Chavis v. Struebel

• Decision Date: 29 March 2004
• Docket Number: No. 00-CV-0097 SR.,00-CV-0097 SR.
• Citation: 317 F.Supp.2d 232
• Parties: George M. CHAVIS, 91-A-3261, Plaintiff, v. G. STRUEBEL and R. Cunningham, Defendants.
• Court: U.S. District Court — Western District of New York

317 F.Supp.2d 232

George M. CHAVIS, 91-A-3261, Plaintiff, v. G. STRUEBEL and R. Cunningham, Defendants.

No. 00-CV-0097 SR.

United States District Court, W.D. New York.

March 29, 2004.

George M. Chavis, Upstate Correctional Facility, Malone, NY, pro se.

Stephen F. Gawlik, Assistant Attorney General, Buffalo, NY, for Defendants.

DECISION AND ORDER

SCHROEDER, United States Magistrate Judge.

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt.# 21.

Plaintiff commenced this action pro se, pursuant to 42 U.S.C. § 1983, alleging that numerous defendants denied him his rights under the First and Fourteenth Amendments to the United States Constitution. Dkt. # 1. Plaintiff's complaint was dismissed with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(b) and 1915A by Order of the Court entered February 22, 2000. Dkt. # 3. Pursuant to the Mandate of the Court of Appeals for the Second Circuit, plaintiff's retaliation claims against defendants Cunningham and Struebel were reinstated. Dkt. # 6.

Plaintiff alleges that while he was incarcerated at the Attica Correctional Facility ("Attica"), defendant Cunningham "confiscated my sealed legal envelope — censored it then retaliated against [me] with a 120 day keeplock ticket after my grievance against him for violating my legal mail on 10-3-97," and that defendant Struebel "threatened my health/life with a false schizophrenia mental record after my grievances." Dkt. # 1.

Currently before the Court is defendants' motion for summary judgment (Dkt. # 54), and plaintiff's motion to serve a request for admissions upon the defendants. Dkt. # 64. For the following reasons, defendants' motion is granted and plaintiff's motion is denied.

BACKGROUND

By letter dated October 7, 1997 and stamped received by "Attica Corr. Facility 1st Dep Supt." on October 8, 1997, plaintiff wrote the following:

Dear Mr. McCray,

During the cell search of 25-tier on 10-3-97, two un known racist officers entered my cell specifically by order of Sgt. Cunningham and "stole" several items belonging to me (my #6 — college pens — they are assorted color clip on types, and my two Disposable cig-lighters!). Additionally, # 5 of my sealed legal envelopes were "Ripped" open, and read (one of my legal letters to the Commission on Corrections" had been confiscated and never returned! After the cell search/theft of my property and violation of all my legal mail, had been completed, I was called down to the Sgts office where two plainclothes civilians had interviewed me concerning my legal letter confiscated (to the Commissioner for Corrections."). Sgt. Cunningham is a racist, white K.K.K. Bastard, and sooner or later he will be dealt with accordingly.

Dkt. # 53, Exh. A.¹ On a separate piece of paper, which is undated and does not bear a received stamp, plaintiff writes:

Mr. McCray,

Notice that after you'd taken (actively on), vacation, all of a sudden there's a "up rising" within this racist hell hole!

Vigilante officers, are clearly not fit to wear correctional uniforms.

Sooner or later, I will get even with those # 2 white, redneck, racist, thieves who search my cell, stole my property, opened all of my legal mail (in sealed envelopes!), and tossed my new Hot Pot into the trash, th[e]n exited my cell w/ my legal letter in hand!

Dkt. # 53, Exh. A.²

In response to these letters, Lt. Cunningham avers that First Deputy Superintendent McCray ordered him to meet with plaintiff. Dkt. # 53, ¶ 4. Lt. Cunningham met with plaintiff on October 14, 1997, at which time plaintiff admitted that he was the author of the letter, but refused to comment about his intentions with respect to the threats contained in the letters. Dkt. # 53, ¶ 5. In response to these threats, Lt. Cunningham wrote a misbehavior report charging plaintiff with violating the following rules: threats in writing (102.10); harass employees in writing including insolent, abusive and/or obscene language (107.11); and lying/ false statements (107.20). Lt. Cunningham avers that

At the time I wrote the misbehavior report, I was not aware of any grievance filed by plaintiff against me. Nor was the misbehavior report written in retaliation for any such grievance. Furthermore, even if I was aware of a grievance, due to the express threats made in the letter to Deputy Superintendent McCray, I would have issued the misbehavior report. While plaintiff, as well as all other inmates, have the right to complain and file grievances about any problem they claim to have with me or other officers, they do not have the right to make threats against staff or threaten to riot.

