09-1249-pr
Bordas v. Payant
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 TO 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 Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 22nd day of April, two thousand ten.
PRESENT:
PIERRE N. LEVAL,
ROBERT A. KATZMANN,
BARRINGTON D. PARKER,
Circuit Judges.
_____________________________________
Homero Bordas,
Plaintiff-Appellant,
v. 09-1249-pr
Leo E. Payant, Superintendent, Mohawk Correctional Facility,
Gullo, Correctional Sergeant, Mohawk Correctional Facility,
D. Norman, Correction Officer, Mohawk Correctional Facility,
M. Mullin, Correction Officer, Mohawk Correctional Facility,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Homero Bordas, pro se, Ogdenburg,
N.Y.
FOR DEFENDANTS-APPELLEES: Andrew M. Cuomo, Attorney General
of the State of New York; Barbara
D. Underwood, Solicitor General;
Nancy A. Spiegel, Senior Assistant
Solicitor General; Kate H. Nepveu,
Assistant Solicitor General,
Albany, N.Y.
Appeal from a judgment of the United States District Court
for the Northern District of New York (McAvoy, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Homero Bordas, proceeding pro se, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 claims. We
assume the parties’ familiarity with the underlying facts, the
procedural history of the case, and the issues on appeal.
As an initial matter, to the extent that Appellant asserts
on appeal that his due process rights were violated because he
was denied access to an interpreter at a disciplinary hearing, we
decline to consider this or any related arguments, as Appellant
did not raise these issues before the district court. See
Singleton v. Wulff, 428 U.S. 106, 120-21 (1976) (recognizing the
well established general rule that a court of appeals will not
consider an issue raised for the first time on appeal); see also
Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir. 2005)).
This Court reviews de novo a district court’s dismissal of a
complaint pursuant to Fed. R. Civ. P. 12(b)(6), “construing the
complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the
plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2002).
A complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v.
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Twombly, 550 U.S. 544, 570 (2007). A claim will have facial
plausibility “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009). In the case of a pro se
complaint, a court must construe the complaint liberally, see
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and should not
dismiss it without granting the plaintiff leave to amend “at
least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Gomez v. USAA
Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999).
To state a First Amendment retaliation claim under 42 U.S.C.
§ 1983, the plaintiff must allege that: (1) he has a right
protected by the First Amendment; (2) the defendant’s actions
were motivated by or substantially caused by the plaintiff’s
exercise of that right; and (3) the defendant’s actions
effectively chilled the plaintiff’s exercise of his rights. See
Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir. 1998).
Additionally, a prisoner has a substantive due process right,
actionable under § 1983, not to be subjected to false misconduct
charges as retaliation for his exercise of a constitutional right
such as petitioning the government for redress of his grievances.
See Jones v. Coughlin, 45 F.3d 677, 679-680 (2d Cir. 1995).
However, we have stated that “a complaint of retaliation that is
wholly conclusory can be dismissed on the pleadings alone.”
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Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
Here, the district court properly dismissed Appellant’s
retaliation claims against defendants Norman and Mullin. As the
district court correctly determined, Appellant failed to
plausibly allege any causal connection between the conduct of
Norman and Mullin and Appellant’s grievance concerning the
misconduct report by Officer Critelli. Additionally, to the
extent that Appellant alleged that Norman and Mullin retaliated
against him based on his statements at a disciplinary hearing,
the allegations were conclusory and lacked sufficient detail to
plausibly suggest that Norman and Mullin acted to chill his right
to be heard at the hearing.
Finally, we note that Appellant has not appealed the
dismissal of his claims against defendants Gullo and Payant and
his non-retaliation claims against Norman and Mullin. See
LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995).
We have considered Appellant’s remaining arguments and find
them to be without merit. Accordingly, we AFFIRM the judgment of
the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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