United States District Court, N.D. New York
DECISION AND ORDER
Lawrence E. Kahn, U.S. District Judge
matter comes before the Court following a
Report-Recommendation filed on February 24, 2017, by the
Honorable David E. Peebles, U.S. Magistrate Judge, pursuant
to 28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 123
(“Report-Recommendation”). Pro se plaintiff Keith
Waters and Defendants timely filed Objections. Dkt. Nos. 124
(“Plaintiff's Objections”), 125
fourteen days after a party has been served with a copy of a
magistrate judge's report-recommendation, the party
“may serve and file specific, written objections to the
proposed findings and recommendations.” Fed.R.Civ.P.
72(b); L.R. 72.1(c). If no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere
reiteration of an argument made to the magistrate judge, a
district court need review that aspect of a
report-recommendation only for clear error. Barnes v.
Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y.
Mar. 18, 2013); Farid v. Bouey, 554 F.Supp.2d 301,
306-07, 306 n.2 (N.D.N.Y. 2008); see also Machicote v.
Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y.
Aug. 25, 2011) (“[E]ven a pro se party's
objections to a Report and Recommendation must be specific
and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a
second bite at the apple by simply relitigating a prior
argument.”). “A [district] judge . . . may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b). Otherwise, a court “shall make a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” Id.
object to Judge Peebles's finding that summary judgment
was not appropriate with respect to Waters's First
Amendment retaliation claim against defendant A.W. Dirie.
Defs.' Objs. at 1. According to Defendants, the evidence
is overwhelming that Dirie did not remove Waters from his
position in the law library, and that Deputy Superintendent
for Programs Marie Hammond, who is not a defendant in this
case, was in fact responsible for his removal. Id.
Defendants also suggest that because Waters was removed from
the position before Dirie received any complaints from
Waters, “there [was] no temporal proximity giving rise
to a question regarding the reason for the removal.”
Id. at 2. The question is close, but the Court
agrees with Judge Peebles's recommendation that it deny
Defendants' motion for summary judgment on this issue.
point to two pieces of evidence suggesting that Dirie did not
remove Waters from the law library position. First, Dirie
himself says he was not involved. Id. at 1-2.
Second, Waters wrote Dirie a letter on February 28, 2013,
complaining that he had been removed from his position at the
law library by Hammond. Id. at 2. The only evidence
Waters has offered to suggest that Dirie removed him from the
position is his own sworn testimony to that effect. Dkt. No.
42 (“Verified Amended Complaint”) ¶
Waters's evidence on this point certainly appears weaker
than Defendants'. But as Judge Peebles pointed out in a
different case, “the weighing of such competing
evidence, no matter how weak plaintiff's claim may
appear, presents a question of credibility that must be left
to the trier of fact.” Cirio v. Lamora, No.
08-CV-431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010),
adopted by 2010 WL 1063864 (N.D.N.Y. Mar. 22, 2010).
And while it is true that the only piece of evidence Waters
offers on this score is his own self-serving testimony, that
“can establish a genuine dispute of fact so long as
[it] does not contradict the witness's prior
testimony.” Dye v. Kopiec, No. 16-CV-2952,
2016 WL 7351810, at *3 (S.D.N.Y. Dec. 16, 2016) (collecting
cases). The affidavit does differ from the letter in
suggesting that Dirie, rather than Hammond, removed Waters
from the law library position, but Waters was not testifying
when he wrote the letter, so these two pieces of conflicting
evidence do not prevent the Court from allowing Waters to
establish a genuine dispute of material fact on the basis of
his self-serving testimony.
also argue that Dirie could not have retaliated against
Waters because the alleged adverse action-Waters's
removal from the law library position-took place before
Waters complained to Dirie. Defs.' Objs. at 2. As
Defendants note, the record makes it clear that Waters was
removed from the position on February 17, 2013. Id.
