Burns v. Martuscello

Citation890 F.3d 77
Decision Date09 May 2018
Docket NumberAugust Term, 2017,Docket No. 15-1631
Parties Mark BURNS, Plaintiff–Appellant, v. Daniel F. MARTUSCELLO, Jr., Superintendent, Coxsackie Correctional Facility, Captain Shanley, Coxsackie Correctional Facility, Sergeant Noeh, Coxsackie Correctional Facility, Schwebler, Guidance Counselor, Coxsackie Correctional Facility, Brian Fischer, Commissioner of New York State Department of Corrections, Teresa Knapp–David, Director of Movement and Control, New York State DOCCS, McGlynn, Guidance Counselor, Coxsackie Correctional Facility, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

NOAM BIALE, Sher Tremonte LLP (Michael W. Gibaldi, on the brief ), New York, N.Y., for PlaintiffAppellant Mark Burns.

ROBERT M. GOLDFARB, Assistant Solicitor General (Barbara D. Underwood, Andrew D. Bing, on the brief ), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, N.Y., for DefendantsAppellees Daniel F. Martuscello et al.

Before: WALKER and POOLER, Circuit Judges, CRAWFORD, District Judge.2

POOLER, Circuit Judge:

PlaintiffAppellant Mark Burns appeals from a February 10, 2015 decision and order of the United States District Court for the Northern District of New York (Kahn, J .), adopting the report-recommendation of the magistrate judge (Hummel, M.J. ) in its entirety, and granting summary judgment to defendants. Burns brought several Section 1983 claims, alleging that his First, Eighth, and Fourteenth Amendment rights were violated when he was put on a restricted status known as Involuntary Protective Custody ("IPC") for over six months, after he refused the demands of prison guards to act as a "snitch," or to falsify his account of a minor incident in the commissary. With regard to the First Amendment retaliation claim, the district court reasoned that Burns was not engaged in protected speech or conduct, because the First Amendment did not protect Burns's refusal to snitch.

Today we hold that the First Amendment protects both a prisoner's right not to serve as an informant, and to refuse to provide false information to prison officials. We have previously held that citizens enjoy a First Amendment right to refuse to provide false information to the government, but have not previously recognized this right in the prison context. See Jackler v. Byrne , 658 F.3d 225 (2d Cir. 2011). With regard to a prisoner's right not to snitch, we have not previously reached this issue—though we have encountered it and declined to decide it on at least two prior occasions. See Willey v. Kirkpatrick , 801 F.3d 51 (2d Cir. 2015) ; Allah v. Juchenwioz , 176 Fed.Appx. 187, 189 (2d Cir. 2006) (summary order). Because these rights were not clearly established at the time of the events underlying this suit, the defendants are entitled to qualified immunity. For these reasons, we affirm the judgment of the district court.

BACKGROUND
I. Facts

Burns is an inmate in the custody of the New York State Department of Corrections and Community Supervision, and, at all times relevant to his claims, was an inmate at Coxsackie Correctional Facility. As we must at summary judgment, we credit Burns's account of events, and draw all reasonable inferences in his favor. See Reyes v. Lincoln Auto. Fin. Servs ., 861 F.3d 51, 54 (2d Cir. 2017), as amended (Aug. 21, 2017).

Burns began working as a stock clerk in the Coxsackie commissary beginning in April of 2010. According to Burns, on May 19, 2010, he was in the commissary removing stock from shelves, when a can fell from a high shelf and struck him in the face and neck. Burns suffered minor injuries—namely, redness on his face, which subsequently became a small bruise, and a scratch on his neck. Burns reported the injury to commissary staff and signed a medical waiver. The next day, May 20, an inmate injury report was filed, indicating that Burns had been injured by a falling can in the commissary.

Also on May 20, 2010, Burns asserts that he was again working in the commissary when he was approached by defendants Sergeant Noeh and Captain Shanley. Noeh and Shanley told Burns that his wife had called and complained that Burns had been "cut" by a fellow inmate. Report–Recommendation and Order at 4, Burns v. Martuscello , 13-cv-486, ECF No. 46 (N.D.N.Y. Dec. 18, 2014). In Burns's telling of the events, he denied having any altercation with a fellow inmate. Burns also pointed out that he had no cut, and that his apparent, minor injuries were the result of the can falling on him the day before. Burns further explained that a correctional officer assigned to the commissary had witnessed the accident and documented it as a work-related injury. Burns also questioned whether his wife made any such call. However, Burns told Noeh and Shanley that he had recently been experiencing marital difficulties, and theorized that if his wife had in fact called, it was due to their marital discord.

