08-1434-pr
         Holmes v. Haugen



                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1 AND
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN W HICH A LITIGANT CITES
     A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST
     EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A
     PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
     PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS
     THE SUM M ARY O RDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS PUBLICLY ACCESSIBLE
     W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/).
     IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE
     CITATION M UST INCLUDE REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN
     W HICH THE ORDER W AS ENTERED.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 15th day of December, two thousand nine.
 4
 5       PRESENT:
 6                   JOSEPH M. McLAUGHLIN,
 7                   GERARD E. LYNCH,1
 8                         Circuit Judges.
 9       _______________________________________________
10
11       David Holmes,
12
13                             Plaintiff-Appellant,
14
15                      v.
16                                                                           08-1434-pr
17       Haugen, Correctional Officer, Eastern Correctional
18       Facility, True, Correctional Officer, Eastern Correctional
19       Facility
20
21                             Defendants-Appellees,
22


                    1
                      The Honorable Robert A. Katzman, who was originally assigned to the panel for this
             appeal, recused himself and did not participate. The appeal was decided by the panel’s
             remaining two judges pursuant to this Court’s Local Rule § 0.14(b).
 1   John Doe III, Correctional Officer, Eastern Correctional
 2   Facility, Brown, Superintendent, Eastern Correctional
 3   Facility, Healy, Dep., Eastern Correctional Facility, Lt.
 4   Simmons, Eastern Correctional Facility
 5                          Defendants.
 6   _______________________________________
 7
 8   FOR PLAINTIFF-APPELLANT:                       David Holmes, pro se, Napanoch, New York.
 9
10   FOR DEFENDANTS-APPELLEES: Rajit S. Dosanjh, Assistant Solicitor General, Andrea Oser,
11                             Deputy Assistant Solicitor General, for Andrew Cuomo,
12                             Attorney General of the State of New York, Albany, New
13                             York.
14
15
16   Appeal from the United States District Court for the Northern District of New York (Hurd, J.).
17
18
19       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
20   DECREED that the judgment of said District Court be and hereby is AFFIRMED.
21
22          In this action under 42 U.S.C. § 1983, plaintiff-appellant David Holmes (“plaintiff” or

23   “Holmes”), an inmate at the Eastern Correctional Facility, appeals from the district court’s grant

24   of summary judgment to the defendants-appellees. Specifically, Holmes alleges that defendants-

25   appellees, who are correctional officers at the prison, violated his constitutional rights under the

26   First and Fourteenth Amendments by retaliating against him and by singling him out for

27   unfavorable treatment. We assume the parties’ familiarity with the facts, proceedings below, and

28   specification of appellate issues.

29          We review the grant of summary judgment de novo, and ask whether the district court

30   properly concluded that there were no genuine issues of material fact and that the moving party

31   was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 

  292, 300 (2d Cir. 2003). In determining whether there are genuine issues of material fact, we



                                                       2
1    resolve any ambiguities and draw all permissible factual inferences in favor of the non-movant.

2    See Terry v. Ashcroft, 

, 137 (2d Cir. 2003). Despite this deference, a non-movant

3    cannot defeat a motion for summary judgment merely through conclusory statements or

4    allegations. See Davis v. State of New York, 

, 100 (2d Cir. 2002).

5           In order to state a claim for retaliation, a plaintiff must prove that (1) he was “engaged in

6    constitutionally protected conduct,” and (2) the conduct was “a substantial or motivating factor

7    for the adverse actions taken by prison officials.” Bennett v. Goord, 

, 137 (2d Cir.

8    2003). The privilege of qualified immunity, however, generally shields government officials

9    from liability for damages on account of their performance of discretionary official functions

10   “insofar as their conduct does not violate clearly established statutory or constitutional rights of

11   which a reasonable person would have known.” Ying Jing Gan v. City of New York, 

  522, 531 (2d Cir. 1993). In Rodriguez v. Phillips, we held that confronting a correctional officer

13   about his interpretation of an institutional policy was not a clearly established First Amendment

14   right. See 

, 478-79 (2d Cir. 1995). Here, even if it could be said that the correctional

15   officers retaliated against Holmes, the discipline at issue arose out of Holmes’s decision to

16   question the correctional officers’s interpretation of a prison policy. Accordingly, the

17   defendants-appellees are entitled to qualified immunity on this claim. See Kelsey v. County of

18   Schoharie, 

, 61 (2d Cir. 2009).

19          While the Equal Protection Clause is most commonly used to bring claims alleging

20   discrimination based on membership in a protected class, a plaintiff can proceed as a “class-of-

21   one” by establishing that he or she “has been intentionally treated differently from others

22   similarly situated and that there is no rational basis for the difference in treatment.” Village of


                                                       3
1    Willowbrook v. Olech, 

, 564 (2000) (per curium). Because Holmes has neither

2    alleged, nor provided a basis for a jury to infer, that correctional officer Haugen knew that other

3    inmates were going to the law library, the defendants-appellees are entitled to summary judgment

4    on Holmes’s equal protection claim. See Giordano v. City of New York, 

, 751 (2d

5    Cir. 2001) (holding that the district court properly granted summary judgment in favor of the

6    defendants on the plaintiff’s class-of-one equal protection claim because there was no evidence

7    in the record that the defendants knew that they were treating the plaintiff differently from

8    anyone else).

9              Accordingly, the judgment of the district court is hereby AFFIRMED.

10
11                                                         FOR THE COURT:
12                                                         Catherine O’Hagan Wolfe, Clerk
13
14                                                         By:_______________________




     SAO-ARW                                          4