Indeed, Waters himself concedes as much in his statement of
material facts. Dkt. No. 116-2 (“Waters Statement of
Material Facts”) ¶ 46 (“Plaintiff remained
assigned to the law library clerk position at Greene from the
period of February 11, 2013 until February 17, 2013 before he
was ‘REMOVED FOR GOOD OF DEPARTMENT.'”), and
his inmate program assignment history confirms this
concession, Dkt. No. 116-3 (“Plaintiff's Bates
Material”) at 59. Defendants emphasize that Waters
complained to Dirie on February 28, 2013, and March 18, 2013.
Defs.' Objs. at 2. If these were the only two complaints
received by Dirie, Defendants would be correct that the Court
could not infer that Dirie retaliated against Waters by
removing him from the law library position. See Butler v.
City of Batavia, 545 F.Supp.2d 289, 293 (W.D.N.Y. 2008)
(dismissing a First Amendment retaliation claim because
“the adverse conduct started before” the
plaintiff made her complaint).
Defendants ignore Waters's assertion that he had
complained to Dirie around late January 2013 about “the
dorm sanction policy” at the prison. Pl.'s SMF
¶¶ 9, 15; Verified Am. Compl. ¶ 16. Since
“a temporal gap of less than two months is sufficient
to give rise to an inference of causation, ”
Dushane v. Leeds Hose Co. #1 Inc., 6 F.Supp.3d 204,
212 (N.D.N.Y. 2014) (Kahn, J.), the gap between Waters's
complaints to Dirie in January and his removal from the law
library position in February raises the inference that Dirie
was motivated by retaliatory animus. And while Dirie says he
does not remember Waters's complaining to him orally
about the dorm sanction policy, conflicting testimony cannot
establish the nonexistence of a genuine dispute of material
fact. See Molinaro v. Sears, Roebuck & Co., 478
F.Supp. 818, 822-23 (S.D.N.Y. 1979) (noting that summary
judgment “cannot be resolved on the basis of
conflicting affidavits”). In sum, the Court is not
convinced by Defendants' objections.
objects to Judge Peebles's finding that defendant Eric G.
Gutwein would have disciplined Waters for providing
unauthorized legal assistance even if Gutwein had lacked
retaliatory animus. Pl.'s Objs. at 2. Waters challenges
the sufficiency of the evidence Gutwein relied on to
discipline him, pointing out that Sergeant Melendez could not
specify the type of legal assistance Waters provided to the
other inmate or the form of compensation he received.
Id. at 3. But as Melendez testified, Waters had
received a letter from the inmate in which the inmate
suggested that “he would compensate [Waters] for
assisting him with a legal matter in the same way he had in
the past.” Rep.-Rec. at 22. When Melendez spoke to the
inmate, he “admitted that he had paid [Waters] in the
past for legal assistance.” Id. Melendez did
not testify that Waters advised the inmate about, say,
federal habeas law as opposed to municipal liability under 42
U.S.C. § 1983, but that does not mean Gutwein lacked a
solid basis for finding that Waters had violated the rule
prohibiting the provision of unauthorized legal assistance.
The same goes for the kind of compensation Waters received
for his legal work. Judge Peebles was therefore correct to
conclude that Gutwein would have imposed discipline even in
the absence of any retaliatory motive, especially because
this kind of inference is “readily drawn in the context
of prison administration where we have been cautioned to
recognize that ‘prison officials have broad
administrative and discretionary authority over the
institutions they manage.'” Sher v.
Coughlin, 739 F.3d 77, 82 (2d Cir. 1984) (quoting
Hewitt v. Helms, 459 U.S 460, 467 (1983),
abrogated in part on other grounds by Sandin v.
Connor, 515 U.S. 472 (1995)); see also Parks v.
Blanchette, 144 F.Supp.3d 282, 331 (D. Conn. 2015)
(noting that courts take special care in evaluating First
Amendment retaliation claims brought by prisoners
“because they can easily be
of his challenge to the sufficiency of the evidence relied on
to punish him, Waters appears to assert that his right to
procedural due process was violated. Pl.'s Objs. at 3-7.
Yet as Judge Peebles pointed out, Waters's due process
claim fails because “no reasonable factfinder could
conclude that plaintiff was deprived of a cognizable liberty
or property interest.” Rep.-Rec. at ...