10-1267-pr
Linares v. Mahunik



                     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.

          At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1st day of June, two thousand eleven.

PRESENT:    JOHN M. WALKER, JR.,
            BARRINGTON D. PARKER,
            DENNY CHIN,
                           Circuit Judges.

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JORGE LINARES,
          Plaintiff-Appellant,

            -v.-                                      10-1267-pr

KENNETH MCLAUGHLIN,
          Defendant,
DAVID MAHUNIK, JOHN BURGE,
          Defendants-Appellees.

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FOR DEFENDANT-APPELLANT:            JORGE LINARES, pro se, Cape
                                    Vincent, New York.

FOR APPELLEE:                       FRANK BRADY, Assistant Solicitor
                                    General (Barbara D. Underwood,
                                    Solicitor General, Andrea Oser,
                                    Deputy Solicitor General, on the
                                    brief), for Eric T. Schneiderman,
                                    Attorney General of the State of
                                    New York, Albany, New York.
          Appeal from a judgment of the United States District

Court for the Northern District of New York (Suddaby, J.).
          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

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

          Appellant Jorge Linares, proceeding pro se, appeals
from a judgment of the district court dismissing his complaint

brought pursuant to 42 U.S.C. § 1983 alleging, inter alia, First

Amendment retaliation.   We assume the parties' familiarity with

the underlying facts and the procedural history of the case.

          On appeal, Linares raises two arguments:

(1) defendants' motion for summary judgment was barred by res

judicata; and (2) the district court erroneously determined that

he failed to exhaust his claim that corrections officer David

Mahunik retaliated against him on April 17, 2005.    Because he has

not raised any other issues on appeal, we consider his remaining

claims abandoned.   See Cruz v. Gomez, 202 F.3d 593, 596 n.6 (2d

Cir. 2000).

          Linares's res judicata argument is rejected, as

different standards apply to Rule 12(b)(6) motions to dismiss and

Rule 56 motions for summary judgment.   On a motion to dismiss, a

district court "must accept all allegations in the complaint as

true and draw all inferences in the non-moving party's favor."

Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003) (internal quotation marks omitted).   The denial of a

defendant's motion to dismiss is not a final determination on the

merits barring further litigation of the claims in question under


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the doctrine of res judicata.    See Allen v. McCurry, 449 U.S. 90,

94 (1980); Bernard v. Cnty. of Suffolk, 356 F.3d 495, 501-02 (2d

Cir. 2004).     Even after denying a motion to dismiss, a district

court may still grant a summary judgment motion if, based upon

the evidence presented, there was no genuine dispute as to any

material fact and the moving party was entitled to judgment as a

matter of law.    Gallo v. Prudential Residential Servs., Ltd.

P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994).     Thus, Linares's

argument is without merit.

             As for Linares's second argument, the district court in

fact held that he did administratively exhaust his claim that
Mahunik retaliated against him on April 17, 2005 by placing a

weapon in his cell and filing a false misbehavior report against

him.   Linares v. Mahunik, No. 05 Civ. 625 (GTS) (RFT), 2009 WL

3165660, at *4-5, 11 (N.D.N.Y. Sept. 29, 2009).     We therefore

construe this argument as a challenge to the district court's

dismissal of his retaliation claim on the merits.

             This Court reviews a grant of summary judgment de novo,

applying the standard applied by a trial court.    See Miller, 321
F.3d at 300.     To establish a case of retaliation in violation of

the First Amendment, a plaintiff must demonstrate that:    (1) he

engaged in protected conduct; (2) the defendant took adverse

action against him; and (3) there was a causal connection between

the two.    See Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.

2003).     A grievance against a prison official is "protected

conduct."    See Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002).


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             Linares alleged that Mahunik was aware of prior

informal complaints he made against Mahunik to Deacon John

Tomandle and retaliated against Linares because he made those

complaints.    Upon close of discovery, however, Linares presented

no evidence that Mahunik was aware of these informal complaints.

Moreover, Linares testified at deposition that he had no idea why

Mahunik had been harassing him and that it might have been

related to his criminal conviction, contradicting his claim that

Mahunik retaliated against him for making informal complaints.

He also failed to submit his own affidavit or an affidavit from

Deacon Tomandle to support his claim.      Although Linares requested

permission to depose Deacon Tomandle, he only did so for the

first time in his objections to the magistrate judge's report and

recommendation on summary judgment -- well after the close of

discovery.     We thus conclude that Linares failed to meet his

burden upon summary judgment.     See Washington v. Cnty. of

Rockland, 373 F.3d 310, 321 (2d Cir. 2004) (holding that, where

movant at summary judgment demonstrates absence of genuine issue

of material fact, burden shifts to nonmovant to adduce evidence

establishing existence of an issue of material fact).

             We have considered Linares's other arguments on appeal

and have found them to be without merit.      For the foregoing

reasons, the judgment of the district court is hereby AFFIRMED.



                                        FOR THE COURT:
                                        CATHERINE O’HAGAN WOLFE, CLERK




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