Gill v. Pidlypchak

• Decision Date: 19 November 2004
• Docket Number: No. 03-0232.,03-0232.
• Citation: 389 F.3d 379
• Parties: Anthony G. GILL, Plaintiff-Appellant, v. Chris PIDLYPCHAK, Correction Officer; T.G. Dygert, Correction Officer, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 379

389 F.3d 379

Anthony G. GILL, Plaintiff-Appellant, v. Chris PIDLYPCHAK, Correction Officer; T.G. Dygert, Correction Officer, Defendants-Appellees.

No. 03-0232.

United States Court of Appeals, Second Circuit.

Submitted: June 1, 2004.

Decided: November 19, 2004.

Anthony G. Gill, pro se, Romulus, NY, for plaintiff-appellant.

Andrea Oser, for Eliot Spitzer, Attorney General of the State of New York (Martin A. Hotvet, of counsel), for Defendants-Appellees.

Before: CALABRESI and WESLEY, Circuit Judges, and SCULLIN, Jr., District Judge.^*

Judge SCULLIN concurs in the majority opinion and in a separate opinion.

CALABRESI, Circuit Judge.

In November 2002, Plaintiff-Appellant Anthony Gill, a prisoner at the Five Points Correctional Facility, filed a pro se action in the United States District Court for the Northern District of New York against corrections officers Chris Pidlypchak and T.G. Dygert, in their individual capacities. Gill's complaint alleged that these two officers had violated his First, Eighth, and Fourteenth Amendment rights by (1) deliberately exposing him to second-hand tobacco smoke; (2) depriving him of one meal on each of three different days; and (3) retaliating against him — for filing grievances and complaints concerning their behavior — by, inter alia, submitting false misbehavior reports that resulted in his placement in prison "keeplock." The district court (Hurd, J., sitting by designation) dismissed the lawsuit pursuant to Fed.R.Civ.P. 12(b)(6). The court concluded that Gill's second-hand smoke and deprivation of meals claims alleged only a de minimis injury, and, hence, did not amount to an Eighth Amendment violation. See Gibeau v. Nellis, 18 F.3d 107, 110 (2d Cir.1994). The court further found that Gill's First Amendment retaliation claim failed because the alleged adverse action did not have an actual deterrent effect on his exercise of First Amendment rights: Gill had commenced at least four additional lawsuits and at least thirty-five institutional grievances against the Department of Correctional Services and its employees since the asserted retaliation.

On appeal, Gill seeks reinstatement of both his second-hand smoke and his retaliation claims.¹ We review de novo a district court's Rule 12(b)(6) dismissal for failure to state a claim. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). With regard to his Eighth Amendment cause of action, we affirm substantially for the reasons given by the district court. We, however, vacate the district court's judgment as to Gill's retaliation claim, and remand that claim for further proceedings.

We have previously held that, to sustain a First Amendment retaliation claim, a prisoner must demonstrate the following: "(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." Dawes v. Walker, 239 F.3d 489, 492 (2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). In the case before us, the first and third prongs are not much in dispute. The basic question we face here is whether the defendants' action was meaningfully "adverse" although it did not ultimately dissuade the plaintiff from exercising his rights under the First Amendment.

Defendants argue that under our precedents, a plaintiff must allege an actual chill of his or her First Amendment rights. And indeed, one line of cases in our Circuit — involving criticism of public officials by private citizens — does impose an actual chill requirement for First Amendment retaliation claims. See, e.g., Spear v. Town of West Hartford, 954 F.2d 63, 68 (2d Cir.1992) (affirming a Rule 12(b)(6) dismissal on the grounds that plaintiff had not alleged an actual chilling effect and, in fact, had admitted that he had not changed his behavior at all as a result of the town's allegedly adverse actions). Some of these public official cases cast this requirement in terms of standing, see, e.g., Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir.2002) (holding that plaintiff lacked standing because she could not demonstrate "an actual, non-speculative chilling effect"), while others put the requirement in terms of stating a colorable claim, see, e.g., Curley v. Village of Suffern, 268 F.3d 65, 72-73 (2d Cir.2001). In Curley, for example, we said (at least in that limited public official context) that a plaintiff must prove that (1) she has an interest protected by the First Amendment; (2) defendants' actions were motivated or substantially caused by his exercise of that right; and (3) defendants' actions effectively chilled the exercise of her First Amendment right. Id. at 73 (citing Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998)).

