Case 9:13-cv-00748-TJM-DEP Document 78 Filed 05/19/16 Page 1 of 129

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ______

JAMES W. NICHOLSON,

Plaintiff, Civil Action No. 9:13-CV-0748 (TJM/DEP) v.

M. HAMMOND, et al.,

Defendants. ______

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF:

JAMES W. NICHOLSON, Pro Se 1311 3rd Street Rensselear, NY 12144

FOR DEFENDANTS:

HON. ERIC T. SCHNEIDERMAN LOUIS JIM, ESQ. New York State Attorney General Assistant Attorney General The Capitol Albany, NY 12224

DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

Pro se plaintiff James W. Nicholson has commenced this action asserting claims arising out of his confinement in the custody of the New

York State Department of Corrections and Community Supervision Case 9:13-cv-00748-TJM-DEP Document 78 Filed 05/19/16 Page 2 of 129

("DOCCS"), pursuant to 42 U.S.C. § 1983, alleging that the defendants deprived him of his civil rights by destroying his legal mail, retaliating against him, and denying him equal protection, in violation of his rights under the First and Fourteenth Amendments.

Currently pending before the court are cross-motions for summary judgment. For the reasons set forth below, I recommend that plaintiff's motion for summary judgment be denied and that defendants' motion be granted.

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I. BACKGROUND1

A. Underlying Facts

From January 24, 2013 through July 23, 2014, plaintiff was a prison inmate held in DOCCS custody at the Greene Correctional Facility

("Greene").2 Dkt. No. 69-5 at 2.3 At the relevant times, defendant Marie

Hammond ("Hammond") was the Deputy Superintendent for Program

Services at Greene. Dkt. No. 69-2 at 1. Hammond was responsible for investigating and responding to inmate complaints related to the mailroom.

Id. Defendants Captain Linda Goppert ("Goppert") and Corrections Officer

Snide ("Snide") were also employed at Greene. Dkt. No. 69-3; Dkt. No. 69-

4.

1 In light of the procedural posture of the case, the following recitation is derived from the record now before the court. Ordinarily, when a motion for summary judgment is made, the record before the court is construed with all inferences drawn and ambiguities resolved in non-moving party's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003). In this case, in light of the parties' cross-motions for summary judgment, the court draws "all factual inferences . . . against the party whose motion is under consideration." Tindall v. Poultney High Sch. Dist., 414 F.3d 281, 284 (2d Cir. 2005) (quotation marks omitted).

2 In July 2014, plaintiff was released from DOCCS custody. Dkt. No. 69-5 at 2. In October 2014, he was incarcerated due to a parole violation. Dkt. No. 69-8 at 13. On October 20, 2015, plaintiff was again released from DOCCS custody. See http://nysdoccslookup.doccs.ny.gov (last visited May 9, 2016).

3 Citations to page numbers refer to the pagination generated by CM/ECF, not the page numbers generated by the parties.

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Prior to his incarceration at Greene, plaintiff was confined at the Bare

Hill Correctional Facility ("Bare Hill"). Dkt. No. 69-8 at 22-23. While confined at Bare Hill, plaintiff filed a grievance against Sgt. Miller ("Miller"), an officer at that facility. Id. at 22. Plaintiff did not come into contact with

Hammond or Goppert while he was incarcerated at Bare Hill. Dkt. No. 69-8 at 24. Plaintiff never encountered Miller while he was incarcerated at

Greene. Id. at 28.

On March 12, 2013, plaintiff filed a complaint in the United States

District Court for the Northern District of New York against Miller. Nicholson v. Miller, No. 9:13-CV-0277 (LEK/ATB) ("Nicholson I"). In Nicholson I, plaintiff alleged that Miller threatened him, retaliated against h