According to Burns, Shanley then proposed a deal. He told Burns that he intended to recommend Burns for placement in IPC, citing the call from Burns's wife as an indication of a threat to Burns's safety. But, Shanley offered to let Burns avoid this restricted status if Burns agreed to be the guards' snitch. Shanley and Noeh did not say that that they had a particular reason to believe Burns would have information, but instead said that Burns knew "what goes on." Joint App'x at 48. If Burns didn't agree to this arrangement, the guards threatened that Burns would be relegated to IPC indefinitely. Burns refused to go along with the guards' request. Shanley then instructed Noeh to write an IPC recommendation. In the subsequent IPC recommendation, Noeh noted that Burns's wife called and reported he was cut, that Burns had a bruised left eye but no visible cut, and that Burns reported that a can fell on him, causing the bruise.

On May 26, 2010, a hearing commenced to determine whether Burns would be put in IPC. Burns opposed the transfer. Burns indicated that he would like to call as a witness correctional officer Jablanski, who had been assigned to the commissary when the can fell, and the hearing adjourned.

According to Burns, at some point near the initial hearing—about a week after the can fell—Shanley and Martuscello approached Burns and repeated the demand that Burns be "their snitch." Shanley and Martuscello also said that they "had a new theory that [Burns] was assaulted by staff and that when [Burns] agreed to snitch [he] would be let out but until then [he] could rot in IPC." Joint App'x at 22.

The hearing resumed on June 7, 2010. Officer Jablanski testified that he recalled that a can fell from the top shelf and hit Burns in the face, and that Burns reported the event to him. Jablanski also noted that he logged the injury. Noeh then testified that Burns's wife called and reported that Burns had been "cut." Supp. App'x at 69. Noeh further testified that Burns "had no cuts on him but he had a black eye, which he claimed he got from a can falling." Supp. App'x at 69. When asked if he knew whether there was "a threat to Mr. Burns['] safety within the general inmate population" at Coxsackie, Noeh replied, "[i]f I go by the inmate[']s word, no."

Supp. App'x at 69. Shanley then testified that he recommended Burns for IPC status after receiving a phone call from Burns's wife and determining that Burns's injuries were consistent with having an altercation.

That same day, June 7, 2010, the hearing officer approved Burns's placement in IPC. Burns was then transferred to IPC, where he remained until January 2011. This status mandated that Burns remain in his cell for 23 hours a day, and dramatically curtailed his access to the library, religious services, and other prison resources.

Burns further recounts that while he was in IPC, Shanley and Martuscello repeatedly demanded that Burns serve as their snitch in order to be released from restricted custody. According to Burns, at one point, Martuscello stopped by Burns's cell, and, when Burns protested to be released from IPC, Martuscello replied that "only [Martuscello] had the power to change [the] situation," and that "the only way that would happen was agree to snitch other wise [sic] [Burns] could rot here," in IPC. Joint App'x at 23. Burns also reports that the officers continued to pressure him to change his account of how he received his injuries. Burns explained time and again that his injuries were the product of a minor workplace mishap, but the guards continued to ask him for a version of events that implicated a guard. In response to these requests, Burns reiterated to the officers that he "couldn't give them anything that [he] d[id]n't know," but the officers insisted that Burns should "give [them] some knowledge and [Burns] would be able to get out." Joint App'x at 50, 43.

During his time in IPC, Burns filed numerous grievances related to his IPC status. After over six months in IPC, Burns was ultimately released from the restricted status upon his transfer to a different correctional facility in early 2011.

II. Procedural History

On April 30, 2013, Burns filed suit pro se, alleging violations of his constitutional rights. The district court construed Burns's complaint to raise violations of the First, Eighth, and Fourteenth Amendments. Following discovery, defendants moved for summary judgment, asserting that Burns failed to exhaust administrative remedies, and that the record evidence did not support his Eighth and Fourteenth Amendment claims.

The magistrate judge found that Burns had established a genuine issue of material fact regarding exhaustion, but ruled that Burns had failed to establish claims to relief under the Eighth or Fourteenth Amendments. With respect to the First Amendment retaliation claim, the magistrate judge reasoned Burns was not engaged in protected speech or conduct, since no court has previously held that there was a right to refuse to serve as a prison informant. Defendants did not...

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