GLENN T. SUDDABY, Chief District Judge.
Currently before the Court, in this pro se prisoner civil rights action filed by Equan Yunus ("Plaintiff") against the six above-captioned employees of Great Meadow Correctional Facility in Comstock, New York ("Defendants"), are (1) United States Magistrate Judge Andrew T. Baxter's Report-Recommendation recommending that Defendants' motion for summary judgment be granted in part and denied in part, and (2) Defendants' Objections to the Report-Recommendation. (Dkt. Nos. 49, 50.) For the reasons set forth below, Magistrate Judge Baxter's Report-Recommendation is accepted and adopted in its entirety, and Defendants' motion for summary judgment is granted in part and denied in part.
Generally, in his Report-Recommendation, Magistrate Judge Baxter rendered the following three findings of fact and/or conclusions of law: (1) that Defendants' motion be granted with regard to (a) Plaintiff's First Amendment retaliation claim against Defendant Smith arising from an alleged strip frisk on December 11, 2013, and (b) Plaintiff's First Amendment retaliation claim and Eighth Amendment sexual-assault claim against Defendant Foster arising from an alleged pat frisk on February 8, 2014; (2) that Defendants' qualified-immunity defense be found to not bar Plaintiff's claims against Defendants Jones, Alger, Garrido and Underwood, at this stage of the proceeding; and (3) that Defendants' motion be denied with regard to (a) Plaintiff's First Amendment retaliation claim against Defendant Jones arising from Jones' search of Plaintiff's cell and alleged confiscation of Plaintiff's personal property on November 21, 2013, (b) Plaintiff's First Amendment retaliation claim against Defendant Jones arising from Jones' filing of an allegedly false misbehavior report against him on November 22, 2013, (c) Plaintiff's First Amendment retaliation claim and Eighth Amendment sexual-assault claim against Defendant Alger arising from Alger's alleged overly intrusive searches of him on November 20, 2013, and January 17, 2014, and (d) Plaintiff's First Amendment retaliation claim and Eighth Amendment sexual-assault claim against Defendants Garrido and Underwood arising from Garrido's alleged overly intrusive search of Plaintiff on January 23, 2014. (Dkt. No. 49, at Part IV.)
Generally, in their Objections, Defendants assert the following two arguments: (1) that Magistrate Judge Baxter erred in finding that a genuine dispute of material fact exists regarding whether Defendants Jones, Alger, Garrido and Underwood are protected from liability as a matter of law by the doctrine of qualified immunity, because he erred in finding that the rights that Plaintiff asserts were clearly established at the times of the alleged violations of those rights; and (2) that Magistrate Judge Baxter erred in finding that a genuine dispute of material fact exists regarding whether Defendants Jones, Alger, Garrido and Underwood retaliated against Plaintiff under the First Amendment, because he erred in finding that Plaintiff had adduced admissible record evidence that his protected conduct was a but-for cause of the adverse action taken against him. (Dkt. No. 50, at Points I-II.)
When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.
After conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter's thorough Report-Recommendation, the Court can find no error in those parts of the Report-Recommendation to which Plaintiff has specifically objected, and no clear error in the remaining parts of the Report-Recommendation: Magistrate Judge Baxter employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein. To those reasons, the Court adds the following analysis (which is meant to supplement and not supplant the aforementioned reasons).
Although Defendants list Defendant Jones among those Defendants to whom Magistrate Judge Baxter erroneously found that qualified immunity does not apply as a matter of law, Defendants fail (in their Objections) to explain why they believe Magistrate Judge Baxter erred in his qualified-immunity finding with regard to Jones. (Dkt. No. 50, at 4-7 [attaching pages "2" through "5" of Defs.' Obj.].) For these reasons, the Court finds that no particular challenge has been levied against this finding of Magistrate Judge Baxter, entitling the finding to a clear-error review, which it survives. The Court would add only that it would reach the same conclusion even if it were to subject the finding to the de novo review appropriate for specifically challenged findings.
Defendants argue that, in his deposition, Plaintiff recanted his prior testimony that, during a pat frisk that occurred on January 17, 2014, Defendant Alger placed his hand inside Plaintiff's rectum. (Dkt. No. 50, at 6 [attaching page "4" of Defs.' Obj.].) However, Defendants neglect to address the fact that (1) Plaintiff's claims against Defendant Alger are also based on an alleged pat frisk on November 20, 2013, and (2) in any event, Plaintiff's recantation regarding the pat frisk on January 17, 2014, involved merely clarifying that Defendant Alger (purportedly) used his finger, not his entire hand, to penetrate his rectum. (Dkt. No. 44, Attach. 2, at 237-38 [Plf.'s Depo. Tr.].)
The record contains admissible record evidence that, on November 20, 2013, and January 17, 2014, Defendant Alger stuck his finger inside Plaintiff's rectum while stating that he was going to "fuck [Plaintiff] in the ass" for having written a prior grievance against a fellow correctional officer. (Dkt. No. 1, at Claim 3, ¶¶ 2, 4 [Plf.'s Verified Compl.]; Dkt. No. 44, Attach. 2, at 225, 228-29, 237-39 [Plf.'s Depo. Tr.].)
As a result, properly construed, the relevant qualified-immunity issue is whether it was clearly established before August 11, 2015 (when the Second Circuit issued Crawford v. Cuomo, 796 F.3d 252 [2d Cir. 2015]), that a prisoner has a constitutional right to not have a correctional officer stick his finger in the prisoner's rectum during a pat frisk (as opposed to during a strip search), during circumstances suggesting the act was sexual and/or retaliatory in nature.
