United States District Court, S.D. New York
OPINION AND ORDER
Vincent L. Briccetti, United States District Judge.
Sean Salley, proceeding pro se and in forma
pauperis, brings this action under 42 U.S.C. §
1983, alleging defendants unlawfully retaliated against him
for exercising his First Amendment rights.
claims against defendants Anthony Annucci, Thomas Griffin,
and Patrick Griffin were dismissed on April 17, 2017. (Doc.
pending is defendants William Keyser and Kevin Kelly's
motion for summary judgment. (Doc. #65).
reasons set forth below, the motion is GRANTED.
Court has subject matter jurisdiction pursuant to 28 U.S.C.
have submitted briefs, a statement of facts
("SOF"), and declarations with supporting exhibits,
and plaintiff has submitted an opposition and a declaration,
which together reflect the following background.
December 23, 2009, and October 13, 2015, plaintiff was
incarcerated at Sullivan Correctional Facility
and 2015, staff at Sullivan observed inmates participating in
what they believed were commemorations of the 1971 uprising
at Attica Correctional Facility (the "Attica
uprising"). Specifically, on September 10, 2015, a
number of inmates at Sullivan wore white shirts and refused
to eat their meals.
an investigation, Sullivan staff concluded plaintiff was
involved in planning the 2015 commemoration. The results of
the investigation are memorialized in a September 30, 2016,
memorandum from Lieutenant Maxwell to defendant Keyser,
Sullivan's superintendent ("Supt. Keyser").
states that "in every facility throughout the state . .
. nobody really eats" on the anniversary of the Attica
uprising. (Wilson Decl. Ex. A: Pl. Dep. at 78). He
acknowledges he was interviewed by Lieutenant Maxwell after
the Attica uprising anniversary in 2015, but denies he was
part of "any alleged Attica Uprising Demonstrations at
Sullivan." (Pl. Decl. ¶ 39).
was not issued a misbehavior report related to the
commemoration, because it was "relatively minor"
and "peaceful." (Keyser Decl. ¶ 13).
Nevertheless, according to Supt. Keyser, such demonstrations
are taken "very seriously by security staff,"
because they can "devolve into more serious situations,
such as riots." (Id. ¶12). Supt. Keyser
determined "it was in the best interest of the ongoing
security of the facility" to transfer plaintiff to
another facility, in part because plaintiffs
"familiarity with facility operations and his rapport
with other inmates" enabled him to assist in planning
these demonstrations. (Id. ¶ 14).
point between September 10 and September 17, 2015, Supt.
Keyser requested plaintiffs transfer. The request is
reflected in a September 17 email from Supt. Keyser to
Sullivan staff member Ariel Escobar, indicating there was a
problem processing the request, and asking Escobar to
September 17, 2015, plaintiff and defendant Correction
Officer Kelly ("CO. Kelly") had a disagreement
regarding plaintiffs use of the telephone. CO. Kelly issued
plaintiff a misbehavior report (the "September 17
misbehavior report") for creating a disturbance,
refusing a direct order, and issuing threats.
September 18, 2015, plaintiff submitted a grievance regarding
CO. Kelly's "harassive & verbally abusive"
behavior. (Keyser Decl. Ex. A at 3). The grievance states
plaintiff complained to Sergeant Maliga because CO. Kelly
ordered plaintiff to perform tasks that were not part of
plaintiff s job as a block clerk. The grievance states CO.
Kelly's harassment became "retaliatory ... as a
result of [plaintiffs] seeking intervention from Sergeant
September 21, 2015, disciplinary hearing related to the
September 17 misbehavior report, plaintiff was found guilty
of creating a disturbance and refusing a direct order.
Plaintiff was penalized with ten days in keep lock, as well
as ten days of lost privileges.
asserts that while he was on keep lock, CO. Kelly offered
plaintiff s job as a block clerk to another inmate, stating
"[n]o nigger should have that job." (Pl. Decl.
¶ 18). In addition, at some point after plaintiff was
released from keep lock, he walked by CO. Kelly, who gestured
toward plaintiff as if shooting a gun.
October 5, 2015, Supt. Keyser's request to transfer
plaintiff was approved, and plaintiff was transferred to
Green Haven Correctional Facility ("Green Haven")
on October 23, 2015.
states Green Haven is "the worst jail in [the] New York
City Regional hub." (Pl. Dep. at 34). According to
plaintiff, he continued to receive retaliatory treatment at
Green Haven, due to his complaint and grievance regarding CO.
Kelly. Plaintiff states a money order mailed to him by his
mother on May 24, 2016, was lost by Green Haven's package
room for approximately two weeks. In addition, plaintiff
states he was denied participation in his job assignment
program for nearly a year after his arrival at Green Haven.
September 2016, after plaintiffs transfer to Green Haven,
there was no demonstration commemorating the Attica uprising