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Ward v. Lee

United States District Court, N.D. New York

July 3, 2018

WILLIAM E. WARD, JR., Plaintiff,
v.
WILLIAM A. LEE, et al., Defendants.

          APPEARANCES: William E. Ward, Jr. 99-B-1473 Woodbourne Correctional Facility Plaintiff pro se

          OF COUNSEL: Attorney General for the State of New York The Capitol KEITH J. STARLIN, ESQ. Assistant Attorney General Office of the United States Attorney - Syracuse Attorney for Defendants United States Army/F.B.I. Hazardous Device School

          CHARLES E. ROBERTS, ESQ. Assistant United States Attorney

          REPORT-RECOMMENDATION AND ORDER [1]

          CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

         Plaintiff pro se William E. Ward, Jr. (“plaintiff”), an inmate who was, at all relevant times, in the custody of the New York Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that Superintendent (“Supt.”) William A. Lee, Deputy Superintendent of Programs (“DSP”) Kenneth Colao, Captain (“Capt.”) W. Webbe, and Lieutenant (“Lt.”) J. Ferrier - who, at all relevant times, were employed at Eastern Correctional Facility (“Eastern”) - violated his constitutional rights under the First Amendment. See Dkt. No. 47 (“Am. Compl.”). Plaintiff also alleges a claim for injunctive relief pursuant to the Freedom of Information Act (“FOIA”) against the United States Army/F.B.I. Hazardous Device School, Redstone Arsenal, Huntsville, Alabama (“Hazardous Device School”). See id.[2] Presently pending before the Court are defendants' Motions for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Dkt. Nos. 75, 78. Plaintiff opposed defendants' motions, and defendants filed replies. Dkt. Nos. 85, 86, 88. For the following reasons, it is recommended that defendants' motions be granted.

         I. Background[3]

         A. Plaintiff's Recitation of the Facts

         The facts are related herein in the light most favorable to plaintiff as the nonmoving party. See subsection II.A infra. Plaintiff alleges that on October 7, 2014, he submitted a FOIA request to the Hazardous Device School, requesting a copy of the “‘Explosive Train Manual, ['] or information relative to the operating procedure itself, used by [non-party state police officers], who were trained at the Hazardous Device School at Redstone Arsenal.” Am. Compl. ¶ 28. Plaintiff contends that “the explosive train, or squeeze shot, test was used to alleged disarm a pipe taken from [his] apartment in November of 1998.” Id. Plaintiff posed four questions in his FOIA request:

[(1)] Is it proper procedure to wrap detonation cord, blasting cap, and fuse, around a piece of pipe (that does not have any detonating mechanism attached to it or screw-on-end caps) to detonate it?
[(2)] Does this explosive train procedure establish the identity and quantity of the alleged explosive filler used?
[(3)] Are there other scientific procedures normally used to identify the contents of pipes that are suspected to be explosive?
[(4)] Also, could you please provide me with information on any specialized entity of the government who could investigate my case for fraud on the part of officers associated with the Hazardous Device School located at your base?

Am. Compl. ¶ 28. On October 27, 2014, Capt. Webbe received a copy of plaintiff's FOIA request from non-party Criminal Intelligence Coordinator at the Hazard Device School Richard Browning. Id. ¶ 31. Plaintiff was placed in the special housing unit (“SHU”)[4] pending an investigation and/or disciplinary charges. Id. During the investigation, plaintiff informed non-party Sgt. Bay that he sought information pertaining to his underlying criminal conviction to “challenge the reliability and accuracy of [the eyewitnesses officers]'s findings with evidence that would hopefully contradict their trial testimony, from the very school they were trained in, which would provide newly discovered evidence of [his] actual innocence in the courts.” Id. ¶ 35.

