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Murray v. Nephew

United States District Court, Second Circuit

December 5, 2013

ROBERT L. MURRAY, Plaintiff,
v.
SARA NEPHEW, RC II; Mental Health; Clinton Correctional Facility; Defendant.

ROBERT L. MURRAY, 05-A-5765, Plaintiff Pro Se, Dannemora, NY.

CATHY Y. SHEEHAN, ESQ., Assistant Attorney General, HON.ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Albany, New York, Attorney for the Defendants.

REPORT-RECOMMENDATION AND ORDER [1]

CHRISTIAN F. HUMMEL, Magistrate Judge.

Plaintiff pro se Robert L. Murray ("Murray"), an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant, a DOCCS employee, violated his constitutional rights by issuing a misbehavior report in retaliation for his bringing a lawsuit. Compl. (Dkt. No. 1) at 4. Presently pending is defendant Nephew's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Dkt. No. 14. Rosario does not oppose the motion. For the following reasons, it is recommended that defendant's motion be granted.

I. Background

The facts are related herein in the light most favorable to Murray as the non-moving party. See subsection II(A) infra.

On March 5, 2012, Murray filed a § 1983 action against Defendant Nephew and a Dr. Gillani alleging that they "changed [Murray's] mental health diagnosis' so that he would not be able to re-enter the Special Needs Unit ("SNU") in retaliation for filing lawsuits against the Office of Mental Health ("OMH"). Murray v. Gillani, No. 12-CV-401 (LEK)(ATB), 2013 WL 838351, at *1 (N.D.N.Y. Feb. 11, 2013) (hereinafter Murray I) (Ex. A)[2]; see also Compl. at 4 (explaining that the genesis of the current claim came from the lawsuit filed against Nephew). On March 6, 2013, the Hon. Lawrence E. Kahn approved and adopted Magistrate Andrew T. Baxter's Report and Recommendation granting defendants' summary judgment motion, dismissing the action. Murray v. Gillani, No. 12-CV-401, 2013 WL 838306 (N.D.N.Y Mar. 6, 2013) (Ex. B). On December 5, 2012, Murray filed the current action against Nephew alleging that she issued a false misbehavior report in retaliation for the Murray I lawsuit. Compl. at 4-6.

On July 26, 2012, Murray had a call out to Hospital III, and was seen by Defendant Nephew, a Rehabilitation Counselor, at the Clinton Correctional Facility. Compl. at 4. While there, Nephew asked Murray about the March 5th lawsuit he had filed against Nephew and Dr. Gillani, to which Murray responded "don't worry about it." Id. Nephew continued to ask Murray about the lawsuit and when he did not answer, Nephew got up and walked out of the room. Id. When Murray attempted to also walk out of the room, Nephew told the officer to "lock [him] up." Id. When Murray asked Nephew the reason for doing so, Nephew responded that she would "figure something out." Id. On that same day, Nephew issued Murray a misbehavior report for violating rules 107.10: Interference; 102.10: Threats; 106.10: Direct Order; resulting in a sentence of 30 days in Keeplock and loss of privileges. Dkt. No. 1-1 at 13; Dkt. No. 17 at 1. Defendant Nephew states in the misbehavior report that on November 26, 201, Murray "made several threatening statements" such as, "I will sue your ass" and "I will take you to court." Dkt. No. 1-1 at 13. Murray continued to make such comments even after being directed to refrain from doing so. Id . Because of the continued "threatening and intimidating behavior, " Defendant Murray terminated the interview and exited the room. Id . Murray refused to leave the room. Id.

II. Discussion

A. Legal Standard

Under Fed.R.Civ.P. 12 (b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure calls upon the court to assess the facial sufficiency of that pleading using a pleading standard which, "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Iqbal , 556 U.S. at 677-78 (quoting FED.R.CIv.P. 8(a)(2)). That rule commands that a complaint contain more than mere legal conclusions. See id. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations."). "A pleading that offers labels and conclusions' or a formulaic recitations of a cause of action will not do.'" (quoting Twombly , 550 U.S. at 555)).

In deciding a Rule 12(b)(6) dismissal motion, the court must accept the facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus , 551 U.S. 89, 94 (2007) (citing Twombly , 550 U.S. at 555-56); see also Cooper v. Pate , 378 U.S. 546, 546 (1964) (citations omitted); Miller v. Wolpoff & Abramson, L.L.P. , 321 F.3d 292, 300 (2d Cir. 2003) (citations omitted); Burke v. Gregory , 356 F.Supp.2d 179, 182 (N.D.N.Y. 2005) (citations omitted). However, the tenet that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions. Iqbal , 556 U.S. at 678. To withstand 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.'" Iqbal , 556 U.S. at 678 (quoting Twombly , 550 U.S. at 570); see also Ruotolo v. City of New York , 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litiq. , 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly , 550 U.S. at 570) (alterations and footnote omitted).

