Dawes v. Walker

• Decision Date: 08 February 2001
• Docket Number: Docket No. 99-252
• Parties: (2nd Cir. 2001) IAN DAWES, Plaintiff-Appellant, v. HANS WALKER, Superintendent, Auburn Correctional Facility; GEORGE B. DUNCAN, Deputy Superintendent, Auburn Correctional Facility; B. McARDLE, Lieutenant, Auburn Correctional Facility; R. HEAD, Sergeant, Auburn Correctional Facility; S. YORKEY, Correctional Officer, Defendants-Appellees. August Term 1999
• Court: U.S. Court of Appeals — Second Circuit

Page 489

239 F.3d 489 (2nd Cir. 2001)

IAN DAWES, Plaintiff-Appellant, v. HANS WALKER, Superintendent, Auburn Correctional Facility; GEORGE B. DUNCAN, Deputy Superintendent, Auburn Correctional Facility; B. McARDLE, Lieutenant, Auburn Correctional Facility; R. HEAD, Sergeant, Auburn Correctional Facility; S. YORKEY, Correctional Officer, Defendants-Appellees.

Docket No. 99-252

August Term 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued April 4, 2000

Decided February 08, 2001

Plaintiff-appellant, a pro se prisoner, appeals from an order of the District Court for the Northern District of New York (Norman A. Mordue, District Judge) dismissing his 42 U.S.C. § 1983 suit that alleges First Amendment and Eighth Amendment violations by various prison officials at the Auburn Correctional Facility in Auburn, New York.

Affirmed.

IAN DAWES, pro se, Sullivan Correctional Facility, Fallsburg, New York, for Plaintiff-Appellant.

DANIEL SMIRLOCK, Assistant Solicitor General, Albany, New York (Eliot Spitzer, Attorney General of the State of New York, Albany, New York; Peter H. Schiff, Deputy Solicitor General of the State of New York, Albany, New York; Nancy A. Spiegel, Assistant Solicitor General for the State of New York, Albany, New York) for Appellees.

Before: WALKER, Chief Judge, OAKES and WINTER, Circuit Judges.

JOHN M. WALKER, JR., Chief Judge:

Plaintiff-appellant Ian Dawes, pro se, appeals from a July 22, 1999 order by the District Court for the Northern District of New York (Norman A. Mordue, District Judge) dismissing his 42 U.S.C. § 1983 action. Dawes alleged retaliation in violation of the First Amendment by various prison officials at the Auburn Correctional Facility in Auburn, New York. Dawes contends these officials were displeased by earlier lawsuits¹ and internal administrative grievances he had filed and therefore sought to punish him by inciting inmates to attack him. Dawes also asserts a related Eighth Amendment violation based on Officer McArdle's purported attempt to compel an inmate to attack Dawes.

For the reasons stated herein, we affirm the district court's dismissal.

BACKGROUND

According to the complaint, on August 30, 1996, Dawes was informed by a fellow inmate, Levin, that defendant McArdle had threatened to place Levin on a "restricted diet" unless he attacked Dawes. Dawes contends that McArdle wanted to use the altercation that would ensue as an excuse to impose disciplinary sanctions on Dawes. Dawes alleges that this was in retaliation for his having successfully appealed an unspecified disciplinary order early imposed on him by McArdle. Nowhere does Dawes allege that he was either attacked or even threatened by Levin.

Dawes, however, did report Levin's allegations against McArdle to Auburn Superintendent Hans Walker on September 3, 1996. Walker in turn directed Sergeant R. Head to investigate. According to the complaint, during the course of the investigation, Sergeant Head approached Dawes and, allegedly with the intent that other prisoners hear him, stated "Dawes . . . you have wr[itten] the Superintendent claiming you have enemies here in [the] tank who[m] you don't want to be in [the prison] yard with, you are a rat . . . ." Dawes contends that Sergeant Head's "conduct was intended to lab[el him] as an 'informant' for the purpose of inflaming other prisoners . . . against [him]," which he further contends would "inevitably provoke an attack against [him] by other prisoners."

Dawes also alleges that beginning on November 18, 1996, Officer S. Yorkey engaged in similar conduct. Yorkey allegedly informed various unidentified inmates that Dawes is "an informant."

On October 2, 1996, Dawes filed the present suit seeking compensatory and injunctive relief. In late 1998, Dawes was transferred from Auburn to another correctional facility.²

DISCUSSION

A. Standard of Review

Because the district court dismissed Dawes's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), our review is de novo. See, e.g., Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). At the pleading stage, we assume all well-pled factual allegations are true and draw all reasonable inferences favorable to the plaintiff. See, e.g., Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). We give no credence to plaintiff's conclusory allegations, however. See, e.g., Leeds, 85 F.3d at 53.

