FOR THE SECOND CIRCUIT€¦ · Knapp-David, Bradley Schwebler, and Megan McGlynn. See Burns v. Fischer, No. 13-cv-486 (N.D.N.Y. Nov. 19, 2013), ECF No. 30. Accordingly, Burns respectfully

15-1631IN THE

United States Court of AppealsFOR THE SECOND CIRCUIT

MARK BURNS,Plaintiff-Appellant,

—against—

DANIEL F. MARTUSCELLO, JR., SUPERINTENDENT, COXSACKIE CORRECTIONALFACILITY, CAPTAIN SHANLEY, COXSACKIE CORRECTIONAL FACILITY,SERGEANT NOEH, COXSACKIE CORRECTIONAL FACILITY, SCHWEBLER,GUIDANCE COUNSELOR, COXSACKIE CORRECTIONAL FACILITY, BRIAN FISCHER, COMMISSIONER OF NEW YORK STATE DEPTARTMENT OFCORRECTIONS, TERESA KNAPP-DAVID, DIRECTOR OF MOVEMENT ANDCONTROL, NEW YORK STATE DOCCS, MCGLYNN,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF NEW YORK

BRIEF FOR PLAINTIFF-APPELLANT

d

NOAM BIALEMICHAEL W. GIBALDISHER TREMONTE LLP90 Broad Street, 23rd FloorNew York, New York 10004(212) 202-2600

Attorneys for Plaintiff-Appellant

Case 15-1631, Document 114-1, 05/01/2017, 2023654, Page1 of 28

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................... iii PRELIMINARY STATEMENT ............................................................................... 1

JURISDICTIONAL STATEMENT .......................................................................... 2

STATEMENT OF FACTS ........................................................................................ 2

PROCEDURAL HISTORY ....................................................................................... 5

SUMMARY OF THE ARGUMENT ........................................................................ 8

ARGUMENT ............................................................................................................. 9

I. Standard of Review .......................................................................................... 9

II. Prior Second Circuit Decisions ...................................................................... 10

III. Burns’s Invocation of His Right Not to Speak Was Constitutionally Protected Conduct Under the First Amendment ........................................... 14

A. The First Amendment Prohibits the Government from Compelling Speech.................................................................................................. 14

B. Burns’s Refusal to Provide Information to Prison Guards Constituted Protected First Amendment Conduct .................................................. 17

C. The Burden on Burns’s First Amendment Right Was Not Reasonably Related to a Legitimate Penological Purpose...................................... 21

IV. Burns’s Right to Refuse to Become an Informant Was Protected by the Eighth Amendment ........................................................................................ 30

V. Defendants’ Cruel and Arbitrary Conduct Violated Burns’s Substantive Due Process Rights ................................................................................................ 33


ii

CONCLUSION ........................................................................................................ 39

CERTIFICATE OF COMPLIANCE ....................................................................... 40


iii

TABLE OF AUTHORITIES

Cases

Abdul Wali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985) ............................................................................... 26

Allah v. Juchenwioz,

176 F. App’x 187 (2d Cir. 2006) .................................................................... 8, 11 Allah v. Juchenwioz, No. 93 Civ. 8813 LMM, 1999 WL 562100 (S.D.N.Y. July 30, 1999)... 10, 11, 32 Allah v. Juchenwioz,

No. 93 Civ. 8813(LMM), 2004 WL 2389823 (S.D.N.Y. Oct. 26, 2004) ............ 11 Allah v. Juchenwioz,

No. 93-CV-8813(LMM), 2005 WL 2173826 (S.D.N.Y. Sept. 6, 2005) ............... 7 Benefield v. McDowall,

241 F.3d 1267 (10th Cir. 2001) ........................................................................... 31 Blackburn v. Alabama,

361 U.S. 199 (1960) ............................................................................................. 36 Block v. Rutherford,

468 U.S. 576 (1984) ............................................................................................. 21 Bridges v. Gilbert,

557 F.3d 541 (7th Cir. 2009) ............................................................................... 22 Brooks v. DiFasi,

112 F.3d 46 (2d Cir. 1997) ................................................................................... 37 Clark v. Gipson,

No. 13-CV-3012, 2015 WL 328966 (C.D. Ill. Jan. 26, 2015) ................ 13, 28, 29 Colon v. Howard,

215 F.3d 227 (2d Cir. 2000) ................................................................................. 37


iv

Cooper v. Beard, Civil Action No. 06-0171, 2006 WL 3208783 (E.D. Pa. Nov. 2, 2006) ............. 32

Cty. of Sacramento v. Lewis,

523 U.S. 833 (1998) ............................................................................................. 34 David v. Hill,

401 F. Supp. 2d 749 (S.D. Tex. 2005) ................................................................. 32 Davis v. Ayala,

135 S. Ct. 2187 (2015) ......................................................................................... 38 Davis v. Goord,

320 F.3d 346 (2d Cir. 2004) ................................................................................. 18 Dawes v. Walker,

239 F.3d 489 (2d Cir. 2011) .......................................................................... 31, 32 Duamutef v. O’Keefe,

98 F.3d 22 (2d Cir. 1996) ..................................................................................... 22 Evergreen Ass’n, Inc. v. City of New York,

740 F.3d 233 (2d Cir. 2014) .......................................................................... 19, 29 Expressions Hair Design v. Schneiderman,

137 S. Ct. 1144 (2017) ......................................................................................... 16 Farmer v. Brennan,

511 U.S. 825 (1994) ............................................................................................. 31 Garcetti v. Ceballos,

547 U.S. 410 (2006) ............................................................................................. 29 Giano v. Senkowski,

54 F.3d 1050 (2d Cir. 1995) ................................................................................. 21 Gullatte v. Potts,

654 F.2d 1007 (5th Cir. Unit B Aug. 1981) ......................................................... 32


v

Harmon v. Berry, 728 F.2d 1407 (11th Cir. 1984) ........................................................................... 31

Higazy v. Templeton,

505 F.3d 1612 (2d Cir. 2007) ............................................................................... 36 Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,

515 U.S. 557 (1995) ................................................................................ 14, 18, 19 Hurlman v. Rice,

927 F.2d 74 (2d Cir. 1991) ................................................................................... 13 Hynes v. Squillace,

143 F.3d 653 (2d Cir. 1998) ................................................................................. 37 In re Medley,

134 U.S. 160 (1890) ............................................................................................. 38 Irving v. Dormire,

519 F.3d 441 (8th Cir. 2008) ............................................................................... 32 Jackler v. Byrne,

658 F.3d 225 (2d Cir. 2011) ......................................................................... passim Jackson v. Denno,

378 U.S. 368 (1964) ............................................................................................. 35 Jackson v. Johnson,

15 F. Supp. 2d 341 (S.D.N.Y. 1998) ..................................................................... 7 Johnson v. Goord,

445 F.3d 532 (2d Cir. 2006) ................................................................................. 27 Lombari v. Whitman,

485 F.3d 73 (2d Cir. 2007) ................................................................................... 34 Malloy v. Hogan,

378 U.S. 10 (1964) ............................................................................................... 36


vi

Matthews v. City of New York, 779 F.3d 167 (2d Cir. 2015) ................................................................................. 10

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................................................................. 36 McKinnon v. Patterson,

568 F.2d 930 (2d Cir. 1977) ................................................................................. 37 Michael H. v. Gerald D.,

491 U.S. 110 (1989) ............................................................................................. 12 Miller v. Selsky,

111 F.3d 7 (2d Cir. 1997) ..................................................................................... 37 Minda v. United States,

851 F.3d 231 (2d Cir. 2017) ................................................................................... 9 Near v. State of Minnesota ex rel. Olson,

283 U.S. 697 (1931) ............................................................................................. 35 Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev.,

651 F.3d 218 (2d Cir. 2011) ................................................................................. 15 O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987) ...................................................................................... 21, 27 Pearson v. Callahan,

555 U.S. 223 (2009) ............................................................................................. 13 Pearson v. Welborn,

471 F.3d 732 (7th Cir. 2006) ............................................................................... 10 Pell v. Procunier,

417 U.S. 817 (1974) ...................................................................................... 21, 26 Pilgrim v. Luther,

571 F.3d 201 (2d Cir. 2009) ................................................................................. 22


vii

Procunier v. Martinez, 416 U.S. 396 (1974) ............................................................................................. 19

PruneYard Shopping Ctr. v. Robbins,

447 U.S. 74 (1980) ........................................................................................ 20, 26 Reeves v. King,

774 F.3d 430 (8th Cir. 2014) ............................................................................... 31 Reno v. Flores,

507 U.S. 292 (1993) ............................................................................................. 33 Riley v. Nat’l Fed’n of the Blind of N.C., Inc.,

487 U.S. 781 (1988) ................................................................................ 14, 16, 19 Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ............................................................................................. 36 Rochin v. California,

342 U.S. 165 (1952) ............................................................................................. 33 Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,

547 U.S. 47 (2006) ........................................................................................ 14, 20 Sandin v. Conner,

515 U.S. 472 (1995) ...................................................................................... 34, 38 Shakur v. Selsky,

391 F.3d 106 (2d Cir. 2004) .......................................................................... 23, 24 Shatner v. Page,

No. 00-0251-DRH, 2009 WL 260788 (S.D. Ill. Feb. 4, 2009) ............................ 27 Sims v. Artuz,

230 F.3d 14 (2d Cir. 2000) ................................................................................... 37 Thornburgh v. Abbott,

490 U.S. 401 (1989) ...................................................................................... 19, 24


viii

Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622 (1994) ............................................................................................. 15

Turner v. Safley,

482 U.S. 78 (1987) ....................................................................................... passim United States v. D’Angiolillo,

340 F.2d 453 (2d Cir. 1965) ................................................................................. 28 United States v. Gardner,

611 F.2d 770 (9th Cir. 1980) ............................................................................... 29 United States v. McLaurin,

731 F.3d 258 (2d Cir. 2013) .......................................................................... 33, 34 United States v. Myers,

426 F.3d 117 (2d Cir. 2005) ................................................................................. 33 United States v. Paguio, 114 F.3d 928 (9th Cir. 1997) ........................................................................ 10, 29 Valandingham v. Bojorquez,

866 F.2d 1135 (9th Cir. 1989) ............................................................................. 31 W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ............................................................................................. 15 Watson v. McGinnis,

964 F. Supp. 127 (S.D.N.Y. 1997) ................................................................. 7, 31 Welch v. Bartlett,

196 F.3d 389 (2d Cir. 1999) ................................................................................. 34 Wilkinson v. Austin,

545 U.S. 209 (2005) ............................................................................................. 38 Willey v. Kirkpatrick,

801 F.3d 51 (2d Cir. 2015) .................................................................. 8, 11, 12, 13


ix

Wolff v. McDonnell, 418 U.S. 539 (1974) ............................................................................................. 34

Wooley v. Maynard,

430 U.S. 705 (1977) ................................................................................ 14, 15, 20 Wright v. Coughlin,

132 F.3d 133 (2d Cir. 1998) ................................................................................. 37

Statutes 28 U.S.C. § 1291 ........................................................................................................ 2 28 U.S.C. § 1331 ........................................................................................................ 2 42 U.S.C. § 1983 ....................................................................................................1, 2

Rules Fed. R. Civ. P. 56 ..................................................................................................... 10 Fed. R. App. P. 32 .................................................................................................... 40 Second Circuit Local Rule 32.1.1(b)(2) ................................................................... 11

Regulations N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2 .......................................................... 17


1

PRELIMINARY STATEMENT

Plaintiff-Appellant Mark Burns, an individual incarcerated in a New York

state prison, was placed in segregated confinement and isolated from other

prisoners for nearly nine months because he refused prison officials’ demands to

tell them about the criminal activity of other prisoners. This case presents the

question whether the Constitution protects Burns’s choice to refuse to provide such

information.

Burns appeals the District Court’s dismissal of his claim under 42 U.S.C.

§ 1983. The District Court (Lawrence E. Kahn, Judge) construed Burns’s

complaint as stating a claim of retaliation for exercising a constitutionally-

protected right. The District Court granted summary judgment to Defendants-

Appellees Superintendent Daniel F. Martuscello, Jr., Captain Shanley, and

Sergeant Noeh (collectively “Defendants”),1 based on a holding that there is no

constitutional right to refuse to become a prison informant. Because that holding

was error, this Court should vacate the District Court’s judgment and remand the

case for further proceedings.

1 Burns consented to the dismissal of defendants Brian Fischer, Teresa Knapp-David, Bradley Schwebler, and Megan McGlynn. See Burns v. Fischer, No. 13-cv-486 (N.D.N.Y. Nov. 19, 2013), ECF No. 30. Accordingly, Burns respectfully requests that the Clerk of Court amend the caption to reflect the defendants remaining in the case.


2

JURISDICTIONAL STATEMENT

This Court has jurisdiction pursuant to 28 U.S.C. § 1291. The District Court

had jurisdiction pursuant to 28 U.S.C. § 1331 because Burns alleged a deprivation

of rights secured by the United States Constitution under 42 U.S.C. § 1983.

STATEMENT OF FACTS

On March 2, 2010, Burns, a state prisoner, was transferred to Coxsackie

Correctional Facility in Coxsackie, New York. JA 20, ¶ 12.2 Burns adjusted to life

in general population without incident and was given a job as a store clerk in the

prison commissary. Id. ¶¶ 13–14. On May 19, 2010, Burns was pulling stock

from a shelf in the commissary when he was struck in the face by a falling can,

which caused an abrasion. Id. ¶ 16. At the direction of the correctional officer

supervising the commissary staff, Burns signed a waiver of medical treatment and

finished his shift. Id. ¶¶ 17–18.

The next day, May 20, 2010, Burns was approached by Captain Shanley and

Sergeant Noeh. Captain Shanley told Burns that he had received information from

Burns’s wife that Burns had been cut by another prisoner. JA 20–21, ¶¶ 20–21.

Burns explained that the abrasion on his face had been caused by the work accident

the previous day, and that if his wife had made any such report, it was inaccurate

2 Citations to the Joint Appendix are referenced herein as “JA __.”


3

and based on marital problems they were having at the time. JA 21, ¶¶ 22–23.

Nevertheless, Captain Shanley informed Burns of his intention to place Burns in

involuntary protective custody (“IPC”) or segregation. Id. ¶ 24.

