     18-3269
     Ford v. Deacon


                           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 ASUMMARY ORDER@). A PARTY CITING TO 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 25th day of November, two thousand nineteen.
 4
 5   PRESENT:
 6               RICHARD C. WESLEY,
 7               DEBRA ANN LIVINGSTON,
 8               JOSEPH F. BIANCO,
 9                     Circuit Judges.
10   _____________________________________
11
12   Corey Ford,
13
14                          Plaintiff-Appellant,
15
16                    v.                                                   18-3269
17
18   Sgt. R. Deacon, Shawangunk Correctional
19   Facility, C.O. J. Phillips, Shawangunk
20   Correctional Facility, AKA T. Phillips,
21   Christopher Miller, Superintendent, Great
22   Meadow Correctional Facility, R. Eastman,
23   Deputy Superintendent of Security, Great
24   Meadow Correctional Facility, Sgt. C. Fraser,
25   Great Meadow Correctional Facility, C.O.
26   Daniel McClenning, Great Meadow Correctional
27   Facility,
28
29                          Defendants-Appellees,
30
31   Albert Prack, Director of Special Housing Unit
32   (SHU), Anne M. McGrath, Assistant
33   Commissioner of Movement and Control of
34   DOCCS, Veron J. Fonda, Director of Inspector
35   General’s Office of DOCCS, AKA Vernon J.
36   Fonda, E. Demo, Investigator of the Inspector
37   General’s Office of DOCCS,
38
39                     Defendants.
40   _____________________________________
41
42   FOR PLAINTIFF-APPELLANT:                              Corey Ford, pro se, Auburn, NY.
43
44   FOR DEFENDANTS-APPELLEES:                             Barbara D. Underwood, Solicitor General,
45                                                         Victor Paladino, Brian D. Ginsberg,
46                                                         Assistant Solicitors General, for Letitia
47                                                         James, Attorney General of the State of New
48                                                         York, Albany, NY.
49
50
51          Appeal from a judgment of the United States District Court for the Northern District of New

52   York (D’Agostino, J.; Dancks, M.J.).


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

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

55          Appellant Corey Ford, pro se, sued corrections officers and prison officials under 42 U.S.C.

56   § 1983, alleging violations of the First, Eighth, and Fourteenth Amendments. He generally alleged

57   that corrections officers retaliated against him for assaulting another corrections officer and for

58   filing grievances by labeling him a gang member in order to keep him in the Special Housing Unit

59   (“SHU”); assigning him to prison cells that were kept in poor condition; and throwing away his

60   legal papers. He also asserted procedural due process violations in relation to his placement in

61   administrative segregation. A magistrate judge recommended granting summary judgment in

62   favor of the defendants and the district court adopted the recommendation. We assume the parties’

63   familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

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

2    draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d

3    120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing

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

5    material fact and the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642

6    F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

7       I.      First Amendment Retaliation

8            “To prove a First Amendment retaliation claim under Section 1983, a prisoner must show

9    . . . (1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action

10   against the plaintiff, and (3) that there was a causal connection between the protected speech and

11   the adverse action.” Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quotation marks and

12   citation omitted).   On appeal, Ford asserts that the December 2013 search of his cell and

13   subsequent labeling of him as a Bloods gang member constituted retaliation for filing grievances

14   against Sargent Richard Deacon.

15           Ford failed to offer sufficient evidence showing that the December 2013 search was

16   conducted in retaliation for the grievances he filed against Deacon. Deacon denied ordering any

17   search of Ford’s cell. Ford did not offer any evidence establishing what role, if any, Deacon had

18   in the December 2013 search, and a contraband form showed that other corrections officers

19   conducted the search. The only possible connection between the two events is temporal proximity:

20   Ford filed a grievance against Deacon in August 2013 and the search occurred four months later.

21   But temporal proximity alone, particularly where the time lapse is four months, is insufficient to

22   establish a retaliation claim. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (noting that

                                                       3
 1   if the only evidence of causal connection was temporal proximity or circumstantial evidence, “we

 2   might be inclined to affirm the grant of summary judgment based on the weakness of Colon’s

 3   case”); Williams v. King, 763 F. App’x 36, 38–39 (2d Cir. 2019); Neron v. Cossette, 419 F. App’x

 4   123, 124 (2d Cir. 2011).

