United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION IN PART
LAURA TAYLOR SWAIN, District Judge.
On April 15, 2013, Plaintiff Miguel Tirado ("Plaintiff") filed the initial pro se complaint in this action asserting claims against Defendants Sergeant Brian Shutt, Lieutenant Stacy Dominic and Corrections Officers Steven Holliday ("Holliday"), Rodney Lassiter ("Lassiter") and Kyle Jackson (collectively, "Defendants") arising from a series of alleged constitutional violations. On January 24, 2014, the case was referred to Magistrate Judge Debra C. Freeman for dispositive motion practice and, on August 6, 2014, it was reassigned to Magistrate Judge Andrew J. Peck. Plaintiff, now represented by counsel, filed an Amended Complaint on August 27, 2014 (See Amended Complaint ("Am. Compl."), Docket Entry No. 80), and on December 29, 2014, Defendants moved for partial summary judgment. (See Defendants' Motion For Summary Judgment, Docket Entry No. 100.)
On February 23, 2015, Judge Peck issued a Report and Recommendation ("Report") recommending, inter alia, that the Court grant Defendants' motion for partial summary judgment dismissing three of Plaintiff's First Amendment retaliation claims, namely: (1) that Plaintiff was assaulted in April 2012 in retaliation for filing a January 2012 grievance; (2) that an unknown officer told him to "hold it down" in response to his attempt to report the April 2012 assault; and (3) that he and his parents were intimidated and menaced in retaliation for the filing of the instant lawsuit. (See Docket Entry No. 115.) On March 9, 2015, Plaintiff filed objections to the Report, specifically objecting to Judge Peck's recommendations concerning his "hold it down" and parental intimidation claims, and urging the Court to adopt the remainder of Judge Peck's analysis. (See Plaintiff's Partial Objections to Report and Recommendation ("Pl. Objections"), Docket Entry No. 123.) The Court has carefully reviewed the Report, the parties' submissions and the record relied upon by Judge Peck in his determination of the summary judgment motion. For the following reasons, Plaintiff's objections are sustained in part and the Court adopts the Report in part.
The following facts are, unless characterized as claims or allegations, undisputed. Plaintiff Miguel Tirado is currently incarcerated by the New York State Department of Corrections at Sing Sing Correctional Facility. (Defendants' Local Civil Rule 56.1 Statement ("Defs. 56.1 St."), Docket Entry No. 101, ¶ 1; Plaintiff's Local Civil Rule 56.1 Statement ("Pl. 56.1 St."), Docket Entry No. 105, ¶ 1.) On January 13, 2012, Plaintiff's cell was searched by two Sing Sing corrections officers. (Defs. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.) During the course of the search, Plaintiff felt sick and laid down on the floor. (Defs. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.) Plaintiff claims that he was dragged from his cell and down two flights of stairs to the infirmary. (Defs. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.) In connection with this incident, Plaintiff filed an inmate grievance alleging staff misconduct and harassment. (Defs. 56.1 St. ¶ 7; Pl. 56.1 St. ¶ 7.) Plaintiff's grievance was denied by the Superintendent at Sing Sing. (Defs. 56.1 St. ¶¶ 8-9; Pl. 56.1 St. ¶¶ 8-9.) On appeal, the Central Officer Review Committee upheld the Superintendent's denial. (Defs. 56.1 St. ¶¶ 8-9; Pl. 56.1 St. ¶¶ 8-9.) In his Amended Complaint, Plaintiff alleges that Defendants were aware of his January 2012 grievance. (Am. Compl. ¶ 15.) Defendants, however, have denied any knowledge of the grievance. (See generally Declaration of Neil Shevlin in Support of Motion for Summary Judgment ("Shevlin Decl."), Docket Entry No. 102, Attachments 1-5: Declarations of Brian Shutt ("Shutt Decl."), Kyle Jackson ("Jackson Decl."), Steven Holliday ("Holliday Decl."), Rodney Lassiter ("Lassiter Decl.") and Stacy Dominic ("Dominic Decl.").)