Captain Shanley then told Burns he could avoid being placed in IPC

segregation if he “agreed to be a ‘snitch.’” Id. ¶ 25. Specifically, Captain Shanley

wanted Burns to provide information to him and Superintendent Martuscello about

who in the facility was involved in gangs and who was selling drugs. Id.; see also

JA 43 (Burns Dep. at 13:10–13). Captain Shanley and Sergeant Noeh had no

particular reason to believe that Burns had this information, but told him “basically

you’ve been down a long time, you know a lot of people and, you know, what goes

on here.” JA 48 (Burns Dep. at 18:13–15). Burns responded that he had no

knowledge about gangs or drugs and no information to provide. JA 43 (Burns

Dep. at 13:15–16); see also JA 50 (Burns Dep. at 20:13 (“I couldn’t give them

anything that I don’t know.”)). Captain Shanley then told Burns that if he refused

to become his informant, Burns would “rot in IPC status until [he] died or was

released f[ro]m prison.” JA 21, ¶ 25.

When Burns refused to provide any information, Captain Shanley directed

Sergeant Noeh “to write up the IPC recommendation.” Id. ¶ 26. The

recommendation stated that Burns’s placement was based on “a phone call from

inmate’s wife saying that inmate was cut,” JA 30, but despite performing a strip


4

search and visual inspection of Burns’s body, JA 22, ¶ 32, Sergeant Noeh noted in

the recommendation that there were “no cuts visible.” JA 30. Nonetheless, Burns

was moved to IPC segregation the next day. JA 21, ¶¶ 27–28.

In IPC segregation, Burns was held in “disciplinary keep lock status,” i.e.,

isolated in his cell for twenty-three hours a day. JA 23, ¶ 44. He was denied

programming, library services, religious consultation, and access to exercise

facilities. JA 23–24, ¶¶ 46–54; JA 41 (Burns Dep. at 11:4–15). He was also

subjected to persistent “chaos,” loud noise including “gang chants,” and threats

from inmates held in keeplock custody for disciplinary infractions, who were

housed in the same unit as those in IPC segregation, even though they were

supposed to be separated. JA 24, ¶ 64.

Approximately one week after Burns was placed in segregation, Captain

Shanley and Superintendent Martuscello removed Burns from his cell and repeated

their request that he become an informant. JA 22, ¶ 34. When Burns again

refused, Defendants told Burns they had “a new theory” to justify Burns’s housing

in IPC, namely, that he had been assaulted by prison staff. Id. Captain Shanley

and Superintendent Martuscello made clear that Burns would be released from IPC


5

segregation only when he agreed to become an informant and “until then [he]

could rot in IPC.” Id.

Following that interaction, Burns complained to numerous prison officials

on several occasions about the conditions of his confinement in IPC segregation

and was told by Superintendent Martuscello that “only he had the power to change

[Burns’s] situation and the only way that would happen was to agree to snitch.”

JA 23, ¶ 42. Captain Shanley similarly told Burns “that I would be kept here to rot

until he retires unless I become his personal snitch.” JA 24, ¶ 65.

Burns ultimately spent nearly nine months in segregation at Coxsackie, and

was released only because he was ultimately transferred to another facility. JA 37

(Burns Dep. at 7).

PROCEDURAL HISTORY

Burns filed suit pro se alleging violations of his constitutional rights. See

Complaint, JA 10–18; Affidavit of Mark Burns in Support of Complaint, JA 19–

24. United States Magistrate Judge Christian F. Hummel construed Burns’s

complaint as alleging (1) a claim of retaliation in violation of the First Amendment

against Defendants for placing him in IPC segregation for refusing to become their

informant; (2) a violation of the Fourteenth Amendment for placing him in IPC

segregation without proper due process; and (3) a violation of the Eighth


6

Amendment based on the conditions of confinement in IPC. Add. 9.3 The District

Court granted in part and denied in part Defendants’ motion to dismiss for reasons

not relevant here. See Docket Entry 36, JA 6.

Following discovery, Defendants moved for summary judgment, contending

that Burns had failed to exhaust his administrative remedies, and that the record

evidence failed to support his claims of violations of the Eighth and Fourteenth

Amendments. Defendants’ motion for summary judgment did not address Burns’s

First Amendment claim.

In a Report and Recommendation (“R&R”) dated December 17, 2014, the

magistrate judge recommended that the District Court deny Defendants’ motion

with respect to administrative exhaustion because Burns had submitted

documentation establishing a genuine issue of material fact concerning whether he

had exhausted administrative remedies prior to bringing suit. Add. 14. With

respect to Burns’s First Amendment claim, the magistrate judge recommended that

the District Court grant summary judgment in favor of Defendants because

“nowhere in Burns[� s] submissions does Burn[s] allege that he was engaged in

protected conduct.” Add. 15. The magistrate judge noted that while some courts

3 Citations to the Report and Recommendation (“R&R”) and the District Court’s decision, contained in the addendum to this brief, are referenced herein as “Add. __.”


7

had held that a prison official’s “act of intentionally calling an inmate a snitch in

front of other inmates” violates the Eighth Amendment, id. (citing Watson v.

McGinnis, 964 F. Supp. 127, 131–32 (S.D.N.Y. 1997)), no court had held that an

inmate’s refusal to act as an informant violates the First Amendment, id. (citing

Allah v. Juchenwioz, No. 93-CV-8813(LMM), 2005 WL 2173826, at *1 (S.D.N.Y.

Sept. 6, 2005)). Accordingly, the magistrate judge determined that Burns did not

specifically allege that he was retaliated against for exercising any constitutionally

protected right. Add. 16.4

Burns timely objected to the R&R. Specifically, Burns contended that his

refusal to become Defendants’ informant was constitutionally protected because

his refusal was “speech” protected by the First Amendment. JA 76 (citing, inter

alia, Jackson v. Johnson, 15 F. Supp. 2d 341, 364 (S.D.N.Y. 1998)).

The District Court adopted the R&R in its entirety. Add. 27. With respect

to Burns’s retaliation claim, the District Court noted that Jackson v. Johnson, the

case Burns cited, merely “assumed, without deciding” that there is “a constitutional

right[ ] not to snitch.” Add. 28 (alteration and internal quotation marks omitted).

The District Court noted that this Court, in a summary order, had stated that

4 For reasons not relevant here, the magistrate judge also recommended that the District Court grant summary judgment to Defendants on Burns’s Eighth and Fourteenth Amendment claims. Add. 16–25.


8

“‘neither the Supreme Court nor this Court has ever held that a prisoner enjoys a

constitutional right not to become an informant.’” Id. (quoting Allah v.

Juchenwioz, 176 F. App’x 187, 189 (2d Cir. 2006) (summary order)).

Accordingly, the District Court denied Defendants’ motion for summary judgment

with respect to exhaustion, but granted it with respect to Burns’s First, Eighth, and

Fourteenth Amendment claims and entered judgment in favor of Defendants. Add.

31; Docket Entry 52, JA 8.

Burns timely filed a notice of appeal, JA 84, and moved this Court to

appoint counsel. Burns v. Fischer, No. 15-1631 (2d Cir. Jul. 14, 2016), ECF. No.

85. A panel of this Court granted Burns’s motion and directed briefing on the

issue whether there is a constitutional right to refuse to become a prison informant.

Id. (Nov. 17, 2016), ECF. No. 99 (citing Willey v. Kirkpatrick, 801 F.3d 51, 65–66

(2d Cir. 2015)).5

SUMMARY OF THE ARGUMENT

By seeking to compel Burns to provide information under threat of indefinite

segregated confinement, Defendants placed Burns in a cruel Catch-22: Either

refuse to cooperate with Defendants’ request – and suffer the consequence of

prolonged isolation – or put himself at substantial risk of harm by becoming an

5 The Court denied Burns’s motion and dismissed the appeal in all other respects. Id.


9

informant. Ironically, the latter option likely would have resulted in the need to

move Burns to the very same protective isolation he experienced based on his

refusal to provide information. Defendants’ efforts to compel Burns to provide

information violated Burns’s constitutional rights. Defendants’ actions violated

the First Amendment because they were done in retaliation for Burns’s exercise of

his right not to speak, which is protected by the First Amendment’s freedom of

speech clause. Defendants’ actions violated the Eighth Amendment because Burns

had a right not to subject himself to the substantial risk of serious harm that

accompanies being a prison informant. And Defendants’ actions violated Burns’s

rights under the Due Process Clause because they were arbitrary and shocking,

infringed on a fundamental liberty interest, and subjected Burns to atypical and

severe conditions of confinement.

ARGUMENT

I. Standard of Review

This Court “review[s] de novo a district court’s grant of summary judgment,

construing the evidence in the light most favorable to the non-moving party and

drawing all reasonable inferences in its favor.” Minda v. United States, 851 F.3d

231, 234 (2d Cir. 2017) (internal quotation marks omitted). “Summary judgment

is only appropriate if ‘the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.’”


10

Matthews v. City of New York, 779 F.3d 167, 171 (2d Cir. 2015) (quoting Fed. R.

Civ. P. 56(a)).

II. Prior Second Circuit Decisions

This Court has twice faced – and twice declined to address – questions

closely related to the one raised here.6 First, in Allah v. Juchnewioz, a prisoner

alleged that a guard had “approached him while in a hallway with a group of other

inmates and tried to recruit him as an informer,” and “then threatened to make him

‘pay’ for not cooperating.” No. 93 Civ. 8813 LMM, 1999 WL 562100, at *2

(S.D.N.Y. July 30, 1999) (alteration and internal quotation marks omitted). The

prisoner alleged that the guard’s subsequent filing of a false misbehavior report

against him constituted retaliation for exercising a right protected by the Eighth

Amendment. Id. at *3. The district court noted that many courts analyzing Eighth

Amendment claims had recognized “the dangers a prisoner faces from his fellow

inmates when labeled a snitch or informant.” Id. The court reasoned that “those

judicial decisions provide analogous support for the proposition that an inmate has

6 The Seventh Circuit has similarly left open the question whether a prisoner has the right to refuse to become an informant. See Pearson v. Welborn, 471 F.3d 732, 737–40 (7th Cir. 2006). The Ninth Circuit has held, in the context of a vindictive prosecution claim, that “[t]here is no constitutional right not to ‘snitch,’” United States v. Paguio, 114 F.3d 928, 930 (9th Cir. 1997), but as will be discussed more fully below, that context is substantially different from the one at issue in this case and, therefore, the Ninth Circuit’s decision has limited persuasive force here.


11

a constitutional right not to snitch” and held that such refusal was constitutionally

protected. Id. In a subsequent decision, the district court nevertheless dismissed

the claim on qualified immunity grounds. See Allah v. Juchenwioz, No. 93 Civ.

8813(LMM), 2004 WL 2389823, at *4 (S.D.N.Y. Oct. 26, 2004).

On appeal from that decision, this Court stated that it “need not and do[es]

not address whether the District Court was correct in its previous assessment that

an inmate has a constitutional right not to become an informant” because even

assuming that right existed, it “was not ‘clearly established’ at the time when the

challenged conduct occurred in 1993,” and thus the defendants were protected by

qualified immunity. Allah v. Juchenwioz, 176 F. App’x 187, 189 (2d Cir. 2006)

(summary order).7

Second, in Willey v. Kirkpatrick, a prisoner alleged that he was questioned

by a guard about another inmate who was smuggling drugs into the prison. 801

F.3d 51, 56 (2d Cir. 2015). The prisoner told the guard he had no knowledge about

this other inmate’s activities, nor did he know who the person was. Id. He alleged

that the guard then told him, “Either you work with us as an informant or you are

going to be charged with a weapon.” Id. The prisoner refused to speak and was

7 Burns references this decision solely to provide historical background and explain this Court’s disposition of the district court’s opinion. See Second Circuit Local Rule 32.1.1(b)(2).


12

subsequently put in solitary confinement on a false misbehavior report charging

him with possessing a weapon. Id. The district court dismissed the prisoner’s

claim, stating only that he had “not alleged that [this and subsequent] misbehavior

reports were issued in retaliation for his exercise of a constitutionally protected

right.” Id. at 60 (internal quotation marks omitted).

This Court took issue with that bare statement, calling it an “error of

omission.” Id. at 65. The Court acknowledged that it had left unresolved the

question whether such a constitutionally protected right exists, but construed the

prisoner’s complaint as alleging that the initial false misbehavior report was issued

in retaliation for his refusal “to provide false information . . . about an inmate

Willey did not know.” Id. The Court analyzed that claim as a violation of the

prisoner’s substantive due process rights, noting that such rights must be analyzed

at “‘the most specific level at which the asserted right can be identified.’” Id.

(alteration omitted) (quoting Michael H. v. Gerald D., 491 U.S. 110, 127 n.6

(1989) (plurality op.)). Analyzing the right at that level of specificity, the Court

considered the asserted right not to be “the right not to snitch,” as the district court

had labeled it, but instead the right of a prisoner “to refuse to provide false

information to a corrections officer.” Id. at 65–66. The Court held, however, that

the existence of that specific right was inadequately presented by the briefing, and

remanded the case for the district court to consider whether such a right existed


13

under the First, Fifth, Eighth, and Fourteenth Amendments, and whether qualified

immunity applied. Id. at 66.8

The Court should decide the question here because the issue is recurring in

cases where qualified immunity is an available defense, and doing so would

“promote[ ] the development of constitutional precedent.” Pearson v. Callahan,

555 U.S. 223, 236 (2009); see Clark v. Gipson, No. 13-CV-3012, 2015 WL

328966, at *4 (C.D. Ill. Jan. 26, 2015) (in case asserting constitutional right to

refuse to become prison informant, declining to “[s]kip[ ] to the qualified immunity

analysis” because “this kind of claim will likely occur again” and deciding the

merits will “prevent ‘constitutional stagnation’” (quoting Pearson, 555 U.S. at

232)).9

8 The case was settled before the district court addressed those questions. See Willey v. Kirkpatrick, No. 07-cv-6484 (W.D.N.Y. Mar. 30, 2016), ECF No. 148.

9 If the Court determines, as it should, that Burns’s rights were violated, it

should follow its “general practice” of remanding to the District Court to consider any qualified immunity defense in the first instance. See Hurlman v. Rice, 927 F.2d 74, 82 (2d Cir. 1991).