When assessing the sufficiency of a complaint against this backdrop, "[w]e construe plaintiff's complaint liberally accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiff's favor. Selevan v. N.Y. Thruway Auth. , 584 F.3d 82, 88 (2d Cit. 2009) (citing Homes v. Grubman , 568 F.3d 329, 335 (2d Cir. 2009) (internal quotation marks omitted)). When, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to special solicitude, that a pro se litigant's submission must be construed liberally, and that such submissions must be read to raise the strongest arguments that they suggest. At the same time, our cases have also indicated that we cannot read into pro se litigant's allegations or arguments that the submissions themselves do not suggest that we should not excuse frivolous or vexatious filings by pro se litigants, and that pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law....

Id. (Internal quotation marks, citations, and footnotes omitted); see also Sealed Plaintiff v. Sealed Defendant # 1 , 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.'" (citations omitted)).

B. Retaliation

Courts have been cautioned to approach First Amendment retaliation claims by prisoners with skepticism and particular care. Davis v. Goord , 320 F.3d 346, 352 (2d Cir.2003) (citing Dawes v. Walker , 239 F.3d 489, 491 (2d Cir.2001), overruled on other grounds by Swierkiewicz v. Sorema, NA , 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). However, that does not mean that such claims are to automatically be dismissed. Such a claim can survive a defendant's motion to dismiss, but only if plaintiff alleges facts tending to establish that (1) the speech or conduct that led to the allegedly retaliatory conduct is the sort of speech or conduct that is protected by the Constitution; (2) defendant(s) took adverse action against the plaintiff; and (3) there is a causal connection between the protected speech or activity and the adverse action. See e.g., Jones v. Harris , 665 F.Supp.2d 384, 398 (S.D.N.Y. 2009). These allegations may not be conclusory; they must have some basis in specific facts that are not inherently implausible on their face. Ashcroft v. Iqbal , 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); South Cherry Street LLC v. Hennessee Group LLC , 573 F.3d 98, 110 (2d Cir.2009). Additionally, if Murray makes these showings, Defendant Nephew may avoid liability if demonstrated that Defendant would have filed the misbehavior report "even in the absence of the protected conduct." Graham v. Henderson , 89 F.3d 75, 79 (2d Cir. 1996) (quoting Mount Healthy Sch. Dist. V. Doyle, 429 U.S. 274).

Furthermore, "[o]nly retaliatory conduct that would deter a similarly-situated individual of ordinary firmness from exercising his... constitutional rights constitutes an adverse action...[; if a] retaliatory act is de minimis, [it falls] outside the ambit of constitutional protection. Davis , 320 F.3d at 353 (citing Dawes , 239 F.3d 489). In this regard, prisoners may be required to tolerate more than public employees or average citizens before a purportedly retaliatory action taken against them is considered adverse. Thaddeus-X v. Blatter , 175 F.3d 378, 392-93 (6th Cir., 1999).

The Second Circuit has defined "adverse action" in the prison context, as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising... constitutional rights.'" Gill v. Pidlypchak , 389 F.3d 379, 381 (2d Cir. 2004) (quoting Davis v. Goord , 320 F.3d 346, 353 (2d Cir. 2003). The Second Circuit has "made clear that this objective test applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits." Id.

Murray claims that Defendant Nephew issued a false misbehavior report in retaliation for the filing of the March 5, 2012 claim, by Murray, against Nephew. However, Defendant Nephew contends that Murray I was a frivolous lawsuit and therefore not protected activity. The right of access to courts is protected by the First Amendment's clause granting the right to petition the government for grievances. California Motor Transport Co. v. Trucking Unlimited , 404 U.S. 508, 510, 92 S.Ct. 609, 612, 30 L.Ed.2d 642 (1972); Brown v. Grabowski , 922 F.2d 1097, 1111 (3d Cir. 1990). However, "filing a court action that is frivolous is not constitutionally protected activity." Henry v. Dinelle, No. 10-CV-456 (GTS/DEP), 2011 WL 5975027, at *7, n.11 (N.D.N.Y. Nov. 29, 2011) (Ex. C); see also, Hurley v. Blevins, No. Civ. A. 6:04-CV-68, 2005 WL 997317, at *6 (E.D. Tex. Mar. 28, 2005) (noting that "[a] claim of retaliation can be made only for constitutionally protected activity, and the filing of frivolous lawsuits does not fall within this category.") (Ex. D).

In the Murray I lawsuit, which is the genesis for the current claim, the Court determined that the retaliation claim was in fact frivolous, stating "[i]t is clear that plaintiff is attempting to create his own retaliation' by acting so inappropriately that Ms. Nephew finally issued the misbehavior report about which plaintiff has been warned." Murray I, 2013 WL 838351, at *11 (Ex. A). Accordingly, as Murray was not engaged in protected activity, he has failed to meet the first prong of the analysis and his complaint should be dismissed.

Furthermore, even if the analysis was continued as if Murray was in fact engaged in constitutionally protected activity when Defendant Nephew issued a misbehavior report, Murray still fails to meet the remaining prongs for a retaliation claim. Regarding the second prong, there is no dispute that Defendant Nephew filed a misbehavior report against Murray after Defendant Nephew had been served the complaint in Murray I, which constituted adverse action. See Gill v Pidlypchak , 389 F.3d 379, 384 (2d Cir. 2004) (holding that the filing of false misbehavior reports constitutes adverse action). However, questions arise when analyzing the third prong, as there is no evidence to support a casual connection between Murray's filing of the previous lawsuit and Defendant Nephew's issuance of a misbehavior report.

