JESSIE J. BARNES, Plaintiff,
BRIAN FISCHER; JOHN NUTTALL; C. MORRIS; UNKNOWN LEMOND, Religious Services Program; STEVEN BULLIS; DAVID A. ROCK; UNKNOWN UHLER; UNKNOWN KELSH; E. GOKEY; T. ALLEN; M. RICHARDSON; S. GARRISON; A. GRAVLIN; UNKNOWN HAWK; MELISSA COOK; DAVID MATTOON; R. CARON; R. LORDI; and ALBERT PRACK, Defendants.
JESSIE J. BARNES, 09-B-2707 Malone, New York, Plaintiff, pro se.
ERIC T. SCHNEIDERMAN, Attorney General of the State of New York GREGORY J. RODRIGUEZ, ESQ., Assistant Attorney General, Albany, New York, Attorney for Defendants.
MEMORANDUM-DECISION AND ORDER
NORMAN A. MORDUE, Senior District Judge.
Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this action under 42 U.S.C. § 1983 for declaratory and injunctive relief and compensatory and punitive damages. Defendants' motion (Dkt. No. 111) for summary judgment dismissing the action was referred to United States Magistrate Judge David E. Peebles pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). Magistrate Judge Peebles issued a Report and Recommendation (Dkt. No. 165) recommending summary judgment dismissing all claims against all defendants, with the exception of plaintiff's claims against A. Gravlin, S. Garrison, and M. Richardson for excessive force, and against T. Allen for failure to intervene, stemming from an incident occurring on October 12, 2010. Magistrate Judge Peebles also ordered plaintiff to show cause why all claims against Albert Prack should not be dismissed.
Plaintiff has interposed an objection (Dkt. No. 170). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews de novo those parts of a report and recommendation to which a party specifically objects. Failure to object to any portion of a report and recommendation waives further judicial review of the matters therein. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993). The Court resolves the issues as set forth below.
The Court adopts Magistrate Judge Peebles' summary of the facts, procedural history, and applicable law. The Court does not repeat them here.
In his objection (Dkt. No. 170), plaintiff objects to Magistrate Judge Peebles' decision to construe plaintiff's submissions at Docket Numbers 153, 154, and 161 as his response to the pending summary judgment motion ( see Report and Recommendation, Dkt. No. 165, p.3, n.1; Text Order of August 8, 2012, Dkt. No. 159). As a result of this determination, Magistrate Judge Peebles and this Court have considered plaintiff's submissions on this motion. Plaintiff has suffered no prejudice from Magistrate Judge Peebles' exercise of discretion in handling this non-dispositive matter, and Magistrate Judge Peebles' ruling is not "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). This aspect of plaintiff's objection lacks merit.
Plaintiff's objection primarily focuses on Magistrate Judge Peebles' recommendation to dismiss plaintiff's retaliation claims against Gravlin and Gokey. As the Second Circuit explains:
To establish a prima facie case of First Amendment retaliation, [a plaintiff] must demonstrate: (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. Only retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action for a claim of retaliation. Notably, we approach prisoner retaliation claims with skepticism and particular care, because virtually any adverse action taken against a prisoner by a prison official - even those otherwise not rising to the level of a constitutional violation - can be characterized as a constitutionally proscribed retaliatory act.
Dorsey v. Fisher, 468 Fed.Appx. 25, 27 (2d Cir. 2012) (citations and quotation marks omitted).
Plaintiff claims that Gravlin's conduct on August 21, 2010 and October 12, 2010 was motivated by retaliation against plaintiff for having previously filed a grievance against Gravlin. The Report and Recommendation states as follows:
Plaintiff's allegations that defendant Gravlin tampered with his food on August 21, 2010, and used force against him on October 12, 2010 out of retaliation for plaintiff's filing of grievances, are sufficient to satisfy the first requirement of a retaliation analysis. It is well-settled that filing a grievance is constitutionally protected conduct. Even assuming, without deciding, that defendant Gravlin's conduct, as alleged, satisfies the second, adverse action, requirement, there is insufficient record evidence to give rise to a dispute of fact as it relates to the third, causation, element. There is no record evidence that plaintiff filed a grievance against defendant Gravlin prior to August 21, 2010, or that, assuming plaintiff did file any, defendant Gravlin knew about them. For that reason, plaintiff's allegation that defendant Gravlin tampered with his food out of retaliation for plaintiff's filing of grievances must be dismissed. Similarly, although the record demonstrates that plaintiff filed ...