ANDREW J. PECK, United States Magistrate Judge:
Pro se plaintiff Michael A. Roseboro brings this action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),
Presently before the Court is defendants' motion for summary judgment, in which defendants argue that: (1) Roseboro failed to exhaust administrative remedies as required under the Prison Litigation Reform Act; (2) Roseboro fails to assert a "[p]lausible [c]laim" for retaliation, violation of his due process rights or cruel and unusual punishment; and (3) defendants are entitled to qualified immunity. (Dkt. No. 46: Notice of Motion; Dkt. No. 47: Defs. Br. at 13-24; Dkt. No. 66: Defs. Reply Br. at 1-8.)
The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 20: § 636(c) Consent Form.)
For the reasons set forth below, defendants' summary judgment motion (Dkt. No. 46) is GRANTED.
Roseboro was an inmate at the Metropolitan Correctional Center ("MCC") from August 12, 2008 to December 7, 2009. (Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶ 1; Dkt. No. 61: Roseboro Rule 56.1 Stmt. ¶ 1; Dkt. No. 62: Roseboro Aff. at p. 1.)
In January—February 2009, Roseboro was housed in and worked as an orderly in MCC's 11-South Unit. (Dkt. No. 51: Gillespie Aff. ¶ 3; Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶¶ 9, 14; Dkt. No. 61: Roseboro Rule 56.1 Stmt. ¶¶ 9, 14.) During that time period, Aniasha Gillespie worked in 11-South Unit as a correction officer. (Gillespie Aff. ¶¶ 1-2; Defs. & Roseboro Rule 56.1 Stmts. ¶ 10.)
According to Roseboro, on February 12, 2009, Officer Gillespie asked Roseboro why he was incarcerated and he told her he was accused of stealing three million dollars. (Dkt. No. 5: Am. Compl. at pp. 3 (¶ D), 8-9, 31; Roseboro Rule 56.1 Stmt. ¶ 22; Dkt. No. 62: Roseboro Aff. ¶¶ 1, 4, 38.) Officer Gillespie asked if the money was recovered and offered to get the stashed money, "take some for herself, put some on [Roseboro's] books and . . . hold on to the rest." (Am. Compl. at pp. 9-10, 31, 38; Roseboro Rule 56.1 Stmt. ¶ 22; Roseboro Aff. ¶¶ 5-6.)
Additionally, according to Roseboro, Officer Gillespie told Roseboro that she read his mail
In late February 2009, Roseboro reported Officer Gillespie's conduct to his counselor, Wanda Wingate. (Dkt. No. 5: Am. Compl. at pp. 14, 31-32; Dkt. No. 48: Counselor Wingate Aff. ¶ 5; Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶¶ 11, 22; Dkt. No. 61: Roseboro Rule 56.1 Stmt. ¶¶ 11, 22; Dkt. No. 62: Roseboro Aff. ¶ 10.) Roseboro alleges that Counselor Wingate told him that Officer Gillespie was her "homegirl," and that Counselor Wingate "would take care of the situation." (Am. Compl. at p. 14; Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 73; Roseboro Rule 56.1 Stmt. ¶ 24; Roseboro Aff. ¶¶ 11, 38.) Roseboro admits that Counselor Wingate never discouraged him from filing a grievance against Officer Gillespie, or anyone else. (Roseboro Dep. at 73, 113-14.)
Two weeks later, on March 10, 2009, Roseboro went to Counselor Wingate's office to discuss a visitor request that he had sent in a month earlier and that he felt Counselor Wingate was not processing. (Am. Compl. at pp. 14, 32; Counselor Wingate Aff. ¶¶ 13-14; Roseboro Dep. at 78-79; Defs. & Roseboro Rule 56.1 Stmts. ¶¶ 33-34; Roseboro Aff. ¶ 12.) Counselor Wingate informed Roseboro that the request was denied because the visitor, Angelina Russ, had a criminal history. (Counselor Wingate Aff. ¶ 14; Defs. Rule 56.1 Stmt. ¶¶ 31-32, 35; Roseboro Rule 56.1 Stmt. ¶ 32.) According to Counselor Wingate, Roseboro "became irate" and "yelled and punched the wall" of her office. (Counselor Wingate Aff. ¶ 15; Defs. Rule 56.1 Stmt. ¶¶ 35-36.) After Roseboro refused to leave, Counselor Wingate called for additional staff and Roseboro was taken to the Special Housing Unit ("SHU"). (Counselor Wingate Aff. ¶¶ 16-17; Defs. Rule 56.1 Stmt. ¶¶ 37-38; Roseboro Aff. ¶ 13.)
Counselor Wingate filed an incident report against Roseboro. (Counselor Wingate Aff. ¶ 18; Dkt. No. 53: McFarland Aff. Ex. C: 3/10/09 Incident Report ¶¶ 1-13; Defs. & Roseboro Rule 56.1 Stmts. ¶ 39.)
On March 12, 2009, a Unit Disciplinary Committee ("UDC") comprised of Case Manager Ivy Jenkins and Counselor Jackie Gross-Campbell found Roseboro guilty of the charges in Counselor Wingate's incident report and sanctioned Roseboro to a ninety-day loss of commissary privileges and a six-month loss of visitation privileges. (Am. Compl. at pp. 15, 33; 3/10/09 Incident Report ¶¶ 18-20; Defs. & Roseboro Rule 56.1 Stmts. ¶ 42; Roseboro Aff. ¶ 15.) Roseboro filed a grievance challenging the sanction, alleging that, although Counselor Wingate's incident report stated that Roseboro punched the walls of her office, she never told that to the responding officer. (Am. Compl. at pp. 15, 34; McFarland Aff. Ex. D: Roseboro March Grievance ¶ A; Defs. Rule 56.1 Stmt. ¶ 43.) On April 16, 2009, MCC Warden Duke Terrell sustained Roseboro's sanction. (McFarland Aff. Ex. D: 4/16/09 Terrell Letter to Roseboro; Defs. & Roseboro Rule 56.1 Stmts. ¶ 45.) After Roseboro was released from the SHU, Counselor Wingate told him "that there were no hard feelings between" them. (Roseboro Dep. at 128-29; Defs. & Roseboro Rule 56.1 Stmts. ¶ 46.)
