GASTON v. COUGHLIN, (N.D.N.Y. 1998)

LAWRENCE E. KAHN, District Judge.

Plaintiff brings this action under 42 U.S.C. § 1983 alleging that the defendants violated his rights under the First and Fourteenth Amendments by filing false reports about him in retaliation for his complaints about work conditions. Previously, this Court, the late Judge Con. G. Cholakis presiding, granted summary judgment to all defendants except S. Countryman, Sergeant ("Countryman"), J. Calhoun, Corrections Officer ("Calhoun") and J. Marcus, Corrections Officer ("Marcus"), who were not part of the summary judgment motion. These three defendants now move for summary judgment on the grounds that plaintiff has not stated a retaliation claim and on the basis of qualified immunity.

I. Background

Plaintiff is an inmate in the custody of the New York Department of Corrections. In 1988, he was a worker in the messhall at the Eastern Correctional Facility. On February 22 or 23, 1998, he discussed with Corrections Officer Deni the issue of whether the inmate workers in the messhall should have a day off pursuant to N.Y. Corr. Law § 171. Subsequently, plaintiff met with the President of the Inmate Liaison Committee ("ILC"), an inmate named Xavier Jackson, and proposed that the prison administration be presented with a complaint at the next Executive Committee Meeting alleging that they were in violation of the state law just cited. Plaintiff then filed the administrative complaint.

On or about February 26 or 27, 1988, plaintiff met with Robert Fleming, Deputy Superintendent for Programs at the prison, inmate John Green (who had initially indicated to plaintiff the substance of N.Y. Corr. Law § 171) and two other prison officers (neither of whom are defendants). He discussed certain working conditions and his opinion that the messhall schedule was not in compliance with N.Y. Corr. Law § 171 because it did not give the workers a day off. Fleming responded that he could not give messhall workers a day off because he was understaffed. Plaintiff asserted that the day off was mandatory.

Approximately two days later, by memorandum dated March 2, 1988, defendant Countryman, who was kitchen sergeant, informed plaintiff that Countryman had received information that claimed plaintiff was an instigator in organizing a work stoppage, and that plaintiff was being restricted from working in the kitchen.

The restriction was allegedly based on two memos written to Countryman on March 2, 1988 by defendants Calhoun and Marcus, who were both corrections officers at the facility. In his memo, Marcus alleged that on February 26, 1988, he was conducting the noon meal in the mess hall when he overheard a group of inmates discussing a new kitchen work rule. Def. 7.1(f) Statement ¶ 1. Marcus noted that the discussion was very "heated," that it continued at the instigation of plaintiff and stopped every time Marcus came close to the inmates. Id. ¶ 3. However, he did allegedly overhear plaintiff state:

we're just working here because we want to work here. If we all decided not to work, what would they do then?. . . . When we decide not to work, then they'll have the problem, not us!

Marcus Aff. ¶ 8, Ex. A. He further alleged that the next day, February 27, 1998, there was a sit-down work stoppage in two of the facility mess halls.

Calhoun alleged in his memo that on that very day (March 2, 1998), he had overheard plaintiff state to another inmate that "if they all walked out he would probably stay behind." Calhoun Aff. ¶ 6. He felt this was significant because once before, he had heard a couple of inmates say that plaintiff was talking about a slowdown in the kitchen.

Plaintiff alleges that the information in both memos is false. He also alleges in an affidavit that there was no work stoppage on February 27, 1998. See Gaston Aff. ¶ 7. However, his complaint alleges that there was one. See Third Amended Compl. ¶¶ 35-40.

On March 2, 1998, the same day Countryman restricted plaintiff from kitchen work, Countryman wrote a memo to Deputy Superintendent William Costello, to which he attached the two memos from Calhoun and Marcus and advised Costello that

information was received from a confidential source that has proven reliable in the past. Inmate K. Gaston, 77C591 (5-10) is an instigator in trying to organize a work stoppage in the kitchen complex.

Pl. 7.1(f) Statement.

Two days after he was restricted from working in the kitchen, plaintiff filed a grievance in which he asked who ordered the action and what the basis for the action was. As a result, he was informed that Costello ordered the removal.

On March 30, 1988, Corrections Counselor Sherman Richards prepared a Program and Security Assessment Summary requesting that plaintiff be transferred. Sherman noted that plaintiff was "a security risk to the facility since he has been trying to instigate a work stoppage in our kitchen complex." Countryman Aff. Ex. D; Def. Rule 10(J) Stmt. at ¶ 19, Dkt. No. 73. Plaintiff was transferred out of the Eastern Correctional Facility on May 8, 1988. This caused a serious disruption to his ongoing pursuit of a master's degree at the State University of New York at New Platz.

Plaintiff, in his third amendment complaint, alleged three causes of action: a claim under 42 U.S.C. § 1985(3) and 1986 for conspiracy, a claim for retaliation in violation of the First and Fourteenth Amendments and a claim for violation of due process. For relief, he requests a declaratory judgment that the defendants' acts have violated plaintiff's rights, a permanent injunction against further retaliation, compensatory damages in the amount of $5,000.00 against each of the defendants and punitive damages in the amount of $15,000 against each of the defendants.

II. Discussion A. Standard of Review

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in the light most favorable to the nonmoving party. City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).