14

III. Burns’s Invocation of His Right Not to Speak Was Constitutionally Protected Conduct Under the First Amendment

A. The First Amendment Prohibits the Government from Compelling Speech

The First Amendment protects Burns’s refusal to provide Defendants with

the information they demanded. The Supreme Court has held that freedom of

speech “includes both the right to speak freely and the right to refrain from

speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). “Since all speech

inherently involves choices of what to say and what to leave unsaid, one important

manifestation of the principle of free speech is that one who chooses to speak may

also decide what not to say.” Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of

Boston, 515 U.S. 557, 573 (1995) (internal citations and quotation marks omitted).

Simply put, “freedom of speech prohibits the government from telling people what

they must say.” Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S.

47, 61 (2006); see also Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781,

796–97 (1988) (“There is certainly some difference between compelled speech and

compelled silence, but in the context of protected speech, the difference is without

constitutional significance, for the First Amendment guarantees ‘freedom of

speech,’ a term necessarily comprising the decision of both what to say and what

not to say.”).


15

Indeed, some judicial opinions have suggested that “the government may be

required to assert an even more compelling interest when it infringes the right to

refrain from speaking than is required when it infringes the right to speak.” All. for

Open Soc’y Int’l, Inc. v. U.S. Agency for Int’l Dev., 651 F.3d 218, 242 (2d Cir.

2011) (Straub, J., dissenting) (emphasis added); see also Jackler v. Byrne, 658 F.3d

225, 246 (2d Cir. 2011) (Sack, J., concurring) (“[I]t is possible that in some

circumstances . . . government compulsion to speak (or indeed to act) may well be

more strictly limited than government compulsion not to speak (or act).”). This is

because “[a]t the heart of the First Amendment lies the principle that each person

should decide for himself or herself the ideas and beliefs deserving of expression,

consideration, and adherence.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622,

641 (1994). As Judge Sack has observed, some of the more “notorious” and

“infamous” government actions in modern history have involved the compulsion

of speech “made under pressure of intensive torture and intimidation.” Jackler,

658 F.3d at 246 (Sack, J., concurring) (internal quotation marks omitted).

Although the compelled speech doctrine originated in Supreme Court cases

involving requirements by government officials to endorse a particular ideological

message, see Wooley, 430 U.S. at 707 (right not to display “Live Free or Die”

license plate); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626 (1943)

(right to refuse to salute American flag), the First Amendment makes no distinction


16

between compelled statements of “opinion” and compelled statements of “fact”;

“either form of compulsion burdens protected speech.” Riley, 487 U.S. at 797–98.

Thus, the Supreme Court and this Court have applied the doctrine in a wide variety

of circumstances, including compelled disclosure of charitable donations, id. at

795, the imposition of a surcharge for credit card purchases, Expressions Hair

Design v. Schneiderman, 137 S. Ct. 1144, 1151 (2017), and the refusal to retract a

truthful report and give a false one, Jackler, 658 F.3d at 241.

This last case is especially instructive. In Jackler v. Byrne, this Court held

that the First Amendment protected the right of a police officer to refuse to give a

false report of an encounter with a civilian. While a probationary officer, the

plaintiff observed a fellow officer strike a civilian in the face, and he truthfully

described the incident in a report. Id. at 229–31. Plaintiff’s superiors then met

with him and instructed him to withdraw his report and to file a new one with false

facts that would undermine a claim of excessive force. Id. at 231. Plaintiff refused

to do so, and consequently, his superiors recommended that he not be retained as a

permanent officer. See id. at 231–32.

In evaluating the claim of First Amendment retaliation, this Court held that

“the First Amendment protects the rights of a citizen . . . to refuse to make a

statement that he believes is false.” Id. at 241. The Court noted that the First

Amendment protects the right to refrain from speaking at all, and indeed, in this


17

and other contexts, filing a false report or testifying falsely would expose the

speaker to criminal liability. See id. at 238–40. Accordingly, the Court held that

the plaintiff “had a strong First Amendment interest in refusing to make a report

that was dishonest.” See id. at 240.

B. Burns’s Refusal to Provide Information to Prison Guards Constituted Protected First Amendment Conduct

Jackler controls this case. Defendants here demanded that Burns provide

them with information about gangs and drugs in the prison, but Burns had no such

information: “I couldn’t give them anything that I don’t know.” JA 50 (Burns

Dep. at 20:13). Burns told Captain Shanley and Sergeant Noeh that he had no

knowledge of gangs or drugs in the prison. In response, they told him he would

“rot in IPC” until he provided information. See JA 21, ¶ 25. Thus, as in Jackler,

Defendants threatened to take an adverse action against Burns unless he gave a

false report inculpating other prisoners, based on information he did not have. And

similar to the risk of criminal liability faced by the officer in Jackler for filing a

false report, here providing false information to Defendants would have exposed

Burns to further disciplinary action. See N.Y. Comp. Codes R. & Regs. tit. 7,

§ 270.2, Rule 107.20 (“An inmate shall not lie or provide an incomplete,

misleading and/or false statement or information.”). At a minimum, therefore,

Burns’s “strong First Amendment interest in refusing to make a report that was


18

dishonest” was implicated by Defendants’ retaliatory action. Jackler, 658 F.3d at

240.

Even if Burns did have the kind of information that Defendants demanded,

the First Amendment still prohibits them from compelling Burns to disclose that

information. Freedom of speech includes the right not to make “statements of fact

the speaker would rather avoid,” whether true or false. See Hurley, 515 U.S. at

573. By their threats and retaliatory actions, Defendants sought to compel Burns to

disclose facts about other prisoners concerning gang affiliations and drug

trafficking – facts which, assuming arguendo that he knew them, Burns had a right

not to disclose. Indeed, that right was especially important to Burns since, as will

be discussed more fully below, providing information to guards about gangs and

drug trafficking in the prison likely would have exposed Burns to a serious risk of

physical harm from other prisoners.

Defendants’ actions were thus calculated to chill Burns’s exercise of his

constitutional right not to speak. See Davis v. Goord, 320 F.3d 346, 353 (2d Cir.

2004) (retaliation occurs in the prison context when prison officials take actions

“likely to chill a person of ordinary firmness from continuing to engage in a

protected activity” (internal quotation marks omitted)). It is immaterial that

Defendants did not attempt to put particular words in Burns’s mouth. The First

Amendment is implicated by disclosure requirements, irrespective of the content of


19

what is disclosed, because “[m]andating speech that a speaker would not otherwise

make necessarily alters the content of speech.” Riley, 487 U.S. at 795 (emphasis

added); accord Evergreen Ass’n, Inc. v. City of New York, 740 F.3d 233, 249–50

(2d Cir. 2014) (holding that, although regulation of pregnancy services centers did

not mandate a particular message, required disclosures concerning abortion,

emergency contraception, and prenatal care “will change the way in which a

pregnancy services center, if it so chooses, discusses [those] issues”).

Moreover, after Burns told Defendants that he had no information, they

persisted in threatening him that the only way out of solitary confinement was “to

become [Defendants’] personal snitch.” JA 24, ¶ 65. In other words, they

attempted to conscript Burns into becoming an informant going forward. The First

Amendment prohibits the government from compelling a speaker to convey a

message that undermines his autonomy and sense of identity. See Hurley, 515 U.S.

at 574 (First Amendment includes the “principle of autonomy to control one’s own

speech”); Procunier v. Martinez, 416 U.S. 396, 427 (1974) (Marshall, J.,

concurring) (noting that the “First Amendment serves not only the needs of the

polity but also those of the human spirit,” including “a sense of identity”),

overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). This is

not a case where Burns was merely required to accommodate or provide a forum

for government or government-sponsored speech but could distance himself from


20

the government message by disclaiming it or expressing his own, contrary

message. Cf. Rumsfeld, 547 U.S. at 65 (“Nothing about recruiting suggests that

law schools agree with any speech by recruiters, and nothing in the Solomon

Amendment restricts what the law schools may say about the military’s policies.”);

PruneYard Shopping Ctr. v. Robbins, 447 U.S. 74, 87 (1980) (negative speech

rights not unconstitutionally infringed where plaintiff “could disclaim any

sponsorship of the [compelled] message”). Instead, Burns was compelled to make

his own statement under threat of punishment and in a manner that undermined his

autonomy – and subjected him to grave danger. He could not have spoken a

contrary message; indeed, when he disclaimed any knowledge of the information

Defendants were seeking, he was left to “rot in IPC.” JA 21, ¶ 25. And he could

not have disavowed his cooperation with prison officials once he provided

information to avoid the substantial risk of serious harm it would have entailed –

he would be forever marked an informant going forward. See Wooley, 430 U.S. at

715 (“[W]e are faced with a state measure which forces an individual, as part of his

daily life” to promote a “point of view he finds unacceptable.”). Thus, Burns’s

right not to speak “was affected by the speech it was forced to accommodate.”

Rumsfeld, 547 U.S. at 63. The First Amendment unequivocally forbids such

compulsion.


21

C. The Burden on Burns’s First Amendment Right Was Not Reasonably Related to a Legitimate Penological Purpose

The First Amendment’s protections do not terminate at the prison gates.

See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (holding that

“[i]nmates clearly retain protections afforded by the First Amendment”); Giano v.

Senkowski, 54 F.3d 1050, 1052 (2d Cir. 1995) (“Prison walls are not a barrier

separating inmates from the protections of the constitution.”). Although “the fact

of confinement and the needs of the penal institution impose limitations on

constitutional rights, including those derived from the First Amendment, which are

implicit in incarceration,” a prisoner “retains those First Amendment rights that are

not inconsistent with his status as a prisoner or with the legitimate penological

objectives of the corrections system.” Giano, 54 F.3d at 1052–53 (internal

citations and quotation marks omitted); see Pell v. Procunier, 417 U.S. 817, 822

(1974).

The Supreme Court has held that a prison cannot restrict a prisoner’s First

Amendment rights unless the restriction is “reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). In Turner, the

Court identified several factors relevant in determining the reasonableness of the

regulation at issue: “First, there must be a ‘valid, rational connection’ between the

prison regulation and the legitimate governmental interest put forward to justify

it.” Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). Second, the


22

Court should inquire “whether there are alternative means of exercising the right

that remain open to prison inmates.” Id. at 90. Third, the Court should consider

“the impact accommodation of the asserted constitutional right will have on guards

and other inmates, and on the allocation of prison resources generally.” Id.

Fourth, “the absence of ready alternatives” may be considered as “evidence of the

reasonableness of a prison regulation.” Id.10

Defendants’ actions flunk the Turner test on every factor. Construing the

facts in the light most favorable to Burns, it is evident that Defendants were not

engaged in any particular investigation, had no suspicion of exigent danger to the

facility, and had no articulable reason to question Burns, yet they fabricated a

reason to place him in restricted, isolated custody indefinitely, until he either came

up with false information, based upon knowledge he did not have, or agreed to be

conscripted into becoming the guards’ “personal snitch” going forward.

10 It is worth noting that the Supreme Court has not held that the Turner test applies specifically to First Amendment retaliation claims. See Bridges v. Gilbert, 557 F.3d 541, 549 (7th Cir. 2009) (noting that the Court has neither “mandate[d]” nor “exclude[d]” the Turner test for “claims of unconstitutional retaliation for the exercise of free speech”). This Court has not examined that question, but has relied on a Turner analysis to hold that a prisoner could not make out a retaliation claim when he was disciplined for circulating a petition in the prison. See Pilgrim v. Luther, 571 F.3d 201, 205 (2d Cir. 2009); Duamutef v. O’Keefe, 98 F.3d 22, 24 (2d Cir. 1996). Thus, without conceding that a Turner analysis applies, Burns submits that Defendants’ actions here cannot meet the Turner standard.


23

Defendants’ conduct bears no reasonable relationship to legitimate penological

interests.

1. Valid, Rational Connection

First, although eradicating gangs and drugs within a prison is a legitimate

penological goal, Defendants’ actions here do not bear a valid and rational

connection to that goal. Burns does not dispute that, as a general matter, obtaining

information from prisoners about criminal activity within the prison could, in

certain circumstances, be reasonably related to the legitimate penological interest

in reducing that activity. However, it does not follow that obtaining information

from a prisoner by any means is reasonably related to that penological goal.

Indeed, such a blanket rule permitting prison guards to compel statements from a

prisoner without any connection to a particular investigation or any articulable

reason to believe that the prisoner has information is precisely the kind of “across-

the-board” practice that fails to meet the Turner standard. See Shakur v. Selsky,

391 F.3d 106, 115 (2d Cir. 2004) (holding that an “across-the-board” ban on all

unapproved literature from outside organizations was not reasonably related to a

legitimate penological purpose, even though certain restrictions on literature, based

on an “individualized” assessment, might serve legitimate penological interests

(emphasis omitted)).


24

Defendants offered no explanation in the District Court why their actions

were reasonably related to a legitimate penological purpose. Cf. id. at 115 (holding

plaintiff stated a claim for violation of a First Amendment right where prison

officials had not, at that stage of the litigation, “been able to articulate rationales

for the policy”). But their actions – and the explanation they gave Burns –

demonstrate that they had no specific, individualized reason to target Burns, and

thus, their actions bear no “valid, rational connection” to the purpose of reducing

gangs and drugs in prison. See id. (citing Thornburgh, 490 U.S. at 416–17).

Defendants have proffered no evidence that they were engaged in an

investigation of particular misconduct, about which they had some articulable

reason to believe that Burns would have information. The only explanation

provided by Defendants comes from Captain Shanley and Sergeant Noeh’s

statement to Burns that they were seeking information from him because “basically

you’ve been down a long time, you know a lot of people and, you know, what goes

on here.” JA 48 (Burns Dep. at 18:13–15). That explanation makes little sense,

since Burns had been at Coxsackie Correctional Facility for less than three months

before this encounter with Captain Shanley and Sergeant Noeh. See JA 20, ¶¶ 12,

20. But even so, nothing in the record suggests that a prisoner’s tenure in the

prison system, generally, means that he would have information about gangs and

drugs in a particular prison. Defendants’ own explanation at best suggests little


25

more process than picking a longtime prisoner at random and demanding that he

divulge information generally on “what goes on.” That kind of guesswork bears

no “valid, rational connection” to information gathering in the service of the

legitimate goal of reducing gang activity and drug use in the prison. See Turner,

482 U.S. at 89.

Even if Defendants had formed some belief that Burns possessed

information about ongoing criminal activity or exigent dangers in the prison, the

rationale for their actions is undermined by the fact that they waited until Burns

was injured in an unusual accident before they confronted him about providing

information. They used the abrasion on Burns’s face from his work accident as the

pretextual basis for placing him in IPC segregation. Their tactics thus show that

their decision to select Burns as a potential source of information was rooted in

capitalizing improperly on his vulnerability to being placed in IPC, rather than a

reasonable belief that Burns had valuable information to provide.