On June 1, 2009, Officer Serena Wingate, Counselor Wingate's niece, was working at 11-North Unit where Roseboro was housed. (Dkt. No. 48: Counselor Wingate Aff. ¶ 25; Dkt. No. 49: Officer Wingate Aff. ¶¶ 1-3, 21; Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶¶ 47-49; Dkt. No. 61: Roseboro Rule 56.1 Stmt. ¶¶ 47-49.) At about 4:00 p.m., Officer Wingate conducted an inmate count at 11-North Unit. (Dkt. No. 5: Am. Compl. at p. 16; Officer Wingate Aff. ¶ 4; Defs. & Roseboro Rule 56.1 Stmts. ¶ 51; Dkt. No. 62: Roseboro Aff. ¶ 17.) MCC rules require that "inmates have to stand for the count and have to be standing when the officer approaches his or her cell." (Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 129-30; Defs. & Roseboro Rule 56.1 Stmts. ¶ 52.) According to Officer Wingate, Roseboro was not standing when she arrived at his cell, but rather just "lifted his bottom up without standing." (Officer Wingate Aff. ¶¶ 6-8; Defs. Rule 56.1 Stmt. ¶¶ 53-54.)
Roseboro claims that he "was in the process of standing up" when Officer Wingate approached and that she called him a "motherfucker" and said she was going to report his conduct. (Am. Compl. at p. 16, 28; Roseboro Dep. at 80-81, 129-30; Roseboro Rule 56.1 Stmt. ¶¶ 52-53, 79; Roseboro Aff. ¶ 17.) Roseboro also claims that Officer Wingate denied his requests to speak to a lieutenant. (Am. Compl. at pp. 16-17; Roseboro Dep. at 81-82; Roseboro Aff. ¶ 20.)
According to Roseboro, Officer Wingate distributed the mail after the inmate count, but withheld a letter to Roseboro from his wife. (Roseboro Dep. at 82; Roseboro Rule 56.1 Stmt. ¶ 62.) Officer Wingate only gave the letter to Roseboro after he started complaining. (Roseboro Rule 56.1 Stmt. ¶ 62.) After the mail was delivered, Lieutenant Delaney took Roseboro to the SHU for not standing during the inmate count. (Am. Compl. at p. 17; Defs. Rule 56.1 Stmt. ¶ 59; Roseboro Rule 56.1 Stmt. ¶ 60; Roseboro Aff. ¶ 21.)
After Roseboro was taken to the SHU, Officer Wingate packed all of Roseboro's property, filled out an inventory slip and gave the property and the slip to an "internal officer" to take to the SHU property officer. (Officer Wingate Aff. ¶ 18; Dkt. No. 53: McFarland Aff. Ex. F: Inmate Personal Property Record; Defs. Rule 56.1 Stmt. ¶ 63.) When Roseboro's property was delivered to him in the SHU, his food, clothes, pictures and one of his legal binders were missing. (Defs. Rule 56.1 Stmt. ¶ 64; Roseboro Rule 56.1 Stmt. ¶¶ 63-64.)
On June 4, 2009, a UDC comprised of Case Manager Ivy Jenkins and Counselor Wingate conducted a hearing on the charges in Officer Wingate's incident report. (Am. Compl. at pp. 17-18, 28-29; Counselor Wingate Aff. ¶¶ 20, 24; McFarland Aff. Ex. G: 6/1/09 Incident Report ¶ 21; Defs. & Roseboro Rule 56.1 Stmts. ¶ 67; Roseboro Aff. ¶¶ 22, 25.)
During the hearing, Roseboro "became insolent" and cursed at Case Manager Jenkins and Counselor Wingate. (Counselor Wingate Aff. ¶ 29; McFarland Aff. Ex. H: 6/4/09 2:25 p.m. Incident Report ¶¶ 11, 19
Roseboro also claims that on December 4, 2009 he saw Officer Wingate in the hallway and she gave him "a dirty look and turned her back." (Am. Compl. at pp. 20, 24.) About thirty minutes later, a lieutenant called Roseboro to his office and told him that Officer Wingate had called and alleged that Roseboro was "bothering her." (Am. Compl. at pp. 20-21, 24.) After Roseboro denied the allegation and claimed that Officer Wingate was "harassing" him, the lieutenant told Roseboro "not to worry about it." (Am. Compl. at pp. 21, 24-25.) Although Roseboro was never sanctioned for this incident, Roseboro filed a grievance against Officer Wingate, which was never addressed. (Am. Compl. at pp. 21, 23 (Roseboro December Grievance), 24-25, 26 (Roseboro 1/26/10 Letter to Warden).)
Broadly reading his allegations, Roseboro claims that defendants retaliated against him for filing grievances against Officer Gillespie and Counselor Wingate (Dkt. No. 5: Am. Compl. at p. 41; Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 77, 86-87, 89-90; Dkt. No. 62: Roseboro Aff. ¶ 24a) by committing the following retaliatory acts: (1) Officer Gillespie wrote Roseboro's wife's name on a church tract he sent to another woman (Am. Compl. at pp. 8-9, 31; Roseboro Dep. at 88); (2) Officer Gillespie spoke with Counselor Wingate and Officer Wingate about her issues with Roseboro, which led to their retaliatory acts (Roseboro Dep. at 89); (3) Counselor Wingate failed to process Roseboro's visitor requests (Roseboro Dep. at 74, 78-79); (4) Counselor Wingate denied Roseboro's visitor request relating to Angelina Russ (Roseboro Dep. at 74-75, 77-79); (5) Counselor Wingate wrote a false incident report alleging that Roseboro threatened her and was screaming and punching the walls of her office on March 10, 2009 (Am. Compl. at pp. 14-15, 32-33; Roseboro Dep. at 75-76); (6) Officer Wingate wrote an incident report for Roseboro failing to stand during the June 1, 2009 inmate count even though he was "in the process of standing" (Am. Compl. at pp. 16, 28; Roseboro Dep. at 80-81, 129); (7) Officer Wingate cursed at Roseboro during the inmate count (Am. Compl. at pp. 16, 28; Roseboro Dep. at 81, 129-30); (8) Officer Wingate denied Roseboro's requests to see a lieutenant after the inmate count (Am. Compl. at pp. 16-17; Roseboro Dep. at 81-82); (9) Officer Wingate withheld a letter from Roseboro's wife after the inmate count (Am. Compl. at p. 40; Roseboro Dep. at 82); (10) Officer Wingate threw out Roseboro's property after he was placed in the SHU (Roseboro Dep. at 83-84, 86); and (11) Officer Wingate "harassed" Roseboro on December 4, 2009 by telling a lieutenant that he was "bothering her" (Am. Compl. at pp. 21, 24-25).