Dkt. # 53, ¶ 9.

Following a tier II³ disciplinary hearing before Lt. Brekon on October 20, 1997, plaintiff was found guilty of making threats and writing false statements and sentenced to thirty days keeplock and 30 days loss of packages, phone privileges, and commissary, plus imposition of an additional 3 months keeplock and loss of phone privileges which had been suspended from a prior disciplinary hearing.⁴ Dkt. # 53, Exh. C.

In support of the motion for summary judgment, defendant Struebel, Inmate Grievance Program Supervisor at Attica, submitted an affidavit stating that

A review of the records kept by DOCS with respect to inmate grievances shows that plaintiff did not file any grievance on October 3, 1997 concerning a cell search and/or the confiscation of his legal mail. Moreover, the records also reveal that from October 3, 1997 until October 14, 1997, the date the misbehavior report was issued by Sgt. Cunningham, plaintiff did not file a grievance concerning the incident or against Sgt. Cunningham.

Dkt. # 55, ¶ 4. Plaintiff did file a grievance against Lt. Cunningham on October 17, 1997 claiming "that the disciplinary report issued on October 14, 1997 was issued in retaliation for plaintiff filing a grievance on October 3, 1997." Dkt. # 55, ¶ 7. That grievance was denied because plaintiff had not filed a grievance on October 3, 1997 and because of the nature of the letter that was the subject of the disciplinary report. Dkt. # 55, ¶ 7. Specifically, the Central Office Review Committee determined the following:

You claim that you were retaliated against for filing a grievance, but you filed no grievance on the October 3 incident. You sent a letter directly to myself that was referred to your area Sergeant for investigation. Your responses to the Sergeant were not satisfactory and he issued you a misbehavior report based on the threats and information you included in that letter. You were found guilty of two separate charges; you appealed the disposition; and I upheld those findings. There was no retaliation for filing a grievance but you were held accountable for written threats which you personally addressed to [Thomas Eagan, Assistant Director, Inmate Grievance Program].

Dkt. # 55, Exh. A.

Plaintiff commenced an Article 78 proceeding with respect to this determination. Dkt. # 63, Exh. A. By Order dated July 14, 1998, the Hon. Mark H. Dadd, Acting Supreme Court Justice, Supreme Court, Wyoming County, expressed that he was "uncomfortable with the fact that this disciplinary action arose from a correction officer confronting an inmate with written complaints raised against him," but denied plaintiff's petition for failure to demonstrate that the commissioner's hearing officer conducted the disciplinary hearing in a less than fair and impartial manner, which was the sole legal claim raised by plaintiff. Dkt. # 63, Exh. A.

With respect to plaintiff's second claim, defendant Struebel avers that "DOCS has no such thing as [a] `schizophrenia report"' and that he "did not file any `schizophrenia report' against plaintiff." Dkt. # 55, ¶ 5. Moreover, although Struebel does not recall making a referral to the Mental Health Unit with respect to plaintiff, he states that any such referral would not involve any diagnosis, but would simply request that the Mental Health Unit assess "what if any action need be taken." Dkt. # 55, ¶ 6. Defense counsel avers that he has reviewed plaintiff's mental health records and determined that there is no indication that Struebel ever made such a referral. Dkt. # 54, ¶ 15. Plaintiff did not file a grievance against Struebel. Dkt. # 55, ¶ 8.

In response to discovery demands, plaintiff asserts that defendant Struebel made "threats of false mental health reports against" plaintiff with the goal of

debilitating my character prior to federal court [trial], in producing me, as a plaintiff far reaching, over emotional, un stable `mentally,' and everything else negative that would compell [sic] court officials into misleading/inaccurate judgment against me, as a solidly profound plaintiff, in this case, and others.

Dkt. # 54, Exh. B. Plaintiff further explained that he had

stated clearly that the defendant G. Struebel had "threatened" to formulate a false mental health report in alleged schizophrenia against me, I never have stated he did do it (although I have no idea if this has been done by this manipulative defendant!). However, G. Struebel could have committed this negative act against me, as it had certainly been his previous threat to me, in addition, to forcing me into a mental assylum [sic] for the criminally insane!

Dkt. # 54, Exh. B. Plaintiff reiterates that he "had never stated the defendant G. Struebel had issued any such `schizophrenia report' in retaliation for plaintiff's filing of grievances" but had stated that the defendant

on the date of 12-9-97, had threatened a "false" mental health report in psychological schizophrenia if the plaintiff continued to file facility grievances in addition to external written complaints to state legal offices exposing interdepartmental officer and civilian staff corruption against state prisoners within Attica.

Dkt. # 61. In response to defendants' interrogatories,...