Even if there were evidence to indicate that Defendant Nephew's filing of the misbehavior report, which constituted adverse action, was motivated in part by Murray's protected activity namely, filing a lawsuit, in light of the violations and explanation listed infra, Defendant Nephew would have taken the same adverse action in the absence of the protected activity, thereby allowing Nephew to avoid liability.

For the reasons stated, Defendant's motion to dismiss the retaliation claim should be granted.

C. Collateral Estoppel

Defendant Nephew contends that her actions in writing the misbehavior report were justified because, as determined in Murray I, the court already concluded that she wrote said misbehavior report for proper purposes. While not specifically stated as such, Defendant contends issue preclusion applies, directing an identical finding as in the previous case and dismissing any of Murray's potential retaliation claims.

"Once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first action." Allen v. McCurry , 449 U.S. 90, 94 (1980). Collateral estoppel is applicable:

If (1) there has been a final determination on the merits of the issue sought to be precluded; (2) the party against whom... preclusion is sought has a full and fair opportunity to contest the decision...; and (3) the issue sought to be precluded by the earlier suit is the same issue involved in the later action.

Davis v. Halpern , 813 F.2d 37, 39 (2d Cir. 1987) (citation omitted). The requirement of full and fair opportunity to contest requires that the plaintiff "was fully able to raise the same factual or legal issues" in the prior litigation as asserted in the present case. LaFleur v. Whitman , 300 F.3d 256, 274 (2d Cir. 2002).

In this case, preclusion is appropriate based on collateral estoppel. First, there was a final determination in the Murray I, as the judge directed a verdict in the defendant's favor, on the merits, dismissing Murray's retaliation claims. Specifically, it was noted that the July 26, 2012 misbehavior report stated that Murray had been counseled on prior call outs to refrain from threatening behavior and "a review of the medical records submitted by the defendants shows that defendant Nephew had warned plaintiff several times about his aggressive behavior before she actually filed a misbehavior report against him." Murray I, 2013 WL 838351, at *11 (Ex. A). The court also states that "[i]t is clear that plaintiff is attempting to create his own retaliation' by acting so inappropriately that Ms. Nephew finally issued the misbehavior report about which plaintiff had been warned." Id. Second, Murray had an opportunity to present his case and was afforded, and utilized, an opportunity to file additional materials in support of his position, with the November 28, 2012 order converting the motion to dismiss into a motion for summary judgment. Id. , 2013 WL 838351, at *4-*5 (Ex. A). Third, as demonstrated by reading the Murray I complaint and decision, the underlying factual basis of the claim is identical to the current claim-claiming adverse action allegedly taken in retaliation for the filing of a lawsuit. Thus, it is clear that there was a final determination on the merits, and the issues in contention between the parties in the prior Murray I decision and the case at hand are identical.

Accordingly, relitigating the issue of whether the misbehavior report was issued based on a proper purpose is precluded as the court in Murray I had already determined that such a misbehavior report was issued for a proper purpose. Accordingly, the undersigned comes to an identical conclusion as well. As Defendant Nephew would have issued the misbehavior report irrespective of the filing of the lawsuit, any such retaliation claims are rendered meritless. Allen , 449 U.S. at 94; Davis , 813 F.2d at 39.

Therefore, defendant's motion to dismiss should be granted on this ground as well.

III. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that defendant's motion to dismiss (Dkt. No. 14) be GRANTED.

Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette , 984 F.2d 85, 89 (2d Cir. 1993); Small v. Sec'y of HHS , 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Robert L. Murray, pro se.

Gregory J. Rodriguez, AAG, for the Defendants.

Opinion

REPORT-RECOMMENDATION

ANDREW T. BAXTER, United States Magistrate Judge.

*1 In this civil rights complaint, plaintiff alleges that defendants changed plaintiffs "mental health diagnosis" so that he would not be able to re-enter the Special Needs Unit ("SNU") in retaliation for filing lawsuits against the Office of Mental Health ("OMH"). (Compl. ¶ 6 & Causes of Action; Dkt. No. 1). Plaintiff seeks injunctive and monetary relief. (Compl. Prayer for Relief). On July 12, 2012, defendants filed a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 11). On November 28, 2012, after reviewing defendants' motion to dismiss and plaintiffs response to that motion, I issued an order converting the motion to dismiss to a motion for summary judgment pursuant to Fed.R.Civ.P. 12(d) and 56. (Dkt. No. 15). In my November 28th order, I afforded both parties the opportunity to file additional materials in support of summary judgment. ( Id. ) Both plaintiff and defendants have filed additional materials in support of their respective positions. (Dkt. Nos. 22-23 (defendants), 26 (plaintiff)). The court will now proceed to consider the pending motion for summary judgment, incorporating the additional materials submitted by both sides.