In any event, Burns affirmatively stated that he had no information about

drugs or gangs in the prison. JA 50 (Burns Dep. at 20:13). Defendants’

persistence in their efforts to compel Burns’s cooperation only increased the

likelihood that Burns would provide false information, as any prisoner in his

position would be highly motivated to provide any statement – even if false – that

would get him out of solitary confinement. Obtaining false information is certainly


26

not reasonably related to a legitimate penological purpose, and Defendants’

attempt to induce a false statement – in violation of prison rules and regulations –

cannot be said to bear a valid, rational connection to any legitimate goal. See

Jackler, 658 F.3d at 240 (noting that no one has “authority to require a witness to

retract his true statements and make statements that are false”); see also Abdul

Wali v. Coughlin, 754 F.2d 1015, 1036 (2d Cir. 1985) (holding that prison

official’s failure to adhere to established procedures was evidence that he was not

acting pursuant to legitimate penological purpose), overruled on other grounds by

Turner.

2. Alternative Means

Second, Burns had no alternative means of exercising his right to freedom of

speech. See Turner, 482 U.S. at 90. He was given an ultimatum to disclose

information or face indefinite segregation (which, ironically, he would likely have

faced had he become an informant). Unlike prison regulations that leave open

some means of expression while restricting only those that are inconsistent with

legitimate penological interests, see id. at 92 (restriction on prisoner-to-prisoner

correspondence “does not deprive prisoners of all means of expression”); Pell, 417

U.S. at 827–28 (prison restrictions on visitation constitutional “in light of the

alternative channels of communication that are open to prison inmates”), there was

simply no alternative way for Burns to exercise his constitutional right not to speak


27

or to disclaim the speech he was being forced to utter. Cf. PruneYard Shopping

Ctr., 447 U.S. at 87 (negative speech rights not unconstitutionally infringed where

plaintiff “could disclaim any sponsorship of the [compelled] message.”).

3. Impact of Accommodation

Third, “the impact [of] accommodation of the asserted constitutional

right . . . on guards and other inmates, and on the allocation of prison resources

generally,” Turner, 482 U.S. at 90, was negligible here because, unlike most cases

involving the First Amendment rights of prisoners, Burns did not seek any

accommodation outside the normal course of prison life. Cf. id. at 81–82

(assertion of right to correspondence between inmates at different institutions and

to marriage while incarcerated); O’Lone, 482 U.S. at 345 (assertion of right to

attend weekly Muslim congregational service); Johnson v. Goord, 445 F.3d 532,

534 (2d Cir. 2006) (per curiam) (assertion of right to receive unlimited postage

stamps). Instead, Burns was merely attempting to serve his time without incident

and to abide by prison policies, which he did until he was approached by

Defendants. Where a prisoner is not seeking any accommodation, the impact of

his exercise of constitutional rights must be minimal and, indeed, is consistent with

the normal functioning of the prison and legitimate penological goals. See Shatner

v. Page, No. 00-0251-DRH, 2009 WL 260788, at *29 (S.D. Ill. Feb. 4, 2009)

(holding that third Turner factor demonstrates that prison guards’ confiscation of


28

plaintiff’s books was not reasonably related to legitimate penological interest

because plaintiff “is not seeking accommodations. He is simply asking that the

Defendants apply the [prison] policies in a neutral and non-arbitrary way and that

he receive the same opportunities as other inmates”).

4. Ready Alternatives

Finally, there are “ready alternatives” to the punitive compulsion Defendants

engaged in here. Turner, 482 U.S. at 90. In the case of a bona fide criminal

investigation, prison officials can certainly turn to prosecuting authorities to

compel testimony, following the lawful issuance of a subpoena and, if necessary,

the granting of immunity. See, e.g., United States v. D’Angiolillo, 340 F.2d 453,

455 (2d Cir. 1965) (noting that prisoner could have been compelled to testify by

subpoena).

In addition, the prison may certainly condition benefits on providing

information to officers. For example, in Clark v. Gipson, the court determined that

a prison could constitutionally deny a prisoner a job as a peer educator in the

prison health unit based on the prisoner’s refusal to become an informant. No. 13-

CV-3012, 2015 WL 328966, at *4–5 (C.D. Ill. Jan. 26, 2015). Central to the

court’s holding was that the prisoner had no right to the prison job; thus, the prison

could lawfully condition the benefit of the job upon the prisoner’s cooperation with


29

prison guards. See id. at *5.11 Similarly, this Court has held in the context of

compelled commercial speech on a contested public issue that “[w]hile the

government may incidentally encourage certain speech through its power to

choose to fund one activity to the exclusion of another, it may not directly mandate

that [speakers] affirmatively espouse the government’s position.” Evergreen

Ass’n, 740 F.3d at 250–51 (emphasis added) (internal quotation marks, citation,

and alterations omitted).

Indeed, the government often confers benefits for providing information –

and for other forms of cooperation with authorities – including by declining to

pursue criminal charges supported by probable cause. In those circumstances, the

Ninth Circuit has held that a defendant who refused to cooperate cannot make out a

vindictive prosecution claim premised on the assertion of a First Amendment right

not to speak. See United States v. Paguio, 114 F.3d 928, 930 (9th Cir. 1997)

(citing United States v. Gardner, 611 F.2d 770, 773 (9th Cir. 1980)).

But these examples are very different from what happened here. In this

case, Burns was singled out and threatened with the punishment of solitary

confinement. The analogy outside the prison walls would be the police knocking

11 The court noted that public employees are often required to “‘inform’ on their colleagues’ misconduct,” and prisons could similarly condition certain jobs on providing information. Id. (citing Garcetti v. Ceballos, 547 U.S. 410 (2006)).


30

on a private citizen’s door and, without basis (and without some exigency),

threatening to arrest her if she does not report which of her neighbors is

committing crimes. The Constitution does not permit such conscription of private

citizens by law enforcement, and it serves no legitimate penological purpose to

treat prisoners differently.

While a prisoner’s constitutional rights are properly limited in ways that

serve legitimate penological purposes, Turner does not give prison officials carte

blanche to meet even legitimate goals by any means necessary. Viewed in the

light most favorable to Burns, the record here demonstrates that Defendants had no

plausible basis for demanding that Burns provide them with information and no

justification for keeping him in solitary confinement as long as he refused to

become their informant. Because Defendants’ actions were not reasonably related

to a legitimate penological purpose, the First Amendment protects Burns’s refusal

to provide information in these circumstances.

IV. Burns’s Right to Refuse to Become an Informant Was Protected by the Eighth Amendment

Burns’s refusal to provide information under the penalty of indefinite

detention in segregative confinement was also protected by the Eighth

Amendment. Prison officials violate the Eighth Amendment’s ban on cruel and

unusual punishment if they know that a prisoner faces “a substantial risk of serious

harm” and they fail to take reasonable steps to abate the risk, including


31

“protect[ing] prisoners from violence at the hands of other prisoners.” Farmer v.

Brennan, 511 U.S. 825, 833–34 (1994) (internal quotation marks omitted). Under

this rubric, numerous courts have held that labeling a prisoner a “snitch”

constitutes an Eighth Amendment violation because it puts the prisoner at serious

risk of being harmed. See, e.g., Reeves v. King, 774 F.3d 430, 432 (8th Cir. 2014)

(prisoner’s right under Eighth Amendment not to be subjected to a substantial risk

of harm by being labeled a snitch was clearly established); Benefield v. McDowall,

241 F.3d 1267, 1271 (10th Cir. 2001) (“[L]abeling an inmate a snitch satisfies the

Farmer standard, and constitutes deliberate indifference to the safety of that

inmate.”); Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir. 1989)

(“[W]hether [guards] called [a prisoner] a ‘snitch’ in the presence of other inmates

is ‘material’ to a section 1983 claim for denial of the right not to be subjected to

physical harm by employees of the state acting under color of law.”); Harmon v.

Berry, 728 F.2d 1407, 1409 (11th Cir. 1984) (per curiam) (reversing dismissal of

prisoner’s claim that “prison officials have labeled him a snitch and are exposing

him to inmate retaliation.”); see also Watson v. McGinnis, 964 F. Supp. 127, 131

(S.D.N.Y. 1997) (citing additional cases).12

12 This Court’s decision in Dawes v. Walker, 239 F.3d 489 (2d Cir. 2011), overruled on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002),


32

These courts have recognized the inherent risk of serious injury to a prisoner

who is merely labeled an informant. See, e.g., Irving v. Dormire, 519 F.3d 441,

451 (8th Cir. 2008) (“[L]abeling an inmate a snitch violates the guard’s duty to

protect inmates.”). It follows that compelling a prisoner to become an informant

creates the same, if not greater, risk of harm. Accordingly, courts have held that

“[b]ecause being labeled a snitch could place an inmate’s life in danger, it follows

that an inmate’s refusal to become one is protected” by the Eighth Amendment.

Cooper v. Beard, Civil Action No. 06-0171, 2006 WL 3208783, at *12 (E.D. Pa.

Nov. 2, 2006); accord David v. Hill, 401 F. Supp. 2d 749, 757 (S.D. Tex. 2005);

Allah v. Juchnewioz, No. 93 Civ. 8813 LMM, 1999 WL 562100, at *3 (S.D.N.Y.

Jul. 30, 1999); see also Gullatte v. Potts, 654 F.2d 1007, 1012 (5th Cir. Unit B

Aug. 1981) (“When officials are aware of a danger to an inmate’s health and

safety, . . . as appears to be the case when an inmate cooperates with an official

prison investigation, it does violate the constitutional proscription against cruel and

unusual punishment to fail to afford that inmate reasonable protection.”).

is not to the contrary, though it held that a prisoner’s allegation that he was referenced as an “informant” and a “rat” because he complained to prison supervisors about a prison guard’s conduct did not, without more, sufficiently allege a substantial risk of harm from other prisoners to support a claim of retaliation or a violation of the Eighth Amendment. See id. at 493–94.


33

To satisfy Defendants’ demand, Burns would have been required to

inculpate at least one other prisoner. Defendants knew or should have known that

acceding to their demand would burden Burns’s confinement with the additional

danger of violent retribution if other prisoners discovered Burns’s cooperation.

The Eighth Amendment does not allow Defendants to require Burns to put himself

at such risk of serious harm. Thus, Defendants’ placing Burns in solitary

confinement for refusing to become an informant constitutes a retaliatory act for

the exercise of a constitutional right secured by the Eighth Amendment.

V. Defendants’ Cruel and Arbitrary Conduct Violated Burns’s Substantive Due Process Rights

Finally, Burns’s refusal to become a prison informant implicated

fundamental liberty interests and, more broadly, his right to be free from arbitrary

government action secured by the Due Process Clause.

“Substantive due process prohibits the government from invading personal

immunities that are ‘implicit in the concept of ordered liberty’ and ‘so rooted in the

traditions and conscience of our people as to be ranked as fundamental.’” United

States v. McLaurin, 731 F.3d 258, 261 (2d Cir. 2013) (quoting Rochin v.

California, 342 U.S. 165, 169, 172 (1952)). Where the government infringes upon

a “fundamental” liberty interest, the infringement must be “narrowly tailored to

serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 301–02 (1993);

see, e.g., McLaurin, 731 F.3d at 262; United States v. Myers, 426 F.3d 117, 126


34

(2d Cir. 2005). Even where a fundamental liberty interest is not at stake, the

government may not take action that “shocks the conscience.” See, e.g., Cty. of

Sacramento v. Lewis, 523 U.S. 833, 846–47 (1998); Lombari v. Whitman, 485 F.3d

73, 79 (2d Cir. 2007). Ultimately, the Supreme Court has “emphasized time and

again that [t]he touchstone of due process is protection of the individual against

arbitrary action of government, whether the fault lies in a denial of fundamental

procedural fairness, or in the exercise of power without any reasonable justification

in the service of a legitimate governmental objective.” Cty. of Sacramento, 523

U.S. at 845–46 (alteration in original) (internal quotation marks and citations

omitted).

The basic right to be free from arbitrary governmental action extends to

prisoners. See, e.g., Wolff v. McDonnell, 418 U.S. 539, 542–43 (1974); Welch v.

Bartlett, 196 F.3d 389, 392 n.1 (2d Cir. 1999) (recognizing that prisoner may

“assert[ ] that a liberty interest arises from ‘the Due Process Clause of its own

force’” (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995))). As this Court has

held, “A person, even if convicted of a crime . . . retains his right to substantive

due process, even if it is sharply diminished in many respects.” McLaurin, 731

F.3d at 261.

Defendants’ actions here violated Burns’s due process rights. First,

Defendants’ actions were arbitrary. As discussed above, Defendants had no basis


35

to believe that Burns possessed any information that could promote a legitimate

penological purpose. Burns was essentially picked out for his long tenure in the

prison system at large. Defendants’ actions are no more rational than singling out

every fifth prisoner and demanding that he provide information on threat of

indefinite punishment. Due process does not tolerate such arbitrary action.

Second, Defendants’ actions were shockingly cruel in that they put Burns

between the horns of an impossible dilemma: Either refuse to cooperate and face

indefinite confinement in IPC, or provide information and become Defendants’

informant going forward, exposing Burns to serious danger that necessarily would

have resulted in IPC confinement as well. That sort of Catch-22 cannot be squared

with legitimate penological purposes and indicates a degree of maliciousness and

an abuse of power that shocks the conscience.

Third, Defendants’ actions threatened Burns’s fundamental liberty interest in

declining to speak on government compulsion. As described above, the right not

to speak is included in the First Amendment’s right to freedom of speech – a right

that ranks as fundamental. See Near v. State of Minnesota ex rel. Olson, 283 U.S.