Roseboro also claims that his due process rights were violated when (a) he lost his privileges as a result of failing to stand during the June 1, 2009 inmate court
Additionally, Roseboro claims that he was subject to cruel and unusual punishment when his privileges were taken away, when he shared a cell with "cold-blooded murderers" in the SHU, and when he was sent to a low-security prison instead of a camp. (Am. Compl. at p. 40; Roseboro Dep. at 100-101, 103.)
Roseboro claims that defendants caused him "emotional and mental distress" and seeks $250,000 in damages. (Am. Compl. at 5 (¶ V), 41.)
Rule 56(a) of the Federal Rules of Civil Procedure provides that the Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991).
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
To defeat a summary judgment motion, 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. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The non-moving party normally must set out specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(c)(1); see, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, "[t]he time has come . . . `to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir.1987); Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. at 2510. While "disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment[,][f]actual disputes that are irrelevant or unnecessary will not be counted." Id. at 248, 106 S.Ct. at 2510 (citations omitted); see also, e.g., Knight v. U.S. Fire Ins. Co., 804 F.2d at 11-12.
"The Court recognizes that it must `must extend extra consideration' to pro se plaintiffs" and that "pro se parties are to be given special latitude on summary judgment motions." Salahuddin v. Coughlin, 999 F.Supp. 526, 535 (S.D.N.Y.1998) (Rakoff, D.J. & Peck, M.J.) (citations & internal quotations omitted); see, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (a pro se party's pleadings should be read liberally and interpreted "`to raise the strongest arguments that they suggest'").
Under Bivens and its progeny, federal courts can hear suits for money damages against federal government officials accused of violating constitutional rights. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 396-97, 91 S.Ct. 1999, 2004-05, 29 L.Ed.2d 619 (1971); see also, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66,
"`Bivens actions are not significantly dissimilar to claims brought under [42 U.S.C.] §§ 1981 and 1983 in terms of the interests being protected, the relief which may be granted and the defenses which may be asserted.'" Chin v. Bowen, 833 F.2d 21, 23-24 (2d Cir.1987). "Because the two actions share the same `practicalities of litigation,' federal courts have typically incorporated § 1983 law into Bivens actions." Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995) (citation omitted).
To prove a First Amendment retaliation claim, "a prisoner must show `(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.'" Espinal v. Goord, 558 F.3d 119, 128 (2d Cir.2009).
For the second prong, adverse action, the plaintiff must show that the defendant's "retaliatory conduct . . . would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights. . . . Otherwise, the retaliatory act is simply de minimis, and therefore outside the ambit of constitutional protection." Dawes v. Walker, 239 F.3d 489, 492-93 (2d Cir.2001) (citations omitted), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).
For the third prong, causal connection between the protected speech and the adverse action, a court may consider a number of factors, including "any statements made by the defendant concerning his motivation" and "the temporal proximity between the protected activity and the defendant's adverse action." Williams v. Muller, 98 Civ. 5204, 2001 WL 936297 at *3 (S.D.N.Y. Aug. 17, 2001); see, e.g., Espinal v. Goord, 558 F.3d at 129; Gill v. Jones, 95 Civ. 9031, 2001 WL 1346012 at *6 (S.D.N.Y. Nov. 1, 2001); Walker v. Keyser, 2001 WL 1160588 at *6; Rivera v. Goord, 119 F.Supp.2d at 339. In the context of retaliatory false misbehavior reports, a court may also consider the plaintiff's prior good disciplinary record and whether he was vindicated at the subsequent disciplinary hearing. See, e.g., Jones v. Marshall, 08 Civ. 0562, 2010 WL 234990 at *4 (S.D.N.Y. Jan. 19, 2010); Brown v. Brown, No. 08-CV-0209, 2010 WL 1186569 at *6 (N.D.N.Y. Jan. 19, 2010), report & rec. adopted, 2010 WL 1186566 (N.D.N.Y. Mar. 24, 2010); Burton v. Lynch, 664 F.Supp.2d 349, 367 (S.D.N.Y. 2009); Baskerville v. Blot, 224 F.Supp.2d 723, 732 (S.D.N.Y.2002).
If the plaintiff satisfies his burden,
Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996) (citations omitted).
Prisoners' claims of retaliation, of course, must be examined with skepticism and particular care because they are "`prone to abuse' since prisoners can claim retaliation for every decision they dislike." Graham v. Henderson, 89 F.3d at 79 (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983)); accord, e.g., Gill v. Pidlypchak, 389 F.3d 379, 385 (2d Cir. 2004); Bennett v. Goord, 343 F.3d at 137; Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003); Dawes v. Walker, 239 F.3d at 491; Jackson v. Johnson, 15 F.Supp.2d at 364 (& cases cited therein).
Roseboro satisfies his burden with respect to the first prong of the First Amendment retaliation analysis: that the speech or conduct at issue was protected. Roseboro alleges that defendants retaliated against him for filing prison grievances. (See page 362 above.) "It is well settled that the filing of a prison grievance is a protected activity." Mateo v. Fischer, 682 F.Supp.2d 423, 433 (S.D.N.Y.2010).