DISCUSSION

I. Facts

A. Complaint

In his complaint, plaintiff alleges that on December 17, 2011, defendants Dr. Gillani and RC II Nephew "changed" plaintiffs mental health diagnosis to justify their refusal to transfer plaintiff back into an SNU. (Compl. ¶ 6). Plaintiff claims that defendants' conduct was in retaliation for plaintiff filing lawsuits against OMH and other staff. Plaintiff claims that on December 17, 2011, he asked Dr. Gillani about going back to an SNU program, but that Dr. Gillani told plaintiff "you know what you did." ( Id. ) Plaintiff claims that he responded that "all I did was file a lawsuit against staff..., " and that Dr. Gillani stated "[t]hat's why I'm not sending you back." ( Id. ) Plaintiff claims that he filed lawsuits against the Department of Corrections and Community Supervision ("DOCCS") in 2006, 2008, and 2009, and that he was taken out of SNU "on false pretences [sic]." ( Id. ) Plaintiff states that he must go back into an SNU so that he can get the programs he needs to go home in February of 2013. (Compl. Third Cause of Action).

B. Defendants' Additional Evidence

Defendants have each filed a Declaration in support of summary judgment in their favor. (Dkt. Nos. 23 (Sara Nephew), 23-1 (Dr. Sohail A. Gillani, M.D.)). In addition to the Declarations, defendants have filed plaintiffs related medical records. Defense counsel has also filed the decision of the Central Office Review Committee ("CORC"), denying plaintiffs grievance, dated July 25, 2012. (Dkt. No. 22-3).

Defendant Gillani states that he is currently employed by OMH as a psychiatrist and has been employed at the Satellite Unit of the Central New York Psychiatric Center ("CNYPC") at Clinton Correctional Facility since August 2007. (Gillani Decl. ¶¶ 1-2). Defendant Nephew is currently employed as a Rehabilitation Counselor II ("RCII")[1] by OMH at the Satellite Unit of CNYPC at Clinton, and has been employed there since October of 2007. (Nephew Decl. ¶¶ 1-2).

*2 Plaintiffs records reveal that he arrived at Clinton Correctional Facility on February 11, 2011, and at that time, plaintiffs mental health diagnoses were "Anti Social Personality Disorder ("ASPD") and Borderline Intellectual Functioning. (Nephew Decl. ¶ 4 & Ex. A; Gillani Decl. ¶ 4). Dr. Gillani states that he has been treating plaintiff since that time, and that plaintiffs diagnosis has not changed since he has been at Clinton. (Gillani Decl. ¶ 5). The last time that plaintiffs diagnosis changed was in December of 2009, more than one year before he was transferred to Clinton. (Nephew Decl. ¶ 4). On December 2, 2009, plaintiffs Axis I diagnoses of Schizoaffective Disorder and Mood Disorder NOI (Not Otherwise Specified) were deleted, leaving the ASPD and Borderline Intellectual Functioning diagnoses. ( Id. ) Plaintiff has never had the Schizoaffective Disorder or Mood Disorder diagnoses since then. ( Id. & Ex. A).

Dr. Gillani states that the SNUB, to which plaintiff refers in his complaint, provide programs and housing areas for inmates who have low intellectual functioning and adaptive behavior deficits, are not likely to take care of themselves, and are in general need of additional supervision, (Gillani Decl. ¶ 7; Nephew Decl. ¶ 5). Plaintiff was housed in the General Population at Clinton from the time he arrived on February 11, 2011 until December 17, 2011. (Gillani Decl. ¶ 10). Plaintiff did not report any conflicts with other inmates or staff, and during that time, did not receive any misbehavior reports. ( Id. ) Dr. Gillani states that plaintiff did not evidence any difficulty functioning in the prison environment, "secondary to his mental illness or due to his limited intellectual functioning." ( Id. )

Dr. Gillani saw plaintiff on December 17, 2011, at which time, plaintiff requested that his primary therapist refer him to SNU, however, plaintiffs diagnosis and his ability to function properly in general population did not support a recommendation that plaintiff be referred to SNU. (Gillani Decl. ¶ 12). Plaintiff was taken out of SNU in August 2006, long before his diagnosis was changed in 2009, and long before he was transferred to Clinton and met either one of the defendants. (Gillani Decl. ¶ 13). Dr. Gillani continues to believe that plaintiff does not belong in the SNU, based upon all the evidence in plaintiffs file and based upon his ability for six years to remain out of SNU without any mental health problems. ( Id. ¶ 14).

Defendant Nephew treated plaintiff for the first time on July 26, 2011. (Nephew Decl. ¶ 7). Defendant Nephew has attached her contemporaneous treatment notes as Exhibit B to her declaration. RCII Nephew states that she is a counselor at the Satellite Unit at Clinton and sees patients once per month. When she began seeing plaintiff, he denied any conflicts with other inmates or with staff. ( Id. & Ex. B, Dkt. No. 23 at CM/ECF p. 9). A review of defendant Nephew's progress notes for July 26, 2011 shows that plaintiff was programming in general population and working in the mess hall. ( Id. ) Although plaintiff was cooperative, he requested placement in the Intermediate Care Program ("ICP").[2] ( Id. ) Plaintiff apparently believed (as he seems to believe currently), that he needed ICP "to help me with programs to go home.' "( Id. ) He told defendant Nephew that he wanted ICP so that he could access "ASAT and RSAT"[3] programming. ( Id. ) Defendant Nephew's notes state that she tried to explain to plaintiff "(several times)" that ICP was not appropriate for him because it was for individuals suffering from a serious mental illness, with a focus on treatment of that illness. ( Id. ) However, defendant Nephew states that plaintiff "appeared not to understand writer's explanation of his request for DOCS programming and how this is not what ICP is for." ( Id. )