697, 707 (1931). Moreover, compelling an individual to provide inculpatory

information, whether based on mental or physical coercion, has long been held to

violate due process of law. See Jackson v. Denno, 378 U.S. 368, 389–90 (1964)


36

(citing Blackburn v. Alabama, 361 U.S. 199, 206 (1960)).13 And by compelling a

prisoner to become an unwilling agent of the state, the government violates his

“[s]elf-determination” and “freedom of conscience,” which are “central values [the

Supreme Court has] found implicit in the concept of ordered liberty.” McDonald

v. City of Chicago, 561 U.S. 742, 880 (2010) (Stevens, J., dissenting); see Roberts

v. U.S. Jaycees, 468 U.S. 609, 619 (1984) (holding that Due Process Clause

“safeguards the ability independently to define one’s identity that is central to any

concept of liberty”). As Judge Sack has suggested, such actions are reminiscent of

“notorious” regimes and anathema to our concept of ordered liberty. See Jackler v.

Byrne, 658 F.3d 225, 246 (2d Cir. 2011) (Sack, J. concurring).

Finally, due process forbids confinement in segregation for an indefinite

period, without justification, as Burns suffered here. Defendants made it

abundantly clear to Burns that unless he provided information, he would “rot in

13 To the extent that becoming an informant would have required Burns to inculpate himself as well as others, and to the extent that such information could have been used against him at a subsequent criminal proceeding, Defendants’ actions threatened Burns’s Fifth Amendment right against self-incrimination. See Higazy v. Templeton, 505 F.3d 161, 171–72 (2d Cir. 2007) (holding that a plaintiff may bring a § 1983 action alleging violation of Fifth Amendment right against self-incrimination when coerced statement used against individual in criminal proceeding). The right against self-incrimination also ranks as a fundamental right under the Due Process Clause. See Malloy v. Hogan, 378 U.S. 1, 3–10 (1964).


37

IPC” until death or the end of his sentence. JA 21, ¶ 25. This Court has

recognized that confinement in a special housing unit, or “SHU,” “may impose

hardships that are atypical or significantly different from the burdens of ordinary

prison confinement.” Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000).14 While this

Court has not established a bright-line rule as to how lengthy segregated

confinement must be to be considered atypical and significant, the Court has

characterized segregative sentences of 125 to 288 days as “relatively long,” and

thus necessitating “specific articulation of . . . factual findings” before the district

court could properly term the confinement atypical or insignificant. Hynes v.

Squillace, 143 F.3d 653, 658 (2d Cir. 1998) (describing the segregative

confinements at issue in Miller v. Selsky, 111 F.3d 7 (2d Cir. 1997) (125 days);

Brooks v. DiFasi, 112 F.3d 46 (2d Cir. 1997) (180 days); and Wright v. Coughlin,

132 F.3d 133 (2d Cir. 1998) (168 days in SHU, followed by 120 days in

keeplock)); see also Colon v. Howard, 215 F.3d 227, 232 & n.5 (2d Cir. 2000)

(noting that longest period of SHU confinement held not to be atypical and

significant is 101 days, but leaving open possibility that a shorter period of

14 The Court has noted that “keeplock status,” in which Burns was effectively confined (despite New York regulations requiring less restrictive conditions for prisoners in IPC custody) is essentially equivalent in terms of its deprivations to segregation in a special housing unit. See McKinnon v. Patterson, 568 F.2d 930, 936 (2d Cir. 1977).


38

confinement could be atypical and significant depending on severity of

conditions); cf. Sandin, 515 U.S. at 486 (solitary confinement of 30 days not

atypical and significant). And a period of indefinite segregative confinement – as

Burns experienced here – has been held to be an important factor in triggering a

liberty interest under the Due Process Clause. See Wilkinson v. Austin, 545 U.S.

209, 224 (2005).

Burns was confined in isolation for nearly nine months – more than 270 days

– held in a cell for twenty-three hours a day, deprived of social contact, denied

library services, religious counseling, and mental health treatment, and surrounded

by dangerous prisoners who taunted and threatened him. Courts have increasingly

recognized “[t]he human toll wrought by extended terms of isolation.” Davis v.

Ayala, 135 S. Ct. 2187, 2209 (2015) (Kennedy, J., concurring); see also id. (citing

In re Medley, 134 U.S. 160, 168 (1890) (“A considerable number of the prisoners

fell, after even a short [solitary] confinement, into a semi-fatuous condition . . . and

others became violently insane; others, still, committed suicide”)). The extended

solitary confinement to which Burns was subjected, especially considered in

combination with the indefinite nature of the confinement and the arbitrary manner

in which he was placed there, violated his rights under the Due Process Clause.


39

CONCLUSION

For the foregoing reasons, the order of the District Court should be vacated,

and the case should be remanded for further proceedings.

Dated: New York, New York May 1, 2017

Respectfully submitted, SHER TREMONTE LLP By: /s/ Noam Biale

Noam Biale Michael W. Gibaldi 90 Broad Street, 23rd Floor New York, NY 10004 T: (212) 202-2600 F: (212) 202-4156 [email protected]

Attorneys for Mark Burns


40

CERTIFICATE OF COMPLIANCE

The undersigned counsel of record for plaintiff-appellant Mark Burns

certifies pursuant to Federal Rule of Appellate Procedure 32(g)(1) that the

foregoing brief contains 8,998 words, excluding the parts of the brief exempted by

Federal Rule of Appellate Procedure 32(f), according to the Word Count feature on

Microsoft Word 2016; and that the brief has been prepared in 14-point Times New

Roman font.

Dated: May 1, 2017

/s/ Noam Biale Noam Biale Sher Tremonte LLP


ADDENDUM


TABLE OF CONTENTS

PAGE

Report and Recommendation, dated December 17, 2014 . . . . . . . . . . . . . . . Add. 1

Decision and Order of the Honorable Lawrence E. Kahn, dated February 10, 2015 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add. 27


Add. 1Case 9:13-cv-00486-LEK-CFH Document 46 Filed 12/18/14 Page 1 of 26

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

MARK BURNS,

Plaintiff, v.

BRIAN FISCHER, Commissioner of Corrections N.Y.S. DOCS; THERESA KNAPP-DAVID, Director of Classification and Movement at N.Y.S. DOCS; Captain SHANNEL Y, Coxsackie Correctional Facility N.Y.S. DOCS; Sergeant NOEL, Coxsackie Correctional Facility N.Y.S. DOCS; Correction Counselor SCHWEBLER, Coxsackie Correctional Facility N.Y.S. DOCS; Correction Counselor McGLYNN, Coxsackie Correctional Facility N.Y.S. DOCS,

Defendants.

No. 13-CV-486 (LEKlCFH)

APPEARANCES: OF COUNSEL:

MARK BURNS Plaintiff Pro se 99-A-4073 Wyoming Correctional Facility P.O. Box 501 Attica, New York 14011

HON. ERIC T. SCHNEIDERMAN Attorney General for the

State of New York Attorney for Defendant The Capitol Albany, New York 12224-0341

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

JOSHUA E. McMAHON, ESQ. Assistant Attorney General



REPORT-RECOMMENDATION AND ORDER'

Plaintiff pro se Mark Burns, an inmate currently in the custody of the New York State

Department of Correctional and Community Supervision ("DOCCS"), brings this action

pursuant to 42 U.S.C. § 1983 alleging that defendants, Daniel F. Martuscello, Jr.,

Superintendent of Coxsackie Correctional Facility ("Coxsackie"); Raymond Shanley,

Captain at Coxsackie; James Noeth, Sergeant at Coxsackie; Bradley Schwebler, Guidance

Counselor at Coxsackie; and Megan McGlynn, Guidance Counselor at Coxsackie violated

his rights under the First, Eighth, and Fourteenth Amendments of the Constitution of the

United States. Defendants moved to dismiss the claims against defendants Fischer,

Knapp-David, Schewbler, and McGlynn for lack of personal involvement. Dkl. No. 22.

Bums opposed the motion as against Fischer and Knapp-David, but did not oppose insofar

as it moved to dismiss against Schewbler and McGlynn. Dkl. No. 30, at 1\8. By Report

Recommendation and Order dated February 3, 2014, the undersigned (1) granted the

defendants' motion to dismiss as to (a) the Eleventh Amendment bar against individual

defendants in their official capacities, and (b) the personal involvement defense for

defendants Brian Fischer and Teresa Knapp-David; and (2) denied the motion to dismiss as

to the personal involvement defense for defendants Schwebler and McGlynn. Dkl. No. 34.

On April 11, 2014, following submission of objections by defendants, United States

District Court Judge Lawrence E. Kahn approved and adopted in part the Report-

Recommendation. Dkl. No. 36. The decision and order (1) granted defendants' motion to

dismiss as to (a) all claims against all defendants in their official capacities; (b) all claims

, This matter was referred to the undersig ned for report and recom mendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).

2



against defendants Fischer and Knapp-David in their individual capacities; (c) the First

Amendment retaliation and Fourteenth Amendment due process claims against defendants

Schwebler and McGlynn in their individual capacities; and (2) denied defendants' motion to

dismiss as to the Eighth Amendment claim against defendants Schwebler and McGlynn in

their individual capacities. Dkt. No. 36. Burns was ordered to file an amended complaint

bringing his remaining claims - First Amendment retaliation and Fourteenth Amendment

due process claims against defendants Schwebler and McGlynn. !.!!. at 6.

Presently pending is defendants' motion for summary judgment pursuant to Federal

Rule of Civil Procedure (Fed. R. Civ. P.) 56(c). Dkl. No. 39-3. Burns opposed (Dkl. No. 43-

1), and defendants submitted a reply to the present motion (Dkl. No. 44). For the following

reasons, it is recommended that defendants' motion for summary judgment be granted and

Bums' complaint dismissed with prejudice.

I. Background

The facts are related herein in the light most favorable to Burns as the nonmoving

party. See Subsection iliA, infra. At all relevant times, Burns was an inmate at Coxsackie

Correctional Facility. Burns alleges that on or about March 2, 2010, he was transferred

from Great Meadow Correctional Facility to Coxsackie. Aff. in Supp. at 2. (Dkl. No. 1-1).

Beginning in April 2010, Burns served as a stock clerk in commissary. !.!!. On May 19,

while removing stock from shelves, Burns was struck in the face and neck by a falling can.

!.!!. He suffered redness on his face and a scratch on his neck. Dkt. No. 39-15. Burns

reported the injury to commissary staff and signed a medical waiver. Aff. in Supp. at 2.

While working in commissary the next day, Bums was approached by defendants Sergeant

3



Noeth and Captain Shanley who informed him that his wife had called stating that he was

cut by a fellow inmate. !.!l at 2-3. Burns denied this and informed defendants Noeth and

Shanley "that [he] was currently having problems with [his] wife and it was simply her way of

causing trouble and reiterated that [he] had an accident in com missary while working and

that [he] follower [sic] proper policy and procedure ... ." !.!l at 3. Burns also told

defendants Noeth and Shanley that a commissary officer witnessed the accident and

documented it as a work-related injury. !.!l Bums alleges that defendant Shanley told him

that

the only way [he] could remain in population would be if he agreed to be a 'snitch' for him and the Superintendent .... [Shanley] said if [he] refused to become his 'snitch' he and the Superintendent would let [him] rot in IPC [Involuntary Protective Custody] status until [he] died or was released form [sic] prison.

!.!l Bums "refused to become a 'snitch,'" so defendant Shanley told defendant Noeth to

write an Involuntary Protective Custody ("I PC") recommendation. !Q; Dkl. No. 39-14.

A Tier III disciplinary hearing commenced on May 26,2010. Dkl. No. 39-16, at 2. At

the hearing, Burns pleaded "not guilty" to the IPC recommendation. !.!l at 3. Bums called

as a witness Commissary Officer Jablanski. !.!l at 4. Jablanski recalled that Bums told him

that a can fell from the top shelf and hit him in the eye. !.!l at 5. Jablanski logged the injury.

!.!l Next, defendant Noeth testified that he received a call from defendant Shanley stating

that Burns' wife had "called and said he was cut." !.!l at 7. Noeth examined Burns and

noted the presence of a black eye, but no other injury. !.!l Burns told Noeth that the black

eye was caused by a can falling on him in commissary. !.!l Noeth testified that he later

learned that Burns reported the injury to Jablanski the day after it occurred. Id. When

asked if he knew whether there was "a threat to Mr. Bums' general safety within the general

4



inmate population" at Coxsackie, Noeth replied, "[i]f I go by the inmates[,] word, no .... " !!l

Noeth explained that Shanley directed him to submit paperwork for an IPC recommendation

for Burns. !!l In response to Noeth's testimony, Bums stated that the reason for reporting

the injury the next day was because his eye "didn't really swell up and get black until the

next day" or that night. !!l at 8.

Thereafter, defendant Shanley testified that he recommended Bums for IPC status after

receiving a phone call from Burns' wife wherein she stated that she feared for Burns safety

because he had recently been in a fight. Dkt. No. 39-16, at 8. Shanley had Burns called to

his office where he interviewed him. !!l Shanley noticed that Bums had a black eye and a

superficial cut on the back of his neck. !!l Shanley testified that Burns reported that the

injuries were caused by a falling can in commissary. Id. at 9. He learned that Bums had

not immediately informed staff of the injury and determined that "his injuries were consistent

with ... having an altercation." !!l Shanley stated that there continued to be a threat to

Bums' safety in the general inmate population because Burns had injuries consistent with

an altercation, the perpetrator was unknown, and he "do[es]n't know if there's going to

ramifications from this incident." !!l at 9. In response to Shanley's testimony, Burns opined

that, had he been involved in an altercation with another inmate, someone in his dorm

would have seen it. Id.

Following close of testimony on June 7, 2010, hearing officer Gutwin concluded that

substantial evidence demonstrated that a threat to Bums' safety existed and, thus, he was

in need of IPC. Dkt. No. 39-16, at 10. The hearing officer informed Burns that, in order to

challenge the IPC determination, he "must file a Tier 3 appeal form" to the Commissioner

within thirty days of the end of the hearing. Id. at 11.

5



On June 10, 2010, Bums filed grievance number CX-15921-10. Dkt No. 39-6. The

grievance alleged that Bums' personal safety was in jeopardy because there was a lack of

security in his IPC unit in violation of DOCCS Directive 4948. !.Q.. at 3. Burns noted that he

was placed in IPC due to alleged safety concerns relating to an unknown assailant, but that

his safety was at risk because his unit improperly housed general population, keeplock,2

and SHU3 inmates, who shower with him and who "[we]re routinely walking past [his] cell."