Plaintiff further claims that, on April 19, 2012, Corrections Officers Holliday and Lassiter assaulted him when he requested to speak with a sergeant about being denied his recreation time. (Plaintiff's Opposition to Motion for Summary Judgment ("Pl. Opp."), Docket Entry No. 104 ¶¶ 3-4; See generally Declaration of Paul Kremer ("Kremer Decl.", Docket Entry No. 106, Ex. C ("Tirado Dep.") at 40-47.) Three fellow Sing Sing inmates, Anthony Cassidy, Elias Otero and Kelvin Vazquez, all provided deposition testimony in which they claimed to have seen Officer Holliday approach Plaintiff's cell as he called out to speak with a sergeant. (See Kremer Decl., Ex. E ("Cassidy Dep.") at pp. 4, 6, 17-18; Ex. I ("Vazquez Dep.") at pp. 6-7; Ex. J ("Otero Dep.") at pp. 15, 25.) Inmates Anthony Cassidy and Kelvin Vazquez corroborate Plaintiff's claim that he requested to speak to a sergeant in connection with the denial of his recreation time. (Cassidy Dep. at 6:3-9; Vazquez Dep. at 6:4-10.) During this interaction, Officer Holliday allegedly had Plaintiff exit his cell and walk down to the center gate area of the gallery. (Tirado Dep. at 40:17-22; Cassidy Dep. at 7:4-7:16; Vazquez Dep. at 6:4-7:6.) Officer Holliday knew that the area near the center gate was not visible to any cameras or other inmates. (Kremer Decl., Ex. D ("Holliday Dep.") at 144:17-145:13.) Inmates Vazquez and Cassidy testified that, without provocation, Officer Holliday pushed and struck Plaintiff after ordering him to the center gate area. (Cassidy Dep. at 7:16-25, 20:2-21:24; Vazquez Dep. at 7:7-9, 12:3-25.) Plaintiff has alleged that Officer Holliday pinned him against a wall while Officer Lassiter repeatedly punched him in the face. (Tirado Dep. at 40:7-41:1, 43:2-45:18, 87.) Defendants concede that an altercation took place and that Officers Holliday and Lassiter used force against Plaintiff. (Defs. 56.1 St. ¶ 12.) They claim, however, that the use of force was in response to Plaintiff refusing to follow a direct order and striking Officer Holliday in the face. (Holliday Decl. ¶ 4.)
Following the altercation, Plaintiff was taken to the infirmary (Defs. 56.1 St. ¶ 12; Pl. 56.1 St. ¶ 12), where he claims that he tried to explain the assault to Lieutenant Stacy Dominic. (Am. Compl. ¶ 35; Tirado Dep. at 50:2-14.) Plaintiff further alleges that, after Lieutenant Dominic left the medical facility, an unidentified corrections officer instructed him to "hold it down" in response to his attempt to explain his version of the assault. (Am. Compl. ¶ 35; Tirado Dep. at 51:7-22.) Plaintiff contends that he understood "hold it down" to mean that he should not tell anyone that he had been assaulted or why. (Tirado Dep. at 55:1-56:22; Kremer Decl., Ex. L: Benjamin Weiser and Michael Schwirtz, U.S. Inquiry Finds a Culture of Violence' Against Teenage Inmates at Rikers Island, N.Y. TIMES, Aug. 4, 2014, http://nyti.ms/1zNzLO9) (reporting that "hold it down" is a coded phrase used by corrections officers to pressure inmates into not reporting beatings under threat of violence or disciplinary sanction). Plaintiff has admitted that none of the Defendants named in this suit were at the medical facility when the alleged threat was made. (See generally Tirado Dep. at 48:13-24, 51:7-20, 55:12-13, 56:6-13.)