*3 Defendant Nephew's next report is dated August 17, 2011. ( Id. at CM/ECF p. 11). She specifically noted that there were no changes in diagnosis, level, or medications since her last report. Plaintiff reported no stressors, was feeling well, denied depression or anxiety, and reported improved adjustment to his mess hall job. However, he continued to insist that he belonged in ICP so that "he could go home." Defendant Nephew stated that although plaintiff previously carried psychotic diagnoses, his "current bizarre content is likely a product of his low intellectual functioning and his immature communication. He was functioning appropriately and was "ticket free." ( Id. )

On September 11, 2011, plaintiff was still functioning appropriately in general population. (Nephew Decl. ¶ 9, Ex. B at Cm/ECF p. 12). At that time, plaintiff was still fixated with allegedly having seen defendant Nephew on television.[4] Plaintiff was warned that if he continued to insist on calling defendant a "movie star, " it would lead to a misbehavior report. Defendant Nephew stated that plaintiff was not in agreement with his diagnosis and insisted that he was Schizophrenic. He was concerned that he would not get the proper metal health treatment "on the street." ( Id. ) Although plaintiff still remained "ticket free, " defendant Nephew's assessment states that plaintiff recognized that he "ends up in the box'" when he did not take his medications, but could not make any further connections regarding the behavior that lead to SHU time. He was also "fixated on winning a lawsuit." ( Id. )

Defendant Nephew's next report is dated October 13, 2011. (Nephew Decl. ¶ 10 Ex. B at CM/ECF p. 15). Plaintiff began an ASAT program. He took the program before, but did not complete it successfully because he signs out when he does not want to be "bothered." He stated that he was not sure how long he would be able to last in the program this time, before someone "bothers him.'" ( Id. ) Plaintiff remained "ticket free" at the time. Defendant Nephew also evaluated plaintiff on December 14, 2011. (Nephew Decl. ¶ 12 & Ex. B at CM/ECF p. 9). Plaintiff reported that he was doing well and staying out of trouble. He was programming in Adult Basic Education ("ABE"), and there was no functional impairment at that time. However, he demanded ICP placement, but refused to discuss why he believed that he should be in ICP. He told defendant Nephew that he was not getting adequate mental health care, became verbally aggressive, and used profanity. ( Id. ) Plaintiff told defendant Nephew that she was "stressing [him] out." Defendant Nephew terminated the session, warning plaintiff that further aggressive behavior would result in a disciplinary ticket. ( Id. )

In the declarations of both defendants, they state that, before a referral to SNU is made, that referral is discussed by the patient's "treatment team, " and the Unit Chief of the Satellite Unit signs off on the referral before it is forwarded to the SNU facility.[5] (Nephew Decl. ¶ 6; Gillani Decl. ¶ 8).

C. Plaintiffs Additional Evidence

*4 In an attempt to support his retaliation claim, plaintiff has submitted evidence of a misbehavior report dated July 25, 2012, written against him by defendant Nephew. (Dkt. No. 26 at CM/ECF p. 5).[6] Plaintiff argues that defendant Nephew lied in her declaration, because she did "not tell the court about this ticket." (Dkt. No. 26 at CM/ECF p. 2). Plaintiff then claims that this misbehavior report was written against plaintiff "for filing a law suit against her." ( Id. ) Plaintiff attaches underlined portions of defendant Nephew's declaration which discuss plaintiffs lack of disciplinary tickets while incarcerated at Clinton up to December 17, 2011.[7] ( Id. CM/ECF pp. 3-4). Plaintiff also attaches underlined portions of Dr. Gillani's declaration. ( Id. at pp. 18-19). Plaintiff submits a great many documents referencing events that occurred after plaintiff filed this action.

Plaintiff has also attached a report of his Parole Board appearance dated December 2012. (Dkt. No. 26 at CM/ECF pp. 13-14). Plaintiff appeared before the Parole Board on November 27, 2012. During his Parole Board appearance, plaintiff disagreed with the synopsis of his offense and claimed that he was initially arrested by the police from the 25th precinct "because he had sued the police department and won." ( Id. ) The report discusses plaintiffs "institutional adjustment, " finding that he has made various attempts to participate in substance abuse programs such as ASAT, but then began receiving misbehavior reports and failed to complete the programs. Plaintiff attaches this discussion in an effort to rebut the defendants' allegation that he maintained a good disciplinary record. (Dkt. No. 26 at 13).