Defendants concede, however, that in the prison context we have previously defined "adverse action" objectively, as retaliatory conduct "that would deter a similarly situated individual of ordinary firmness from exercising ... constitutional rights." Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003), superseded by 320 F.3d 346, 2003 WL 360053 (2d Cir. Feb. 10, 2003) 2003 U.S.App. LEXIS 13030. In Davis, we made clear that this objective test applies even where a particular plaintiff was not himself subjectively deterred; that is, where he continued to file grievances and lawsuits. Thus, after noting that the Davis plaintiff had engaged in grievance "efforts beyond what is reasonably expected of an inmate with `ordinary firmness,'" we concluded that the prisoner "should not be denied remedy because his extraordinary efforts resulted in the resolution of grievances that would have deterred a similarly situated individual of ordinary firmness...." Id. (internal citations and quotation marks omitted). Davis' retaliation claim was therefore reinstated to permit him to try to adduce facts that would support his assertion "that the alleged retaliation would have deterred a reasonable inmate...." Id at 354. Relying on Davis, this Court has subsequently dealt summarily with precisely this same issue, in another case brought by the same plaintiff.

Defendants contend that both the objective and subjective tests must be met; the former to ensure that the claim is not frivolous, see, e.g., Dawes v. Walker, 239 F.3d 489, 493 (2d Cir.2001) (failure to meet objective test reveals that "the retaliatory act is simply de minimis and therefore outside the ambit of constitutional protection") and the latter to ensure that there is an injury sufficient to grant standing. But, in fact, in the public official retaliation context, we have used the subjective test to gauge both the nature and the extent of the alleged injury, while in prison cases we have deployed the objective test without regard for whether the plaintiff himself was actually chilled. There are several ways to resolve this apparent inconsistency.

First, we might conclude that different sorts of retaliation cases are susceptible to different requirements. For example, it is well-settled that public employees alleging retaliation for engaging in protected speech are not normally required to demonstrate a chill subsequent to the adverse action taken against them. They need only show (1) that the speech at issue was made by the employee as a citizen expounding on matters of public concern rather than as a worker speaking on matters of personal interest; (2) that they suffered an adverse employment action (such as firing or demotion); and (3) that the speech was at least a substantial or motivating factor of the adverse employment action. See Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.2003). Thus, provided that the government cannot justify its action under the Pickering test,² the employee's essential burden is to show that he or she was punished, not that his or her speech was "effectively chilled" from that point forward. This same approach holds true for certain public contractors as well. See Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 670, 673, 116 S.Ct. 2342 (1996). We might therefore conclude that prisoner cases, like public employee and contractor cases, arise from different circumstances than the public official/private citizen cases cited by defendants, and therefore have different requirements.³ See, e.g., Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.1999) (en banc) (holding, in a prisoner retaliation case, that the injury is "the adverse consequences which flow from the inmate's constitutionally protected action"); Dixon v. Brown, 38 F.3d 379, 379 (8th Cir.1994) (noting, in a prisoner case, that the injury "inheres in the retaliatory conduct itself").

Second, we might determine that there is no inconsistency at all. In the Spear line of cases, which impose a subjective test, the only injury alleged by the plaintiff is, seemingly, the putative chilling itself. The requirements of the Curley test, after all, are only: (1) a First Amendment interest; (2) a government official who is motivated to punish exercise of that interest; and (3) actual chilling. Plaintiffs in these types of cases need not show "adverse action" (say, keeplock or firing) plus chilling. In other words, it is the plaintiff's allegation of chilling which makes the action ostensibly "adverse" in the first place. So, for example, in Spear, the plaintiff did not allege, and probably could not have alleged, any other harm. The town filed a complaint and sought an injunction against Spear, but the only potential injury Spear could have suffered was the impairment of his First Amendment rights. See also Colombo v. O'Connell, 310 F.3d 115, 117 (2d Cir.2002) (plaintiff alleged that a threatened suit against her by a school board official chilled her speech); Connell v. Signoracci, 153 F.3d 74, 79 (2d Cir.1998) (plaintiff alleged that harassment by town officials chilled his protected expression); ...