         On October 29, 2014, Lt. Ferrier issued plaintiff a misbehavior report charging him with soliciting goods and services from a business without approval (103.20) and attempted possession of material that depicts the construction of an explosive device (117.10). Am. Compl. ¶ 36. On November 3, 2014, DSP Colao commenced a Tier III disciplinary hearing. Id. ¶ 41. Plaintiff “made very clear” that he submitted the FOIA request “to obtain information relevant to preparing post-conviction motions in the New York Judiciary courts, and the Federal Appeals Courts, to challenge his on-going confinement.” Id. Plaintiff also explained to DSP Colao that the request related to his underlying criminal charges of Criminal Possession of a Dangerous Weapon in the First Degree in violation of New York Penal Law § 265.04, as the prosecution alleged that a piece of pipe recovered from plaintiff's apartment was an unlawful pipe bomb. Id. Plaintiff also entered into evidence several other past FOIL and FOIA requests regarding the explosives-related charge without interference from prison officials, as well as a letter written nine months before Lt. Ferrier's misbehavior report addressed to the Director of the New York State Defenders Association in Albany, New York to obtain the address to the Hazardous Device School. Id. Plaintiff asserted that his FOIA request was “directly[ ] and indisputably” related to his criminal conviction, which rested “on the theory that a piece of pipe recovered from his apartment contained an explodable [sic] substance based on [New York State police officers'] observations of a small, white, dirty white, puff of smoke, somewhere in the vicinity of the pipe, while conducting the disputed explosive train/squeeze shot procedure.” Id. ¶ 43.

         On November 10, 2014, DSP Colao found plaintiff guilty of attempted possession of materials that depict the construction of an explosive device (117.10), and not guilty of solicitation of goods and services without approval (103.20). Am. Compl. ¶ 44. On November 17, 2014, plaintiff requested a discretionary review of the Tier III hearing, and Supt. Lee “reviewed the penalty imposed [by Hearing Officer Colao] and [found] it appropriate.”[5]Id. ¶ 48. On December 5, 2014, plaintiff filed an appeal of the Tier III hearing disposition. Id. ¶ 49. On January 15, 2015, Acting Director of the Special Housing/Disciplinary Program D. Venettozzi reviewed and reversed DSP Colao's finding of guilt. Id. ¶ 51. Plaintiff was transferred from Eastern to Green Haven Correctional Facility sometime in late 2014/early 2015. See id. ¶ 54.

         B. DOCCS' Defendants Recitation of the Facts

         In support of their Motion for Summary Judgment, the DOCCS defendants filed a Statement of Material Facts.[6] On or about October 7, 2014, plaintiff sent a letter to “Redstone Arsenal” requesting information regarding the design and/or use of explosive devices. Dkt. No. 78-1 ¶ 17. On October 27, 2014, non-party Eastern Deputy Superintendent for Security (“DSS”) Russo contacted Capt. Webbe regarding a telephone call from Richard Browning informing Eastern officials that plaintiff had requested material and/or information regarding explosives, including a manual on explosives. Id. ¶ 18. DSS Russo ordered Capt. Webbe to initiate an investigation into the matter and return Mr. Browning's call. Id. ¶ 20. Capt. Webbe returned Mr. Browning's telephone call, and Mr. Browning informed him that plaintiff's October 7, 2014 letter requested a copy of a manual on explosives, and information regarding the proper procedure to connect a detonation cord, blasting cap, and fuse to a pipe bomb to detonate it. Id. ¶ 21. The letter also requested other information regarding explosives and pipe bombs, and what procedures could be used to determine the type of explosive filler used in a pipe bomb. Id. Mr. Browning faxed Capt. Webbe a copy of plaintiff's October 7, 2014 letter for review. Id. ¶ 22. Capt. Webbe had not seen or read plaintiff's letter, or knew of its existence, prior to receiving it by fax on October 27, 2014. Id. ¶¶ 26, 27. Plaintiff's letter requested that Hazardous Device School provide him with a copy of the:

“Explosive Train Manual used in disarming pipe bombs” or “information relative to the operating procedure” for disarming pipe bombs; information showing whether it is “proper procedure to wrap detonation cord, blasting cap, and fuse around a piece of pipe . . . to detonate it”; along with information on methods “used to identify the contents of pipes that are suspected to be explosive”, and whether it is possible to identify the “explosive filler [that] was used in a pipe” by observing the color/type of smoke emanating from it upon detonation.