Finally, plaintiff has filed a declaration that discusses events occurring in 2005 and 2006. (Dkt. No. 26-1 at 1-2). Plaintiff then writes about an alleged assault in 2006 when he was in the SNU program. ( Id. at 1). He mentions the Western District of New York, and then alleges that on December 7, 2012 (while at Clinton), OMH and Corrections staff stole all the things in his cell, assaulted him, and attempted to kill him. ( Id. at 2). Plaintiff claims that he was kept in a strip cell for seven days. Finally, plaintiff states that he was being paid for a program that he never attended. He claims that the people in the SNU program are angry because plaintiff let the court know what was going on in the program. ( Id. at 3).

II. Summary Judgment

Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990) (citations omitted). "Ambiguities or inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment motion." Id. However, when the moving party has met its burden, the nonmoving party must do more than "simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

*5 In meeting its burden, the party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying the portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the non-movant bears the burden of proof at trial, the moving party may show that he is entitled to summary judgment by either (1) pointing to evidence that negates the non-movant's claims or (2) identifying those portions of the non-movant's evidence that demonstrate the absence of a genuine issue of material fact. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.2006) (citing Celotex Corp., 477 U.S. at 23). The second method requires identifying evidentiary insufficiency, not merely denying the opponent's pleadings. Id.

If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Id. A dispute about a genuine issue of material fact exists if the evidence is such that "a reasonable [factfinder] could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Additionally, while a court "is not required to consider what the parties fail to point out, '" the court may in its discretion opt to conduct "an assiduous view of the record" even where a party fails to respond to the moving party's statement of material facts. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir.2001) (citations omitted).

III. Exhaustion of Administrative Remedies

A. Legal Standards

The Prison Litigation Reform Act, (PLRA), 42 U.S.C. § 1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. This requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002) (exhaustion requirement applies, inter alia, to excessive force claims)). Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Id. at 675.

The failure to exhaust is an affirmative defense that must be raised by the defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.2004). As an affirmative defense, it is the defendants' burden to establish that plaintiff failed to meet the exhaustion requirements. See, e.g, Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y.2009) (citations omitted).

*6 The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. 548 U.S. at 90-103. In Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002), the Second Circuit specifically held that completion of the administrative review process includes receiving the decision on the final appeal of a grievance prior to filing the federal action.

The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee (IGRC). N.Y. Comp.Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee (CORC). Id. § 701.5(d). The court also notes that the regulations governing the Inmate Grievance Program encourage the inmate to "resolve his/her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to submitting a grievance." Id. § 701.3(a) (Inmate's Responsibility).

At the same time that the Second Circuit decided Giano, it also decided four other related cases, clarifying the law in the Second Circuit regarding the PLRA's exhaustion requirement, and specifying various instances in which the requirement could be waived or excused.[8] Based on these cases, the Second Circuit developed a "three part inquiry" to determine whether an inmate has fulfilled the PLRA exhaustion requirement. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir.2006) (citing Hemphill, 380 F.3d at 686). The inquiry asks (1) whether the administrative remedies were available to the inmate; (2) whether defendants' own actions inhibiting exhaustion estops them from raising the defense; and (3) whether "special circumstances" justify the inmate's failure to comply with the exhaustion requirement. Id.

Although the Second Circuit has not explicitly held that Hemphill remains good law after Woodford, it has applied the three-part inquiry in recent cases. See, e.g., Macias v. Zenk, 495 F.3d 37 (2d Cir.2007); Davis v. State of New York, 311 F.Appx. 397, 399 (2d Cir.2009); Snyder v. Whittier, 428 F.Appx. 89, 91 (2d Cir.2011).[9]

B. Application

When defendants in this action filed their motion to dismiss, they included the affidavit of Jeffrey Hale, Assistant Director of the Inmate Grievance Program, who stated that although plaintiff filed a grievance requesting to be returned to the SNU, the CORC appeal was still pending at the time plaintiff filed this action. (Hale Decl.; Dkt. No. 11-2). I found that, notwithstanding plaintiffs assertion that he filed a grievance, Mr. Hale's declaration was not incorporated into the complaint by reference. (Dkt. No. 15 at 4) (citing Vandever v. Murphy, No. 3:09-CV-1752, 2012 WL 3727646, at *9 (D.Conn. March 13, 2012)). This was one of the reasons for the conversion to summary judgment.

*7 Plaintiff argues that the CORC has twenty days to issue a decision, and thus, a decision on his grievance should have been issued by April 10, 2012. Plaintiff appears to argue that because the CORC did not decide his appeal in a timely manner, his administrative remedies would be deemed exhausted, and he should have been able to file his action.[10] However, the court notes that plaintiff filed this complaint on March 5, 2012, before he received the Superintendent's decision, and before he ever appealed his Superintendent's decision to the CORC. (Dkt. No. 1). The law is clear that exhaustion must take place prior to filing the federal action, and that subsequent exhaustion of remedies is insufficient to comply with the PLRA. See Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001).

In addition to Mr. Hale's affidavit, the defendants have now filed the decision of the CORC, denying plaintiff's grievance appeal. (Dkt. No. 22-3 at 3). The CORC decision is dated July 25, 2012, approximately four months after plaintiff filed this action. None of the exceptions to the exhaustion requirement apply in this case. Plaintiff simply filed this action before he completed his administrative appeals. There was no conduct by defendants that would have prevented him from waiting until his remedies were exhausted, and there are no other special circumstances that would have warranted the premature filing of this action. Thus, plaintiff failed to exhaust his administrative remedies prior to filing this action, and the court would be required pursuant to Neal v. Goord to recommend dismissal for failure to exhaust.