Plaintiff was sentenced to ninety days in the Special Housing Unit ("SHU") in connection with the April 2012 altercation and resulting misbehavior reports. (Defs. 56.1 St. ¶ 18; Pl. 56.1 St. ¶ 18.) Plaintiff was transferred from Sing Sing to Mid-State Correctional Facility on May 4, 2012, to serve this time. (Defs. 56.1 St. ¶ 24; Pl. 56.1 St. ¶ 24.) After completing his SHU sentence at Mid-State, Plaintiff was transferred to Auburn Correctional Facility on August 1, 2012, and then back to Sing Sing on February 10, 2014. (Defs. 56.1 St. ¶¶ 25-26; Pl. 56.1 St. ¶¶ 25-26.)
On April 25, 2013, Plaintiff filed a pro se complaint outlining the facts of the alleged April 19, 2012, assault by Officers Holliday and Lassiter. (Complaint ("Compl."), Docket Entry No. 2 ¶¶ 6-13.) Plaintiff also alleged that Steven Slivinski, a corrections officer at Auburn Correctional Facility, filed an inmate misbehavior report against him to retaliate for filing the April 2013 complaint. (Am. Compl. ¶ 69-70; Tirado Depo. at 64-65.) At a deposition taken following the filing of this suit, and in his Amended Complaint, Plaintiff claimed that on March 16, 2014, Officer Holliday harassed him by "talking to [him] about this case and why [he is] doing it" (Tirado Dep. at 110:2-13) and "menacing him in the hospital waiting room." (Am. Compl. ¶ 76.) Officer Holliday filed a misbehavior report against Plaintiff on or around March 17, 2014, allegedly stemming from the March 16, 2014, incident, in which he claimed that Plaintiff had engaged in harassing and violent conduct in the emergency room. (Kremer Decl., Ex. V.) Plaintiff was subsequently found guilty of all charges filed against him. (Id.)
Plaintiff has further alleged that, during a visit with his parents on March 23, 2014, Officer Holliday intimidated and menaced them by pacing behind his father while glaring as they conversed in the visiting room. (Am. Compl. ¶ 81; Tirado Dep. at 91:3-20.) On August 2, 2014, Officer Holliday filed another misbehavior report against Plaintiff, claiming that he made threats, harassed a corrections officer and violated visiting procedures. (Kremer Decl., Ex. W.) Plaintiff was found guilty only of the visiting violation, and the hearing disposition officer found that Officer Holliday's testimony "failed to corroborate" the other charges. (Id.) Plaintiff has not, however, filed a grievance in connection with the August 2014 misbehavior report. (Declaration of Quandera Quick ¶ 3 (attached to Supplemental Declaration of Neil Shevlin), Docket Entry No. 113.)
Standard of Review
When reviewing a magistrate judge's report and recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C.S. § 636(b)(1)(C) (LexisNexis 2012). In reviewing those portions of a report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Carlson v. Dep't of Justice, No. 10CV5149-PAE-KNF, 2012 WL 928124, at *1 (S.D.N.Y. Mar. 19, 2012) (internal citation omitted). Furthermore, objections that "simply reiterate original arguments" need only be subjected to clear error review. See e.g., Pineda v. Masonry Const. Inc., 831 F.Supp.2d 666, 671 (S.D.N.Y. 2011). However, where specific objections are made, the Court must make a de novo determination as to those aspects of the report. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). In making its de novo determination of a matter specifically objected to, a district judge "has discretion in the weight placed on proposed findings and recommendations and may afford a degree of deference to the Report and Recommendation." Vaccariello v. XM Satelite Radio Inc., 295 F.R.D. 62, 67 (S.D.N.Y. 2013).
A movant is entitled to summary judgment where "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). Thus, to succeed at the summary judgment stage, the movant must demonstrate "the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "The plain language of Rule 56 mandates the entry of summary judgment... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id . If such a showing is disputed, the court must determine "whether the evidence presents a sufficient ...