Dkt. No. 78-1 ¶ 29 (quoting Dkt. No. 78-13 at 4). Pursuant to the October 7, 2014 letter, Capt. Webbe believed that plaintiff was requesting or soliciting contraband within a correctional facility. Id. ¶ 30. Capt. Webbe informed Lt. Ferrier of plaintiff's October 7, 2014 letter and the conversation with Mr. Browning, and instructed him to investigate whether plaintiff had violated DOCCS policy. Id. ¶ 31. Capt. Webbe provided Lt. Ferrier with a copy of the October 7, 2014 letter. Id. ¶ 32. Lt. Ferrier had not seen or read plaintiff's letter, or knew of its existence, prior to October 27, 2014. Id. ¶¶ 35, 36. Lt. Ferrier and other non-party DOCCS officials investigated whether plaintiff violated DOCCS policy. Id. ¶ 44.

         Pursuant to the results of the investigation, Lt. Ferrier issued plaintiff a misbehavior report charging him requesting or soliciting goods or services from a business or person without approval (103.20) and attempting to possess an explosive device or material which depicts or described the construction or use of an explosive device (117.10). Dkt. No. 78-1 ¶ 45. In the misbehavior report, Lt. Ferrier offered a general summary of plaintiff's October 7, 2014 letter, and did not characterize the report as directly quoting the letter. Id. ¶ 46. Instead, he annexed a copy of plaintiff's letter to the misbehavior report to ensure that it was available for review. Id. ¶ 48. Capt. Webbe did not order Lt. Ferrier to issue the misbehavior report, nor did he write, assist in writing, or edit any portion of the report. Id. ¶¶ 50, 51. Ensuring that inmates do not possess weapons or information that instruct them how to use or create weapons is part of the core mission at DOCCS, and is important to ensure DOCCS facilities are safe, secure, and orderly. Id. ¶ 62. An Inmate Misbehavior Report does not constitute a finding that the inmate violated DOCCS policy; instead, it represents a determination by a DOCCS employee that there is evidence that the inmate violated a DOCCS inmate rule, and should be referred to a hearing on whether the inmate did violate that particular rule. Id. ¶ 73. A non-party reviewing lieutenant signed off on Lt. Ferrier's October 28, 2014 misbehavior report. Id. ¶ 74.

         On November 3 2014, DSP Colao commenced a Tier III hearing on the charges contained in the October 24, 2014 misbehavior report. Dkt. No. 78-1 ¶¶ 76-77. During the hearing, plaintiff testified that he understood that an inmates' attempt to obtain materials and/or information explosives was “really touchy stuff, ” and that “[he knew] it” and was “aware of it.” Id. ¶ 80. On November 10, 2014, DSP Colao found plaintiff not guilty of violating DOCCS inmate rule 103.20, and guilty of rule 117.10. Id. ¶ 81. On November 17, 2014, plaintiff wrote to non-party Supt. Griffin to request a “Discretionary Review” of the hearing disposition. Id. ¶ 83. Supt. Griffin preceded Supt. Lee as Superintendent at Eastern. Id. Pursuant to DOCCS policy, during a discretionary review, a superintendent reviews the penalty imposed and determines whether such penalty is appropriate for the charge. Id. ¶ 86. A discretionary review is not a full appeal of the hearing or of the finding of guilty, but a request that the superintendent exercise discretion to reduce the penalty imposed. Id. ¶ 87. Supt. Lee reviewed the relevant documents, and determined that the penalty imposed at the November 2014 Tier III hearing was appropriate. Id. ¶ 90. Plaintiff appealed the November 2014 hearing disposition to the Commissioner. Id. ¶ 92. Supt. Lee did not take part in the review or determination of plaintiff's appeal to the Commissioner. Id. ¶ 93. On January 15, 2015, the Acting Director of Special House/Inmate Disciplinary Programs reversed the November 2014 hearing disposition and ordered it expunged from plaintiff's record. Id. ¶ 96.

