Dorsey v. Fisher

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10-2881-pr Dorsey v. Fisher 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. 1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 13th day of March, two thousand and twelve. 5 6 PRESENT: BARRINGTON D. PARKER, 7 RICHARD C. WESLEY, 8 Circuit Judges 9 SIDNEY H. STEIN,* 10 District Judge. 11 12 LEROY DORSEY, 13 14 Plaintiff-Appellant, 15 16 v. 10-2881-pr 17 18 COMM. BRIAN FISHER, N.Y.S.D.O.C.S ET AL EMPLOYEES, 19 SUPERINTENDENT RAYMOND J. CUNNINGHAM, WOODBOURNE CORR. FAC., 20 JEAN G. KING, D.S.P WOODBOURNE, C. DAVIS, F.R.P. 21 COORDINATOR, COUNSILOR WOODBOURNE, C.C. SCHLIFIKIN, 22 COUNSILOR, WOODBOURNE, SGT. HOPKINS, WOODBOURNE CORR., SGT. 23 R MITCHELL, WOUDBOURNE CORR., C.O. SHANE HOWE, C.O. SHANE 24 HOWE, WOODBOURNE CORR., D.S.S PAUL GONYEA, WOODBOURNE CORR., 25 SMITH, C.O.-W.C.F., C.O. JERRY STEFANUK, C.O.-W.C.F. 26 CARTWRIGHT, SGT. CAPELLO, MCCOY, 27 28 Defendants-Appellees. 29 30 31 * The Honorable Sidney H. Stein, of the United States District Court for the Southern District of New York, sitting by designation. 1 FOR APPELLANT: JAMES J. BEHA II (Daniel J. Kramer, on 2 the brief), Paul, Weiss, Rifkind, Wharton 3 & Garrison LLP, New York, NY 4 5 FOR APPELLEES: SUDARSANA SRINIVASAN, Assistant Solicitor 6 General (Barbara D. Underwood, Solicitor 7 General, Michael S. Belohlavek, Senior 8 Counsel, on the brief), for Eric T. 9 Schneiderman, Attorney General of the 10 State of New York, New York, NY 11 12 Appeal from the United States District Court for the 13 Southern District of New York (Berman, J.). 14 15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 16 AND DECREED that the judgment of United States District 17 Court for the Southern District of New York is AFFIRMED. 18 Plaintiff-Appellant Leroy Dorsey appeals from an order 19 of the United States District Court for the Southern 20 District of New York (Berman, J.), granting defendants- 21 appellees’ motion to dismiss Dorsey's complaint. On 22 November 18, 2008, Dorsey, proceeding pro se, filed a Third 23 Amended Complaint pursuant to 42 U.S.C. § 1983 alleging, 24 inter alia, that the defendants, employees of the New York 25 State Department of Correctional Services ("DOCS"), violated 26 his constitutional rights under the First, Fourth, Fifth, 27 Eighth, Ninth, and Fourteenth Amendments while Dorsey was 28 incarcerated at Woodbourne Correctional Facility 29 ("Woodbourne"). On appeal, Dorsey challenges only the 30 district court's dismissal of his claims against Sergeant 2 1 Mitchell, Sergeant Cappello, and Deputy Superintendent Paul 2 Gonyea (collectively, the "Appellees") for First Amendment 3 retaliation. 4 We review de novo a district court's dismissal of a 5 complaint pursuant to Rule 12(b)(6), “accepting all factual 6 allegations in the complaint and drawing all reasonable 7 inferences in the plaintiff's favor.” ATSI Commc'n, Inc. v. 8 Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007). To survive 9 a motion to dismiss, a complaint must plead “enough facts to 10 state a claim to relief that is plausible on its face.” 11 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In 12 applying this standard, we assume the parties’ familiarity 13 with the underlying facts, the procedural history, and the 14 issues presented for review. 15 To establish a prima facie case of First Amendment 16 retaliation, Dorsey must demonstrate: "(1) that the speech 17 or conduct at issue was protected, (2) that the defendant 18 took adverse action against the plaintiff, and (3) that 19 there was a causal connection between the protected speech 20 and the adverse action." Gill v. Pidlypchak, 389 F.3d 379, 21 380 (2d Cir. 2004) (internal quotation marks omitted). 