B. First Amendment Retaliation

"Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights." ACLU v. Wicomico County, 999 F.2d 780, 785 (4th Cir. 1993).

As a threshold matter, we note that courts must approach prisoner claims of retaliation with skepticism and particular care. See Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983). This is true for several reasons. First, claims of retaliation are difficult to dispose of on the pleadings because they involve questions of intent and are therefore easily fabricated. Second, prisoners' claims of retaliation pose a substantial risk of unwarranted judicial intrusion into matters of general prison administration. This is so because virtually any adverse action taken against a prisoner by a prison official--even those otherwise not rising to the level of a constitutional violation--can be characterized as a constitutionally proscribed retaliatory act. See Franco v. Kelly, 854 F.2d 584, 590 (2d Cir. 1988); see also Wicomico County, 999 F.2d at 785 ("Retaliation by a public official for the exercise of a constitutional right is actionable . . . even if the act, when taken for different reasons, would have been [constitutionally permissible]."); Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir. 2000) (same); Johnson v. Rodriguez, 110 F.3d 299, 313 n.19 (5th Cir. 1997) (same). Given that such adversity is an ever-present concomitant of prison life, the opportunities to characterize its manifestations as actionable retaliation are far greater than that for society at large.

To survive summary dismissal, a plaintiff asserting First Amendment retaliation claims must advance non-conclusory allegations establishing: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action. See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 386-87 (6th Cir. 1999) (en banc) (per curiam); see also Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir. 2000). Dawes's First Amendment retaliation claims against McArdle, Yorkey and Head each fail because none makes this prima facie showing.

In his claim against McArdle, Dawes alleged that as retaliation for his having appealed an unspecified disciplinary order, which appeal was protected by the First Amendment, see, e.g., Franco, 854 F.2d at 590, McArdle sought to coerce inmate Levin to assault Dawes. Cf. Bowman v. City of Middletown, 91 F. Supp. 2d 644, 664 (S.D.N.Y. 2000). The district court dismissed the claim because it found the complaint did not set forth facts supporting a causal connection between the two events. Specifically, the district court reasoned:

it is unclear from [Dawes's] submissions when he secured this reversal in relation to the ordered attack. Without such context, this Court cannot find that Defendant McArdle's conduct was motivated by Plaintiff's successful reversal.

Dawes v. Walker, No. 96-CV-1675, at 7 (N.D.N.Y. July 22, 1999) (unpublished mem. decision & order).

We agree with the district court that Dawes's failure to set forth a time frame for the alleged events--reversal of McArdle's disciplinary order and McArdle's discussion with Levin about assaulting Dawes--precludes inference of a causal relationship. See Diesel, 232 F.3d at 107 ("The causal connection must be sufficient to support the inference 'that the speech played a substantial part' [in the adverse action]." (quoting Ezekwo v. NYC Health & Hosp. Corp., 940 F.2d 775, 780-91 (2d Cir. 1991))). However, we note that this is not the only omission that precludes inference of a causal relationship. For instance, Dawes fails to set out the nature of the disciplinary order and the reasons for its reversal. This information could have aided in establishing a plausible motivation for McArdle to retaliate against Dawes and thus could have created an inference of a causal relation. Instead of providing such information, Dawes asserted only bald allegations of retaliation. These factual omissions are particularly striking because Dawes can be expected to have firsthand knowledge of them. Accordingly, we hold that the district court properly dismissed the retaliation claim against McArdle.

Dawes's retaliation claims against Yorkey and Sergeant Head involve retaliatory acts purportedly undertaken by both as a result of Dawes's filing an internal prison complaint against Officer McArdle, which was protected by the First Amendment. See, e.g., Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996). Yorkey is alleged to have referred to Dawes as "an informant" during discussions with unidentified inmates and Sergeant Head is alleged to have called Dawes a "rat" to his face on one occasion. The district court dismissed both claims. As to the claim against Yorkey, the district court concluded that no inference of causation had been established. And as to the claim against Sergeant Head, it found the service of process deficient. We affirm the dismissal of both claims, but do so on different grounds.

We find the statements purportedly made both by Yorkey and by Sergeant Head do not constitute adverse actions and thus do not make out claims of retaliation. Cf. Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (holding that administrative segregation of prisoner could constitute adverse act). While, as we discussed above, the scope of conduct that can constitute actionable...