Phelan v. Thomas, 9:10-cv-11

KENNETH J. PHELAN, Plaintiff, v. R. THOMAS et al., Defendants.

9:10-cv-11

9:10-cv-12 (GLS/DJS)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 8, 2017

APPEARANCES:

FOR THE PLAINTIFF:

Tully, Rinckey Law Firm

441 New Karner Road

Albany, NY 12205

FOR THE DEFENDANTS:

HON. ERIC T. SCHNEIDERMAN

New York Attorney General

The Capitol

Albany, NY 12224

OF COUNSEL:

MICHAEL W. MACOMBER,

ESQ.

JOSHUA E. MCMAHON

Assistant Attorney General

Gary L. Sharpe Senior District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Kenneth J. Phelan commenced this action and another, which was subsequently consolidated, against numerous defendants. (Dkt. Nos. 1, 67; Dkt. No. 1, 9:10-cv-12.) Phelan thereafter filed a consolidated amended complaint, which serves as the operative pleading. (Am. Compl., Dkt. No. 88.) Pending is defendants' motion for summary judgment. (Dkt. No. 131.) For the reasons that follow, the motion is granted and the amended complaint is dismissed.

II. Background

A. Facts¹

General familiarity with the facts is presumed from the court's prior Memorandum-Decision and Order. (Dkt. No. 110 at 2-9.) As relevant here, Phelan, an inmate in the custody of the New York Department of Corrections and Community Supervision (DOCCS), was housed at Mt. McGregor Correctional Facility during the period of time pertinent to this case. (Defs.' Statement of Material Facts (SMF) ¶ 1, Dkt. No. 131, Attach. 1.) Defendants Richard Thomas, David Hirsch, Marina Scott, and Jonathan Michael were all employed as corrections officers at Mt. McGregor during the time in question.² (Id. ¶¶ 2-5.)

1. April 2, 2009 Incidents

While the parties disagree as to exactly why or how, Phelan was found by Scott in Building 10, which included the Grievance Office, on April 2, 2009. (Id. ¶¶ 34-37.) According to defendants, Scott observed Phelan in Building 10; he told her that "he wanted to go to the Grievance Office, which was closed at that time." (Id. ¶ 36.) Defendants claim that Scott instructed Phelan to leave the building, which he eventually did. (Id.) Scott issued a misbehavior report charging Phelan with three rule violations. (Id. ¶ 38.) Presumably before issuing the misbehavior report, Scott spoke with Hirsch to ask if he had given Phelan permission to go to Building 10; Hirsch denied that he had done so then and at a later disciplinary hearing. (Id. ¶¶ 39, 41.) Scott also testified at the disciplinary hearing and "affirmed the accuracy of the misbehavior report" filed by Scott. (Id. ¶ 40.) Phelan later admitted his guilt to the charges contained in the misbehavior report issued by Scott. (Id. ¶ 42.)

After his return to the building in which he was housed, Thomas and Hirsch performed a cell search of Phelan's living quarters while "Phelan remained outside." (Id. ¶¶ 11, 14; Dkt. No. 141 at 33.) Phelan contends that his clothing and legal papers were thrown on the floor and "stomped on," (Dkt. No. 141 at 152), but he admits that none of "his property wasdestroyed or taken during the . . . search," (Defs.' SMF ¶ 17). Phelan also claims that he "was threatened during the search that any further attempt at filing a grievance would be met with further scrutiny and retaliatory treatment." (Dkt. No. 141 at 152-53.) The search yielded "a sheet of paper with what appeared to be gang references, another sheet with derogatory references to CO Thomas, a handkerchief marked 'IB 9,' and a quantity of butter and sugar that should have been consumed in the mess hall." (Defs.' SMF ¶ 19.) As a result of Phelan's possession of those items, Thomas charged him with rule violations in a misbehavior report to which Phelan ultimately pleaded guilty. (Id. ¶¶ 20, 27, 28.)

2. April 14, 2009 Incident

Phelan claims that, on April 14, 2009, "Michael struck him with 'an open' hand[] 'two or three times,'" that his head was "'sore'" as a consequence, and that the incident aggravated his traumatic brain injury (TBI). (Id. ¶¶ 50, 52, 53.) Michael has no recollection of ever interacting with Pehlan at Mt. McGregor. (Id. ¶¶ 55, 58.) In any event, Phelan suffered no "bruising, edema, or physical injury as a result" of the alleged used of force by Michael, and no medical diagnosis supports Phelan's claims that his TBI was aggravated by Michael's open-handed strikes (Id.¶¶ 51, 53.)

