United States District Court, N.D. New York
WILLIAM E. WARD, JR., Plaintiff,
WILLIAM A. LEE, et al., Defendants.
APPEARANCES: William E. Ward, Jr. 99-B-1473 Woodbourne
Correctional Facility Plaintiff pro se
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
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
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. 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.
Plaintiff's Recitation of the Facts
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
[(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
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”) 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.
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.
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.”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.
DOCCS' Defendants Recitation of the Facts
support of their Motion for Summary Judgment, the DOCCS
defendants filed a Statement of Material Facts. 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. ¶
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.
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.
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.
Federal Defendant's Recitation of the Facts
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.
DOCCS Defendants' Motion for Summary
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).
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).
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
[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).
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).
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).
Lt. Ferrier and Capt. Webbe
for the purpose of this motion that plaintiff's filing of
a FOIA request constitutes protected conduct,  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.
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