         On November 13, 2014, plaintiff filed a grievance in connection with this matter (ECF-26171-15). Dkt. No. 78-1 ¶¶ 102, 103. Plaintiff filed the grievance several days before Supt. Lee began working at Eastern. Id. ¶ 103. The Eastern Inmate Grievance Resolution Committee (“IGRC”) initially declined to accept plaintiff's grievance as it appeared to dispute the November 2014 hearing disposition and the handling of the October 2014 FOIL request - i.e., non-grievable issues. Id. ¶ 104. Supt. Lee was not involved in the decision to reject the filing of plaintiff's grievance. Id. ¶ 106. Plaintiff's grievance was accepted for filing on January 5, 2015, and characterized as alleging staff misconduct and/or harassment meant to annoy, intimidate, or harm an inmate. Id. ¶ 108. Supt. Lee conducted an investigation into plaintiff's grievance, determined that plaintiff's October 2014 FOIL request had not been interfered with, and plaintiff's request to reverse his hearing disposition was moot. Id. ¶¶ 112, 113. Moreover, plaintiff's request that staff not retaliate against him based on his crime was accepted to the extent that all staff are expected to act in accordance with applicable directives, rules, and regulations. Id. ¶ 115. By the time Supt. Lee issued his response on February 25, 2015, plaintiff had already been transferred to another correctional facility. Id. ¶ 117.

         C. Federal Defendant's Recitation of the Facts

         In support of their Motion for Summary Judgment, the Federal Bureau of Investigation (“FBI”) filed a Statement of Material Facts. On June 9, 2014, plaintiff filed a FOIA request with the FBI seeking an “Explosive Train technical Manual” for pipe bombs from the Redstone Arsenal. Dkt. No. 75-9 ¶ 2. On September 18, 2014, the FBI informed plaintiff that it had conducted the search, but could not locate a technical manual for pipe bombs. Id. ¶ 3. On October 7, 2014, plaintiff appealed the FBI's response. Id. ¶ 4. On October 28, 2014, the FBI acknowledged receipt of plaintiff's appeal. Id. ¶ 5. On February 11, 2015, the FBI sent a formal response to plaintiff's appeal. Id. ¶ 6.

         II. DOCCS Defendants' Motion for Summary Judgment[7]

         A. Legal Standard

         “A court shall grant summary judgment if the movant shows that 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). The moving party has the burden of showing the absence of disputed material facts by providing the Court with portions of “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ” which support the motion. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it may affect the outcome of the case as determined by substantive law, such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “In determining whether summary judgment is appropriate, [the Court will] resolve all ambiguities and draw all reasonable inferences against the moving party.” Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).

         To avoid summary judgment, a non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Carey v. Crescenzi, 923 F.2d 18, 19 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)) (internal quotation marks omitted). A non-moving party must support such assertions by evidence showing the existence of a genuine issue of material fact. See Id. “When no rational jury could find in favor of the non-moving party because the evidence to support is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Services, Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994).

         Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006). As the Second Circuit has stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to “special solicitude, ” . . . that a pro se litigant's submissions must be construed “liberally, ” . . . and that such submissions must be read to raise the strongest arguments that they “suggest, ” . . . . At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not “consistent” with the pro se litigant's allegations, . . . or arguments that the submissions themselves do not “suggest, ” . . . that we should not “excuse frivolous or vexatious filings by pro se litigants, ” . . . and that pro se status “does not exempt a party from compliance with relevant rules of procedural and substantive law . . . .

Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).

         B. First Amendment

         Plaintiff contends that Capt. Webbe, Lt. Ferrier, DSP Colao, and Supt. Lee retaliated against him for filing a FOIA request with the Hazardous Device School. See Am. Compl. ¶¶ 75, 87. Defendants argue that plaintiff cannot establish a prima facie cause of action for retaliation against any of the defendants. Dkt. No. 78-2 (“Def. Mem. of Law”) at 4-12. The undersigned agrees. Courts are to "approach [First Amendment] retaliation claims by prisoners ‘with skepticism and particular care[.]'" See, e.g., Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003) (quoting Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema, N. A., 534 U.S. 506 (2002)). A retaliation claim under Section 1983 may not be conclusory and must have some basis in specific facts that are not inherently implausible on their face. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); South Cherry St., LLC v. Hennessee Grp. LLC, 573 F.3d 98, 110 (2d Cir. 2009).

