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Guillory v. Boll

United States District Court, N.D. New York

August 28, 2014


PATRICK GUILLORY, Pro Se, Southport Correctional Facility, Pine City, NY, for Plaintiff.

DOUGLAS J. GOGLIA, ESQ., Assistant Attorney General, HON. ERIC T. SCHNEIDERMAN, New York State Attorney General, Albany, NY, for Defendant.


DAVID E. PEEBLES, Magistrate Judge.

Pro se plaintiff Patrick Guillory, a New York State prison inmate, commenced this action against three employees of the New York State Department of Corrections and Community Supervision ("DOCCS"), pursuant to 42 U.S.C. ยง 1983, alleging the deprivation of his civil rights. In the portion of his complaint that remains pending before the court, Guillory alleges that two of the defendants conspired to, and did, issue him a false misbehavior report in retaliation for his filing grievances and a lawsuit against DOCCS officials.[1]

Following the close of discovery, defendants filed a motion for the entry of summary judgment dismissing plaintiff's remaining claims. Plaintiff has opposed defendants' motion both on the merits and on the basis that he has not yet been able to obtain, through discovery, certain materials needed to properly oppose the motion. For the reasons set forth below, I recommend that defendants' motion be denied without prejudice to renewal following the completion of discovery.


Plaintiff is a prison inmate currently being held in the custody of the DOCCS. See generally Dkt. No. 1. During the period of time relevant to his remaining claims in this action, Guillory was confined in the Bare Hill Correctional Facility ("Bare Hill"), located in Malone, New York. Id.

In October 2012, while at Bare Hill, plaintiff filed three grievances complaining of staff misconduct at the facility. In two of those grievances, plaintiff complained of actions taken against him by Corrections Officer Forbare, the law library supervisor at the facility. Id. at 6-8; Dkt. No. 1010-4 at 63-66; Dkt. No. 134 at 7, 9, 11. In the first, filed on October 17, 2012, and designated as Grievance No. BRL-12802-12, plaintiff alleged that Forbare insulted him using profanities and refused to make copies of his legal work. Dkt. No. 1 at 6; Dkt. No. 103-10 at 63; Dkt. No. 134 at 7. In the second, filed on October 23, 2012, and designated as Grievance No. BRL-12817-12, plaintiff accused Forbare of retaliating against him for filing the first grievance by failing to place his name on the law library call-out list. Dkt. No. 1 at 7; Dkt. No. 103-10 at 64; Dkt. No. 134 at 9. The third grievance, filed on October 30, 2012, and designated as Grievance Number BRL-12824-12, arose from plaintiff's encounter with Corrections Sergeant Carry on October 24, 2012. Dkt. No. 1 at 8; Dkt. No. 103-10 at 65-66; Dkt. No. 134 at 11. On that date, during an interview with Guillory regarding the grievances filed against Forbare, Carry allegedly threatened plaintiff with confinement in the facility's special housing unit ("SHU") as a result of plaintiff's grievances. Id. The interview ended when Carry allegedly said to plaintiff, "Just keep writing and see what you get." Dkt. No. 1 at 7. As a result of this encounter, plaintiff filed his third grievance at Bare Hill against Carry. Dkt. No. 1 at 8; Dkt. No. 103-10 at 66; Dkt. No. 134 at 11.

In addition to filing the two grievances against Forbare, plaintiff wrote a letter to defendant Maureen Boll, the Deputy Commissioner and Counsel of the DOCCS, on or about October 18, 2012, complaining of Forbare's alleged profanities and refusal to assist plaintiff in making copies of his legal work. Dkt. No. 103-9 at 15-19; Dkt. No. 134-3 at 23-27. In a written response dated November 28, 2012, and prepared for her by a third party, defendant Boll advised plaintiff that his claim had been investigated, and it had been determined the copies were not made for him because, despite being advised of the procedure governing photocopying services at the facility by Forbare, plaintiff was unwilling to complete the required disbursement form. Dkt. No. 103-9 at 13, 14; Dkt. No. 134-3 at 32, 36. Defendant Boll's letter further acknowledged that the matter was the subject of a grievance that was being investigated, and closed by recommending "that [he] allow the grievance procedure to continue and to await the decision that will be forthcoming."[3] Dkt. No. 103-9 at 13; Dkt. No. 134-3 at 36.

On October 31, 2012, plaintiff was interviewed by defendant B. Johnston, a DOCCS Corrections Lieutenant stationed at Bare Hill, concerning the three grievances plaintiff had filed against Forbare and Carry. Dkt. No. 1 at 8; Dkt. No. 103-10 at 66-67, 70-74. According to plaintiff, during the course of that interview defendant Johnston asked him two questions, (1) "What happened?" and (2) "Why are you filing lawsuits?" Dkt. No. 1 at 8; Dkt. No. 103-10 at 74; Dkt. No. 134 at 13. After plaintiff explained himself, defendant Johnston told him he would continue to investigate the allegations and then dismissed plaintiff. Dkt. No. 1 at 8-9; Dkt. No. 103-10 at 74; Dkt. No. 134 at 15-19.

On November 1, 2012, plaintiff was served with a misbehavior report issued by defendant Johnston, alleging that Guillory had threatened him during their meeting on the prior day. Dkt. No. 1 at 10; Dkt. No. 103-6 at 4. On November 8, 2012, following a Tier III disciplinary hearing, plaintiff was found guilty of threatening defendant Johnston and sentenced principally to three months of disciplinary SHU confinement, with a recommendation that he additionally forfeit three months of good time credits.[4] Dkt. No. 1 at 11; Dkt. No. 103-06 at 2, 3; Dkt. No. 103-07.

According to Guillory, on November 2, 2012, following the issuance of the misbehavior report, Carry approached plaintiff at his cell and said, "Dam-it [sic] Guillory, if you had only listened to me and dropped the grievances!" Dkt. No. 1 at 11; see also Dkt. No. 103-10 at 85. Plaintiff also alleges that he was informed by Corrections Officer Lee Tremblay, who is employed at Bare Hill, that he "was set-up for filing grievances against Forbare - and - the set-up was in retaliation for suing [defendant] Maureen Boll[.]"[5] Dkt. No. 1 at 14-15; see also Dkt. No. 103-4 at 1; Dkt. No. 103-10 at 91-92; Dkt. No. 134 at 27. Plaintiff also alleges that defendant Boll "has a custom and policy of retaliation out of DOCCS office of counsel." Dkt. No. 1 at 17; Dkt. No. 103-10 at 106-07. In a declaration given in support of defendants' motion, Tremblay states that he does not know plaintiff or defendant Boll, and denies having made the statement plaintiff attributes to him concerning defendant Boll. Dkt. No. 103-4 at 2.


Plaintiff commenced this action on December 3, 2012. Dkt. No. 1. In his complaint, plaintiff asserts First Amendment retaliation claims against Maureen Boll, Deputy Commissioner and Counsel for the DOCCS, and D. Johnston, a Corrections Lieutenant at Bare Hill, and accuses Kathleen Washburn, the Senior Mailroom Supervisor at the Southport Correctional Facility ("Southport"), of denying him access to the courts by destroying his legal mail.[ ...

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