Bordas v. Payant

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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