 5            Although Ford asserted that Deacon later obtained a greeting card seized from his cell and

 6   labeled him a gang member as a result, there is little connecting this act to Ford’s August 2013

 7   grievance because Deacon was not involved in the search and would have no control over what

 8   items were confiscated. Further, Ford’s ultimate allegation—that Deacon sought to label Ford as

 9   a gang member to keep him in the SHU—is not supported by the record. Ford’s later placement

10   in administrative segregation was not only based on Deacon’s statement that Ford was a gang

11   member, but also based on confirmation from an investigator in DOCCS’s central office, and Ford’s

12   overall disciplinary history. Ford therefore failed to establish that his ultimate label as a gang

13   member and placement in segregation were connected to his grievances against Deacon. See Scott

14   v. Coughlin, 344 F.3d 282, 287–88 (2d Cir. 2003) (First Amendment retaliation claim fails where

15   defendants can show that the alleged retaliatory action would have occurred without the retaliatory

16   motive).

17      II.      Procedural Due Process

18               A. Administrative Segregation Hearing

19            To state a claim under § 1983 for denial of due process arising out of an administrative

20   segregation hearing, a plaintiff must show both that he: (1) possessed an actual liberty interest; and

21   (2) was deprived of that interest without being afforded sufficient process. See Ortiz v. McBride,

22   380 F.3d 649, 654 (2d Cir. 2004). “To be actionable, the liberty interest must subject the prisoner

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1    to ‘atypical and significant hardship . . . in relation to the ordinary incidents of prison life.’” Vega

2    v. Lantz, 596 F.3d 77, 83 (2d Cir. 2010) (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)).

3    Even assuming that Ford has a liberty interest based on his placement in administrative segregation,

4    he received adequate due process at his hearing.

5           Prior to placing a prisoner in administrative segregation, prison officials must provide

6    “some notice of the charges against him and an opportunity to present his views to the prison official

7    charged with deciding whether to transfer him to [administrative segregation,] although not

8    necessarily a full hearing.” Proctor v. LeClaire, 846 F.3d 597, 609 (2d Cir. 2017) (quotation marks

9    omitted). Once this has occurred, officials need only conduct an informal review to determine

10   whether segregation is justified, and the final decision may rest on “‘purely subjective evaluations

11   and on predictions of future behavior.’” Id. (quoting Hewitt v. Helms, 459 U.S. 460, 474 (1983)).

12   Here, the record reflects that Ford was given both notice of the charges and an opportunity to be

13   heard on the segregation recommendation at the hearing.

14          Ford primarily asserts that he did not receive adequate due process because Deputy

15   Superintendent Rodney Eastman, the hearing officer, failed to (1) permit Ford access to emails sent

16   by Deacon and a DOCCS inspector claiming that Ford was a gang member and (2) have Deacon

17   and the DOCCS investigator testify. But due process did not require Eastman to provide access to

18   the emails sent by Deacon.            Ford received notice of the administrative segregation

19   recommendation, including the fact that Sergeant Colin Fraser recommended it in part based on his

20   gang membership and his history of violence. Although Ford did not receive the emails forming

21   the basis of the gang membership allegation prior to the hearing, the notice was sufficient for him

22   to respond to the recommendation and ask questions of Fraser, who did testify. See Taylor v.

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 1   Rodriguez, 238 F.3d 188, 193 (2d Cir. 2001) (notice is sufficient when it includes specific facts to

 2   enable a prisoner to respond them). And Fraser’s testimony at the hearing established that Deacon

 3   and the investigator were the source for Fraser’s conclusion that Ford was a gang member. The

 4   emails were not necessary to obtain this information.       Finally, Ford never requested that any

 5   witnesses testify. Because the notice was sufficient for Ford to respond to the charges and he had

 6   the opportunity to learn the basis of Fraser’s belief, Ford was afforded sufficient notice.

 7          Ford further argues that Eastman’s decision was arbitrary because no evidence had been

 8   offered to support it. But this argument is meritless. Eastman’s decision was based on a review

 9   of Ford’s disciplinary history, his behavior, and Fraser’s testimony. See Superintendent, Mass.

10   Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (To meet “the minimum requirements of

11   procedural due process,” a prison disciplinary decision must be “supported by some evidence in the

12   record.” (quotation marks and citation omitted)).

13              B. Administrative Segregation Reviews

14          Once a prisoner is placed in administrative segregation, prison officials must conduct a

15   periodic review of the confinement to determine whether the prisoner remains a security risk.

