Ford v. Deacon

COREY FORD, Plaintiff, v. RICHARD DEACON, et al., Defendants.

9:16-CV-01001 (MAD/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 27, 2018

APPEARANCES:

COREY FORD

95-A-8605

Plaintiff pro se

Five Points Correctional Facility

Caller Box 119

Romulus, New York 14541

HON. BARBARA UNDERWOOD

Attorney General for the State of New York

Counsel for Defendants

The Capitol

Albany, New York 12224

OF COUNSEL:

KYLE W. STURGESS, ESQ.

Assistant Attorney General

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

I. INTRODUCTION

The claims remaining in pro se Plaintiff Corey Ford's civil rights action, brought under 42 U.S.C. § 1983, are: (1) First Amendment retaliation claims against Defendants Richard Deacon ("Deacon"), formerly a Lieutenant with the Department of Corrections and Community Supervision ("DOCCS"), working at Shawangunk Correctional Facility ("Shawangunk"), and Tracy Phillips ("Phillips"), a DOCCS Correction Officer ("C.O."), also at Shawangunk; (2) First Amendment retaliation claims against Deacon, Christopher Miller ("Superintendent Miller"), Superintendent at Great Meadow Correctional Facility ("Great Meadow"); Rodney Eastman ("Eastman"), First Deputy Superintendent at Great Meadow; and Colin Fraser ("Fraser"), a Captain at Great Meadow, for acts that occurred at Great Meadow; (3) Eighth Amendment conditions of confinement claims against Defendants Superintendent Miller, Eastman, and Fraser occurring at Great Meadow; (4) Fourteenth Amendment due process claims against Defendants Superintendent Miller and Eastman at Great Meadow; and (5) First Amendment retaliation and access to court claims against Defendant C.O. Daniel McClenning ("McClenning") at Great Meadow. (See generally Dkt. Nos. 1 and 9.) Defendants now move for summary judgment pursuant to Rule 56. (Dkt. No. 64.) Plaintiff has filed papers in opposition to Defendants' motion, and Defendants have filed a reply. (Dkt. Nos. 69, 70.)

For reasons that follow, the Court recommends that Defendants' motion for summary judgment be granted in its entirety.

II. FACTUAL BACKGROUND

A. Incident at Green Haven Correctional Facility

On April 14, 2004, while Plaintiff was being housed in Green Haven Correctional Facility ("Green Haven"), Plaintiff assaulted C.O. Matt Miller by burning him with a hot oily substance and stabbing him multiple times. (Dkt. Nos. 64-1 at ¶¶ 5-6; 69-2 at ¶¶ 5-6.¹) Defendant McClenning was involved in subduing Plaintiff and testified against him in the trial on criminal charges resulting from the assault. (Dkt. No. 69-3 at 74, 77-89.²)

In 2005, Plaintiff commenced a civil action against a number of corrections personnel, including McClenning, alleging, inter alia, excessive force as he was escorted to the special housing unit ("SHU") following the April 14, 2004, incident. (Dkt. No. 64-2 at 81-83.) See Ford v. Phillips, et al., No. 1:05-cv-06646-NRB (S.D.N.Y. 2005), Dkt. No. 2. The action was settled after it had been dismissed against McClenning based upon a determination that McClenning had not acted improperly in subduing Plaintiff. See No. 1:05-cv-06646-NRB (S.D.N.Y. 2005), Dkt. No. 74.

B. Shawangunk

1. Deacon

Subsequent to the April 14, 2004, assault, Plaintiff was transferred to Shawangunk where he remained in the special housing unit ("SHU") until on or about May 28, 2014. (Dkt. Nos. 64-1 at ¶ 8; 69-2 at ¶ 8.) Defendant Deacon, who had been assigned to Green Haven at the time of the April 14, 2004, attack on Miller, was the A & B Housing Unit Sergeant and was responsible for overseeing SHU on the 3pm to 11pm shift at Shawangunk from approximately 2012 through late 2013. (Dkt. No. 64-3 at ¶¶ 7-8.)

Deacon was assigned to Green Haven at the time of Plaintiff's April 2004 attack on Miller and was moved to Shawangunk in 2012. (Dkt. No. 64-3 at ¶¶ 1, 4.) Plaintiff was not familiar with Deacon prior to Deacon's arrival at Shawangunk. (Dkt. No. 64-2 at 69-70.) Plaintiff claims that beginning in or about August or September of 2012, Deacon engaged in a course of harassment against him by: (1) in August or September 2012 telling Plaintiff he would do everything in this power to ensure Plaintiff was never released from SHU into general population because of what Plaintiff had done to Matt Miller, one of Deacon's closest friends, Dkt. No. 64-2 at 74-75); (2) generally harassing Plaintiff by doing such things as yelling into his cell in an attempt to bait him into engaging in misconduct that would result in a misbehavior report (Dkt. Nos. 1 at ¶ 14; 64-2 at 109-111); (3) giving Plaintiff smaller portions of food (Dkt. No. 64-2 at 114); and (4) playing a role in the search of Plaintiff's cell and the confiscation and destruction of a Bible that had been in Plaintiff's possession for eighteen years.³ (Dkt. Nos. 1 at ¶¶ 39-40; 64-2 at 132-36, 147; 64-2 at 98, 115-17, 161-62, 210-12.) Plaintiff claims that Deacon's harassing actions at Shawangunk were done in retaliation for Plaintiff's April 2004 attack on Miller at Green Haven. (Dkt. No. 1 at ¶ 117.)

