Washington v. Gonyea , 538 F. App'x 23 ( 2013 )

11-980-cv
Washington v. Gonyea
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007,
is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing
a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic
database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not
represented by counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3 10th day of September, two thousand and thirteen.
4
5 PRESENT:
6
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 Circuit Judges,
10 EDGARDO RAMOS,
11 District Judge.* .
12 _______________________________________________
13
14 ANTHONY WASHINGTON,
15
16 Plaintiff-Appellant,
17 -v.- No. 11-980-cv
18
19 PAUL GONYEA, Deputy Superintendent of Monterey Correctional
20 Facility, Individually and in his Official Capacity, TAMMI CHABOTY,
21 Sergeant at Woodbourne Correctional Facility, Individually and in
22 her Official Capacity, KEITH GRANGER, Sergeant at Livingston
23 Correctional Facility, Individually and in his Official Capacity,
24 Defendants-Appellees.
25 _______________________________________________
26 __________________________
* The Honorable Edgardo Ramos, of the United States District Court for the Southern District of
New York, sitting by designation.
1
1 MICHAEL J. BALCH, New York, New York, for Plaintiff-
2 Appellant.
3
4 BRIAN A. SUTHERLAND, Assistant Solicitor General of
5 Counsel (BARBARA D. UNDERWOOD, Solicitor General,
6 MICHAEL S. BELOHLAVEK, Senior Counsel, on the brief), for
7 ERIC T. SCHNEIDERMAN, Attorney General of the State of
8 New York, New York, New York, for Defendants-Appellees.
9 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
10 that the order of the District Court is AFFIRMED IN PART and REVERSED IN PART, and the
11 case is REMANDED.
12 Plaintiff-Appellant Anthony Washington (“Washington”) appeals from a judgment of the
13 United States District Court for the Southern District of New York (Gardephe, J.), entered January
14 31, 2011, granting Defendants-Appellees’ motions to dismiss. In an accompanying opinion filed
15 today, we affirm on alternative grounds the district court’s dismissal of Washington’s claim that
16 Defendants-Appellees substantially burdened his right to free exercise of religion in violation of the
17 Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1. In this
18 summary order, we affirm the district court’s denial of Washington’s due process claim and reverse
19 dismissal of his First Amendment retaliation claims.1 We assume the parties’ familiarity with the
20 underlying facts and procedural history of the case.
21 We review the grant of a motion to dismiss de novo, accepting all factual allegations as true
22 and drawing all reasonable inferences in the plaintiff’s favor. See Harris v. Mills, 572 F.3d 66, 71
23 (2d Cir. 2009). The complaint must plead “enough facts to state a claim to relief that is plausible
24 on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Since Washington filed his
1
Washington did not challenge the district court’s dismissal of his conspiracy claim on
appeal, and we therefore deem that claim abandoned. See LoSacco v. City of Middletown, 71 F.3d
88, 92-93 (2d Cir. 1995).
2
1 complaint pro se, “it must be construed liberally to raise the strongest arguments it suggests,”
2 Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (internal quotation marks and alterations
3 omitted), although “a pro se complaint must state a plausible claim for relief,” id.4 I. Due Process Claim
5 “Although prison inmates necessarily have their liberty severely curtailed while incarcerated,
6 they are nevertheless entitled to certain procedural protections when disciplinary actions subject
7 them to further liberty deprivations such as loss of good-time credit or special confinement that
8 imposes an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004). When a prison
9 disciplinary hearing may impose a punishment sufficient to trigger due process protections, “the
10 inmate must receive: (1) advance written notice of the disciplinary charges; (2) an opportunity, when
11 consistent with institutional safety and correctional goals, to call witnesses and present documentary
12 evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and
13 the reasons for the disciplinary action.” Superintendent v. Hill, 472 U.S. 445, 454 (1985). In
14 addition, “due process requires ‘that there be some evidence to support the findings made in the
15 disciplinary hearing.’” Zavaro v. Coughlin, 970 F.2d 1148, 1152 (2d Cir. 1992) (quoting Hill, 472
16 U.S. at 457); see Luna v. Pico, 356 F.3d 481, 488 (2d Cir. 2004) (explaining that this Court “look[s]
17 to see whether there was ‘reliable evidence’ of the inmate’s guilt” supporting the disciplinary
18 decision).
