22-1571-pr Stevens v. Duquette

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 21st day of February, two thousand twenty-four. 4 5 PRESENT: 6 AMALYA L. KEARSE, 7 SUSAN L. CARNEY, 8 MYRNA PÉREZ, 9 Circuit Judges. 10 _____________________________________ 11 12 Sterling Stevens, 13 14 Plaintiff-Appellant, 22-1571 15 16 v. 17 18 Sergeant Duquette, Facility Claim Review 19 Investigator, M. Miller, Package Room 20 Officer,

21 Defendants-Appellees, 22 23 Earl Bell, Superintendent; Clinton 24 Correctional Facility, C. Delutis, Captain; 25 Tier II Appeal Review Officer, Rocky 26 Kramer, Lt.; Tier II Hearing Officer, 27 28 Defendants. 29 _____________________________________ 1 2 FOR PLAINTIFF-APPELLANT: Sterling Stevens, pro se, Coxsackie, NY. 3 4 FOR DEFENDANTS-APPELLEES: Letitia James, Attorney General of the 5 State of New York, (Barbara D. 6 Underwood, Solicitor General, Jeffrey W. 7 Lang, Deputy Solicitor General, Frederick 8 A. Brodie, Assistant Solicitor General, on 9 the brief), Albany, NY. 10

11 Appeal from a judgment of the United States District Court for the Northern District of

12 New York (Brenda K. Sannes, Chief Judge; Andrew T. Baxter, Magistrate Judge).

13 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

14 DECREED that the judgment of the district court is AFFIRMED.

15 Pro se appellant Sterling Stevens, a person who is incarcerated by the state, brought suit

16 under

against several employees of the Clinton Correctional Facility, including

17 corrections officers Megan Miller and Sergeant David Duquette, alleging they retaliated against

18 him for opposing Miller’s order and for filing grievances. A magistrate judge recommended

19 granting summary judgment to the defendants, reasoning that Mr. Stevens had exhausted his

20 administrative remedies but had not established that there was a causal connection between his

21 protected speech and the adverse actions he suffered. See generally Stevens v. Duquette, No.

22 9:20-CV-853,

(N.D.N.Y. Apr. 19, 2022). Although Mr. Stevens timely

23 objected, his objections were limited. After reviewing the objections and the remainder of the

24 report and recommendation for clear error, the district court adopted the recommendation and

25 granted summary judgment in favor of the defendants. See generally Stevens v. Duquette, No.

26 9:20-CV-853,

(N.D.N.Y. June 24, 2022). We assume the parties’ familiarity

2 1 with the remaining facts, procedural history, and issues on appeal.

2 We review a grant of summary judgment de novo, “resolv[ing] all ambiguities and

3 draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t,

, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing

5 the evidence in the light most favorable to the non-movant, ‘there is no genuine dispute as to any

6 material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff,

7

(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

8 I. Waiver

9 The defendants argue that Mr. Stevens waived his arguments concerning the conclusions

10 of the report and recommendation because he failed to raise them as objections. They are

11 largely correct.

12 “As a rule, a party’s failure to object to any purported error or omission in a magistrate

13 judge’s report waives further judicial review of the point.” Cephas v. Nash,

, 107

14 (2d Cir. 2003). This rule applies to pro se litigants so long as they are warned about the

15 consequences of failing to object, and the warning is supported by citations to the relevant rules

16 and authorities. See Frank v. Johnson,

(2d Cir. 1992). Here, the magistrate

17 judge included an adequate warning in his report and recommendation; Mr. Stevens was advised

18 that he was required to file written objections within 14 days with the Clerk of the Court, that a

19 failure to object would preclude appellate review, and that this objection requirement derived

20 from Small v. Secretary of Health and Human Services,

(2d Cir. 1989), as well as

21

(b)(1) and Fed. R. Civ. P. 72, 6(a), and 6(e). See Stevens,

,

22 at *10; see also Frank,

(listing notice requirements).

3 1 Despite the warning, Mr. Stevens did not object to the majority of the report and

2 recommendation. His objections focused on exhaustion issues, even though the magistrate

3 judge had accepted Mr. Stevens’s argument that he properly exhausted his claims. Accordingly,

4 we conclude that Mr. Stevens has forfeited most of his claims.

5 Mr. Stevens did, however, object to the magistrate judge’s determination that it was not

6 protected speech to request “Sergeant’s Review” of Officer Miller’s decision to withhold some

7 items from a package Mr. Stevens received. 1 The district court seems to have overlooked this

8 objection, stating that Mr. Stevens had “not objected to Magistrate Judge Baxter’s analysis of

9 his First Amendment claims.” Stevens,

, at *1.

10 Nevertheless, forgoing a merits review of Mr. Stevens’s arguments will not result in

11 manifest injustice. See Caidor v. Onondaga County,

(2d Cir. 2008). Upon

12 review of the record, the district court properly granted summary judgment to the defendants

13 with respect to the First Amendment retaliation claims because the evidence did not establish

14 that either Miller’s or Duquette’s actions were causally connected to Mr. Stevens’s protected

15 speech. See Brandon v. Kinter,

(2d Cir. 2019) (to establish a First Amendment

16 retaliation claim under § 1983, a plaintiff must show that “that there was a causal connection

17 between the protected speech and the adverse action” (quoting Gill v. Pidlypchak,

,

18 380 (2d Cir. 2004) (internal quotation marks omitted)). Although Mr. Stevens’s request for

19 Sergeant’s Review may have been protected speech, 2 the evidence showed that Officer Miller

1 Sergeant’s Review is a procedural mechanism, established by DOCCS Directive 4911, under which a supervisor will review a package room officer’s decision not to issue an item to an incarcerated person. Packages & Articles Brought or Sent to Facilities, Dir. #4911 § III(B)(8), State of New York Dep’t of Corr. & Cmty. Supervision [https://perma.cc/74ZH-HWRZ]. 2 An incarcerated person 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.’” Rodriguez v. Phillips,

1 filed a misbehavior report because Mr. Stevens disobeyed a direct order to return to his cell, not

2 because of his request for Sergeant’s Review.

3 II. Wrongful Confinement

4 Mr. Stevens asserts that the district court failed to consider his claim for wrongful

5 confinement against Miller and Duquette. However, pursuant to its screening capacity under

6 the Prison Litigation Reform Act, the district court dismissed the various wrongful confinement

7 claims Mr. Stevens asserted. The district court specifically concluded that Mr. Stevens had

8 failed to state an Eighth Amendment claim against Miller and Duquette because falsifying a

9 disciplinary report, without more, is not an Eighth Amendment violation and Mr. Stevens had

10 not alleged any facts showing that either defendant was responsible for the disciplinary keeplock.

11 Even construing Mr. Stevens’s brief to be a challenge to this ruling, the challenge is

12 meritless. Such a claim would have failed on summary judgment because it was premised on

13 the retaliation claims discussed above.

14 * * *

15 We have considered Mr. Stevens’s remaining arguments and find them to be without

16 merit. Accordingly, we AFFIRM the judgment of the district court.

17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, Clerk of Court

470, 478 (2d Cir. 1995) (quoting Pell v. Procunier,

(1974)). Filing a grievance, for example, is First Amendment protected speech, Davis v. Goord,

, 352–53 (2d Cir. 2003).

5