Deacon has denied Plaintiff's allegations including: (1) being friends with Matt Miller or knowing of any lawsuits Plaintiff brought against Miller or McClenning; (2) threatening Plaintiff or engaging in any harassing behavior against him; (3) involvement in the destruction of Plaintiff's Bible; and (4) involvement in Plaintiff being placed in administrative segregation ("Ad Seg") at Great Meadow. (See generally Dkt. No. 64-3.)

2. Phillips

In his complaint, Plaintiff has alleged that Defendant Phillips, along with Deacon, destroyed his Bible. (Dkt. No. 1 at ¶ 40.) Phillips is a C.O. who has worked at Shawangunk during most of his time with DOCCS. (Dkt. No. 64-4 at ¶ 4.) Phillips knew of the April 2004 incident at Green Haven but has never worked at Green Haven and never knew or worked with Matt Miller. Id. Phillips was unaware that Plaintiff had sued Green Haven corrections personnel after the incident. Id. From approximately 2010 through 2015, Phillips worked in the Shawangunk disciplinary office, and while he knew who Deacon was, they did not work in the same area except when one of them picked up overtime outside of their normal positions, and Phillips was not supervised by Deacon. Id. at ¶ 5.

Phillips acknowledges having participated in several cell searches in SHU, including Plaintiff's cell, in April 2014, at the direction of Lieutenant Gardner, but does not recall whether he or anyone else confiscated Plaintiff's Bible. Id. at ¶ 6. Phillips, however, denies having been ordered to destroy Plaintiff's Bible by Deacon or being involved in the destruction of Plaintiff's Bible. Id. at ¶ 8. While Plaintiff continues to believe Phillips destroyed his Bible, see Dkt. 69-2 at ¶ 32, Plaintiff testified at his deposition that, except for the Bible, Phillips had "always been a sweetheart" and was being used as a pawn by Deacon in destroying the Bible. (Dkt. No. 64-2 at 148-49.) When asked whether he thought Phillips was following orders in destroying the Bible or retaliating against Plaintiff, Plaintiff responded that he believed Phillips was following Deacon's orders. Id. at 150.

C. Great Meadow

1. Placement in Ad Seg

a. Fraser's Recommendation

Plaintiff was transferred to Great Meadow on or about May 28, 2014, and placed in keeplock for what he believed to be fifteen days. (Dkt. Nos. 1 at ¶ 44; 64-6 at 10.) Shortly before Plaintiff's arrival at Great Meadow, Defendant Fraser, who was a member of the facility's Crisis Intervention Unit ("CIU"), which dealt with the assessment and development of strategies for dealing with certain types of security and safety issues at the facility, received an email from Deacon informing him that Plaintiff was an active member of the Bloods street gang and claimed to be a "two star" general in the organization. (Dkt. No. 64-5 at ¶¶ 5, 10 and pp. 11-12.) Upon receipt of the email from Deacon, Fraser decided to take a closer look at Plaintiff's background and contacted the DOCCS Central Office, which tracks gang information to verify that Plaintiff was associated with the Bloods. Id. At ¶ 11. Fraser also asked Deacon about Plaintiff's conduct and reviewed Plaintiff's disciplinary history, which he found to be extensive. Id. Plaintiff's disciplinary history included, inter alia, the attack on Matt Miller and assaults on other inmates. Id.; Dkt. No. 64-2 at 251-56.

Based upon the information he collected, on May 28, 2014, Fraser recommended that Plaintiff be considered for Ad Seg status. (Dkt. No. 64-5 at ¶ 12 and p. 13.) Superintendent Miller approved Fraser's recommendation that Plaintiff be placed in Ad Seg, which triggered Plaintiff's right to an Ad Seg hearing. (Dkt. Nos. 64-6 at 15; 64-7 at ¶ 10.)

Plaintiff claims he has never been a member of the Bloods street gang, and that Deacon gave Fraser false information in retaliation for Plaintiff's attack on Matt Miller ten years earlier and the filing of grievances against Deacon at Shawangunk. (Dkt. Nos. 1 at ¶¶ 117, 126-27; 64-2 at 116; 161; 64-6 at 18.) Plaintiff testified at his deposition that Fraser had written the recommendation for Ad Seg because Fraser had worked closely with Matt Miller at Green Haven, and before the Ad Seg hearing, Fraser told Plaintiff that Plaintiff had hurt Fraser's friend Matt Miller. (Dkt. No. 64-2 at 195-96.) Plaintiff believed there could be no other reason for Fraser making the recommendation than the incident in which Plaintiff assaulted Matt Miller. (Dkt. No. 64-2 at 197.)

In his declaration, Fraser has stated that the recommendation was not based primarily on gang affiliation or Plaintiff's rank in the organization, but on the cumulative effect of Plaintiff's affiliations and history, in particular his assaults on staff and inmates, coupled with his threatening demeanor, al of which made Plaintiff a security risk in general population. (Dkt. No. 64-5 at ¶ 13.) Although not reflected in his Ad Seg recommendation or hearing testimony, in his...