16   Proctor, 846 F.3d at 609. Ford argues that he was denied appropriate reviews because the first

17   review occurred 105 days after his placement in administrative segregation, rather than the 60 days

18   provided in DOCCS regulations. But a mere violation of state regulations does not amount to a

19   denial of due process under the Constitution. Bolden v. Alston, 810 F.2d 353, 358 (2d Cir. 1987).

20   Moreover, Ford remained in administrative segregation following his first review. See DeMichele

21   v. Greenburgh Cent. Sch. Dist. No. 7, 167 F.3d 784, 790 (2d Cir. 1999) (“[P]roof of prejudice is



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 1   generally a necessary but not sufficient element of a due process claim.” (quotation marks and

 2   citation omitted)).

 3             Ford further argues that he did not receive an impartial review because Eastman, who

 4   initially placed him in administrative segregation, served on the review committee. But there was

 5   no conflict of interest because the purpose of the periodic reviews was not to review Eastman’s

 6   initial decision, but rather to determine if continued confinement in administrative segregation was

 7   warranted.     See 7 N.Y.C.R.R. § 301.4(d).      Therefore, Ford did not establish a due process

 8   violation based on the periodic reviews.

 9      III.      Conditions of Confinement

10             To state an unsafe conditions of confinement claim, “the plaintiff must demonstrate that he

11   is incarcerated under conditions posing a substantial risk of serious harm. . . . [and] that the

12   defendant prison officials possessed sufficient culpable intent.” Hayes v. N.Y.C. Dep’t of Corr.,

13   84 F.3d 614, 620 (2d Cir. 1996). A prison official possesses “culpable intent if he has knowledge

14   that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take

15   reasonable measures to abate the harm.” Id.

16             Even assuming that Ford offered sufficient evidence to show an objective risk of harm

17   caused by the conditions in his cell, Ford failed to show that Eastman, Fraser, or Superintendent

18   Christopher Miller had culpable intent. All three defendants stated that they had no involvement

19   in Ford’s cell assignment and had no knowledge of or responsibility for cell conditions. Ford

20   offered no evidence to contradict their statements. At most, Ford argued that Miller received

21   Ford’s grievances about his cell conditions, but this is not sufficient to establish that Miller

22   disregarded the risk by failing to take reasonable measures. Miller reviewed all the investigations

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 1   performed and confirmed that, where actual issues were found, the prison was repairing or had

 2   repaired the condition. Ford did not offer evidence to dispute that the prison examined the cell

 3   conditions once he filed his grievances. See Farmer v. Brennan, 511 U.S. 825, 844 (1994)

 4   (“[P]rison officials who actually knew of a substantial risk to inmate health or safety may be found

 5   free from liability if they responded reasonably to the risk, even if the harm ultimately was not

 6   averted.”).

 7      IV.        Denial of Access to the Courts

 8            The Supreme Court has long recognized that prisoners have a right to meaningful access to

 9   the courts and that prison officials are barred from “actively interfering with inmates’ attempts to

10   prepare legal documents.” Lewis v. Casey, 518 U.S. 343, 350 (1996).             “To state a claim for

11   denial of access to the courts . . . a plaintiff must allege that the defendant took or was responsible

12   for actions that hindered [the] plaintiff’s efforts to pursue a legal claim.” Davis v. Goord, 320 F.3d

13   346, 351 (2d Cir. 2003) (quotation marks and citation omitted).

14            Ford failed to offer sufficient evidence to show that Officer Daniel McClenning threw away

15   his legal papers. Ford stated he packed his own bags when preparing to transfer to a new institution

16   and he did not offer any evidence to contradict McClenning’s statement that he was not present

17   when Ford packed his belongings, that he had no other contact with Ford’s property, and that prison

18   workers were responsible for loading the transport van. Even assuming that McClenning ordered

19   Ford to sign an additional form, it does not show that McClenning had any other contact with Ford’s

20   property.     Because Ford did not establish that McClenning had any involvement in the

21   disappearance of his legal papers, the district court properly determined that the defendants were

22   entitled to summary judgment on this claim.           To the extent that Ford also asserts a First

                                                       8
1   Amendment retaliation claim against McClenning for the same acts, that claim also fails because

2   Ford did not establish that McClenning took any adverse act against him. See Espinal, 558 F.3d

3   at 128.

4             We have reviewed the remainder of Ford’s arguments and find them to be without merit.

5   For the foregoing reasons, the judgment of the district court is AFFIRMED.

6                                                FOR THE COURT:
7                                                Catherine O’Hagan Wolfe, Clerk of Court




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