19 Washington fails to raise a due process claim upon which relief may be granted because his
20 complaint does not plausibly allege that Defendant-Appellee Paul Gonyea’s (“Gonyea”) disciplinary
21 decision that Washington had “communicat[ed] messages of a personal nature to an employee,”
22 thereby violating Rule 107.11, 7 N.Y.C.R.R. § 270.2(B)(8)(ii), lacked the support of at least some
3
1 reliable evidence.2 Washington’s complaint alleges that during the disciplinary hearing Gonyea
2 heard testimony from Defendant-Appellee Tammi Chaboty (“Chaboty”), corroborated by testimony
3 from Defendant-Appellee Keith Granger (“Granger”), that Chaboty “was concerned” when
4 Washington handed her the Quran, that he had an “eerie smile which was unnerving,” and that his
5 “conduct [on] the night of the incident seemed inappropriate.” The transcript of the proceeding also
6 indicates that Gonyea interviewed the accuser, Chaboty, and in issuing his decision, relied upon
7 Chaboty’s written incident report and her testimony.3 Although New York’s Third Department
8 found that the disciplinary decision was not based on substantial evidence, Washington v. Selsky,
9 48 A.D.3d 864, 865 (3d Dep’t 2008) (annulling Washington’s disciplinary disposition), Chaboty’s
10 testimony and corroborating evidence constituted some evidence in support of the decision. Since
11 the decision did not rest on “blatantly implausible” evidence, Zavaro, 970 F.2d at 1152, or on
12 hearsay accusations not independently assessed to be credible, see Pico, 356 F.3d at 489-90,
13 Washington’s due process claim must fail.
2
Rule 107.11 is part of Rule Series 107, which addresses an inmate’s “Interference with an
Employee or Other Person.” 7 N.Y.C.R.R. § 270.2(B)(8). Rule 107.11 provides in full,
An inmate shall not harass an employee or any other person verbally or in writing.
Prohibited conduct includes, but is not limited to, using insolent, abusive, or obscene
language or gestures, or writing or otherwise communicating messages of a personal nature
to an employee or any other person including a person subject of an order of protection with
the inmate or who is on the inmate’s negative correspondence list.
Id. § 270.2(B)(8)(ii).
3
In considering a motion to dismiss, a court may consider both documents incorporated by
reference into the complaint and unincorporated documents that are integral to the complaint and
upon which the complaint heavily relies. Chambers v. Time Warner Inc., 282 F.3d 147, 152-53 (2d
Cir. 2002). Here, incorporation of the transcript is proper because the complaint relies heavily on
the hearing transcript.
4
1 II. First Amendment Retaliation Claims
2 Washington alleges that the Defendants-Appellees violated his First Amendment rights to
3 free exercise of his religion and free speech when they retaliated against him for disseminating
4 religious material to Chaboty. To prevail on a First Amendment retaliation claim brought pursuant
5 to 42 U.S.C. § 1983, a prisoner must demonstrate “(1) that the speech or conduct at issue was
6 protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a
7 causal connection between the protected [conduct] and the adverse action.” Espinal v. Goord, 558
8 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)). To be
9 entitled to protection under the free exercise clause of the First Amendment, a prisoner must make
10 a threshold showing that “the disputed conduct substantially burden[ed] his sincerely held religious
11 beliefs.” Salahuddin v. Goord, 467 F.3d 263, 274-75 (2d Cir. 2006). In determining whether a
12 prisoner’s conduct is motivated by a sincerely held religious belief, we do not “evaluate the
13 objective reasonableness of the prisoner’s belief;” Ford v. McGinnis, 352 F.3d 582, 590 (2d Cir.
14 2003); rather, our “scrutiny extends only to whether a claimant sincerely holds a particular belief
15 and whether the belief is religious in nature,” id. (internal quotation marks omitted).