22 “Only retaliatory conduct that would deter a similarly 23 situated individual of ordinary firmness from exercising his 3 1 or her constitutional rights constitutes an adverse action 2 for a claim of retaliation.” Davis v. Goord, 320 F.3d 346, 3 353 (2d Cir. 2003) (internal quotation marks omitted). 4 Notably, we approach prisoner retaliation claims "with 5 skepticism and particular care, because virtually any 6 adverse action taken against a prisoner by a prison 7 official—even those otherwise not rising to the level of a 8 constitutional violation—can be characterized as a 9 constitutionally proscribed retaliatory act." Id. at 352 10 (internal quotation marks omitted). 11 Here, Dorsey failed to state a claim for retaliation 12 that is plausible on its face against any of the Appellees. 13 Dorsey’s claim against Mitchell fails because none of 14 Mitchell’s alleged conduct constitutes “adverse action.” 15 Dorsey's claims of retaliatory verbal abuse by Mitchell do 16 not include any allegations of physical harm, nor are they 17 alleged with any specificity to suggest that they would 18 deter a prisoner of ordinary firmness from exercising his 19 constitutional rights. Similarly, allegations that Mitchell 20 ordered or otherwise conducted two searches of Dorsey’s cell 21 and two searches of his person over a six-month period are 22 insufficient to show adverse action. 23 Dorsey also alleges that Mitchell threatened to destroy 4 1 any grievance Dorsey filed and that Mitchell removed from 2 the prison mailbox a grievance Dorsey filed. Even assuming 3 that the destruction of grievances is an adverse action, 4 Dorsey's complaint fails to plead more than the sheer 5 possibility that Mitchell, in fact, destroyed the 6 grievances. Dorsey merely alleges that because Mitchell 7 threatened to throw away his grievances, Mitchell was 8 responsible when they later “disappeared” from Dorsey's 9 mailbox. Without more, where, as here, the plaintiff 10 alleges the ultimate fact of retaliation in a conclusory and 11 speculative manner, he fails to state a claim for 12 retaliation. See, e.g., Flaherty v. Coughlin, 713 F.2d 10, 13 13 (2d Cir. 1983). 14 Dorsey’s claims against Cappello and Gonyea fail 15 because Dorsey has not alleged a causal connection between 16 their acts and Dorsey’s protected speech. To sufficiently 17 allege a causal connection, Dorsey’s allegations must 18 support an inference that the protected conduct was "a 19 substantial or motivating factor for the adverse actions 20 taken by prison officials." Bennett v. Goord, 343 F.3d 133, 21 137 (2d Cir. 2003). With respect to Cappello, Dorsey has 22 not provided any plausible reason why Cappello would file an 23 allegedly false misbehavior report other than that Dorsey 5 1 filed a grievance against Mitchell. This alone is 2 insufficient to show Cappello’s retaliatory intent. 3 Similarly, the fact that Dorsey filed a grievance against 4 Mitchell does not support an inference that Gonyea 5 retaliated against Dorsey by sentencing him to seventy-five- 6 days’ solitary confinement. Finally, Dorsey’s contention 7 that Gonyea retaliated against him because Dorsey filed a 8 separate § 1983 action against Gonyea is insufficient to 9 show retaliatory intent. The § 1983 action was filed at an 10 unspecified point in the year prior to Dorsey's disciplinary 11 hearing before Gonyea. Without any more specificity, that 12 temporal connection does not suffice to plead causation. 13 We have considered Dorsey’s remaining arguments and, 14 after a thorough review of the record, find them to be 15 without merit. 16 For the foregoing reasons, the judgment of the district 17 court is hereby AFFIRMED. 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21 22 6