!.Q.. Bums expressed concern that one of these inmates could attack him if he left his cell for

a shower or a visit. !.Q.. Bums specified that "this grievance is not in regards to my IPC

hearing and/or disposition." !.Q.. During the investigation of grievance CX-15921-10,

nonparty Sergeant Baczkowski interviewed Burns. Dkt. No. 39-6, at 5. Baczkowski

informed Burns that "he could file an appeal of his status, and that the grievance system

shouldn't be utilized for that purpose" and that Bums "now knows that he can use the

appeal process to rectify his situation, and will file an appeal instead of a grievance in the

future." !.Q.. During the investigation, Bums stated that he did not feel the need for IPC, was

not involved in an altercation, and had complained about his personal safety in the

grievance because "he was being spiteful for being placed in IPC." !.Q..

The Inmate Grievance Review Committee ("IGRC") denied Burns' grievance "[b]ecause

2 "Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him of participation in normal prison activities." Green v. Bauvi, 46 F.3d 189,192 (2d Cir.1995); N.Y. CaMP. CODESR. & REGS. tit. 7, §301.6.

3 SHUs exist in all maximum and certain medium security facilities. The units "consist of single-occupancy cells grouped so as to provide separation from the general population .... " N.Y. CaMP. CODES R. & REGS. tit 7, § 300.2(b). Inmates are confined in a SHU as discipline, pending resolution of misconduct charges, for administrative or security reasons, or in other circumstances as required. !.Q.. at pt. 301.

6



of the reason stated in the investigation." Dkt. No. 39-6, at 4. Burns appealed to the

Superintendent. !fh at 1. Burns' grievance was denied. !fh The Superintendent responded

that '[s]taff denies the allegation that the grievant's personal safety is in jeopardy." !fh The

Superintendent noted that Bums told staff that his reason for filing the grievance was

because "he wished to be removed from IPC status." Id. The determination further noted

that Burns was informed of the proper procedure to appeal his IPC status, and he "has

been going out to recreation, showers and the activities he is entitled to." Id. at 1, 4-5.

On July 15, 2010, Bums filed grievance number CX-15983-10 relating to his placement

in IPC. Dkl. No. 39-7. Burns contended that he had requested a transfer but was told by

his counselor that movement and control denied his transfer, determining "present

placement appropriate." !fh at 5. He contended that when he asked defendant Martuscello

why he was in IPC, Martuscello said that it was because his family had called. !fh Burns

alleged in the grievance that he was placed in IPC as retaliation because he had not been

involved in an altercation, had a good disciplinary record, and did not have any enemies.

!fh Bums reiterated that he was injured on the job in commissary and that the officer in

commissary documented the injury and had him sign a medical waiver. !fh

The grievance was denied by IGRC because Bums "had a hearing wherein it was

determined that IPC was appropriate." Dkt. No. 39-7, at 16. Burns appealed to the

Superintendent, and the Superintendent denied the grievance. !fh at 7,16. Burns

appealed from the Superintendent's denial, and CORC denied his appeal. !f!:.. at 1. In its

denial, CORC "advise[d] the grievant that in accordance with Directive #4040, Inmate

Grievance Program, an individual decision or disposition of any current or subsequent

program or procedure having a written appeal mechanism which extends review to outside

7



of the facility shall be considered non-grievable." !.!!:. CORC also "advise[d] the [grievant] to

address his transfer concerns to his correction counselor." !.!!:. Lastly, CORC noted that

in addition to the actual hearing ... he was also provided with an opportunity to appeal his IPC determination in accordance with 7 NYCRR, Chapter V. This appeal mechanism afforded the grievant with an opportunity to remedy any factual or procedural errors. CORC has not been presented with sufficient evidence to substantiate any malfeasance by staff.

Next, Bums filed grievance CX-16033-10 because Coxsackie did not participate in the

Family Reunion Program. Dkl. No. 39-9. This grievance was denied by the IGRC,

superintendent, and by CORC because Coxsackie does not participate in the Family

Reunion Program and ''there is no requirement to house an inmate in a facility that offers

the Family Reunion Program (FRP) or that each facility establish an FRP." !.!!:. at 1, 6, 8-9.

Finally, on or about January 18, 2011, Burns filed grievance number CX-16281-11

wherein he requested access to weights in the IPC yard. Dkl. No. 39-8, at 2. In this

grievance he also stated that he was in IPC "due to some far fetched theory by the

administration [that he] was in an altercation, despite the logged injury report stating a can

fell on [him] while pulling buys at [his] program in commissary." !.!!:. Burns argued that he

was "not in IPC for disciplinary infraction but for following proceedure [sic] and reporting

[his] injury and [he was] subjected way beyond the departure of ordinary prison life[.]" !.!!:.

The grievance was accepted in part and denied in part by IGRC in that a weight bar would

be placed in the yard once snow was cleared. !.!!:. at 3-4. Bums alleges that he appealed

the partial denial, contending that he should not have to wait until the yard conditions

improved in order to have access to weights. Dkl. No. 43, at 12.

8



In January 2011, Burns was released from IPC upon his transfer to Attica Correctional

Facility. Dkt. No. 39-13, at 7.

III. Discussion4

Burns contends that defendants Schwebler, McGlynn, Martuscello, Shanley, and Noeth

violated his constitutional rights under the First, Eighth, and Fourteenth Amendments.

Specifically, he argues that (1) defendants Shanley, Martuscello, and Noeth retaliated

against him in violation of the First Amendment by placing him in IPC after he declined to

act as their "snitch"; (2) defendants Shanley, Martuscello, and Noeth violated the

Fourteenth Amendment by placing him in IPC without proper due process; and

(3) defendants Shanley, Martuscello, Noeth, Schwebler, and McGlynn" violated the Eighth

Amendment and DOCCS Directive 4948 by subjecting him to conditions of confinement

amounting to cruel and unusual punishment.

A. Legal Standard

A motion for summary judgment may be granted if there is no genuine issue as to any

4 All unpublished decisions cited herein are attached to this ReportRecommendation.

" In a decision and order dated April 11 ,2014, United States District Court Judg e Lawrence E. Kahn ordered "that if Plaintiff wishes to bring his First Amendment retaliation and Fourteenth Amendment due process claims against Defendants Schwebler and McGlynn, he may do so by filing, within thirty (30) days of this Decision and Order, an amended complaint that remedies the deficiencies identified in this Decision and Order ... ." Dkt. No. 36. As Burns failed to file an amended complaint, this ReportRecommendation will consider the First and Fourteenth Amendment claims only as brought only against defendants Martuscello, Shanley, and Noeth.

9



material fact, it was supported by affidavits or other suitable evidence, and the moving party

is entitled to judgment as a matter of law. The moving party has the burden of showing the

absence of disputed material facts by providing the court with portions of pleadings,

depositions, and affidavits which support the motion. FED. R. CIV. P. 56 (c); Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). Facts are material if they may affect the outcome of the

case as determined by substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). All ambiguities are resolved and all reasonable inferences drawn in favor of the

non-moving party. Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).

The party opposing the motion must set forth facts showing that there is a genuine

issue for trial, and must do more than show that there is some doubt or speculation as to

the true nature of the facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475

U.S. 574, 586 (1986). For a court to grant a motion for summary judgment, it must be

apparent that no rational finder of fact could find in favor of the non-moving party. Gallo v.

Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994);

Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).

Where, as here, a party seeks judgment against a pro se litigant, a court must afford

the non-movant special solicitude. See Triestman v. Federal Bureau of Prisons, 470 F.3d

471,477 (2d Cir. 2006). As the Second Circuit has stated,

[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude," ... that a pro se litigant's submissions must be construed "liberally," ... and that such submissions must be read to raise the strongest arguments that they "suggest," .... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, ... or arguments that the submissions themselves do not "suggest," ... that we should not "excuse frivolous or vexatious filings by pro se litigants," ... and that pro se status "does not exempt a party from compliance with relevant

10



rules of procedural and substantive law ....

.!.Q., (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d

185, 191-92 (2d Cir. 2008).

B. Exhaustion

Defendants contend that Burns has not exhausted his administrative remedies because

he failed to appeal (1) his IPC hearing; (2) to CORC the denial of grievance CX-15921-10;

and (3) to CORC the partial denial of grievance number CX-16281-11 concerning weights in

the IPC recreation yard. Dkl. No. 39-3, at 5.

Under 42 U.S.C. § 1997e(a), the Prison Litigation Reform Act, an inmate must exhaust

all administrative remedies before bringing an action for claims relating to his incarceration.

Porter v. Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 548 U.S. 81, 82

(2006). To exhaust administrative remedies, the inmate must complete the full

administrative review process set forth in the rules applicable to the correctional facility in

which he or she is incarcerated. Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation

omitted). The exhaustion requirement applies even if the administrative grievance process

does not provide for all of the relief requested by the inmate. Nussle, 534 U.S. at 524.

Although the Supreme Court of the United States has deemed exhaustion mandatory,

the Second Circuit has recognized that "certain caveats apply." Ruggiero v. County of

Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citing Giano v. Goord, 380 F.3d 670, 677 (2d Cir.

2004)). Thus, even where an inmate has failed to exhaust, a court must conduct a

three-part inquiry to determine whether an inmate's failure to follow the applicable grievance

procedures is excusable. In making this inquiry, a court must consider whether:

(1) administrative remedies are not available to the prisoner;

11



(2) defendants have either waived the defense of failure to exhaust or acted in such a way as to estop them from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures, justify the prisoner's failure to comply with the exhaustion requirement.

Ruggiero, 467 F.3d at 175 (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)).

Administrative remedies are unavailable when there is no "possibility of 0 relief for the

action complained of." Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) (citing Booth

v. Churner, 532 U.S. 731, 738 (2001 )). The test to determine the availability of an

administrative remedy is an objective one, whether "a similarly situated individual of

ordinary firmness" would have deemed it accessible. !.Q,. at 688. Unavailability may be

found in circumstances "where plaintiff is unaware of the grievance procedures or did not

understand it ... or where defendants' behavior prevents plaintiff from seeking

administrative remedies." Hargrove v. Riley, No. CV-04-4587 (DST), 2007 WL 389003, at

*8 (E.D.N.Y. 2007) (internal citations omitted). Further, "where a prisoner has made a

'reasonable attem pI' to file a grievance, and prison officials have prevented the prisoner

from filing that grievance, the grievance procedures are not 'available' to the defendant, and

thus the [PLRA] does not preclude the prisoner from suing in federal court." Thomas v.

New York State Dep't of Corr. Servs., 00-CV-7163(NRB), 2002 WL 31164546, at *3

(S.D.N.Y. Sept. 30, 2002) (citations omitted).

At all relevant times, DaCCS had in place a three-step inmate grievance program. N.Y.

COMPo CODES. R. & REGS. tit. 7, § 701.5 (2014). First, the inmate is required to file a

complaint with an inmate grievance program clerk ("IGP") within twenty-one days of the

alleged action. !.Q,. at § 701.5 (a) (1). An IGP representative has sixteen calendar days to

informally resolve the issue. !.Q,. at § 701.5 (b)(1). If no informal resolution occurs, the full

12



IGRC must hold a hearing within sixteen days of receipt of the grievance and must issue a

written decision within two working days after conclusion of the hearing. !.!!:. §§ 701.5

(b)(2)(i), (ii). If unfavorable, a grievant may appeal the IGRC's determination to the facility

superintendent within seven calendar days of receipt of the determination. !.!!:. §701.5 (c)

(1). If the superintendent's determination is unfavorable, the grievant may take the third

and final step of the grievance procedure by appealing to the central office review

committee ("CORC") within seven days after receipt of the unfavorable Superintendent's

determination. Id. §§ 701.5 (d)(i),(ii). CORC must issue a written decision within thirty days

of receipt of the grievant's appeal. !.!!:. § 701.5 (d)(2)(ii).

DOCCS has a separate administrative appeal process for disciplinary hearings - which

includes IPC hearings - under 7 NYCRR § 254.8. For tier III hearings, an inmate must

appeal to the DOCCS Commissioner or his designee within thirty days of receipt of the

disposition. 7 NYCRR § 254.8. During the period of time that an inmate is subject to the

penalty imposed by the hearing, the superintendent may review the determination and

reduce the penalty at any time. 7 NYCRR § 254.9. An inmate's appeal of a disciplinary

hearing determination 'constitutes exhaustion under the PLRA for purposes of rendering his

due process claim ripe for adjudication in federal court." Davis v. Barrett, 576 F.3d 129, 132

(2d Cir. 2009). The regulations further provide that the results of disciplinary proceeding, or

any 'program or procedure having a written appeal mechanism which extends to review

outside the facility," are nongrievable. 7 NYCRR § 701.3 (e) (1), (2).

In response to defendants' opposition to summary judgment, Burns contends that he

properly exhausted his administrative remedies as it relates to the IPC hearing because he

"submitted a timely administrative appeal to the IPC Placement as authorized by 7 NYCRR

13



254.8, by placing said appeal into the hands of corrections officials for depositing into the

mailbox as per facility policy ... ." Dkt. No. 43, at 2. Bums provides a copy of this alleged

appeal. k!. at 8. He similarly contends that he exhausted remedies for grievance number

CX-15921-10 by "authoring an 'Appeal Statement' and forwarding said appeal to the

Grievance Office through the facility's mail procedure." Dkt No. 43, at 3. Bums provides a

copy of this alleged appeal. k!. at 10. He also contends that he exhausted administrative

remedies for grievance number CX-16281-11 because he "submitted a timely appeal by

returning the grievance form with a statement to the grievance office through the facility's

mail procedure." Dkl. No. 43, at 5. Bums provides a copy of this alleged appeal. k!. at 12.

By contrast, defendants contend that they have no record of an appeal of the IPC hearing.

Dkt. No. 44. Defendants have submitted affidavits from Albert Prack stating as such. Dkl.

No. 39-11, at 2. These ·squarely conflicting accounts give rise to a dispute of fact hat

cannot appropriately be decided on summary judgment since the matter would require the

court to make a credibility determination without the aid of live testimony." Peak v.

Schwebler, 11-CV-0041 (MAD/DEP), 2013 WL 317016, at *5 (N.D.N.Y. Jan. 3, 2013).

Accordingly, it is recommended that defendants' motion for summary judgment, insofar

as it raises the affirmative defense of nonexhaustion, should be denied.

