Nicholas v. Davis
Nicholas v. Davis
Opinion of the Court
SUMMARY ORDER
In January 2000, Plaintiff-Appellant Jason Nicholas, acting pro se — and possessed with substantial legal talent — -filed this suit in the United States District Court for the Northern District of New York. In his complaint, Nicholas alleged that the defendants violated his constitutional rights while he was incarcerated in Wallkill Correctional Facility. The underlying facts are as follows: In December 1999, the New York Department of Correctional Services (DOCS) was investigating a threat of a state-wide inmate protest (aimed at increasingly restrictive parole policies and other prison conditions), which was rumored to be planned for January 1, 2000 (“the Y2K protest”). On December 28, 1999, the plaintiff was quoted in an article in The Village Voice about the possible Y2K protest, saying “[t]he feeling is that people died at Attica for what we had, for the so-called privileges we’re losing,” and that “[t]he state is chipping away at that standard of living. First it was [the elimination of] work release [for violent offenders], then college programs, and now parole. Politicians don’t want to hear our complaints, so that leaves very little avenues open for us to gain political power, to try to improve things or at least to arrest this slide.” Jennifer Gonnerman, Strike Behind Bars, Village Voice, Dec. 22-28, 1999.
The article came to the attention of the prison administration, and defendant Ross, a Wallkill Correction Officer, was ordered to search the plaintiffs cell. According to Johnson and the district court, Ross confiscated (1) four copies of a flyer for a Martin Luther King Day march, (2) a piece of paper listing the addresses of several New York newspapers and prison advocacy groups, (3) a letter describing a prisoner advocacy group called “Foundation for Merit Time, Inc.,” (4) a business card of Robert Gangi, Chairman of the Correctional Association of New York, and (5) a letter from a Vassar College student, a Ms. Bartlett, describing an act of civil disobedience and discussing the techniques that the protestors had used to delay their dispersal by law enforcement officers.
Nicholas brought suit pursuant to 42 U.S.C. § 1988 alleging that defendants violated his due process rights by convicting him of a disciplinary infraction in the absence of any rehable evidence, and retaliated against him in violation of his First Amendment rights.
Plaintiff claims that the evidence offered in his initial disciplinary hearing
The plaintiffs First Amendment claim similarly fails on the merits. It is unclear, under current law, whether Nicholas exhausted this claim by raising it in his disciplinary hearing and on the administrative appeal from that hearing. We need not, however, reach this issue, because, like Nicholas’ due process claim, his retaliation claim fails on the merits. In order to succeed on a retaliation claim, a plaintiff “ ‘must advance non-conclusory allegations establishing: (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected speech and the adverse action.’ ” Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002). Certain aspects of the speech that Nicholas was engaged in were certainly protected under the First Amendment, but they were not the aspects of his speech for which he was punished. Nicholas was disciplined because he solicited and possessed practical information about how to conduct civil disobedience, at a time when prison officials had good cause to fear a potentially dangerous and coordinated act of such civil disobedience, not because prison officials objected to his criticism of parole policy or his interest in prisoners’ rights causes.
Finally, we also reject Nicholas’ claim that he should have been permitted to amend his complaint a second time. We review the district court’s denial of the plaintiffs request for leave to amend his complaint under an abuse of discretion standard. See Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002). A district court does not abuse its discretion in denying leave to amend where, as here, the motion is unduly delayed and that delay is not supported by good cause. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). Three months elapsed between when the plaintiff learned of the alleged involvement of the defendant whom he wished to add to his complaint and the filing of his motion to amend his complaint. In any event, since the claims against the additional defendant were the same as those that were rejected on the merits, the amendment would have made no difference. Under the circumstances, the district court did not abuse its discretion in denying the motion.
. For most of this time, Nicholas was confined in the Special Housing Unit (SHU). According to New York DOCS regulations, as we have previously characterized them, "[c]onfinement in the SHU is a form of solitary imprisonment. In addition to being separated from the general prison population, SHU inmates are limited in the prison issue items and personal belongings they may possess. Also limited are shower and exercise privileges.” Walker v. Bates, 23 F.3d 652, 655 (2d Cir. 1994) (citation omitted).
. Plaintiff raised an Eighth Amendment challenge to the conditions of his solitary confinement in his initial complaint, which the district court rejected because the implicated defendant, Capuano, died after the commencement of the lawsuit, and Nicholas did not request that a party be substituted within 90 days, as required by Fed.R.Civ.P. 25. Plaintiff abandons this Eighth Amendment claim on appeal.
Reference
- Full Case Name
- Jason B. NICHOLAS v. C. DAVIS, Captain at Wallkill Correctional Facility C.O. Ross Clement Capuano, Superintendent of Ulster Correctional Facility
- Status
- Published