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Marino v. Watts

United States District Court, N.D. New York

March 7, 2018

VINCENT MICHAEL MARINO, Plaintiff,
v.
HARRELL WATTS, et al., Defendants.

         APPEARANCES:

          VINCENT MICHAEL MARINO Plaintiff, Pro Se

          HON. GRANT C. JAQUITH Acting United States Attorney Northern District of New York Attorney for Defendants James T. Foley U.S. Courthouse

         OF COUNSEL:

          KAREN FOLSTER, LESPERANCE, ESQ. Assistant United States Attorney

          AMENDED REPORT-RECOMMENDATION AND ORDER

          DANIEL J. STEWART, United States Magistrate Judge

         This action, brought pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), returns to the Court on Defendants' Motion for Summary Judgment. Dkt. No. 133, Defs.' Mot. Summ. J. The only remaining claims in this action are First Amendment retaliation claims against Defendants Lucas, Sepanek, and Schult. Defendants move for summary judgment on these remaining claims. Plaintiff has opposed Defendants' Motion, and Defendants have filed a Reply. Dkt. Nos. 139, Pl.'s Resp., & 140, Defs.' Reply. After the Court ordered the Defendants to respond to outstanding discovery requests (Dkt. No. 157), and Defendants complied (Dkt. No. 158), Plaintiff filed supplemental papers in opposition to Defendants' Motion. Dkt. Nos. 162 & 163. For the reasons that follow, the Court recommends that Defendants' Motion be granted and this action dismissed.

         I. BACKGROUND

         A. Plaintiff's Failure to File a Response to Defendants' Rule 7.1 Statement

         Pursuant to this District's Local Rules, “[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” N.D.N.Y.L.R. 7.1(a)(3). As required by the Local Rules, Defendants' counsel advised Plaintiff of the consequences of failing to file a response to Defendants' Rule 7.1 Statement of Material Facts. Dkt. No. 133-1. Plaintiff, however, did not file a response to Defendants' Statement of Material Facts. See Pl.'s Resp. & Dkt. No. 162, Pl.'s Reply Brief.[1]Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules, see Edwards v. INS, 59 F.3d 5, 8-9 (2d Cir. 1995). The Court therefore will deem the facts as set forth in Defendants' Statement of Material Facts admitted, to the extent they are properly supported by the record. Dkt. No. 133-3, Defs.' Rule 7.1 Statement of Material Facts (“Defs.' SMF”); see also GlobalRock Networks, Inc. v. MCI Commc'ns Servs., Inc., 943 F.Supp.2d 320, 329 (N.D.N.Y. 2013) (“Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to evidence in the record support the movant's assertions.”) (citing Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003)).

         B. Factual Background

         On December 3, 2009, Plaintiff was incarcerated at FCI Ray Brook, when unit officers discovered $2, 729.32 of postage stamps, gambling paraphernalia, and a homemade intoxicant in his cell during a routine cell search. Defs.' SMF at ¶¶ 26-27. A disciplinary hearing was held on December 15, 2009, at the conclusion of which Plaintiff was found guilty of several disciplinary violations and sentenced to sixty days in disciplinary segregation, twenty-seven days loss of good time credits, and 180 days restriction on his visiting, telephone, and commissary privileges. Id. at ¶ 28. Following the disciplinary hearing, the Special Investigative Supervisor (“SIS”) conducted an investigation into the incident, which revealed that Plaintiff's girlfriend had entered into a series of financial transactions with a number of different inmates. Id. at ¶ 29. The report concluded that Plaintiff had been running an illegal gambling operation and recommended that he be transferred to another institution in order to “shut down” the operation. Id. at ¶ 30.