The court would also point out that the February 7, 2012 grievance filed by plaintiff states only that he is a mental health patient with special needs, and that he was originally in SNU, but was removed for unknown reasons. (Dkt. No. 13 at 10). Plaintiff also states that he was currently having mental health issues and wished to be returned to the SNU. ( Id. ) There is absolutely no mention of either one of the defendants in this action, of any claim that plaintiffs diagnosis was "changed, " or that plaintiff was being subjected to retaliation for filing lawsuits.

The PLRA's exhaustion requirement is designed to afford corrections officials the opportunity to address complaints internally prior to an inmate filing a federal action. Johnson v. Testman, 380 F.3d at 697. A grievance must contain allegations that are sufficient to alert the defendants to the nature of the wrong for which redress is sought, not unlike the rules of "notice pleading" in federal court. Id. The Johnson court held that "[i]n order to exhaust, ..., the inmates must provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures." Id. While the PLRA does not require a legal theory of liability to be set forth in an inmate's grievance, nor does it require specific identification of the defendant, the alleged misconduct must still be described adequately. See Espinal v. Goord, 558 F.3d 119, 126-27 (2d Cir.2009) (as long as the inmate provides enough information about the alleged misconduct, the State will normally be able to identify any direct party to a grievance on its own through investigation).

*8 In this case, plaintiff never mentions either defendant in his grievance. Although this omission would not necessarily constitute a failure to exhaust, plaintiff never mentions that the reason for his failure to be "returned" to SNU was due to the retaliatory actions of any corrections personnel and never mentioned that this retaliatory conduct was based on his winning prior law suits. He has failed to describe the conduct that he is challenging in this action. Thus, plaintiff has not exhausted his administrative remedies with respect to the claims that he now brings in this action, first, because he did not complete the administrative process prior to filing this action, and second, even if he had waited for the appropriate administrative decisions, his grievance did not alert corrections officials to the conduct he is challenging in his federal complaint.

However, this court finds that exhaustion is only one basis for dismissal of plaintiffs complaint, and rather than recommending dismissal without prejudice for failure to exhaust, I will recommend that the complaint be dismissed in its entirety on the merits based on the following analysis.

IV. Retaliation

A. Legal Standards

In order to establish a claim of retaliation for the exercise of a constitutional right, plaintiff must show first, that he engaged in constitutionally protected conduct, and second, that the conduct was a substantial motivating factor for "adverse action" taken against him by defendants. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003). The plaintiff must establish a causal connection between the protected conduct or speech and the adverse action. Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir.2004). The court must keep in mind that claims of retaliation are "easily fabricated" and "pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration." Bennett, 343 F.3d at 137 (citation omitted). Accordingly, plaintiff must set forth nonconclusory allegations. Id. Finally, even if plaintiff makes the appropriate showing, defendants may avoid liability if they demonstrate that they would have taken the adverse action even in the absence of the protected conduct. Id.

The Second Circuit has defined "adverse action" in the prison context, as "retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising... constitutional rights.'" Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir.2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003), superseded by 2003 U.S.App. LEXIS 13030 (2d Cir. Feb. 10, 2003)) (omission in original). This objective test applies even if the plaintiff was not himself subjectively deterred from exercising his rights. Id.

B. Application

Plaintiff claims that defendants Nephew and Gillani manipulated his mental health diagnoses on December 17, 2011 so that he would not be able to go back to the SNU in retaliation for his filing, and winning, lawsuits against unrelated defendants in the Western District of New York, based on conduct occurring at Attica and Wende Correctional Facilities. Filing lawsuits is clearly constitutionally protected activity, but the evidence shows that plaintiff cannot establish any of the other requirements of a retaliation claim.

1. Adverse Action

*9 Defendants in this case have filed plaintiffs "Diagnosis Record, " showing that the last change in plaintiffs diagnosis was made in 2009, before plaintiff was transferred to Clinton and before he ever met the two defendants in this action. Plaintiff was taken out of SNU in 2006 for disciplinary reasons. Thus, neither defendant had any involvement in his removal from SNU, nor did they "manipulate" plaintiffs diagnoses at any time.[11] Therefore, neither defendant took adverse action against plaintiff. Without an adverse action, plaintiffs retaliation claim must fail.

2. Defendants' Motivation

Neither Dr. Gillani, nor Ms. Nephew have ever worked at Attica or Wende Correctional Facilities. (Nephew Decl. ¶ 2; Gillani Decl. ¶ 2). Each of the defendants affirm that they did not know about any specific law suits filed by plaintiff until this action. (Gillani Decl. ¶ 6; Nephew Decl. ¶ 9). Defendant Nephew states that during her examination of plaintiff on September 15, 2011, he appeared "fixated" on winning a lawsuit about being taken off psychiatric medication, but that defendant Nephew was unaware of the other details of that case. (Nephew Decl. ¶ 9).

