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In the United States District Court for the Northern District of New York ______ 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. 2 Case 9:13-cv-00748-TJM-DEP Document 78 Filed 05/19/16 Page 3 of 129 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. 3 Case 9:13-cv-00748-TJM-DEP Document 78 Filed 05/19/16 Page 4 of 129 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 him and used excessive force. Dkt. No. 1 at 4, 6; Nicholson I, Dkt. Nos. 1, 11.4 On or about March 27, 2013, plaintiff received a letter from his attorney, Eugene Grimmick, Esq. ("Grimmick").5 Dkt. No. 69-8 at 35; Dkt. No. 1-1 at 7-8. In the letter, Grimmick indicated that he enclosed copies of plaintiff's "Appellant's Brief and Appendix" and plaintiff's "Record on 4 The court may properly rely upon the Nicholson I docket because docket sheets are public records, "of which the court could take judicial notice." Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (citations omitted). 5 Grimmick is not a defendant in this action. 4 Case 9:13-cv-00748-TJM-DEP Document 78 Filed 05/19/16 Page 5 of 129 Appeal." Dkt. No. 1-1 at 7. Plaintiff, however, did not receive the referenced enclosures. Dkt. No. 69-8 at 36-37. Plaintiff did not see Hammond or Goppert destroy his legal mail, nor was he told that Hammond or Goppert had destroyed his legal mail. Id. at 25. B. Grievance Related to Legal Mail On June 18, 2013, plaintiff filed a grievance (GNE-7830-13) claiming that his legal mail was "destroyed" or "not given to [him] for some reason."6 Dkt. No. 69-9 at 6-8. Plaintiff alleged that his mail was destroyed in "retaliation for filing a federal lawsuit against Sgt. Miller." Id. at 8. Plaintiff did not name or identify Hammond or Goppert in the grievance. Dkt. No. 69-8 at 28; Dkt. No. 69-9 at 6-8. On July 8, 2013, Mr. Black, the Inmate Grievance Program ("IGP") Supervisor, forwarded a memorandum to plaintiff advising that an investigation into plaintiff's grievance was ongoing.7 Dkt. No. 69-9 at 13. Hammond conducted the investigation and determined that a package was received from Grimmick on April 3, 2013 and April 12, 2013, but that 6 During his deposition, plaintiff testified that his legal mail was destroyed on April 2, 2013, April 3, 2013 and April 12, 2013. Dkt. No. 69-8 at 20-21. 7 Mr. Black is not a defendant in this action. 5 Case 9:13-cv-00748-TJM-DEP Document 78 Filed 05/19/16 Page 6 of 129 plaintiff did not sign for the legal mail. Id. at 14. Hammond concluded that plaintiff's mail was lost and that his grievance "has merit." Id. On July 31, 2013, the Inmate Grievance Review Committee ("IGRC") issued a response accepting the grievance, in part. Dkt. No. 69-9 at 10. The committee found that packages were received from plaintiff's attorney on April 3, 2013 and April 12, 2013. Id. However, plaintiff did not sign for any legal mail on, or immediately after, those dates. The committee concluded that plaintiff's mail was lost. Id. On August 14, 2013, plaintiff appealed the IGRC decision to the superintendent. Dkt. No. 69-9 at 10. Plaintiff did not mention Hammond or Goppert in that appeal. Dkt. No. 69-8 at 31. On August 15, 2013, Acting Superintendent Arthur Dirie ("Dirie"), issued a decision accepting the grievance, to the extent that plaintiff's mail was lost.8 Dkt. No. 69-9 at 9. On August 19, 2013, plaintiff appealed the superintendent’s decision to the Central Office Review Committee ("CORC"). Dkt. No. 69-9 at 9. Plaintiff did not mention Hammond or Goppert in the appeal. Dkt. No. 69-8 at 33. On January 15, 2014, the CORC upheld the superintendent's decision. Dkt. No. 69-9 at 3. The committee determined that plaintiff did not 8 Dirie is not a defendant herein. 6 Case 9:13-cv-00748-TJM-DEP Document 78 Filed 05/19/16 Page 7 of 129 present sufficient evidence to substantiate retaliation or malfeasance by staff. Id. C. Grievance Related to Freedom of Information Law ("FOIL") Request On July 11, 2013, plaintiff filed a grievance (GNE 7846-13) regarding a "FOIL Issue." Dkt. No. 69-10 at 12. Plaintiff complained that he did not receive a response to his June 16, 2013 FOIL request seeking the names of individuals who signed for packages containing his legal documents. Id.; Dkt. No. 74 at 2. On August 15, 2013, Dirie accepted plaintiff's grievance "in part" and concluded that while plaintiff did not receive the requested items pursuant to FOIL, copies of plaintiff's request "have since been forwarded to him." Id. Plaintiff was directed to submit future FOIL requests to the facility FOIL officer, T. Johnson, in community supervision, and not to administrative staff, to avoid potential delays. Dkt. No 69-10 at 12. On August 19, 2013, plaintiff appealed the superintendent's decision to the CORC. Dkt. No. 69-10 at 12. On January 2, 2014, the CORC upheld Dirie's decision, finding that on July 22, 2013, plaintiff received copies of the log book for "4/4/13 - 4/20/13." Dkt. No. 69-10 at 24. 7 Case 9:13-cv-00748-TJM-DEP Document 78 Filed 05/19/16 Page 8 of 129 D. Grievance Related to Snide On July 24, 2013, plaintiff was summoned to the grievance office. Dkt. No. 1 at 6; Dkt. No. 69-10 at 8. Snide was present and asked plaintiff what he "would like to do with GNE 7830-13." Id. Plaintiff responded that the grievance should have been appealed to the superintendent in accordance with grievance time limits. Id. at 9. Snide threatened plaintiff with confinement at a "max prison" and directed plaintiff to "stop filing grievances." Id.
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