Roseboro alleges that within two weeks after Officer Gillespie admonished him on February 12, 2009 for telling two women he loved them, Officer Gillespie wrote his wife's name on a church tract he sent to another woman (first retaliation claim). (See pages 358-59 above.) Roseboro claims that Officer Gillespie wrote his wife's name on the church tract in retaliation for him filing a grievance against her. (Dkt. No. 60: Roseboro Br. at 53.)
Roseboro also claims that Officer Gillespie retaliated by talking to Counselor Wingate and Officer Wingate about his grievance, which led to their retaliatory acts (second retaliation claim). (See page 362 above.) This claim fails because Roseboro has not provided any evidence that such a discussion ever took place. Rather, Roseboro assumes that Officer Gillespie and Counselor Wingate discussed these matters because he saw them "talking all the time" and they admitted that they discussed work matters. (Dkt. No. 60: Roseboro Br. at 20, 27-28, 49; see also page 359 n. 6 above.)
Accordingly, Officer Gillespie is granted summary judgment dismissing Roseboro's retaliation claims against her.
Roseboro claims that Counselor Wingate retaliated against him for his grievance against Officer Gillespie by failing to process his visitor requests (third retaliation claim), denying Angelina Russ' request to visit him (fourth retaliation claim) and filing a false incident report on March 10, 2009 (fifth retaliation claim). (See pages 359-60, 362 above.)
These claims fail to satisfy the third prong: causal connection between the protected speech and the alleged adverse actions. In addressing this requirement, a court may consider: (1) any statements made by the defendant concerning his motivation for his conduct; (2) the temporal proximity between the protected activity and the alleged adverse action; (3) the plaintiff's prior good disciplinary record; and (4) whether the plaintiff was vindicated at the subsequent disciplinary hearing. (See cases cited on page 366 above.)
Roseboro does not present any evidence that Counselor Wingate's actions were motivated by retaliation. Indeed, Roseboro does not present any evidence that Counselor Wingate even knew that Roseboro filed a grievance against Officer Gillespie. While Roseboro may have spoken to Counselor Wingate about his issues with Officer Gillespie (see page 359 above), he never submitted a grievance to Counselor Wingate and merely speculates that "someone brought it to her attention." (Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 113-14; Dkt. No. 60: Roseboro Br. at 19-20). This speculation is not enough to defeat summary judgment. (See cases cited on pages 368-69 above.)
Moreover, even assuming that Counselor Wingate knew about Roseboro's grievance against Officer Gillespie, he has failed to provide any basis to believe that Counselor Wingate retaliated for a grievance that she was not personally named in. See, e.g., Hare v. Hayden, 09 Civ. 3135, 2011 WL 1453789 at *4 (S.D.N.Y. Apr. 14, 2011) ("As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant."); Bryant v. Goord, 99 Civ. 9442, 2002 WL 553556 at *2 (S.D.N.Y. Apr. 12, 2002) ("The grievances that Plaintiff filed prior to the disciplinary proceedings at issue here did not involve any of these Defendants, therefore, there is no basis to assume that these Defendants instituted disciplinary proceedings against Plaintiff to retaliate for his filing grievances against other corrections officers."); Williams v. Goord, 111 F.Supp.2d 280, 290 (S.D.N.Y. 2000) ("[P]laintiff has not sufficiently alleged that the conduct of [the defendants] was motivated by plaintiff's activities. Plaintiff fails to plead specific facts or to assert any causal connection between his filing of grievances against [one defendant] and his alleged denial of exercise by" the other defendants.); cf. Wright v. Goord, 554 F.3d 255, 274 (2d Cir.2009) (affirming dismissal of plaintiff's retaliation claim against correction officers where, inter alia, the alleged basis for retaliation was a complaint about a prior assault by another inmate that did not name any of the defendants or any other correction officers).
Direct evidence is not required where "circumstantial evidence of a retaliatory motive is sufficiently compelling." Bennett v. Goord, 343 F.3d 133, 138-39 (2d Cir. 2003). The only circumstantial evidence of retaliation here is Roseboro's claim that the adverse actions first started after he filed a grievance against Officer Gillespie. (See Roseboro Br. at 20, 51-52.) This Court assumes for summary judgment purposes that the first grievance was filed in early March 2009 as Roseboro contends (see pages 358-59 above) and Counselor Wingate's allegedly retaliatory March 10, 2009 false incident report began immediately thereafter.
To be sure, a "plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action." Espinal v. Goord, 558 F.3d at 129. Such circumstantial evidence of retaliation, however, without more, is insufficient to survive summary judgment. See, e.g., Ayers v. Stewart, 1996 WL 346049 at *1 (Plaintiff's "reliance on circumstantial evidence of retaliation-namely, the proximity of the disciplinary action to his complaint where no misbehavior reports were previously filed against him-does not suffice to defeat summary judgment."); Brown v. Graham, No. 07-CV-1353, 2010 WL 6428251 at * 18-19 (N.D.N.Y. Mar. 30, 2010) ("[T]emporal proximity is the only fact that might give rise to a determination by a reasonable factfinder that the misbehavior report was issued in retaliation for plaintiff's grievance activity. However, that link is insufficient when considered in light of the present record. There is no evidence that [defendant] was aware of plaintiff's grievance activity. . . ."), report & rec. adopted, 2011 WL 1213482 (N.D.N.Y. Mar. 31, 2011); Williams v. Goord, 111 F.Supp.2d at 290 ("Although the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment."); Gill v. DeFrank, 98 Civ. 7851, 2000 WL 270854 at *16 (S.D.N.Y. Mar. 9, 2000) (Peck, M.J.) ("While the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment."), report & rec. adopted as modified, 2000 WL 897152 (S.D.N.Y. July 6, 2000); cf. Blue v. Koren, 72 F.3d 1075, 1085 (2d Cir.1995)
Even when the temporal proximity evidence is combined with Roseboro's prior good prison record (see page 359 n. 7 above), that is insufficient to defeat summary judgment. See, e.g., Ayers v. Stewart, 1996 WL 346049 at *1 (defendants entitled to summary judgment where the only circumstantial evidence of retaliation is plaintiff's prior good prison record and the temporal proximity between his grievance and the alleged adverse action).