3. Americans with Disabilities Act Claim

Generically, Phelan alleges that certain defendants, including those discussed above and defendant Dr. Peter Millson, a Mental Health Director employed by DOCCS at a particular facility, prevented him from receiving mental health treatment. (Am. Compl. ¶¶ 115-22; Dkt. No. 131, Attach. 11 ¶ 1.) Phelan claims that defendants called him a "retard" when they denied him treatment, access to the law library, and prevented him from filing grievances. (Am. Compl. ¶ 118.) As the court has previously noted, Phelan's ADA Title II claim can be categorized as among those seeking redress for irrational disability discrimination. (Dkt. No. 110 at 24 n.14.)

B. Procedural History

After Phelan filed his consolidated amended complaint, (Dkt. No. 88), defendants moved to dismiss. (Dkt. No. 102.) The court granted in part and denied in part the motion, leaving only a handful of claims remaining: (1) First Amendment retaliation against Hirsh and Thomas, relating to their cell search on April 2, 2009; (2) First Amendment retaliation against Thomas and Scott, relating to misbehavior reports issued pursuant to the April 2, 2009 cell search; (3) Eighth Amendment excessive force againstMichael, relating to striking Phelan in the head several times; and (4) Title II of the ADA against all defendants in their official capacities. Following discovery, (Dkt. No. 128), the instant motion was filed, (Dkt. No. 131.)

III. Standard of Review

The standard of review pursuant to Fed. R. Civ. P. 56 is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its decision in Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff'd sub nom. Wagner v. Sprague, 489 F. App'x 500 (2d Cir. 2012).

IV. Discussion

Defendants seek dismissal of the claims that survived their earlier-filed motion to dismiss for a litany of reasons, some of which the court need not reach.³ (Dkt. No. 131, Attach. 13.) With respect to Phelan's First Amendment retaliation claims against Thomas and Hirsch for the April 2, 2009 cell search, defendants assert that, even if the search was in retaliation for protected activity, because no property was taken or destroyed, summary judgment must be entered in defendants' favor. (Id.at 4-5.) The retaliation claim against Thomas and Scott is infirm, argues defendants, because the misbehavior reports were justified by Phelan's conduct apart from any retaliatory animus, and the reports would have been issued even if there was no retaliatory motive. (Id. at 5-8.) As to Phelan's Eighth Amendment claim, defendants contend that the use of force was de minimis. (Id. at 9-10.) Lastly, defendants assert that they are entitled to summary judgment on the ADA claims because Phelan has failed to demonstrate that he was denied any programs or services because of disability and because sovereign immunity shields them from liability. (Id. at 13-17.)

In response to defendants' arguments, Phelan asserts that the cell search — in particular its timing and manner coupled with comments made by Scott, Hirsch, and Thomas — "would deter a similarly situated individual of ordinary firmness from exercising his constitutional rights." (Dkt. No. 141 at 10.) Phelan further contends that issues of fact as to whether he was given permission by Hirsch to go to the library, and whether Phelan's conduct involved "danger to life, health, security or property" exist and preclude summary judgment on the false misbehavior report claim. (Id. at 10-11.) His admission of guilt to the misbehavior reports should not beconsidered, argues Phelan, because he had no counsel during the disciplinary proceedings and suffers from, among other things, a TBI. (Id. at 11.) Although it is not entirely clear why it is relevant, Phelan also alleges that he may have been misclassified and entitled to mental health treatment at the outset of his imprisonment. (Id. at 11-12.) The Eighth Amendment claim is not subject to summary judgment, according to Phelan, because the facts tend to show a wanton state of mind by Michael and the absence of a lasting injury is not fatal to his claim. (Id. at 12-14.) Phelan also argues against entry of summary judgment on his ADA claim. (Id. at 14-24.)

A. First Amendment Retaliation Claims

As should be clear from the foregoing, two of Phelan's claims of retaliation survived defendants' motion to dismiss. For essentially the reasons argued by defendants, and as explained below, their motion for summary judgment is granted as to these claims.

1. Cell Search

To make out a claim of retaliation, the plaintiff must show, among other things, that adverse action was taken by the defendants in connection with the plaintiff's protected speech. See Gonzalez v. Hasty,802 F.3d 212, 222 (2d Cir. 2015). Adverse action, as it relates to a retaliatory cell search, requires more than a search alone. See Stewart v. Richardson, No. 15 CV 9034, 2016 WL 7441708, at *5 (S.D.N.Y. Dec. 27, 2016). Indeed, the plaintiff must demonstrate a search and "other wrongful conduct," such as the destruction or confiscation of property, that evinces the requisite deterrent of a similarly situated inmate of ordinary firmness from exercising his or her constitutional rights. Id.; see Guillory v. Haywood, No. 9:13-cv-01564, 2015 WL 268933, at *21 (N.D.N.Y. Jan. 21, 2015).

Here, Phelan readily admits that none of his property was taken or destroyed. (Defs.' SMF ¶ 17.) He contends, however, that the "search coupled with the timing and manner it was conducted and the harassing comments⁴ and threats made by . . . Scott, Hirsch and Thomas would deter a similarly situated individual of ordinary...