         “To prove a First Amendment retaliation claim under Section 1983, a prisoner must show that ‘(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'” Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004), overruled on other grounds by Swierkiewicz, 534 U.S. at 560)). To demonstrate the adverse action element, a plaintiff must show that the defendant's "‘retaliatory conduct . . . would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights . . . . Otherwise, the retaliatory act is simply de minimis, and therefore outside the ambit of constitutional protection.'” Roseboro v. Gillespie, 791 F.Supp.2d 353, 366 (S.D.N.Y. 2011) (quoting Dawes, 239 F.3d at 292-93). “Types of circumstantial evidence that can show a causal connection between the protected conduct and the alleged retaliation include temporal proximity, prior good discipline, finding of not guilty at the disciplinary hearing, and statements by defendants as to their motives.” Barclay v. New York, 477 F.Supp.2d 546, 558 (N.D.N.Y. 2007). If the plaintiff meets this burden, the defendants must show, by a preponderance of the evidence, that they would have taken the adverse action against the plaintiff “even in the absence of the protected conduct.” Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).

         1. Lt. Ferrier and Capt. Webbe

         Assuming for the purpose of this motion that plaintiff's filing of a FOIA request constitutes protected conduct, [8] there is no indication in the record that Lt. Ferrier or Capt. Webbe took adverse action against plaintiff. Plaintiff contends that Lt. Ferrier filed a false misbehavior report against him “alleging, without any substantial evidence, that [p]laintiff had attempted to possess ‘material depicting the construction of an explosive device'” in violation of DOCCS policy. Dkt. No. 85-5 (“Pl. Opp.”) at 10. “It is well settled that filing false or unfounded misbehavior charges against an inmate does not give rise to a per se constitutional violation actionable under section 1983.” Burroughs v. Petrone, 138 F.Supp.3d 182, 205 (N.D.N.Y. 2015) (quoting Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (“[A] prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report.”) (internal quotation marks omitted); see Reed v. Doe No. 1, No. 9:11-CV-0250 (TJM/DEP), 2012 WL 4486086, at *5 (N.D.N.Y. July 26, 2012) (citing Boddie, 105 F.3d at 862) (“[T]he mere allegation that a false misbehavior report has been issued to an inmate, standing alone, does not rise to [a] level of constitutional significance.”). However, a plaintiff's allegation that a defendant issued a false misbehavior report in response to the plaintiff's protected activity can support a claim of unlawful retaliation. See Reed, 2012 WL 4486086, at *5. The plaintiff bears the burden of establishing that “the protected conduct was a substantial or motivating factor in the prison officials' decision to discipline the plaintiff.” Gayle, 313 F.3d at 682.

         The record is clear that on October 7, 2014, plaintiff requested, in part, “a copy of the ‘Explosive Train Manual' used in disarming pipe bombs . . . [o]r . . . information relative to the operating procedure itself.” Dkt. No. 78-13 at 4. On October 27, 2014, DSS Russo informed Capt. Webbe that DOCCS personnel had been contacted by Mr. Browning at the Redstone Arsenal concerning plaintiff's request for material and/or information on explosives. Dkt. No. 78-5 (“Webbe Decl.”) ¶ 6. Capt. Webbe spoke with Mr. Browning, who voluntarily faxed him a copy of plaintiff's FOIA request. Id. ¶ 7. Capt. Webbe instructed Lt. Ferrier to investigate whether plaintiff had violated DOCCS inmate rules by requesting such material, and provided Lt. Ferrier with a copy of the letter. Id. ¶ 11. Lt. Ferrier conducted the investigation regarding plaintiff's October 7, 2014 letter, wherein he spoke with the non-party DOCCS personnel that interviewed plaintiff, the personnel that searched his cell, and the relevant personnel to determine whether plaintiff had obtained prior approval to request such material. Dkt. No. 78-3 (“Ferrier Decl.”) ¶ 10. Pursuant to that investigation, Lt. Ferrier issued plaintiff a misbehavior report charging him with violating DOCCS ...


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