Viewing Roseboro's retaliation claims with the appropriate skepticism (see cases cited on page 367 above), this Court finds that Roseboro has failed to provide sufficient evidence to establish a causal connection between his grievance against Officer Gillespie and Counselor Wingate's alleged adverse action.
Even assuming that Roseboro could establish a causal connection between his protected speech and Counselor Wingate's actions, his third and fourth retaliation claims still fail. Specifically, Roseboro claims that Counselor Wingate retaliated by failing to process his visitor requests for approximately one month (third retaliation claim). (See pages 359, 362 above.) As Roseboro presents no evidence demonstrating that this delay was unusually long, Roseboro's third retaliation claim fails because there is no basis for this Court to find that Counselor Wingate's alleged delay constituted an adverse action. See, e.g., Daniels v. Walker, No. 93-CV-0570, 1995 WL 760707 at *4 (N.D.N.Y. Nov. 25, 1995) (denying plaintiff's retaliation claim that defendants delayed in implementing his approved visit because "the record is barren of any evidence supporting plaintiff's bald assertion that his request for an [Family Reunion Program] visit took an unusually or suspiciously long time to be accommodated.").
Roseboro also claims that Counselor Wingate retaliated by denying Angelina Russ' request to visit him (fourth retaliation claim). (See pages 359, 362 above.) In his deposition, however, Roseboro acknowledged that Russ had a criminal record, but baldly claimed that retaliation was "one of the reasons" Counselor Wingate denied Russ' visit request. (Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 77-79.) It is well established that a defendant can defeat a retaliation claim by showing, by a preponderance of the evidence, that the action would have been taken "`even in the absence of the protected conduct.'" Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996); see also cases cited on page 367 n. 20 above. In making this determination, the Second Circuit has "established a `presumption that a prison official's acts to maintain order are done
Counselor Wingate states that the visitor request was "legitimately denied" because Russ had a criminal background. (Dkt. No. 48: Counselor Wingate Aff. ¶ 12; Dkt. No. 54: Defs. Rule 56.1 Stmt. ¶¶ 31-32).
Accordingly, Counselor Wingate is granted summary judgment on Roseboro's retaliation claims.
Roseboro claims that Officer Wingate retaliated against him for filing grievances against Officer Gillespie and Counselor Wingate. (Dkt. No. 5: Am. Compl. at p. 41; Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 86-87, 89-90; Dkt. No. 62: Roseboro Aff. ¶ 24a.) As with his claims against Counselor Wingate, see pages 369-71 above, Roseboro has failed to provide evidence establishing a causal connection between his grievances and Officer Wingate's conduct. This is particularly true since the only evidence connecting Officer Gillespie and Officer Wingate is Roseboro's claim that he saw them talking. This speculative evidence, however, is not enough to support a retaliation claim. See Alicea v. Howell, 387 F.Supp.2d 227, 237 (W.D.N.Y.2005) ("The only evidence relied upon by plaintiff are the facts that [a DOCS employee] and [defendant] spoke about plaintiff's grievance against [defendant], and that [the DOCS employee] subsequently found plaintiff guilty of the drug charge against him. To infer that [defendant] prejudiced [the DOCS employee] against plaintiff, however, or that there was a causal connection between [defendant's] conversation with [the DOCS employee] and his finding of plaintiff's guilt, is based on sheer speculation."); see also cases cited on pages 368-69 above. Moreover, there is no reason to believe that Officer Wingate retaliated for grievances that did not concern her. (See cases cited on page 369 above.)
Even if a jury could reasonably infer that Officer Wingate retaliated against Roseboro because he filed grievances
Roseboro also alleges that Officer Wingate cursed at him during the June 1, 2009 inmate count (seventh retaliation claim). (See pages 360, 362 above.) This claim fails because an inmate "has no right to redress simply because [an officer] made a hostile or derogatory comment about him." Davidson v. Bartholome, 460 F.Supp.2d 436, 446 (S.D.N.Y.2006) (denying retaliation claim where a sergeant "became hostile and began cursing" at the plaintiff and threatened to issue a "`false'" misbehavior report); see also, e.g., Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003) (rejecting inmate's claim that a defendant "retaliated against him by speaking to him in a `hostile' manner" because "[i]nsulting or disrespectful comments directed at an inmate generally do not rise to [the] level" of an adverse action); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986) ("The claim that a prison guard called [plaintiff] names also did not allege any appreciable injury and was properly dismissed."); Tafari v. McCarthy, 714 F.Supp.2d 317, 364 (N.D.N.Y.2010) ("`Verbal harassment itself does not rise to the level of a constitutional violation. Verbal abuse, vulgarity, and even threats are insufficient to rise to the level of constitutional violations.'"); Lunney v. Brureton, 04 Civ. 2438, 2005 WL 121720 at *11 (S.D.N.Y. Jan. 21, 2005) (Plaintiff's "general allegations of threats and harassment are insufficient to state a claim because comments that are merely `insulting' or `disrespectful' do not give rise to a constitutional violation."), report & rec. adopted, 2005 WL 433285 (S.D.N.Y. Feb. 23, 2005).
Roseboro next claims that Officer Wingate denied his requests to speak to a lieutenant after he failed to stand during
Roseboro further alleges that Officer Wingate temporarily withheld a letter from Roseboro's wife after the June 1, 2009 inmate count (ninth retaliation claim). (See pages 360-61, 362-63 above.) Delaying delivery of an inmate's mail for a short time does not rise to the level of adverse action. See, e.g., Tafari v. McCarthy, 714 F.Supp.2d at 347 ("Courts in this circuit have held that claims of mail tampering do not constitute adverse action."); Islam v. Goord, 05 Civ. 7502, 2006 WL 2819651 at *7 (S.D.N.Y. Sept. 29, 2006) ("Plaintiff also suggests that [a defendant's] alleged tampering with his family and legal mail was retaliatory. However, this is not the type of conduct that would deter an ordinary individual from exercising his constitutional rights. Plaintiff does not allege that he suffered any injury as a result of the alleged tampering, and therefore these isolated instances of mail tampering are not `adverse actions' supporting a cause of action for First Amendment retaliation."); Battice v. Phillip, No. CV-04-669, 2006 WL 2190565 at *6 (E.D.N.Y. Aug. 2, 2006) (Defendant's "failure to deliver [plaintiff's] mail on one occasion does not constitute the type of conduct that would deter an ordinary individual from exercising his constitutional rights. [Plaintiff] does not allege, much less present any evidence to show, that he suffered any injury as a result of the minor delay in receiving one piece of mail. Even if intentional, this isolated incident is `simply de minimis and therefore outside the ambit of constitutional protection.'").
