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Cesar Mateo v. M. Gundrum

April 30, 2012

CESAR MATEO, PLAINTIFF,
v.
M. GUNDRUM, MARTIN, DANIEL MARTUSCELLO, DEFENDANTS.



The opinion of the court was delivered by: Therese Wiley Dancks, United States Magistrate Judge

REPORT-RECOMMENDATION

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Cesar Mateo alleges that Defendants retaliated against him for filing grievances and lawsuits. (Dkt. Nos. 1, 21, 39.) The matter is currently before the Court for screening of Plaintiff's second amended complaint. (Dkt. No. 39.)

I. FACTUAL AND PROCEDURAL SUMMARY

A. Allegations of the Amended Complaint

The currently operative complaint in this action is the amended complaint. Plaintiff, an inmate of the New York State Department of Corrections and Community Supervision ("DOCCS"), alleges that he filed twenty-nine grievances between May 5, 2003 and November 16, 2009. (Dkt. No. 21 at 27.*fn1 ) Plaintiff alleges that there is a wide-reaching conspiracy against him, motivated "racially and personally" because Plaintiff has filed so many grievances against DOCCS staff members. Id. at 9.

In June 2010, Plaintiff arrived at Coxsackie Correctional Facility. Id. at 21.

On June 19, 2010 Plaintiff wrote to Defendant Daniel Martuscello, Superintendent of Coxsackie Correctional Facility. Id. at 29. Plaintiff alleged that an officer would not let him keep an appointment at the facility's law library. Id. He alleged that this was "causing [him] to miss a Court Order[ed] date line." Id. at 30. He alleged that the officer was acting as part of the conspiracy against him. Id. He also stated that his repeated requests for dental care were being denied. Id. He requested access to the law library, proper dental care, and an end to the conspiracy. Id. at 30-31.

On August 7, 2010 Plaintiff filed a grievance. Id. at 32. He complained that he had discovered a dead insect in his medically prescribed meal. Id. He stated that the officers in the cafeteria refused to provide him with another meal. Id. He noted that the "incident occurred a day after I was interviewed by a correction sergeant in reference to my previously filed grievance regarding not receiving my prescribed diet . . . ." Id. at 33.

Plaintiff wrote a letter to the Hon. Stan L. Pritzker, Acting Justice of the Washington County Supreme Court. Id. at 14. Plaintiff complained that he was being harassed and retaliated against by prison staff. Id. In the letter, Plaintiff stated that the day after he filed his grievance regarding his meal, an officer came to his cell and told him to pack up his property to move out of that unit and into Division C-3. Id. The officer told Plaintiff that he would be beaten and said "hope you'll enjoy going to the hospital." Id. Plaintiff asked Judge Pritzker to protect his rights. Id.

In a grievance filed with the Inmate Grievance Resolution Committee, Plaintiff alleged that before he moved to Division C-3, an officer came to his cell and told him to go see the Sergeant. Id. at 16. The Sergeant asked if Plaintiff had written grievances. Id. When Plaintiff said that he had, the Sergeant threatened to frame him, write a false misbehavior report, and restrict his privileges. Id.

Plaintiff alleges that Defendant Correction Officer M. Gundrum, the officer in charge of Division C-3, "is known for retaliating [against and] harassing inmates on behalf of his fellow[] officers." Id. at 7. Plaintiff alleges that Defendant Gundrum stopped by Plaintiff's cell on September 8, 2010 and said "I'm gonna have fun with you." Id. Plaintiff alleges that Defendant Gundrum issued a false misbehavior report against him later that day. Id. Plaintiff attached a copy of the misbehavior report to his amended complaint. Id. at 18. In the report, Defendant Gundrum stated that he: was supervising C-3 Division inmates during the morning chow run.

At the completion of the meal period I instructed all C-3 inmates to exit the mess hall and line up in the Assembly in cell order. As the division was lining up I observed [Plaintiff] to be having a loud conversation with [another inmate], who was standing to the side of [Plaintiff]. Both inmates were ordered to cease creating a disturbance and [the other inmate] was ordered to line up in his proper place. No further incident.

Id. Defendant Gundrum charged Plaintiff with violating Rules 104.13 (creating a disturbance) and 109.12 (directions relating to movement). Id. In the amended complaint, Plaintiff disputes Defendant Gundrum's report that he was having a "loud conversation." Plaintiff alleges that he spoke "moderately and politely" to the other inmate in order to recover "his State provided Workbook." Id. at 20.

Defendant Martin conducted the disciplinary hearing on the misbehavior report on September 10, 2010. Id. at 8. Plaintiff alleges that Defendant Martin was belligerent and verbally harassed and threatened Plaintiff during the hearing. ...


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