In arguing that the right was not clearly established before August 11, 2015, the Government cites five pre-Crawford district court cases. (Dkt. No. 50, at 6-7 [attaching pages "4" and "5" of Defs.' Obj., citing Wellington, Irvis, Morrison, Davis and Montero].) However, none of these cases involved the digital penetration of a prisoner's rectum during a pat frisk.
For all of these reasons, the Court rejects Defendants' arguments regarding these claims.
Defendants argue that, during the pat frisk that occurred on January 23, 2014, Defendant Garrido merely put his hand down Plaintiff's pants, by Plaintiff's buttock's area. (Dkt. No. 50, at 6 [attaching page "4" of Defs.' Obj.].) However, Plaintiff has adduced admissible record evidence that, in addition to putting his hand down Plaintiff's pants (by Plaintiff's buttock's area), Defendant Garrido "stuck his [finger] in [Plaintiff's] rectum," after the officer had been told to "make sure [Plaintiff] gets fucked in the ass," and while the officer made references to Plaintiff's prior written complaints. (See, e.g., Dkt. No. 44, Attach. 2, at 249-50, 252, 255 [Plf.'s Depo. Tr.]; Dkt. No. 1, at Claim 3, ¶¶ 6-7 [Plf.'s Verified Compl.]; Dkt. No. 47, at ¶¶ 37-38 [Plf.'s Decl.].)
For the same reasons as stated above in Part III.A.3. of this Decision and Order, the Court finds that, at the time of the aforementioned acts, it was clearly established in the Second Circuit that conduct involving the unjustified penetration of uncovered genitalia implicated the Constitution. For these reasons, the Court rejects Defendants' arguments regarding these claims.
To the extent that Defendants argue that Defendant Underwood is protected by qualified immunity as a matter of law because on Defendant Garrido is protected by qualified immunity as a matter of law (Dkt. No. 50, at 7 [attaching page "5" of Defs.' Obj.]), the Court rejects that argument, because the Court has found that, based on the current record, Defendant Garrido is not in fact protected by qualified immunity as a matter of law, based on the current record. See, supra, Part III.A.3. of this Decision and Order.
With regard to Plaintiff's retaliation claim against Defendant Jones arising from the misbehavior report of November 22, 2013, Defendants argue that a rational finding that a retaliatory motive was a "but-for cause" of Defendant Jones' misbehavior report is precluded by Plaintiff's Tier II hearing determination, which was rendered against him. (Dkt. No. 50, at 10 [attaching page "8" of Defs.' Obj.].) In support of this argument, Defendants cite Lowrance v. Achtyl, 20 F.3d 529 (2d Cir. 1994). (Dkt. No. 50, at 10 [attaching page "8" of Defs.' Obj.].) However, Lowrance is distinguishable from the current case in that in Lowrance the plaintiff "had admitted to the conduct that formed the basis of the misbehavior report." Lowrance v. Achtyl, 20 F.3d 529, 534-35 (2d Cir. 1994). Numerous more-analogous cases recognize that a prisoner's lack of vindication on appeal is (like his successful vindication on appeal)
With regard to Plaintiff's retaliation claim against Defendant Jones arising from the cell search of November 21, 2013, Defendants argue that a rational finding that a retaliatory motive was a "but-for cause" of Defendant Jones' misbehavior report is precluded by (1) the point of law that cell searches and pat frisks are an ordinary part of prison life and cannot deter the average inmate from continuing to exercise his First Amendment rights, and (2) the fact that the cell search was a random one that was "directed" by Defendant Jones' supervisor. (Dkt. No. 50, at 10 [attaching page "8" of Defs.' Obj.].) Defendants' argument ignores the fact that the adverse action asserted by Plaintiff is not merely the cell search but the purported wrongful confiscation of his personal property in his cell. (Dkt. No. 49, at 2.) Defendants' argument also equivocates by using the word "directed": the declaration and contraband receipt cited by Defendants states merely that the search was "approved" by Deputy Superintendent for Security Quinn (Dkt. No. 44, Attach. 10, at 2, 5); and the interdepartmental communication cited by Defendants states merely that, at most, that the search was "approved" by Quinn in the sense that all random searches were so approved by Quinn. (Dkt. No. 44, Attach. 10, at 7.) Based on the admissible record evidence before the Court, a rational finding could be rendered that, despite having been generally authorized by Deputy Superintendent for Security Quinn to conduct random searches, Defendant Jones in this instance conducted a non-random search, and wrongfully confiscated Plaintiff's personal property, for a retaliatory reason.
For all of these reasons, the Court rejects Defendants' arguments regarding these claims.
Defendants argue that a rational finding that a retaliatory motive was a "but-for cause" of any of the pat frisks conducted by Alger and Garrido (and supervised by Underwood) is precluded by the fact that none of the pat frisks were preceded by Plaintiff's filing of a grievance against any of the frisking officers. (Dkt. No. 50, at 11 [attaching page "9" of Defs.' Obj.].) Defendants ignore the fact that, while it may of course be relevant that Plaintiff filed a prior grievance against the correctional officer taking adverse action, it is not necessary that Plaintiff filed a prior grievance against the correctional officer taking adverse action (as opposed to against a fellow correctional officer). The cases cited by Defendants recognizes this commonsense fact, which is consistent with the multi-factored legal standard set forth above in note 7 of this Decision and Order. See McFadden v. Friedman, 12-CV-0685, 2015 WL 5603433, at *16 (N.D.N.Y. Sept. 23, 2015) (Suddaby, J.) ("Grievances filed against officers other than the disciplining officer, in most circumstances, do not establish the requisite causal connection between the protected conduct and the alleged adverse action.") (emphasis added); Hare v. Hayden, 09-CV-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.") (emphasis added). For all of these reasons, the Court rejects Defendants' arguments regarding these claims.