Roseboro also claims that Officer Wingate destroyed his property after he was sent to the SHU for failing to stand for the inmate count (tenth retaliation claim). (See pages 360-61, 362-63 above.) The retaliatory destruction of an inmate's personal property can constitute an adverse action. See, e.g., Smith v. City of N.Y., 03 Civ. 7576, 2005 WL 1026551 at *4 (S.D.N.Y. May 3, 2005) ("Such retaliatory destruction of a prisoner's personal property has previously been found substantial enough to qualify as an adverse action.").
Roseboro fails to provide any evidence that Officer Wingate intentionally lost or destroyed his property. While Officer Wingate acknowledges that she packed up Roseboro's belongings, she was not the exclusive custodian of his property as she gave it to an "internal officer" to deliver it
Finally, Roseboro claims that Officer Wingate "harassed" him on December 4, 2009 by telling a lieutenant that he was "bothering her" (eleventh retaliation claim). (See pages 362, 362-63 above.) Officer Wingate's actions, however, do not rise to the level of adverse action, particularly since Roseboro was never sanctioned for the alleged incident. (See pages 361-62 above.) See, e.g., Rosales v. Kikendall, 677 F.Supp.2d 643, 648 (W.D.N.Y.2010) ("[V]erbal harassment, or even threats, are generally held not to rise to the level of adverse action that will support a First Amendment retaliation claim."); Alexander v. Deming, No. 03-CV-0147, 2009 WL 1044561 at *5 (W.D.N.Y. Apr. 16, 2009) ("Courts within the Second Circuit have held that threats of disciplinary action and verbal harassment without injury are insufficient to state a constitutional violation."); Ramirez v. Holmes, 921 F.Supp. 204, 210 (S.D.N.Y.1996) ("Allegations of threats or verbal harassment, without any injury or damage, do not state a claim. . . .").
Accordingly, defendants' summary judgment motion is GRANTED as to all of Roseboro's retaliation claims.
Roseboro alleges that his due process rights were violated when he was prevented from calling witnesses and having a staff member present during his June 4, 2009 disciplinary hearing. (See pages 362-63 above.) Roseboro further claims that his due process rights were violated when the UDC sanctioned him with a 90-day loss of his commissary, phone and visit privileges for failing to stand during the June 1, 2009 inmate court; this Court interprets his due process claim as alleging that Counselor Wingate, a member of the UDC, was not impartial since the incident report was written by her niece Officer Wingate. (See pages 360, 361 above; see generally Dkt. No. 5: Am. Compl. at pp. 19, 29-30 (alleging a "conflict of interest" in the June 4, 2009 UDC)).
Roseboro's due process claims are meritless. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court held:
515 U.S. at 483-84, 115 S.Ct. at 2300 (fns. & citations omitted).
In Sandin, the prisoner was charged with a disciplinary infraction for physical interference with a correction officer, for using abusive or obscene language, and for harassing employees. Id. at 475-76, 115 S.Ct. at 2295-96. The disciplinary committee refused the prisoner's request to present witnesses, found him guilty of the alleged misconduct, and sentenced him to thirty days disciplinary segregation in the prison's Special Holding Unit ("SHU"). Id. The Supreme Court found that the inmate was not entitled to the procedural protections set forth in Wolff v. McDonnell. Sandin v. Conner, 515 U.S. at 487, 115 S.Ct. at 2302. The Supreme Court stated:
The Second Circuit has "interpreted the Supreme Court's decision in Sandin to mean that `a prisoner's restricted confinement within a prison does not give rise to a liberty interest, warranting procedural due process protection, unless the conditions and duration of the prisoner's confinement "impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."'" Borcsok v. Early, 299 Fed.Appx. 76, 78 (2d Cir.2008) (quoting Sealey v. Giltner, 197 F.3d 578, 583 (2d Cir.1999)).
Even where plaintiff is pro se, "[o]n a motion for summary judgment by defendants, it is the plaintiff's burden to make an initial showing of an atypical and significant hardship." Bonet v. Khahaifa, 512 F.Supp.2d 141, 142-43 (W.D.N.Y.2007); see also Borcsok v. Early, 299 Fed.Appx. at 78 ("Because [plaintiff] does not complain of the conditions of his confinement, any protected liberty interest he possessed would be based upon the duration of his confinement."); Williams v. Calidonna, No. 06-CV-178, 2008 WL 4693160 at *6 (N.D.N.Y. Oct. 21, 2008) ("There is no allegation nor evidence on the record that the conditions inside SHU during Plaintiff's 89 day confinement were atypical or otherwise significant. Therefore, Plaintiff has failed to identify the existence of a liberty interest that could give him a cause of action under the Due Process Clause of the Fourteenth Amendment." (citations omitted)).
Roseboro never identified in his amended complaint, his deposition testimony, his summary judgment opposition brief or his affidavit any conditions of his SHU confinement that were "atypical" or "significant." (See generally Dkt. No. 5: Am. Compl.; Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep.; Dkt. No. 60: Roseboro Br.; Dkt. No. 62: Roseboro Aff.)
