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Smith v. City of New York

United States District Court, S.D. New York

May 16, 2017

JATIEK SMITH, Plaintiff,
v.
CITY OF NEW YORK; COMMISSIONER OF CITY OF NEW YORK; COMMISSIONER OF DEPARTMENT OF CORRECTION JOSEPH PONTE; WARDEN OF O.B.C.C. LISA COOPER, CO. LEWIS, and CO. GIST, Defendants.

          JATIEK SMITH PRO SE

          ZACHARY W. CARTER Corporation Counsel of The City of New York By: Katherine A. Byrns, Esq. Attorneys for Defendants

          OPINION

          ROBERT W. SWEET, U.S.D.J.

         The defendants the City of New York (the "City"), Commissioner of the New York City Department of Correction Joseph Ponte (the "Commissioner"), Warden of the Otis Bantum Correctional Center (the "OBCC") on Rikers Island Lisa Cooper (the "Warden"), Correction Officer Lewis ("Lewis"), and Correction Officer Gist ("Gist") (collectively, the "Defendants") have moved for summary judgment' pursuant to Rule 56, Fed. R. Civ. P., to dismiss the Complaint of the pro se plaintiff Jatiek Smith ("Smith" or the "Plaintiff"). Upon the facts and conclusions set forth below, the motion of the Defendants is granted, and the Complaint is dismissed.

         I. Prior Proceedings

         The Plaintiff filed his Complaint on July 25, 2014 alleging that the Defendants violated his First Amendment rights by retaliating against him for lodging grievances against Gist and Lewis while housed at the OBCC. Discovery proceeded, and the instant motion was filed on August 12, 2016 and marked fully submitted on November 21, 2016.

         II. The Facts

         The facts have been set forth in the Defendants' Statement pursuant to Local Rule 56.1 and the affidavit of the Plaintiff. They are not in dispute except as noted below.

         On March 28, 2014, a "regular facility search" was being conducted in Plaintiff's housing area in the OBCC. The Plaintiff claims that, during the search, he witnessed Lewis "taking [his] personal property and throwing it into a garbage bag." Upon observing his items being thrown out, Plaintiff "became irate." The search team then escorted Plaintiff out of his housing area and to the intake area.

         The Plaintiff claims that, in the intake area, he met with non-party Assistant Deputy Warden Brooks ("Warden Brooks") and an unknown officer and that while in the intake area he had a "two to three minute[]" conversation with Warden Brooks during which an unidentified officer was present. The Plaintiff alleges that during that conversation, he complained of Lewis' conduct during the search of his housing area and cell. After the Plaintiff "explained everything to her, " the Plaintiff states that Warden Brooks directed the unidentified officer to escort him back to his housing area and that when he returned to his housing area, he noticed that his food and bed linens were missing.

         The Plaintiff did not see Lewis take his food or linens and does not know who took his food or linens. Other inmates told Plaintiff that non-party Officer Wilma took his linens. The Plaintiff believes that Lewis took his food and linens in retaliation for his Complaints about her.

         Plaintiff also claims that, on an unspecified date, he "got into it with Officer Gist" and that an unspecified time after that, Plaintiff "wrote a Complaint [about Gist] and put it in the Warden's box." Gist does not pick up grievances from the Warden's box. Plaintiff surmises that "one of the officers who pick[s] up the grievances could have easily told [her] that [he] put [her] name on grievances."

         The Plaintiff asserts that on April 14, 2014, he returned from court and attempted to make a phone call. Inmates use Personal Identification Numbers ("PINs") to make telephone calls. The Plaintiff states that he noticed that his PIN was not working. He is unsure how long his PIN did not work, but he knows for certain that it was for fewer than five days. During this time period when his PIN was not working, the Plaintiff was still able to make telephone calls by using another inmate's PIN. The Plaintiff is unsure why his PIN was not working; all he knows is "that the PIN number was wrong" and he surmises that an officer changed his PIN and thinks that office was Gist. The Plaintiff admits that any officer can "go into intake and get the PIN number changed."

         The Plaintiff also claims that on April 17, 2014, he had a visitor at OBCC and that his visitor was told that the Plaintiff was still out to court, even though he was not. After waiting, Plaintiff s visitor was eventually able to register and visit him. The Plaintiff believes that his visitor was delayed because of the grievance he filed against Gist.

         Since the filing of the Complaint, Plaintiff was transferred out of New York City Department of Correction custody and into New York State Department of Corrections and Community Supervision custody, where he is currently incarcerated.

         The Plaintiff alleges a pattern of disregard of the Inmate Grievance Program, alleging that he was told he would pay for complaining and received direct threats, that the conclusions set forth by counsel for the Defendants are in error, and that he has not had depositions of the Defendants named in the Complaint.

         III. The Applicable Standard

         Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The relevant inquiry on application for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 251-52. A court is not charged with weighing the evidence and determining its truth, but with determining whether there is a genuine issue for trial. Westinghouse Elec. Corp. v. N.Y. City Transit Auth., 735 F.Supp. 1205, 1212 (S.D.N.Y. 1990) (quoting Anderson, 477 U.S. at 249). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original).

         While the moving party bears the initial burden of showing that no genuine issue of material fact exists, Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005), in cases where the non-moving party bears the burden of persuasion at trial, "the burden on the moving party may be discharged by *showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). "It is ordinarily sufficient for the movant to point to a lack of evidence . . . on an essential element of the non-movant's claim .... [T]he nonmoving party must [then] come forward with admissible evidence sufficient to raise a genuine issue of fact for trial." Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008) (internal citations omitted); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) ("Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact, the nonmoving party . . . must come forward with evidence that would be sufficient to support a jury verdict in his favor"). In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.

         Because the Plaintiff is proceeding pro se, the Court must "extend extra consideration, " as "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F.Supp. 526, 535 (S.D.N.Y. 1998) (Peck, M.J.) (citations and internal quotations omitted); see, e.g., Erickson v. Pardus,551 U.S. 89, 94 (2007) ("A document filed pro se is 'to be liberally construed.'") (quoting Estelle v. Gamble,429 U.S. 97, 106 (1976)). Accordingly, this Court will construe the Plaintiff s pleadings "to raise the strongest arguments that they suggest." Fulton v. Goord,591 F.3d 37, 43 (2d Cir. 2009) (quoting Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001)). "Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's *bald assertion, ' unsupported by evidence, is not sufficient to overcome a motion for summary judgment." Bilal v. N.Y. State Dep't of Corr., No. 09 CIV. 8433 JSR AJP, 2010 WL 2506988, at *8 (S.D.N.Y. June 21, 2010), subsequently aff'd sub nom. Bilal v. White, 494 F.App'x 143 (2d Cir. 2012) (internal citation omitted); Whitfield v. O'Connell, No. 09 ...


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