United States District Court, S.D. New York
SMITH PRO SE
ZACHARY W. CARTER Corporation Counsel of The City of New York
By: Katherine A. Byrns, Esq. Attorneys for Defendants
W. SWEET, U.S.D.J.
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.
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.
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.
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.
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.
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.
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
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."
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
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.
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 Applicable Standard
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).
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).
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.
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.