Even if Roseboro could get past the Sandin bar, his due process claims regarding calling witnesses and staff member assistance still fail. "Because `[p]rison disciplinary proceedings are not part of a criminal prosecution, . . . the full panoply of rights due a defendant in such proceedings does not apply.'" Williams v. Menifee, 331 Fed.Appx. 59, 60 (2d Cir.2009) (quoting Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974)); accord, e.g., Sira v. Morton, 380 F.3d 57, 69 (2d Cir.2004). Nevertheless, where an inmate is charged with a violation in a disciplinary hearing, due process requires that he be given the opportunity "to call witnesses and present documentary evidence." See, e.g., Superintendent v. Hill, 472 U.S. 445, 454-56, 105 S.Ct. 2768, 2773-74, 86 L.Ed.2d 356 (1985); Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 2979, 41 L.Ed.2d 935 (1974); Williams v. Menifee, 331 Fed.Appx. at 60; Sira v. Morton, 380 F.3d at 69; Johnson v. Mueller, 9 Fed.Appx. 60, 62-63 (2d Cir. 2001); Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir.2000); Kalwasinski v. Morse, 201 F.3d 103, 108 (2d Cir.1999); McCann v. Coughlin, 698 F.2d 112, 121-22 (2d Cir. 1983); Espinal v. Goord, 180 F.Supp.2d 532, 537-38 (S.D.N.Y.2002); Simon v. Selsky, 99 Civ. 5747, 2002 WL 1205737 at *4 (S.D.N.Y. Mar. 12, 2002).
In addition, in certain circumstances— such as when an inmate is in SHU or keeplock, as Roseboro was (see pages 360-61 above)—an inmate facing a disciplinary hearing at which a protected liberty interest is at stake must be assisted in presenting a defense by a prison staff member or fellow inmate. See, e.g., Wolff v. McDonnell, 418 U.S. at 570, 94 S.Ct. at 2982; Ayers v. Ryan, 152 F.3d 77, 80-81 (2d Cir.1998); Silva v. Casey, 992 F.2d 20, 22 (2d Cir.1993); Eng v. Coughlin, 858 F.2d 889, 897-98 (2d Cir.1988).
While Roseboro asserts that he was prevented from calling witnesses and having a staff member present at the hearing, he fails to assert that these defendants were involved in these decisions. (See Roseboro Dep. at 98.) As such, his due process claims against these defendants fail for lack of personal involvement. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir.2006) ("[I]n Bivens actions, a plaintiff must allege that the individual defendant was personally involved in the constitutional violation."); Cohen v. Holder, No. 11-CV-0003, 2011 WL 809773 at *2 (E.D.N.Y. Mar. 1, 2011) ("A Bivens action lies against a defendant only when the plaintiff can show the defendant's personal involvement in the constitutional violation.").
Moreover, Roseboro has admitted that he "was sitting on the bed" and not yet standing when Officer Wingate approached during the inmate count. (See Dkt. No. 53: McFarland Aff. Ex. G: 6/1/09 Incident Report ¶ 17; see also page 360 above.) Roseboro acknowledged that MCC rules require that "inmates have to stand for the count and have to be standing when the officer approaches his or her cell." (See page 360 above.) Given that Roseboro admitted violating MCC rules, which was the basis for the disciplinary charges addressed at the June 4, 2009 hearing, Roseboro cannot show that the outcome of the hearing would have been different had he called witnesses or had a staff member
Furthermore, Roseboro fails to assert who the proposed witnesses were or what their relevant testimony might have been, and thus has not provided sufficient evidence to allow a jury to determine that defendants violated his due process. See, e.g., O'Diah v. Mawhir, No. 08-CV-322, 2010 WL 6230937 at *13 (N.D.N.Y. Dec. 14, 2010) (dismissing plaintiff's due process claims because plaintiff's allegation were "wholly conclusory" and he "fail[ed] to allege facts from which a reasonable fact-finder could conclude that he failed to receive adequate advanced notice, an opportunity to be heard, a fair hearing officer, or any of the other aspects of fairness in the proceedings to which he was due."), report & rec. adopted, 2011 WL 933846 (N.D.N.Y. Mar. 16, 2011); Swift v. Tweddell, 582 F.Supp.2d 437, 443 (W.D.N.Y. 2008) (granting defendants summary judgment on plaintiff's due process claim because "plaintiff has not identified in this lawsuit any individuals whom he sought to call, nor has he provided any basis for knowing what their testimony was likely to have been.").
To the extent Roseboro intended to call as a witness his cell mate during the June 1, 2009 inmate count, that testimony actually supported Officer Wingate's charges since his cell mate testified that:
(Dkt. No. 53: McFarland Aff. Ex. L: Zadiriyev 6/5/09 Aff. ¶ 8.) Roseboro's due process rights were not violated because this evidence would have been adverse to him. See, e.g., Williams v. Menifee, 331 Fed. Appx. at 61 ("While his request to call Gould and Rubinkowski as witnesses was denied, this did not give rise to a procedural due process violation, since, as they were adverse witnesses, their testimony was not relevant and had already been fully summarized in the SIS report.").
Roseboro next claims that his due process rights were violated when his
Roseboro further claims that Officer Wingate violated his due process rights when she threw out his property after he was sent to the SHU. (See pages 362-63 above.) Roseboro has not provided sufficient evidence that his property was intentionally destroyed rather than simply lost, or that Officer Wingate destroyed his property. (See pages 374-75 above.) As such, his Bivens due process claim fails. See, e.g., Hallock v. Bonner, 343 Fed.Appx. 633, 635 (2d Cir.2009) ("It is also a prerequisite for a due process violation, and hence for a Bivens action of this kind, that the defendants damage plaintiffs' property with intentional conduct."); Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647, 650 (2d Cir.1998) ("Bivens provides a remedy only for intentional deprivations of property without due process of law."); Nwaokocha v. Sadowski, 369 F.Supp.2d 362, 370 (E.D.N.Y.2005) ("[N]egligently misplacing an inmate's property does not establish a denial of due process.").
Roseboro also alleges that his due process rights were violated when he was sent to a low-security prison instead of a camp. (See page 363 above.) As Roseboro has not alleged that these defendants had any part in that decision, his claim fails. (See cases cited on page 378 above.) Moreover, Roseboro's claim also fails because "[i]t is well established that the transfer of a prisoner from one institution to another does not invoke the protection of the Due Process Clause." Meriwether v. Coughlin, 879 F.2d 1037, 1047 (2d Cir. 1989); accord, e.g., Taylor v. Levesque, 246 Fed.Appx. 772, 774 (2d Cir.2007); Prins v. Coughlin, 76 F.3d 504, 507 (2d Cir.1996).
