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Murray v. Nephew

United States District Court, N.D. New York

January 28, 2015

ROBERT L. MURRAY, Plaintiff,
S. NEPHEW, G. PROVOST, Defendants.

ROBERT L. MURRAY, Plaintiff pro se, Bronx, NY.

JUSTIN L. ENGEL, ESQ., HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Counsel for Defendants, Albany, NY,



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 Glenn T. Suddaby, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Robert L. Murray claims that Defendants Sara Nephew and Gail Provost, both rehabilitation counselors at the Clinton Correctional Facility satellite of the Central New York Psychiatric Center, retaliated against him for filing an earlier lawsuit against Defendant Nephew. (Dkt. No. 5.) Currently pending before the Court is Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 and for attorney's fees pursuant to 42 U.S.C. § 1988. (Dkt. No. 54.) For the reasons discussed below, I recommend that the Court grant Defendants' motion for summary judgment but deny Defendants' request for attorney's fees.


On December 5, 2012, Plaintiff filed a federal lawsuit against Defendant Nephew. Murray v. Nephew, Case No. 9:12-CV-1783 (FJS/CFH) (" Nephew I "), Dkt. No. 1. At that time, Defendant Nephew was serving as Plaintiff's primary therapist. (Dkt. No. 54-5 ¶ 3.) On February 8, 2013, United States Magistrate Judge Christian F. Hummel directed that the Clerk issue a summons and forward it and a copy of the complaint to the United States Marshal for service upon Defendant Nephew. Nephew I, Dkt. No. 8 at 3. The facility received the summons and complaint on February 21, 2013. Nephew I, Dkt. No. 11. Non-party Nancy Halleck, Acting Deputy Counsel for Litigation, acknowledged receipt of the summons and complaint on behalf of Defendant Nephew on March 11, 2013. Id. Defendant Nephew declares that her "best recollection" is that she first learned about Nephew I in December 2013, when the Assistant Attorney General handling the case informed her that this Court had granted a pre-answer motion to dismiss. (Dkt. No. 54-5 ¶ 7.) The docket for Nephew I reflects that Judge Hummel recommended dismissal on December 5, 2013. Nephew I, Dkt. No. 24. Senior United States District Court Judge Frederick J. Scullin, Jr., adopted the Report-Recommendation on December 27, 2013. Nephew I, Dkt. No. 28.

The events that form the basis of this litigation occurred in February 2013, after Plaintiff filed Nephew I but before it had been served on Defendant Nephew. See generally Dkt. No. 1. On February 4, 2013, Defendant Provost became Plaintiff's primary therapist. (Dkt. No. 54-8 ¶ 8.) She scheduled Plaintiff for a mandatory call-out for 9:30 a.m. on February 13, 2013. Id.

Plaintiff, who had received Judge Hummel's order directing service of Nephew I on February 12, 2013, believed that Defendant Nephew had arranged the call-out. (Dkt. No. 5 at 4.) Plaintiff refused to go to the call-out "because I was in fear of my well being and... staff has be[e]n harassing me and put the[ir] hands on me and put[t]ing me in strip cells and th[e]y tr[i]ed to kill me." Id. At Defendant Provost's direction, correction officers made "several attempts" to get Plaintiff to leave his cell. (Dkt. No. 54-8 ¶ 9.) The correction officers issued several direct orders and explicitly warned Plaintiff that his failure to attend the mandatory call-out could result in disciplinary sanctions. Id.

After the third unsuccessful attempt to get Plaintiff to attend the mandatory call-out, Defendant Provost issued a misbehavior report charging Plaintiff with being out of place and refusing a direct order. (Dkt. No. 54-8 ¶ 10.) Plaintiff contends that Defendant Provost wrote the misbehavior report in retaliation for Plaintiff's filing of Nephew I. (Dkt. No. 5 at 4.) Both Defendant Nephew and Defendant Provost declare that they had no knowledge of Nephew I on February 13, 2013. (Dkt. No. 54-5 ¶ 5; Dkt. No. 54-8 ¶ 12.)

A disciplinary hearing was conducted regarding the misbehavior report on February 18, 2013. (Dkt. No. 54-13.) The hearing transcript states that Plaintiff refused to attend the hearing. Id. at 2.[1] Plaintiff contends that "I was wa[i]ting to go to the hearing but th[e]y never called me[.]" (Dkt. No. 5 at 5.) Plaintiff further contends that "officers came to my cell and told me I be[tt]er not go to the hearing and if I go som[e]thing would happen to me." Id. at 4-5. Plaintiff was found guilty and sentenced to thirty days in keeplock and loss of privileges. (Dkt. No. 54-13 at 5.)

Plaintiff filed the complaint in this action on February 19, 2013. (Dkt. No. 1.) He filed an amended complaint as of right on March 29, 2013. (Dkt. No. 5.) The amended complaint is the operative complaint. On August 13, 2013, the Court dismissed all of Plaintiff's claims except for the claim that Defendants Nephew and Provost retaliated against him for filing Nephew I. (Dkt. No. 7 at 21.) Defendants now move for summary judgment. (Dkt. No. 54.) Plaintiff has opposed the motion by re-filing his original complaint and his amended complaint as declarations. (Dkt. No. 56.) Defendants have filed a reply. (Dkt. No. 57.)


Under Federal Rule of Civil Procedure 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). Only after the moving party has met this burden is the nonmoving party required to produce evidence demonstrating that genuine issues of material fact exist. Id. at 273. The nonmoving party must do more than "rest upon the mere allegations... of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 & n.11 (1986). Rather, a dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material[2] fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).


A. Retaliation Claim

Plaintiff claims that Defendants Nephew and Provost retaliated against him for filing Nephew I by issuing a false misbehavior report against him on February 13, 2013. (Dkt. No. 5 at 4.) Defendants move for summary judgment of this claim, arguing that (1) it is barred by the doctrine of res judicata; (2) Plaintiff was not engaged in protected activity because Nephew I was a frivolous lawsuit; (3) Plaintiff cannot prove causation; (4) Plaintiff would have received the misbehavior report even in the absence of the alleged retaliatory animus; and (5) they are entitled to qualified immunity. (Dkt. No. 54-2.) The Court will address only the third and fourth arguments, as they most efficiently resolve the claim.

Claims of retaliation find their roots in the First Amendment. See Gill v. Pidlypchak, 389 F.3d 379, 380-81 (2d Cir. 2004). Because of the relative ease with which claims of retaliation can be incanted, however, courts have scrutinized such retaliation claims with particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). As the Second Circuit has noted:

[t]his is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so 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.

Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001) (citations omitted), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).

To prove a retaliation claim under 42 U.S.C. § 1983, a plaintiff must show that: (1) the speech or conduct at issue was "protected"; (2) the defendants took "adverse action" against the plaintiff - namely, action that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights; and (3) there was a causal connection between the protected speech and the adverse action. Gill, 389 F.3d at 380 (citing Dawes, 239 F.3d at 492).

Here, Plaintiff has shown that he engaged in protected conduct by filing Nephew I. Prisoners "have a constitutional right of access to the courts." ...

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