The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial."Anderson, 477 U.S. at 250. The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), "but must set forth specific facts showing that there is a genuine issue of fact for trial."First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 288 (1968). Summary judgment is usually unwarranted when the defendant's state of mind is at issue. Clements v. Nassau County, 835 F.2d 1000, 1005 (2d Cir. 1987). In order to raise a fact issue regarding state of mind, however, there must be solid circumstantial evidence to prove plaintiff's case. Id. "Mere conclusory allegations, speculation or conjecture will not avail a party resisting summary judgment." Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

B. Conspiracy

Plaintiff pleads a cause of action under 42 U.S.C. § 1985(3) and 1986, alleging that the defendants conspired to violate his constitutional rights because he is African-American.

One element needed to prove a § 1985(3) conspiracy is a showing that the conspiracy was motivated by "some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action." Mian v. Donaldson, Lufkin Jenrette Sec., 7 F.3d 1085, 1088 (2d Cir. 1993) (citation and internal quotations omitted). Plaintiff has alleged that the alleged conspiracy against him was motivated by his race. However, he has provided no evidence, direct or circumstantial, that any of the defendants, Marcus, Calhoun or Countryman, were motivated by race. Summary judgment is therefore granted on the § 1985(3) claim.

Further, a § 1986 claim depends on the existence of an injury committed under § 1985. See 42 U.S.C. § 1986. As plaintiff's 1985 claim has been dismissed, it follows that summary judgment must also be granted on the § 1986 claim.

C. Retaliation

To establish a retaliation claim under § 1983, a plaintiff must show that his conduct was protected by the First Amendment and that the defendants retaliated against him for engaging in the protected conduct. Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994). The right to complain to public officials and to seek administrative relief are protected by the First Amendment. Id. Thus, plaintiff's attempts to obtain redress of a perceived violation of state law are protected conduct. Further, it is established that the filing of false accusations, when done in retaliation for protected conduct, is actionable under § 1983.See Taylor v. Sullivan, 980 F. Supp. 697, 704 (S.D.N.Y. 1997) (citing Franco v. Kelly, 854 F.2d 584, 585 (2d Cir. 1988)).

Plaintiff does not allege any evidence that directly suggests a retaliatory animus in Marcus or Calhoun. Further, he does not allege any evidence that directly demonstrates that Marcus or Calhoun were even aware of his protected conduct. However, the Court must assume for purposes of this motion that within two days of plaintiff's protected conduct, both Marcus and Cole filed false reports against plaintiff. The closeness in time between the two events and the fact that plaintiff informed at least four prison officials of his objections, including three corrections officers and Fleming, the Deputy Superintendent, is sufficient to allow a reasonable trier-of-fact to infer that Marcus and Calhoun learned of plaintiff's objections to prison policy and retaliated against him for it. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (holding that "temporal proximity" between an inmate's protected conduct and the adverse action may serve as "circumstantial evidence of retaliation.").

Defendants argue that they are entitled to qualified immunity. However, this argument must be rejected as it rests on factual assertions that are in dispute. For example, defendants assert, in making their qualified immunity argument, that Calhoun and Marcus "made observations of conduct by plaintiff that raised legitimate concerns directly related to the safety and security of the prison." Def. Mem. at 13. However, plaintiff disputes that he ever made the statements that they allege to have observed. Thus, while it is undisputed that prisons have a compelling interest in ensuring that work stoppages do not occur, the fact that plaintiff in fact instigated such an event has not been established by undisputed evidence. Thus, summary judgment on this claim cannot be granted to Marcus and Calhoun.

However, plaintiff has not made any allegations or presented any evidence that Countryman retaliated against him. The only information in the record regarding Countryman is that he received the memoranda from Calhoun and Marcus and some additional information from a confidential source. There is no evidence that he was aware that the memoranda were false, if indeed they were, or that the confidential source is fictional. Further, as Magistrate Judge Smith stated in his Report-Recommendation, adopted by this Court in its Order dated July 26, 1993 (Cholakis, J. presiding), "the information contained in these memos clearly was more than sufficient to cause concern about the safety and security of the facility and would justify . . . barring plaintiff from his job assignment in the mess hall." Report-Recommendation at 5. Accordingly, summary judgment on the retaliation claim is denied as to Calhoun and Marcus and granted as to Countryman.

D. Due Process

Plaintiff alleges that the defendants' actions violated his right to Due Process under the Fourteenth Amendment. To establish a violation of his due process rights, plaintiff must establish two elements: (1) that "the plaintiff had a protected liberty interest" and (2) that the "deprivation of that liberty interest occurred without due process of law.'" Sealey v. Giltner, 116 F.3d 47, 51-52 (2d Cir. 1996) (quoting Bedoya v. Coughlin, 91 F.3d 349, 351-52 (1996)). The interests which plaintiff alleges he was deprived of without due process were his right to participate in kitchen work, his placement and right to remain at the Eastern Correctional Facility and his education program. Deprivation of the work opportunities provided by a prison facility do not implicate a liberty interest. See Pena v. Recore, 1997 WL 581058 at *6 (E.D.N.Y. Sept. 16, 1997) (collecting cases). Neither does the loss of access to education programs, see Klos v. Haskell, 48 F.3d 81, 86 (2d Cir. 1995) or the transfer to another prison facility. See Sher v. Coughlin, 739 F.2d 77, 80 (2d Cir. 1984). Defendants are therefore granted summary judgment on the due process claim.

Accordingly, it is hereby

ORDERED that the defendants' motion for summary judgment is GRANTED as to Countryman, and the action against him is dismissed in its entirety; and GRANTED as to Calhoun and Marcus on the First and Third Causes of Action and DENIED as to the Second Cause of Action, based on alleged retaliation in violation of the First and Fourteenth Amendments; and it is further

ORDERED that the Clerk serve a copy of this order on all parties by regular mail.

IT IS SO ORDERED.