C. First Amendment

Bums alleges that defendants Shanley, Martuscello, and Noeth retaliated against

him by placing him in IPC for refusing to act as their snitch, in violation of the First

Amendment.

It is well established that prison officials may not retaliate against inmates for exercising

14



their constitutional rights. See,!!.:9..,., Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.1995). To

establish a claim of retaliation by prison officials in violation of the First Amendment, an

inmate must allege "(1) that the speech or conduct at issue was constitutionally protected,

(2) that the defendant took adverse action against 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 NA, 534

U.S. 506 (2002). An action is considered to be adverse if it "would deter a similarly situated

individual of ordinary firmness from exercising ... constitutional rights." Davis v. Goord,

320 F.3d 346, 353 (2d Cir. 2003). An inmate's retaliation claims must be assessed "with

particular care" 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 act." !fl at 352 (quoting Dawes, 239 F.3d at

491).

Here, Burns alleges no constitutionally-protected activity. He contends that defendants

Martuscello and Shanley retaliated against him by placing him in IPC following his refusal to

act as an informant. However, nowhere in Burns submissions does Burn allege that he was

engaged in protected conduct. See generally Campbell v. Gardiner, No. 12-CV-6003P,

2014 WL 906160, at *5 (W.D.N.Y. Mar. 7, 2014). Although some courts have concluded

that a prison official's act of intentionally calling an inmate a snitch in front of other inmates

may give rise to an Eighth Amendment claim (Watson v. McGinnis, 964 F.Supp. 127,

131-32 (S.D.N.Y. 1997) (citing cases)), it does not appear that a court has held, for the

purposes of a First Amendment analysis, that an inmate's refusal to act as an informant is

protected nor is the inmate's verbal expression of refusal. See Allah v. Junchenwioz, No.

15



93-CV-8813(LMM), 2005 WL 2173826, at *1 (S.D.N.Y. Sept. 6, 2005). Thus, Bums does

not specifically allege that he was retaliated against for an exercise of constitutionally-

protected conduct in violation of the First Amendment.

Accordingly, it is recommended that defendants Shanley, Martuscello, and Noeth's

motion for summary judgment be granted as to Bums' First Amendment retaliation claim.

D. Eighth Amendment

i. Conditions of Confinement

Bums contends that defendants Shanley, Martuscello, Noeth, Schwebler, and McGlynn

violated the Eighth Amendment because the conditions he was subject to in IPC amounted

to cruel and unusual punishment. Specifically, Burns argues that, according to DOCCS

regulations, he was not supposed to have any contact with general population inmates, but

was housed in the same gallery, forced to shower with, and given visits at the same time as

general population, keeplock, and SHU inmates. Dkt. No. 1-1, at 5. Further, these inmates

kept him awake at night with disorderly, loud behavior and gang chants. Id. at 6. He also

contends the inmates in his unit subjected him to "violent threatening, abusive behavior

every minute and every hour of every day." .!.Q., at 5. Bums also argues that he was denied

access to the rehabilitative programming and services that are to be afforded to inmates,

including participation in the Family Reunion Program, daily rounds by counselors and

grievance supervisors; weekly rounds by librarians as well as regular circulation of

periodicals"; weekly rounds by religious leaders; access to counseling, school, and drug

" To the extent that Burns' claims regarding the law librarian's failure to make weekly rounds or circulate periodicals can be read to suggest that defendants denied him

16



programs; extended recreation, gym programs, and the use of weights; access to board

games and recreational equipment; and yard activities . .!.Q,. at 5; DkI. No. 1-2, at 2-3.

"The Constitution does not mandate comfortable prisons but neither does it perm it

inhumane ones, and it is now settled that the treatment a prisoner receives in prison and

the conditions under which he is confined are subject to scrutiny under the Eighth

Amendment." Farmer v. Brennan, 511 U.S. 825, 832 (1994). As with other Eighth

Amendment claims, a "plaintiff must satisfy both an objective ... and subjective test." Jolly

v. Coughlin, 76 F.3d 468, 480 (2d Cir. 1996) (citations omitted). Thus, "a prisoner may

prevail only where he proves both an objective element - that the prison officials'

transgression was sufficiently serious - and a subjective element - that the officials acted,

or omitted to act, with a sufficiently culpable state of mind .... " Phelps v. Kapnolas, 308

F.3d 180, 185 (2d Cir. 2002) (internal quotation marks and citations omitted). The objective

prong can be satisfied by conditions of confinement which, in combination may constitute

an Eighth Amendment violation "when each would not do so alone," such as ''when the

conditions have a mutually enforcing effect that produces the deprivation of a single,

identifiable human need such as food, warmth, or exercise - for example, a low cell

temperature at night combined with a failure to issue blankets." Davidson v. Murray, 371

meaningful access to the courts, Burns fails to indicate that (1) defendants acted deliberately or maliciously or (2) there was any legal action or proceeding that he was hindered from completing and, thus, does not allege actual injury. See Thomas v. Egan, 1 Fed.Appx. 52, 54 (2d Cir. 2001) (reciting that a claim of denial of access to the courts must allege actual injury). Further, Burns does not state a specific instance where he requested access to law library materials and was denied such access, instead citing to a general failure to have a librarian make rounds, in violation of a DaCCS directive. See Dkt. No. 39-13, at 12. Thus, Burns fails to proffer facts sufficient to support a potential access to the courts claim. See Lewis v. Casey. 518 U.S. 343, 351 (1996); see also Vega v. Artus, 610 F.Supp.2d 185, 201 (N.D.N.Y. 2009).

17



F.Supp.2d 361,370 r.yJ .D.N.Y. 2005) (citations omitted). However, "[n]othing so

amorphous as overall conditions can rise to the level of cruel and unusual punishment when

no specific deprivation of a single human need exists." .!.Q... (citing Wilson v. Seiter, 501 U.S.

294, 304-05 (1991)).

Moreover, a "'limitation' of privileges is not the same as denial of those privileges."

Thorpe v. Village of Greenwich, 13-CV-902 (GTS/ATB), 2014 WL 788816, at *12 (Feb. 25,

2014). It is well-settled that administrative segregation conditions, even though "restrictive

and ... harsh, [are insufficient to establish Eighth Amendment violations because] they are

part of the penalty that criminal offenders pay for their offenses against society." Rhodes v.

Chapman, 452 U.S. 337, 347 (1981). Limitation on time out of cell, time to program, and on

exercise and weight lifting, as well as denial of access to niceties such as television and

board games, do not amount to constitutional violations, even when considered collectively.

Tavares v. Amato, 12-CV-563, 2013 WL 3102031, at *12-13 (N.D.N.Y. Jun. 18,2013)

(holding that confinement in cell 23-hours per day, inability to program, denial of access to

exercise, and denial of showers on weekends did not amount to Eighth Amendment

violation).

Insofar as Burns suggests that he was subject to threats and gang chants from other

inmates, threats and abusive language do not amount to Eighth Amendment violations.

See,!!.:.9..,., Carpio v. Walker, No. 95-CV-1502 (RSP/GJD), 1997 WL 642543, at *6 (N.D.N.Y.

Oct. 15, 1997). Although Bums suggests that his safety was at risk because he was

housed with general population, SHU, and keeplock inmates, he fails to demonstrate how

any risk of harm he faced at the hands of any of the inmates in his unit differed from the

general risk any inmate potentially faces. Thus, Burns' allegations fail to satisfy the

18



objective prong of the Eighth Amendment analysis.7

Similarly, read liberally, Burns submissions suggest a claim that denial of access to

weights in the IPC yard in all weather conditions was a condition of confinement that

violated the Eighth Amendment. However, Burns does not allege that he was denied

access to all forms of exercise. Moreover, temporary limitations on access to exercise,

without full denial of opportunities, does not violate the Eighth Amendment. See Davidson

v. Coughlin, 968 F.Supp.121, 129 (S.D.N.Y. 1997) (citing cases). Further, the limitation was

not based on a culpable state of mind or deliberate indifference to Burns' health or safety,

but the legitimate penological interest of waiting until the yard was cleared of ice and snow

so that it would be safe for inmates to use. Dkt No. 39-8, at 4.

Insofar as Burns' complaint may be read to argue that his inability to participate in a

Family Reunion Program violated the Eighth Amendment, denying an inmate the ability to

participate in such a program does not violate the Eighth Amendment. See,~, Moore v.

New York State Dept. of Corr. Servs., 26 Fed. Appx. 32, 33 (2d Cir. 2001) (citing Gaston v.

Coughlin, 249 F.3d 156, 164 (2d Cir. 2001»; Champion v. Artuz, 76 F.3d 483, 486 (2d. Cir.

1996). Moreover, Coxsackie did not participate in the Family Reunion Program. Dkl. No.

39-9, at 8.

To the extent that Burns argues that any of the conditions of his confinement violated

Daccs directives, it is well settled that "[a] violation of a state law or regulation, in and of

itself, does not give rise to liability under 42 U.S.C. § 1983." Cusamano v. Sobek, 604

7 As plaintiff has not satisfied the objective element of the test, the court need not address whether Burns has satisfied the second prong, the subjective element of this twopart test. See Jolly, 76 F .3d at 480.

19



F.Supp.2d 416, 482 (N.D.N.Y. 2009) (collecting cases).

b. Failure to Protect

Providing a liberal reading, Bums' complaint also suggests that defendants Shanley,

Martuscello, Noeth, Schwebler, and McGlynn failed to protect him by placing him in IPC

confinement. Burns appears to argue that the general population, SHU, and keeplock

inmates housed in his unit were violent and could attack him at any time. Dkt. No. 1-2, at 2.

Bums further appears to suggest that, since the assailant defendants believed to be

involved in cutting him was unknown, any of the prisoners housed near him could be the

assailant. !.Q,.

To state a claim for failure to protect under the Eighth Amendment, a plaintiff must

satisfy objective and subjective tests. In order to state an Eighth Amendment claim for

failure to protect, the plaintiff must show, objectively, that he was incarcerated under

conditions posing a substantial risk of serious harm, and, subjectively, that prison officials

acted with deliberate indifference to that risk and the inmate's safety. Farmer, 511 U.S. at

836. The plaintiff must show that prison officials actually knew of and disregarded an

excessive risk of harm to the inmate's health and safety. !.Q,. at 837. The defendant must

be aware of the facts from which the inference can be drawn that a substantial risk of

serious harm exists and the defendant must also draw that inference. !.Q,.

Here, Burns fails to demonstrate that he faced a substantial risk of serious harm. Bums

does not allege that he was attacked by any of the inmates housed in his cell block nor

does he suggest that he was in fear of such attack. Instead, his submissions opine that he

faced the possibility of attack when he left his cell, but does not distinguish how this general

risk of a potential attack differs from the risk any incarcerated individual may face at any

20



level of confinement. Further, Burns submissions suggest that he alleged that his safety

was at risk because he was angry about his continued placement in confinement. DkI. No.

39-6, at 5.

Burns also fails to contend that defendants knew of and disregarded an excessive risk

to his safety. Eighth Amendment failure to protect claims are not to be based on a

defendant's knowledge of a "general risk" of harm to an inmate. See,~, Hogan v.

Fischer, No. 09-CV-6225, 2012 WL 4845609, at *6 (W.D.N.Y. Oct. 1 0, 2012) (internal

citation omitted) (holding the failure to protect the plaintiff against a general threat of harm is

insufficient to raise a failure to protect claim under the Eighth Amendment) vacated in part

on other grounds 738 F.3d 509 (2d. Cir. 2013). Thus, Burns does not sufficiently state a

claim for failure to protect against defendants.

Accordingly, it is recommended that defendants' motion for summary judgment be

granted on this ground.

D. Fourteenth Amendment

Burns argues that defendants Shanley, Martuscello, and Noeth violated the Fourteenth

Amendment by placing him in IPC without due process. In determining whether the IPC

placement violated Burns' due process rights, the court must consider "'(1) whether the

plaintiff had a protected liberty interest in not being confined ... and, if so, (2) whether the

deprivation of that liberty interest occurred without due process of law."' Tellier v. Fields,

280 F.3d 69, 79-80 (2d Cir. 2000) (quoting Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.

1997)).

21



i. Liberty Interest

An inmate has a protected liberty interest in being free from segregated confinement if

he can make a threshold showing that the deprivation of which he complains imposed the

requisite atypical and significant hardship. See Sandin v. Connor. 515 U.S. 472, 483-84

(1995); Tellier, 280 F.3d at 80 (quoting Frazierv. Coughlin, 81 F.3d 313, 317 (2d Cir.

1996)). Among the factors to be considered in determining whether confinement is atypical

include, "(1) the effect of disciplinary action on the length of prison confinement; (2) the

extent to which the conditions of the disciplinary segregation differ from other routine prison

conditions; and (3) the duration of the disciplinary segregation imposed compared to

discretionary confinement." Wright v. Coughlin, 132 F.3d 133, 136 (2d Cir.1998)(citing

Sandin, 515 U.S. at 484). While not dispositive, the duration of a disciplinary confinement

is a significant factor in determining atypicality. Colon v. Howard, 215 F.3d 227, 231 (2d

Cir. 2000) (citations omitted). No firmly established, bright-line rule exists to determine the

length or type of sanction that rises to the level of atypical and significant hardship.

Wilkinson v. Austin, 545 U.S. 209,223 (2005) (citations omitted).

Addressing the conditions of confinement, Burns was in IPC for a period of eight

months. This district has previously held that a period of IPC confinement lasting 132 days

was sufficient to satisfy the Sandin test. See Tavares, 2013 WL 3102031, at *12-13.

