13-4226-pr
Nelson v. McGrain
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 5th day of March, two thousand fifteen.
PRESENT: REENA RAGGI,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
----------------------------------------------------------------------
JEFFREY A. NELSON,
Plaintiff-Appellant,
v. No. 13-4226-pr
MARC MCGRAIN, Correctional Officer,
Defendant-Appellee.
----------------------------------------------------------------------
FOR APPELLANT: Jeffrey A. Nelson, pro se, Attica, New York.
FOR APPELLEE: Barbara D. Underwood, Solicitor General; Andrea
Oser, Deputy Solicitor General; Martin A. Hotvet,
Assistant Solicitor General, for Eric T. Schneiderman,
Attorney General of the State of New York, Albany,
New York.
1
Appeal from a judgment of the United States District Court for the Western District
of New York (Michael A. Telesca, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is VACATED IN PART and the
case is REMANDED for further proceedings consistent with this order.
New York State prisoner Jeffrey A. Nelson, proceeding pro se, sued Correctional
Officer Marc McGrain, pursuant to 42 U.S.C. § 1983, for conduct allegedly violative of the
Eighth Amendment prohibition of cruel and unusual punishment and the First Amendment
prohibition of retaliation for protected speech, specifically, the filing of prison grievances.
The district court granted summary judgment in favor of McGrain, and Nelson now
appeals from that judgment insofar as it dismissed his First Amendment claim.1 We
review an award of summary judgment de novo, resolving all factual ambiguities and
drawing all reasonable inferences in favor of nonmovant Nelson, and we will affirm only if
the record reveals no genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Nagle v.
Marron, 663 F.3d 100, 104–05 (2d Cir. 2011).2 We assume the parties’ familiarity with
1
This Court granted Nelson leave to proceed in forma pauperis on May 8, 2014, only with
respect to his First Amendment retaliation claim, and dismissed the appeal in all other
respects. We therefore review the district court’s decision only insofar as it dismissed
Nelson’s First Amendment claim.
2
Although the district court’s decision was ambiguous as to the relief it granted, having
cited the standards for both a motion to dismiss and a motion for summary judgment, we
deem it to have granted summary judgment in favor of McGrain. Indeed, McGrain moved
for summary judgment and supported his motion with evidence outside the pleadings.
See Fed. R. Civ. P. 12(d) (stating that court must treat Rule 12(b)(6) motion as one for
2
the underlying facts, the procedural history of the case, and the issues on appeal, which we
reference only as necessary to explain our decision to vacate in part and remand.
To state a First Amendment retaliation claim, a prisoner must demonstrate
(1) protected speech or conduct, (2) adverse action by the defendant, and (3) a causal
connection between the two. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).
While the filing of prison grievances is a protected activity, see id. at 352–53; Graham v.
Henderson, 89 F.3d 75, 80 (2d Cir. 1996), “[o]nly retaliatory conduct that would deter a
similarly situated individual of ordinary firmness from exercising his or her constitutional
rights constitutes an adverse action.” Davis v. Goord, 320 F.3d at 353 (internal quotation
marks omitted). In making the latter determination, a court’s inquiry “must be tailored to
the different circumstances in which retaliation claims arise, bearing in mind that prisoners
may be required to tolerate more than average citizens before a retaliatory action taken
against them is considered adverse.” Id. (internal quotation marks and alterations
omitted). Nevertheless, a prisoner can state a retaliation claim in the absence of actual
deterrence. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (“[T]he fact that a
particular plaintiff . . . responded to retaliation with greater than ‘ordinary firmness’ does
not deprive him of a cause of action.”).
Although the district court acknowledged that Nelson asserted claims under the
First and Eighth Amendments, it appears to have analyzed his claims only under the latter,
summary judgment where “matters outside the pleadings are presented to and not excluded
by the court”). We therefore review the district court’s decision under the standard
governing an award of summary judgment.
3
performing no independent First Amendment analysis of Nelson’s claim of retaliation.
See Nelson v. McGrain, No. 12 Civ. 6292 (MAT), 2013 WL 5739043, at *2–3 (W.D.N.Y.
Oct. 22, 2013). Accordingly, we vacate the judgment insofar as it awarded judgment on
Nelson’s First Amendment claim and remand for the district court to consider that claim in
the first instance.
The district court is further directed to consider whether Nelson’s allegations,
understood as retaliation claims, excused any failure to exhaust administrative remedies as
to his sexual assault allegations and his claim that false misbehavior reports were filed
against him. See Hemphill v. New York, 380 F.3d 680, 686–90 (2d Cir. 2004) (excusing
failure to exhaust where (1) administrative remedies unavailable to inmate, (2) defendants
waive defense of non-exhaustion or are estopped by own conduct inhibiting inmate’s
exhaustion, or (3) special circumstances justify inmate’s failure to exhaust administrative
remedies).
The judgment of the district court is VACATED IN PART and the case is
REMANDED for further proceedings consistent with this order.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
4