The only previous action filed by plaintiff in the Northern District of New York involved excessive force[12] and an allegedly false misbehavior report. Murray v. C.O. Foster, 9:09-CV-872 (LEK/GHL). This action involved conduct that occurred at Great Meadow Correctional Facility in 2009 and was settled in February of 2011. (Dkt. No. 31 in 9:09-CV-872). A review of defendant Nephew's progress notes state that on July 26, 2011 "[p]atient is new to this writer's case." (Dkt. No. 23 at 9). In the same report, defendant Nephew states that the plaintiff was "not known to the writer."[13] ( Id. ) If defendant Nephew did not know plaintiff before July 26, 2011, she could not have been aware of his prior lawsuits and retaliated against him for those cases.

The court notes that in his response, plaintiff continues to complain about conduct that occurred in 2005 and conduct that allegedly occurred in the Western District of New York. At the same time, and in the same paragraph, he states that OMH staff and corrections staff took his property in December of 2012. None of these facts relate to the claim that plaintiff is making in this case, and none of the documents submitted by plaintiff shows any relationship between plaintiffs failure to be placed in SNU, his lawsuits, [14] and these defendants. Thus, plaintiff cannot establish that the defendants were motivated by his prior law suits. See, e.g., Hare v. Hayden, 09 Civ. 3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011) ("As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant.") (citing Wright v. Goord, 554 F.3d 255, 274 (2d Cir.2009) (dismissing retaliation claim against a corrections officer when only alleged basis for retaliation was complaint about a prior incident by another corrections officer); Roseboro v. Gillespie, 791 F.Supp.2d 353, 369 (S.D.N.Y.2011) (plaintiff failed to provide any basis to believe that a corrections counselor would retaliate for a grievance that she was not personally named in) (collecting cases); Ciaprazi v. Goord, 9:02-CV-915 (GLS/DEP), 2005 WL 3531464, at *8-9 (N.D.N.Y. Dec. 22, 2005) (granting summary judgment and dismissing retaliation claim based only on plaintiffs conclusory allegations that the manifest falsity of the misbehavior report and testimony during the disciplinary hearing indicated the disciplinary matters were motivated by retaliatory animus due to grievances plaintiff filed against individuals other than the defendants involved in the disciplinary action).

3. Non-Retaliatory Basis for Defendants' Conduct

*10 Defendant Nephew's notes also state that, when plaintiff first asked about SNU at his first interview with her in July of 2011, she did not believe that plaintiff belonged in SN U.She states that she tried to explain that SNU or ICP was for inmates who were suffering from serious mental illnesses, and the mental health professionals did not believe that plaintiffs condition was appropriate for that placement. Although plaintiff initially stated that he understood the explanation, he continued to insist that he be placed in ICP. (Nephew Decl. Ex. B at CM/ECF p. 9).

In support of their position that plaintiffs condition was not appropriate for the placement he requested, defendants state that plaintiff had remained free of disciplinary tickets. One of the reasons that plaintiffs referral to SNU was not warranted was because he was "functioning well in general population." (Nephew Decl. at ¶ 10 & Ex. B). Plaintiff challenges this assertion by filing his Time Allowance Committee Notice and his 2012 Parole Status Report, both indicating that plaintiff received multiple misbehavior reports while in general population. (Dkt. No. 26 at CM/ECF p. 13). However, defendants did not state that plaintiff had never been issued misbehavior reports. Defendant Nephew stated that plaintiff was free of disciplinary tickets since he was transferred to Clinton in February of 2011. A review of the document submitted by plaintiff shows that none of the misbehavior reports to which the committee referred were issued between February of 2011[15] and December of 2011. Defendant Gillani stated that plaintiffs last placement in SNU was in August of 2006, and since that time, he showed the ability to remain out of SNU, had no medical problems, had no problems functioning socially within the general population, participated in Adult Basic Education, was without any significant drop or change in self care and hygiene, and did not experience problems going to the mess hall or utilizing recreation for six years. (Gillani Decl. ¶ 13). The key to Dr. Gillani's statement was plaintiffs ability to function in general population, not his lack of misbehavior reports for six years.[16] It is his professional opinion that plaintiff does not belong in SNU.

The Parole Hearing Report does mention misbehavior reports, but only refers to the disciplinary tickets that plaintiff received prior to being transferred to Clinton. The last misbehavior report mentioned in the Parole Hearing Report was for threats and was dated December 17, 2010. It appears to be one of the reasons that plaintiff was transferred to Clinton. The report discusses plaintiffs subsequent failure to complete programs, but does not indicate that plaintiff received misbehavior reports for failing to do so, and there is no indication that any of plaintiffs problems involved an inability to live in general population.

Plaintiff now alleges that defendant Nephew lied to the court because she did not mention the misbehavior report that she filed against him in July of 2012 "in retaliation" for this law suit. First, the court would point out that the basis of this action was that defendants Nephew and Gillani manipulated plaintiffs diagnoses to keep him out of SNU in retaliation for law suits filed in the Western District of New York, not in retaliation for this lawsuit. It is true that defendant Nephew filed a misbehavior report ...


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