16 The district court erred in dismissing Washington’s retaliation claims on the basis that he
17 failed to plead that his act of giving the Quran to Chaboty constituted an exercise of his sincerely
18 held religious beliefs. Washington alleged that he wanted to give Chaboty the Quran “in response
19 to her expressed interest to know about the religion of Islam” and, significantly, that “he felt that he
20 would be remissed [sic] not to give her the book as it is the primary source of Islam.” In his
21 affidavit opposing dismissal, Washington stated that he believes it to be his “religious duty to inform
5
1 others about the religion of Islam, especially those who inquire about it.”4 Therefore, read liberally
2 and as a whole, the complaint alleges that Washington felt a sincere religious obligation to give the
3 Quran to Chaboty, and while the contours of the burden standard are not precisely drawn, see
4 Salahuddin, 467 F.3d at 275 n.5, the conduct alleged here—that Washington was severely punished
5 for engaging in protected activity—rises to the level of a substantial burden on the free exercise of
6 religion.
7 Even if Defendants-Appellees substantially burdened Washington’s sincerely held religious
8 beliefs, their actions do not constitute a constitutional deprivation if they were “reasonably related
9 to legitimate penological interests.” Redd v. Wright, 597 F.3d 532, 536 (2d Cir. 2010) (quoting
10 O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)); see Turner v. Safley, 482 U.S. 78, 89-90
11 (1987) (articulating three-step analysis for determining reasonableness of a prison regulation). As
12 the district court correctly recognized, assessing the reasonableness of penological interests is a
13 factual and context-specific inquiry that in this case is inappropriate at this preliminary stage of the
14 proceedings. See Ford, 352 F.3d at 596; Salahuddin, 467 F.3d at 277. Furthermore, Washington
15 alleges that Defendants-Appellees were motivated by personal prejudice and did not act against him
16 for legitimate penological reasons. See Shakur v. Selsky, 391 F.3d 106, 116 (2d Cir. 2004)
17 (reversing dismissal of prisoner’s retaliation claim and noting that “a failure to abide by established
18 procedures or standards can evince an improper objective”). Therefore, accepting the complaint’s
19 well-pled factual allegations as true, we conclude that Washington has plausibly alleged that the
20 officers’ actions were not reasonably related to legitimate penological interests.
4
Courts “deciding a motion to dismiss may consider factual allegations made by a pro se
party in his papers opposing the motion.” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013).
6
1 Additionally, we note that Washington alleges that he was denied religious services while
2 in Special Housing Unit (“S.H.U.”) pursuant to the discipline imposed by Gonyea. Although
3 assigned pro bono counsel did not argue on appeal that this alleged deprivation constituted a
4 violation of Washington’s free exercise rights, our waiver doctrine is prudential, see In re Nortel
5 Networks Corp. Sec. Litig., 539 F.3d 129, 133 (2d Cir. 2008) (per curiam), and we address that claim
6 here. While the complaint does not specify which official denied him religious services in S.H.U.,
7 a liberal reading of the complaint gives rise to a plausible inference that Chaboty and Granger were
8 involved either directly or indirectly, and Washington has therefore adequately pled a violation of
9 his First Amendment rights on that basis. On remand, the district court should allow Washington
10 leave to amend his pleadings to add additional defendants if requested.
11 III. Qualified Immunity
12 Finally, Defendants-Appellees argue that they are entitled to qualified immunity because
13 their conduct, as alleged, did not violate clearly established statutory or constitutional rights.
14 However, “where a more specific intent is actually an element of the plaintiff’s claim as defined by
15 clearly established law, it can never be objectively reasonable for a government official to act with
16 the intent that is prohibited by law.” Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001). Here,
17 Washington has plausibly alleged that Defendants-Appellees acted with an improper retaliatory
18 motive. See Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003) (“In order to prevail on his
19 retaliation claims, [plaintiff] bears the burden of showing . . . that the [constitutionally protected]
20 conduct was a substantial or motivating factor for the adverse actions taken by prison officials.”);
21 Compl. ¶¶ 18, 20, 22, 24, 39. Therefore, at this stage of the proceedings, Washington’s allegations
22 are sufficient to require deferral of the issue of qualified immunity.
7
1 We have considered the parties’ remaining arguments and find them to be without merit.
2 For the foregoing reasons, the judgment of the district court is AFFIRMED IN PART and
3 REVERSED IN PART, and the case is REMANDED for further proceedings consistent with this
4 order.
5 FOR THE COURT:
6 Catherine O’Hagan Wolfe, Clerk
7
8