United States District Court, N.D. New York
VINCENT A. VARLEY, II, Plaintiff,
WAYNE FARMER, Sergeant, Warren County Jail, Defendant.
Vincent A. Varley, II, Troy, NY, Plaintiff, pro se.
Gregg T. Johnson, Esq., April J. Laws, Esq., Lemire, Johnson Law Firm, Malta, NY, Attorney for Defendant.
MEMORANDUM-DECISION AND ORDER
BRENDA K. SANNES, District Judge.
Plaintiff pro se Vincent A. Varley, II brought this action against defendants Correctional Officer Dickinson and Sgt. Wayne Farmer of the Warren County Jail under 42 U.S.C. § 1983 alleging that: (1) Officer Dickinson acted with deliberate indifference in conducting an abusive and improper strip search; (2) Sgt. Farmer failed to properly investigate plaintiff's grievance regarding the strip search; (3) Sgt. Farmer wrongfully confined plaintiff to involuntary protective custody without due process; and (4) Sgt. Farmer placed plaintiff in involuntary protective custody in retaliation for filing the grievance. Dkt. No. 1; see Dkt. No. 12, at 4. The first two claims were dismissed by United States District Judge Lawrence E. Kahn on August 22, 2013, following his initial review of the complaint pursuant to 28 U.S.C. § 1915(e) in connection with plaintiff's request to proceed in forma pauperis. Dkt. No. 12. In his Memorandum-Decision and Order, Judge Kahn also dismissed defendant Dickinson from this action. Id.
The remaining defendant, Sgt. Farmer, filed a motion for summary judgment on August 20, 2014, seeking to dismiss the two remaining claims. Dkt. No. 48. Plaintiff filed a response in opposition. Dkt. No. 50. On January 16, 2015, United States Magistrate Judge Randolph F. Treece issued a Report-Recommendation and Order ("R & R") recommending that defendant's motion for summary judgment be granted, and that the case be dismissed in its entirety because plaintiff failed to exhaust his administrative remedies. Dkt. No. 54, at 7-10. Judge Treece found that plaintiff failed to complete the administrative review process because he failed to appeal from the denial of his grievance challenging his placement in protective custody. Id .; see Dkt. No. 48-9, at 2 (Grievance Form - Part I filled out by plaintiff) and 48-11, at 2 (Grievance Form - Part II stating that plaintiff agreed to accept the decision of the Grievance Coordinator).
Alternatively, Judge Treece recommended that summary judgment be granted because defendant is entitled to judgment as a matter of law on both claims. Judge Treece found that the duration and conditions of plaintiff's eighteen-hour overnight confinement in protective custody did not constitute an atypical and significant hardship which would give rise to a liberty interest under the Due Process Clause. Dkt. No. 54, at 13-14. With respect to the retaliation claim, Judge Treece concluded that defendant had a "legitimate, non-retaliatory motive to segregate Plaintiff based upon Plaintiff's medical slip wherein he expressed fears and anxieties stemming from the alleged incident with Dickinson that manifested into physical ailments." Dkt. No. 54, at 18. Judge Treece noted that defendant "felt that removing Plaintiff from the housing unit where Dickinson was assigned was appropriate and that he did not take such action in order to punish Plaintiff." Id. (emphasis added). Judge Treece concluded that defendant "has adequately shown that he would have taken the same action even without a retaliatory motive." Id.
Plaintiff has filed an objection to the dismissal of his retaliation claim. Dkt. No. 55. Plaintiff argues that his placement into protective custody was retaliatory because he was never moved into a unit separate from Officer Dickinson: he was merely confined to his cell, in the same unit that Officer Dickinson was working. Dkt. No. 55 at 2 (emphasis added). Defendant has not responded to this objection. For the reasons set forth below, the R & R is adopted in part and rejected in part.
II. Standard of Review
This court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F.Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id.
Summary judgment may be granted only if all the submissions taken together "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." In re World Trade Center Lower Manhattan Disaster Site Litig., 758 F.3d 202, 210 (2d Cir. 2014). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). A fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In ruling on a summary judgment motion, the court "must construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant." Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).
Plaintiff has not objected to Judge Treece's findings or conclusions regarding the exhaustion of administrative remedies. Judge Treece concluded: that plaintiff failed to exhaust his administrative remedies because he failed to appeal the grievance coordinator's rejection of his claim regarding his placement in protective custody; that plaintiff's failure to exhaust was not excused; and that the motion for summary judgment should be granted in its entirety based upon plaintiff's failure to exhaust his administrative remedies. Dkt. No. 54, at 6-10; see Dkt. Nos. 48-9, at 2, and 48-11, at 2. The court adopts Judge Treece's findings and conclusions in their entirety regarding plaintiff's failure to exhaust his administrative remedies.
Plaintiff has also not objected to Judge Treece's ruling, in the alternative, that defendant is entitled to summary judgment as a matter of law on the due process confinement claim. It is undisputed that plaintiff was in protective custody from January 6, 2013, at 9 p.m. to January 7, 2013, at 3:08 p.m. Dkt. No. 51-1, ¶¶ 6, 13; Dkt. No. 50, ¶¶ 6, 13. The court adopts Judge Treece's determination that plaintiff did not have a liberty interest in ...