         Defendant Lucas, Plaintiff's case manager, accepted the recommendation of the SIS, as was his standard practice, and completed the necessary paperwork to request a transfer for Plaintiff. Id. at ¶ 31. Lucas drafted a Request for Transfer, Form 409. Id. at ¶ 33; Dkt. No. 133-10, Decl. of Steven Lucas, dated Aug. 18, 2017, Ex. F (“Form 409"). The transfer request was a “Code 323, ” which, according to Lucas, means that the inmate “need[s] closer supervision as the result of a disciplinary incident.” Dkt. No. 133-4, Lucas Decl. at ¶ 14. In stating the reason for the transfer request, Lucas summarized the findings of the SIS report, and noted that Plaintiff had a previous disciplinary violation in 2007 for operating a gambling operation at USP Canaan. Form 409. Lucas recommended “a transfer to a High security facility no closer to [Plaintiff's] release area of Massachusetts.” Id. On the Form 409, Lucas indicated that Plaintiff's inmate security level[2] was twenty-four. Id. After researching suitable facilities, Lucas identified USP Hazelton and USP Big Sandy as potential facilities to which Plaintiff might be transferred. Lucas Decl. at ¶ 17. Lucas also completed a new BP-338.[3] Id. at ¶ 37.

         The Request for Transfer Form was reviewed and approved by the Unit Manager, the Case Management Coordinator, the Assistant Warden, and the Warden, Defendant Schult. Id. at ¶ 41. The Request for Transfer Form was then submitted to the Designation and Sentence Computation Center (“DSCC”) in Grand Prairie, Texas. Id. Once a transfer request is submitted to the DSCC, the determination of whether to approve the request and if approved, what facility the inmate is transferred to, is made solely by the DSCC. Id. at ¶¶ 41-42. The staff of the facility submitting the request-in this case, Ray Brook-have no further control over the request after it is submitted. Id. at ¶ 42. Plaintiff was transferred out of FCI Ray Brook on February 12, 2010, and arrived at USP Pollock, his new assigned facility, on July 13, 2010. Id. at ¶ 43.

         The remaining claims in this action are First Amendment retaliation claims arising from an affidavit Plaintiff alleges that he submitted in support of a fellow inmate named McCarroll's civil rights action against a BOP employee named Matteau. Am. Compl. at p. 4.[4] Plaintiff claims that on December 2, 2009, Helms and Poirier[5] discovered the affidavit in Plaintiff's cell during a cell search. Id. at pp. 6 & 16. Plaintiff claims that the Defendants intentionally retaliated against him based upon this affidavit. Id. at pp. 13-15. Plaintiff claims that he experienced the following specific acts of retaliation:[6] (1) Defendants Lucas and Sepanek confiscated his legal work and law books when he was housed in the Special Housing Unit (“SHU”) at Ray Brook, id. at pp. 34-35; (2) Defendants Lucas and Sepanek falsified his security level from eleven to twenty-four, causing him to be transferred to USP Pollock, which was known to have violent conditions, id. at p. 27; and (3) Defendant Schult caused him to be placed in BOP's “Diesel Therapy” program, whereby he was frequently transferred while on route from Ray Brook to Pollock and did not have access to his legal work, id. at p. 21.

         II. STANDARD OF REVIEW

         Pursuant to Fed.R.Civ.P. 56(a), summary judgment is appropriate only where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the burden to demonstrate through “pleadings, depositions, answers to interrogatories, and admissions on file, together with [ ] affidavits, if any, ” that there is no genuine issue of material fact. F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “When a party has moved for summary judgment on the basis of asserted facts supported as required by [Federal Rule of Civil Procedure 56(e)] and has, in accordance with local court rules, served a concise statement of the material facts as to which it contends there exist no genuine issues to be tried, those facts will be deemed admitted unless properly controverted by the nonmoving party.” Glazer v. Formica Corp., 964 F.2d 149, 154 (2d Cir. 1992).

         To defeat a motion for summary judgment, the non-movant must set out specific facts showing that there is a genuine issue for trial, and cannot rest merely on allegations or denials of the facts submitted by the movant. Fed.R.Civ.P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory allegations subject to disregard . . . they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion” and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).

         When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-movant. Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court must “read [his or her] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, mere conclusory allegations, unsupported by the record, are insufficient to defeat a motion for summary judgment. See ...


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