mateo asked Miller if he "love[d] to touch him," told Miller that he knew that Miller wanted to commit certain sexual acts with him, and did so while "excessively rubbing his groin area." (Wen Decl. Ex. E.) Miller further stated in the IMR that he contacted his area supervisor and submitted a referral for Mateo to be seen by the Psychiatric Satellite Unit ("PSU") of the New York State Office of Mental Health ("OMH"). (Id.) He was screened that day at the Central New York Psychiatric Center, where he reported that he believed that correction officers were "purposely rubbing their hands on him in a sexual manner," that this practice was "harassment," and that he "was bisexual in the past and is 'try [sic] to change to heterosexual.'" (Wen Decl. Ex. J at D-Mateo (Fischer) 000106.) On November 16, 2007, Miller also filled out a report responding to his being added to Mateo's November 14 grievance, which denied sexually harassing Mateo or deriving sexual gratification from the pat frisk. (Wen Decl. Ex. A at 15.)

On November 19, 2007, a Tier III disciplinary hearing was held to address the IMR, at which hearing officer Lt. Tokarz presided. (Wen Decl. Ex. G at D-Mateo (Fischer) 046.) At the hearing, Mateo pled not guilty, indicated his desire to present a letter he wrote to the superintendent on November 16, 2007, and submitted his theory that the IMR was fabricated in retaliation for his grievance against Miller. (Id. at 048, 050, 051.) Mateo reiterated his objection to the pat-frisk procedure, but Tokarz told him that the sliding-hands procedure was "normal." (Id. at 051-53.) Mateo also expressed his belief that the IMR was false because (1) if he "[r]ubbed [his] groin sexually . . . it makes [him] bleed," and he would not risk such a thing; and

(2) he did not know the sexual connotation of the word "blow," which was used in the IMR. (Id. at 057-60.) The hearing continued on November 28, 2007, where Mateo told Tokarz that he did not have the letter he wanted to present on November 16 because it was in the hands of the inmate grievance program, that he did not want to participate in any prison programs, and refused to be present for the testimony of Miller. (Wen Decl. Ex. H at D-Mateo (Fischer) 069-76.) Miller then testified, outside Mateo's presence, that the IMR was not retaliatory, and upon Miller's testimony and written report, Tokarz found Mateo guilty of both charges in the IMR.*fn1

(Id. at 078-80; Wen Decl. Ex. B. at 9-10.)

On or after November 29, 2007, Mateo wrote a letter to the IGRC, complaining that Miller had issued a retaliatory and fabricated IMR and that other inmates had approached Mateo saying that they had learned that he was a sex offender even though his conviction was for armed robbery.*fn2 (Wen Decl. Ex. B at unnumbered pg. 8.) On November 29, 2007, Mateo wrote another letter to the IGRC stating that he "was afraid to continue" being present at the Tier III disciplinary hearing when Miller testified and requesting that all interactions between him and prison staff be taped. (Id. at 7.) The two letters were consolidated into a single grievance file, which was investigated by non-party Sgt. Murphy. (Id. at 14.) The superintendent denied his grievance on December 11, 2007, and CORC denied his appeal on January 16, 2008. (Id. at 1, 5.)

This action followed on July 15, 2008. After defendants' motion to dismiss, only a retaliation claim against Miller remained, and Miller has now moved for summary judgment on the last remaining claim.


I.Summary Judgment ...

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