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Salley v. Keyser

United States District Court, S.D. New York

July 26, 2018

SEAN SALLEY, Plaintiff,
v.
WILLIAM KEYSER, ANTHONY ANNUCCI, KEVIN KELLY, THOMAS GRIFFIN, and PATRICK GRIFFIN, Defendants.

          OPINION AND ORDER

          Vincent L. Briccetti, United States District Judge.

         Plaintiff 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.

         Plaintiffs claims against defendants Anthony Annucci, Thomas Griffin, and Patrick Griffin were dismissed on April 17, 2017. (Doc. #31).

         Now pending is defendants William Keyser and Kevin Kelly's motion for summary judgment. (Doc. #65).

         For the reasons set forth below, the motion is GRANTED.

         This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.

         BACKGROUND

         Defendants 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.

         Between December 23, 2009, and October 13, 2015, plaintiff was incarcerated at Sullivan Correctional Facility ("Sullivan").

         In 2014 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.

         Following 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").

         Plaintiff 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).

         Plaintiff 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).

         At some 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 resubmit it.

         On 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.

         On 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 Maliga." (Id.)

         At a 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.

         Plaintiff 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.

         On 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.

         Plaintiff 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.

         In September 2016, after plaintiffs transfer to Green Haven, there was no demonstration commemorating the Attica uprising at Sullivan.

         DISCUSSION

         I. Stand ...


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