Accordingly, defendants are granted summary judgment dismissing Roseboro's due process claims.
Roseboro claims that defendants subjected him to cruel and unusual punishment when he was sent to the SHU and his privileges were taken away for failing to stand during the June 1, 2009 inmate
The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials and conduct that offends "evolving standards of decency." E.g., Hudson v. McMillian, 503 U.S. 1, 5, 8, 112 S.Ct. 995, 998, 1000, 117 L.Ed.2d 156 (1992); Wilson v. Seiter, 501 U.S. 294, 297, 308, 111 S.Ct. 2321, 2323, 2329, 115 L.Ed.2d 271 (1991); Estelle v. Gamble, 429 U.S. 97, 102, 104-05, 97 S.Ct. 285, 290, 291, 50 L.Ed.2d 251 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859 (1976).
In order to state a valid conditions of confinement claim under the Eighth Amendment, a plaintiff must allege: (1) the conditions were "sufficiently grave" as to constitute a denial of the "`minimal civilized measure of life's necessities,'" and (2) the prison officials acted with "`deliberate indifference.'" See, e.g., Wilson v. Seiter, 501 U.S. at 297-98, 111 S.Ct. at 2323-24 (1991); accord, e.g., Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir.2006); Branham v. Meachum, 77 F.3d 626, 630-31 (2d Cir.1996).
Roseboro was sent to the SHU and sanctioned with a ninety-day loss of his visitation, phone and commissary privileges for failing to stand for the June 1, 2009 inmate count. (See pages 361-62 above.) While as a result of this punishment Roseboro "couldn't speak to [his] wife . . . see any family members . . . [or] go to the store" (Dkt. No. 52: Phillips Aff. Ex. T: Roseboro Dep. at 101), these penalties are not severe enough to constitute cruel and unusual punishment. See, e.g., Randolph v. Simmons, 757 F.Supp.2d 233, 237 (W.D.N.Y.2010) ("Plaintiff also contends
Roseboro further alleges that he was subject to cruel and unusual punishment when he shared a cell with "cold-blooded murderers" in the SHU and when he was sent to a low security prison instead of a camp. (See pages 362-63 above.) As Roseboro has not provided any evidence that defendants were involved in his cell placement or prison transfer, his claims fail for lack of personal involvement. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); see also cases cited on page 378 above. Moreover, to state a cognizable claim for failure to protect under the Eighth Amendment, a prisoner must show that he was "incarcerated under conditions posing a substantial risk of serious harm" and that prison official acted with "`deliberate indifference'" to the inmate's safety. E.g., Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 1977, 128 L.Ed.2d 811 (1994).
Roseboro baldy asserts that it was cruel and unusual punishment to place him in a cell with "cold-blooded murderers" (see page 363 above), but does not allege that he was threatened, attacked, injured or suffered any mental or physical pain by sharing his cell with these individuals. Without any evidence of injury, Roseboro's failure to protect claim fails. See, e.g., Encarnacion v. Dann, 80 Fed.Appx. 140, 141 (2d Cir.2003) (affirming summary judgment for defendants on plaintiff's Eighth Amendment failure to protect claim where plaintiff "suffered no actual injury from the defendants' alleged failure to provide him protection from" another inmate.); Brodak v. Nichols, No. 97-1688, 162 F.3d 1161 (table), 1998 WL 553032 at
Finally, Roseboro's prison transfer claim also fails because he has not presented any evidence that the conditions at the low-security prison were serious enough to deny him the "`minimal civilized measure of life's necessities'" or that the prison officials acted with "`deliberate indifference,'" or that these defendants were personally involved in his transfer. (See cases cited on page 381 above.)
Accordingly, defendants are granted summary judgment dismissing Roseboro's cruel and unusual punishment claims.
For the reasons stated above, defendants' summary judgment motion (Dkt. No. 46) is GRANTED.
SO ORDERED.
42 U.S.C. § 1983. The Second Circuit "has long construed the phrase `under color of state law' as used in . . . civil rights statutes, notably 42 U.S.C. § 1983, to apply only to state actors, not federal officials." Dotson v. Griesa, 398 F.3d 156, 162 (2d Cir.2005), cert. denied, 547 U.S. 1191, 126 S.Ct. 2859, 165 L.Ed.2d 894 (2006). Thus, Roseboro cannot assert claims under section 1983 against defendants since they are federal employees. See, e.g., Arias v. United States, 05 Civ. 10497, 2007 WL 4157152 at *16 (S.D.N.Y. Nov. 15, 2007) (dismissing § 1983 claims against officials from the Department of Homeland Security because they are federal officials). The Court construes all of Roseboro's claims against defendants as Bivens claims. See, e.g., Tavarez v. Reno, 54 F.3d 109, 109-10 (2d Cir.1995) (approving district court's recasting of a § 1983 claim brought by pro se inmate against federal officers as Bivens claim); Sash v. United States, 674 F.Supp.2d 531, 532 n. 1 (S.D.N.Y.2009) (Peck, M.J.) (construing § 1983 claims against federal agents as Bivens claims); Bender v. General Services Administration, 539 F.Supp.2d 702, 707 n. 4 (S.D.N.Y.2008) (Lynch, D.J.) (construing pro se plaintiff's § 1983 claim against federal security contractors as a Bivens claim); see also Section II.A below.
Roseboro wrote a grievance to Warden Terrell, complaining that he was "treated unfairly" by the UDC. (Am. Compl. at p. 19; McFarland Aff. Ex. N: 8/17/09 Terrell Letter to Roseboro.) On August 17, 2009, Warden Terrell responded, noting that there was sufficient evidence to sustain the charges and that the "UDC was conducted within BOP [Bureau of Prisons] guidelines." (8/17/09 Terrell Letter to Roseboro.) Nevertheless, Warden Terrell reinstated Roseboro's commissary and phone privileges after finding that "a member of the UDC was related to the writer of the incident report." (8/17/09 Terrell Letter to Roseboro.)