However, Sandin requires the court to consider not just the length of confinement, but also

the conditions of the confinement in comparison to the conditions faced by inmates in other

types of confinement. 515 U.S. at 483-84. Burns contends that he did not have access to

certain rehabilitative programs, was limited to three hours of programming and out-of-cell

time, versus thirteen hours in general population; was denied certain recreational benefits

22



such as weights, television, and board games to which general population inmates had

access. Dkt. No. 1-1, at 5-6. He also contends that the grievance supervisors, counselors,

religious leaders, and the facility librarian failed to make regular rounds. !.!t Burns argues

further that general population inmates had the benefit of "orderly calm housing units with

enforced quiet sleeping time and orderly atmospheres, both safe and secure," whereas in

his unit, it was always noisy and his fellow inmates kept him awake with "high volume,

involving gang chants and threats until 5 o'clock in the morning." !.!t at 6.8

Although the conditions of IPC confinement Bums faced may have been less than

ideal, Burns has not demonstrated that he was subject to conditions that were so atypical

when compared to ordinary prison life as to give rise to a protected liberty interest. Burns

concedes that he was able to leave his cell for showers, three hours of programming, and

some visitation. Dkt. No. 1-1, at 5; Dkt. No. 39-9, at 5,22-23. Further, Burns was

eventually given access to weights in his recreation yard as long as the weather permitted

such access. Dkt. No. 1-1, at 5; ct. Codyv. Jones, 895 F.Supp.431 (N.D.N.Y.1995)

(holding that, although the plaintiff did not always receive his hour of exercise, two out-of-

cell meals per day, and three hours out-of-cell per day, "when the whole picture is

examined, the court cannot find that his conditions of confinement during that time 'present

a dramatic departure from the basic conditions' of his sentence.") (citing Sandin, 515 U.S.

at 485); see also Arce v. Walker, 139 F.3d 329, 335 (2d Cir. 1998) (holding that, although

8 Insofar as Burns' complaint can be read to suggest that defendants' IPC recommendation itself violated due process, "the mere preparation of an administrative segregation recommendation is not a basis for a § 1983 claim; rather, a prisoner's due process rights remain intact so long as he has an opportunity to rebut the charges against him at a hearing." Gillard v. Rovelli, 12-CV-83 (LEKlCFH), 2014 WL 4060025, at *11 (N.D.N.Y. Aug. 14,2014) (citation omitted).

23



the conditions were more restrictive than for inmates in general population, the conditions of

an inmate's eighteen-day administrative segregation did not invoke a liberty interest where

the inmate argued that the atypical conditions he faced included denial of exercise and

access to communal meals and communal religious services)."

Thus, Burns has failed to demonstrate that he had a protected liberty interest in being

free from IPC confinement.

ii. Insufficient Process

Even assuming Burns had a protected liberty interest at stake, it does not appear that

Bums was denied due process protections. Once a plaintiff demonstrates that he has a

liberty interest at stake, a court is to determ ine whether the inmate was afforded the

minimum due process requirements. Wolffv. McDonnell, 418 U.S. 539, 556 (1974); see

also Arce, 149 F.3d at 335 (holding that an inmate is entitled to minimal due process

protections when being involuntary placed in administrative confinement). As a form of

administrative segregation, IPC placement "requires only an informal, nonadversary

review." Smart v. Goord, 441 F.Supp.2d 631, 641 (S.D.N.Y. 2006). "The procedural due

process protections are minimal, dictating that the informal review must occur within a

reasonable time, after the inmate has had some notice of the charges lodged against him

and an opportunity to present his views to the administrator making the determination about

segregation." Tavares, 954 F.Supp.2d at 95. Further, an inmate's IPC status must be

" Insofar as Burns contends that general population inmates were afforded the opportunity to participate in a family reunion program at Coxsackie (Dkl. No. 1-1, at 6), the record makes clear that Coxsackie did not offer this program to any of its inmates. Dkl. No. 39-9, at 1. Further, it is well-settled that inmates do not have a protected liberty interest in participating in a family reunion program. Champion, 76 F.3d at 486.

24



"reviewed every 30 days by a three-member committee consisting of a representative of the

facility executive staff, a security supervisor, and a member of the guidance and counseling

staff. The results of such review shall be forwarded, in writing, to the superintendent for

final determination." N.Y. Code Rules & Regs. tit.?, § 330.3(b)(2); cf. Giano v. Kelly, 869

F.Supp.143, 150 (W.D.N.Y. 1994) (holding that a plaintiff is not required to be provided with

the dates of these reviews or specific reasons in the case of a denial).

Burns' complaint does not specifically allege any procedural deprivations. The

transcript of the hearing reveals that Burns was served in advance with a copy of the IPC

recommendation; was offered, but waived, an employee assistant; was presented with the

opportunity to call witnesses on his behalf, and did call and question such witnesses. !.Q" at

3-10. At the conclusion of the hearing, a written disposition was read into the record and

Bums signed a copy of this disposition. !.Q" at 10-11. Moreover, Bums does not deny that

defendants conducted reviews of his IPC placement every thirty days. Dkl. No. 1-1, at 1\66.

The only indication of a procedural due process violation claim that can be gleaned from

Bums' submissions is his statement in the deposition that the hearing officer at the IPC

hearing was biased and cut him off. However, Bums provides no specific examples of bias

and the transcript of the hearing reveals no evidence of such. Dkl. No. 39-16.

Accordingly, as it is clear that Bums was afforded all the procedural process he was

due, it is recommended that defendants' motion for summary judgment be granted on this

ground.

IV. Conclusion

For the reasons stated above, it is hereby RECOMMENDED that defendants' motion for

25


Add. 26Case 9:13-cv-00486-LEK-CFH Document 46 Filed 12118/14 Page 26 of 26

summary judgment (Dk!. No. 39-3) be:

1. DENIED as to defendants' affirmative defense of failure to exhaust administrative

remedies; and

2. GRANTED with prejudice as to plaintiffs First, Eighth, and Fourteenth Amendment

claims against all defendants and;

Pursuant to 28 U.S.C. § 636 (b) (1), the parties may lodge written objections to the

foregoing report. Such objections shall be filed with the Clerk of the Court "within fourteen

(14) days after being served with a copy of the ... recommendation." N.Y.N.D.L.R. 72.1 (c)

(citing 28 U.S.C. § 636 (b) (1) (B)-(C».

FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL

PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);

Small v. Sec'y of Heath and Human Servs., 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. §

636(b)(1); FED. R. CIV. P. 72, 6 (a), 6 (e).

Dated: December 17, 2014 Albany, New York C'ku4"" If Afo .. ~

Christian F. Hummel

U.S . Magistrate Judge

26



UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

MARK BURNS,

Plaintiff,

-against-

DANIEL F. MARTUS CELLO, JR., et ai.,

Defendants.

9: 13-CV-0486 (LEKlCFH)

DECISION and ORDER

I. INTRODUCTION

lbis civil rights action comes before the Court following a Report-Recommendation filed on

December 18, 2014, by United States Magistrate Judge Christian F. Hummel, pursuant to 28 U .S.C.

§ 636(b) and Local Rule 72.3( d). Dkt. No. 46 ("Report-Recommendation"). Judge Hummel

recommends that Defendants' Motion for summary judgment be denied as to Defendants'

affirmative defense of failure to exhaust administrative remedies, and granted with prejudice as to

Plaintiff Mark Burns's ("Plaintiff') First, Eighth, and Fourteenth Amendment claims against all

Defendants. Report-Rec. Plaintiff timely filed Objections. Dkt. No. 50 ("Objections"). For the

following reasons, the Report-Recommendation is adopted in its entirety.

II. STANDARD OF REVIEW

When a party makes a timely objection to a Report-Recommendation, it is the duty of the

Court to "make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made." 28 U.S.C. § 636(b). Where, however,

an objecting ''party makes only conclusory or general objections, or simply reiterates his original

argoments, the Court reviews the Report and Recommendation only for clear error." Farid v.



Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d

672,679 (S.D.N.Y. 2007» (citations omitted); see also Brown v. Peters, No. 95-CV-I64I, 1997 WL

599355, at *2-3 (N,D.N.Y. Sept. 22, 1997). "A [district] judge ... may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.

§ 636(b).

III. DISCUSSION

A. First Amendment Claim

Plaintiff first objects to Judge Hummel's finding that Plaintiffs refusal to act as a "snitch"

for a correctional officer does not amount to protected speech under the First Amendment. Objs.

'If 5. In support, Plaintiff cites Jackson v. Johnson, 15 F. Supp. 2d 341,364 (S.D.N.Y. 1998), where

the court "assume[ d], without deciding, that [the inmate] satisfies the first prong of the test-that he

has constitutional rights not to snitch." However, Jackson clearly did not hold that an inmate's

refusal to act as an informant constitutes protected activity; it merely "assumed" this aspect of the

plaintiff s retaliation claim and proceeded to dismiss the claim based on the absence of a retaliatory

motive. Id. at 365. Moreover, subsequent to Jackson, the Second Circnit addressed this issue and

found that ''neither the Supreme Court nor this Court has ever held that a prisoner enjoys a

constitutional right not to become an informant." Allah v. Juchenwioz, 176 F. App'x 187, 189 (2d

Cir. 2006) (citing Jackson, 15 F. Supp. 2d at 341 and Watson v. McGinnis, 964 F. Supp. 127

(S.D.N.Y.1997». Accordingly, Plaintiffs first objection is without merit.

B. Eighth Amendment Clnim

Plaintiff next argues that Judge Hummel erred in evaluating each of Plaintiff s conditions of

confinement allegations individually, rather than "in combination." Objs. 'If 8. In support, Plaintiff

2



cites Wilson v. Seiter, 501 U.S. 294, 304 (1991), which held that "[slome conditions of confinement

may establish an Eight Amendment violation 'in combination' when each would not do so alone."

Objs. ~ 9 (citation omitted). However, Plaintiff's argument fails for two reasons.

First, a careful reading of the Report-Recommendation reveals that Judge Hummel in fact

considered Plaintiff's allegations "in combination." See. e.g., Report-Rec. at 18 ("Limitation on

time out of cell, time to program, and on exercise and weight lifting, as well as denial of access to

niceties such as television and board games, do not amount to constitutional violations, even when

considered collectively."); see also id. at 18-19 (noting, in conclusion after addressing each of

Plaintiff's claims, that his "allegations" failed to satisfY the objective prong of his conditions of

confinement claim).

Second, while Plaintiff is correct that the objective prong of an Eighth Amendment

conditions of confinement claim may be met based on cumulative consideration of individual

allegations, see Wilson, 501 U.S. at 304, those conditions "must have a mutually enforcing effect

that produces the deprivation of a single, identifiable human need such as food, warmth, or

exercise," Davidson v. Murray, 371 F. Supp. 2d 361,370 (W.D.N.Y. 2005). Plaintiff's ouly

allegations related to a basic human need are his claims that he was not permitted extended

recreation, gym programs, and the use of weights. See Dkt. No.1 ("Complaint") at 5. However, as

noted in the Report-Recommendation, Plaintiff does not assert that he was denied access to all

forms of exercise. Report-Rec. at 19. Moreover, the restrictions were ouly temporary, dictated in

large part by inclement weather that prevented access to outdoor facilities. Id. These allegations do

not amount to a constitutional deprivation of a ''human need" sufficient to support a conditions of

confinement claim. See Davidson v. Coughlin, 968 F. Supp. 121, 129 (S.D.N.Y. 1997).

3



C. Fourteenth Amendment Claims

Plaintiff next objects to Judge Hummel's finding that Plaintiff "failed to demonstrate that he

had a protected liberty interest in being free from [Involuntary Protective Custody ("!PC")]

confinement." Objs. ~ 14 (citing Report-Rec. at 24). Plaintiff asserts that his conditions of

confinement constituted "atypical and significant hardship" and that the present case is

distinguishable from Sandin v. Conner, 515 U.S. 472 (1995), because: Plaintiffs confinement was

for eight months, as opposed to thirty days in Sandin; Plaintiff was not placed in !PC because of any

misconduct on his part; and the totality of the conditions were punitive in nature, even though

Plaintiff was placed in !PC for his protection. Objs. W 16-17.

Plaintiff is correct that Sandin established that an inmate's segregated confinement must

impose an "atypical and significant hardship" to constitute a protected liberty interest under the

Fourteenth Amendment. 515 U.S. at 485. However, a careful reading of the Report

Recommendation reveals that Judge Hummel only cited Sandin for a statement of controlling

precedent; Judge Hummel did not compare the facts of Sandin with Plaintiff s allegations. See

Report-Rec. at 22. Rather, Judge Hummel correctly noted that, consistent with other decisions in

this Circuit, Plaintiff s ability to leave his cell for showers, attend programming, and receive

visitation did not amount to an atypical and significant hardship. See id. at 23-24 (citing Cody v.

Jones, 895 F. Supp. 431 (N.D.N.Y. 1995) andArce v. Walker, 1398 F.3d 329, 335 (2d Cir. 1998)).

With regard to the eight-month period of Plaintiffs !PC confinement, the Court recognizes

that there is no bright-line rule for assessing the duration of segregated confinement, and that it must

be considered in a fact-intensive analysis in combination with the other Sandin factors. See

Wilkinson v. Austin, 545 U.S. 209, 223 (2005). However, even assuming arguendo that Plaintiff

4



has established a protected liberty interest, he has failed to demonstrate that such deprivation

occurred without due process oflaw. See Wolffv. McDonnell, 418 U.S. 539, 556 (1974).

Plaintiff argues that he was denied due process because the IPC hearing officer was biased

and cut Plaintiff off at the hearing. See Objs. T/18-19. However, Plaintiff does not offer any

specific allegations that the hearing officer was biased or prohibited Plaintiff from speaking or

questioning witnesses. Rather, a careful examination of the hearing transcript firmly establishes that

Plaintiff was afforded ample opportunity to be heard and to call and question witnesses, and

provides no indication that the hearing officer ever prevented or limited Plaintiff from speaking.

See Dkt. No. 39-16. Therefore, even assuming Plaintiff has established a protected liberty interest,

his conclusory allegations regarding the hearing officer's conduct fail to demonstrate that Plaintiff

was denied due process oflaw.

IV. CONCLUSION

Accordingly, it is hereby:

ORDERED, that the Report-Recommendation (Dkt. No. 46) is APPROVED and

ADOPTED in its entirety; and it is further

ORDERED, that Defendants' Motion (Dkt. No. 39) for summary judgement is DENIED as

to Defendant's affirmative defense offailure to exhaust administrative remedies, and GRANTED

with respect to Plaintiff's First, Eighth, and Fourteenth Amendment claims against all Defendants;

and it is further

ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all

parties in accordance with the Local Rules.

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IT IS SO ORDERED.

DATED: FebruarylO,2015 Albany,NY

Lawre E. Kahn U.S. District Judge

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FOR THE SECOND CIRCUIT€¦ · Knapp-David, Bradley Schwebler, and Megan McGlynn. See Burns v. Fischer, No. 13-cv-486 (N.D.N.Y. Nov. 19, 2013), ECF No. 30. Accordingly, Burns respectfully

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