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Keitz v. S. Kickbush

United States District Court, W.D. New York

April 9, 2015



CHARLES J. SIRAGUSA, District Judge.


This is an action under 42 U.S.C. ยง 1983 brought by Michael Keitz ("Plaintiff"), a prison inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") at Collins Correctional Facility ("Collins"). Now before the Court is Defendants' motion (Docket No. [#38]) for summary judgment. The application is granted.


The following are the facts viewed in the light most-favorable to Plaintiff. At all relevant times Plaintiff was housed at Collins, where Defendant S. Kickbush ("Kickbush") was the First Deputy Superintendent for Programs and Deputy J. Mathis ("Mathis") was a drug counselor. At all relevant times Plaintiff resided in a dormitory-style housing area and attended group counseling meetings presided over by Mathis. On or about May 24, 2013, Plaintiff sent an anonymous letter to Kickbush, complaining about Mathis. Mathis learned of the anonymous letter, and spent the next week verbally berating Plaintiff's therapy group about the fact that some member of the group had complained about him.

On May 31, 2013, during a meeting between Plaintiff, Mathis and two other counselors, Plaintiff admitted, in response to questioning by Mathis, that he wrote the anonymous letter. Later that day, during a group meeting, Mathis informed the group members that Plaintiff had written the letter, and stated that Plaintiff was a liar and a snitch. While doing so, Mathis "screamed" and "gesticulated wildly" at Plaintiff. Plaintiff responded by telling Mathis to "produce the letter, " presumably so that he could show the other inmates that the contents of the letter were true. However, Mathis continued to yell at Plaintiff and then ordered Plaintiff to go to his cubicle. Shortly thereafter, upon seeing Plaintiff outside the cubicle, Mathis continued to verbally berate Plaintiff, and accused Plaintiff of "being out to get him." Further, Mathis moved toward Plaintiff in a physically threatening manner and stated that he was "not afraid to fight, " whereupon Plaintiff fled from the cubicle. During the ensuing ten days, Plaintiff contends that he experienced "constant anxiety, " though there is no contention that Mathis said anything more to Plaintiff.

On June 4, 2013, Plaintiff commenced this action. The Complaint [#1] purports to state two causes of action based upon Mathis' conduct: 1) a First Amendment retaliation claim; and 2) an Eighth Amendment claim for cruel and unusual punishment. In the Complaint, Plaintiff admits that he did not exhaust his administrative remedies, but contends that he was afraid to file an inmate grievance because of how Mathis might react. The Complaint demands injunctive relief and $100, 000.00 in money damages.

Shortly after filing this action, on June 19, 2013, Plaintiff filed an inmate grievance against Mathis, based upon the same alleged conduct discussed above. See, Docket No. [#38-3] at pp. 4-11. In the grievance, Plaintiff demanded an investigation of the incident and an apology from Mathis.

On January 20, 2015, Defendants filed the subject motion for summary judgment, including the required Irby notice. Defendants maintain that Mathis' alleged conduct, consisting of screaming and yelling at Plaintiff and threatening to fight him, cannot as a matter of law constitute a violation of the First Amendment or Eighth Amendment. Additionally, Defendants contend that Plaintiff has not alleged any personal involvement by Kickbush.

On February 4, 2015, Plaintiff responded to the summary judgment motion. Plaintiff admits that Kickbush had no personal involvement in the alleged constitutional violations, and indicates that he only named Kickbush as a defendant because he thought that he needed to because he was seeking injunctive relief. Further, Plaintiff admits that his allegations fail to establish an Eighth Amendment violation. Accordingly, Kickbush is entitled to summary judgment on all claims, and Mathis is entitled to summary judgment on the Eighth Amendment claim.

However, Plaintiff contends that his allegations are sufficient to establish a First Amendment retaliation claim against Mathis. More specifically, Plaintiff maintains that his anonymous letter to Kickbush was "protected activity, " and that the totality of Mathis' conduct, including his attempt to determine who wrote the anonymous letter, his verbal tirade directed at Plaintiff, and his "attempted assault" of Plaintiff, amount to an "adverse action" sufficient to support a retaliation claim. Plaintiff contends that the summary judgment motion should therefore be denied.

Accordingly, the only issue before the Court is whether Mathis is entitled to summary judgment on Plaintiff's retaliation claim.


Rule 56

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