    12-1593
    Barclay v. New York




                          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.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    20th day of February, two thousand fifteen.

    PRESENT:
                     AMALYA L. KEARSE,
                     DEBRA ANN LIVINGSTON,
                     SUSAN L. CARNEY,

                      Circuit Judges.
    _____________________________________

    H. PATRICK BARCLAY,

                           Plaintiff-Appellant,

                     v.
                                                                                       No. 12-1593

    STATE OF NEW YORK, SUPERINTENDENT THOMAS
    RICKS, CAPTAIN RACETTE, SERGEANT ZODIAC,
    DIRECTOR DONALD SELSKY, CORRECTION
    COUNSELOR T. HUTCHINS, CORRECTION OFFICER A.
    LA CLAIR, CORRECTION OFFICER JANE DOE,
    CORRECTION OFFICER JOHN ROE, LIEUTENANT
    DUBRAY, CORRECTION OFFICER R. RICHARD,
    HEARING OFFICER CHO DROWN, SERGEANT
    MARLOW, CORRECTION OFFICER ASHLAW,
    CORRECTION OFFICER GHOSTLAW, CORRECTION
    OFFICER KISSANE, STEWARD J. KELLY, CORRECTION
    OFFICER JOHN DOE, CORRECTION OFFICER JOHN
MOE, HEARING OFFICER M. SMITH, ESTATE OF
CURTIS DROWN, SUBSTITUTED FOR DEFENDANT CHO
DROWN,

                        Defendants-Appellees.

_____________________________________

FOR PLAINTIFF-APPELLANT:                                       H. Patrick Barclay, pro se, New York,
                                                               NY.

FOR DEFENDANTS-APPELLEES:                                      Barbara D. Underwood, Solicitor
                                                               General; Andrea Oser, Deputy
                                                               Solicitor General; Martin A. Hotvet,
                                                               Assistant Solicitor General, for Eric
                                                               T. Schneiderman, Attorney General
                                                               of the State of New York, Albany,
                                                               NY.


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

New York (Strom, J.1).

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

DECREED that the judgment of the district court is AFFIRMED.

          Appellant H. Patrick Barclay, formerly an inmate in the custody of the New York State

Department of Corrections and Community Services (“DOCCS”), proceeding pro se, appeals the

district court’s partial grant of summary judgment dismissing his claim related to the denial of his

request to attend his mother’s funeral, and his claim that he was retaliated against for exercising his

protected religious rights. He also appeals the jury verdict, which found for the defendants on the

remainder of his claims, arguing that various errors deprived him of a fair trial. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

          1
        The Honorable Lyle E. Strom, of the United States District Court for the District of
Nebraska, sitting by designation.
          We review a district court’s grant of summary judgment de novo. Back v. Hastings on

Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004). Summary judgment is

appropriate when, viewing the evidence in the light most favorable to the non-moving party,

Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000), “there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law,” Fed. R. Civ. P.

56(a). “A dispute is not ‘genuine’ unless ‘the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.’” Nabisco, 220 F.3d at 45 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

          “We review a district court’s evidentiary rulings for abuse of discretion, and will reverse

only for manifest error.” Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010) (quoting

Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003)) (internal quotation marks omitted).

We also review for abuse of discretion rulings that resolve objections to assigned pro bono

counsel. See Carpenter v. Republic of Chile, 610 F.3d 776, 780 (2d Cir. 2010).

     I.      Partial Summary Judgment

          The Prison Litigation Reform Act of 1995 (“PLRA”) mandates that inmates exhaust the

administrative remedies available to them before they seek relief in federal court for any suit

concerning prison life. See Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA requires

“proper exhaustion,” which means “using all steps that the agency holds out, and doing so

properly.” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry, 286 F.3d

1022, 1024 (7th Cir. 2002)) (emphasis omitted). This entails completing the administrative

review process in accordance with the procedural rules prescribed by the relevant state prison

grievance process, and providing “[t]he level of detail necessary in a grievance to comply with the


                                                   3
grievance procedures.” Jones v. Bock, 549 U.S. 199, 218 (2007).

        The district court correctly ruled that Barclay had failed to exhaust his administrative

remedies with respect to the denial of his funeral request. Although the court did not expressly

address the issue, Barclay’s assertion that a November 2000 letter to the DOCCS Commissioner

constituted “proper” exhaustion lacks merit. This letter, which was not part of the summary

judgment record and was admitted at trial for other purposes, was entirely concerned with a

separate, unrelated grievance, and contained only a single sentence referencing the denial of his

funeral request. Even if the letter’s lone reference to the denial of Barclay’s funeral request was

enough to notify prison officials of the nature of his grievance, such an informal complaint is

insufficient to satisfy the PLRA’s exhaustion requirement. See Macias v. Zenk, 495 F.3d 37,

43-44 (2d Cir. 2007) (holding that informal complaints alerting prison officials to nature of

grievance were not “proper exhaustion”).

        Barclay’s argument on appeal, that the legal materials allegedly confiscated from him

contained additional evidence of his proper exhaustion, is similarly unavailing. By his own

admission, the alleged confiscation of these materials took place in August 2009. The district

court granted summary judgment, in part based on Barclay’s failure to exhaust, in March 2009.

Thus, the alleged confiscation some five months after the court’s ruling did not prevent Barclay

from presenting to the court any relevant legal materials bearing on the issue of exhaustion prior to

its ruling.

        The district court also correctly ruled that Barclay’s First Amendment retaliation claim was

entirely conclusory, as he had not pleaded any facts that suggested a retaliatory motive for the

treatment of his kufi. To succeed on a First Amendment retaliation claim under § 1983, a prisoner


                                                 4
must establish “(1) that the [activity] 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

[activity] and the adverse action.” Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (quoting

Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)) (internal quotation marks omitted). There

was no evidence in the record to suggest a causal connection between Barclay’s protected religious

activity and the alleged treatment of his kufi. In opposing defendants’ properly supported motion

for summary judgment, Barclay was not entitled to rely on his own conclusory allegations. See,

e.g., Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996); Kulak v. City of New York, 88

F.3d 63, 71 (2d Cir. 1996).

     II.      Pre-trial Motions

            With respect to Barclay’s motion for the return of allegedly confiscated legal materials, as

well as the related requests for a spoliation inference and to be allowed to argue to the jury that

such a confiscation occurred, the district court reasonably rejected the requests, given the

undisputed evidence that the defendants had not improperly confiscated Barclay’s legal papers.

Barclay confirmed that he had been offered a bag of legal materials bearing his name that he

refused to accept, and that the bag was thereafter securely stored at Elmira Correctional Facility.

And he admitted at trial that the bag remained securely stored there. At that point, Barclay was no

longer incarcerated, having been released in February 2011, and was free to retrieve the bag from

Elmira. His failure to do so belies his assertion that the bag’s contents were necessary for him to

adequately prosecute his claims.

           The district court also reasonably denied Barclay’s motion to re-open discovery on the eve

of trial so that he could obtain records for his recent medical treatment and a court-appointed


                                                    5
expert to evaluate the integrity of the videotape purporting to show the June 2001 pat frisk that

Barclay claimed injured him. Barclay initiated this action in 2002, and discovery closed in

February 2008. In opposing the defendants’ summary judgment motion in March 2008, Barclay

did not argue that he required additional discovery. However, nearly four years later, he moved to

re-open discovery less than two months before the scheduled trial date. As the district court

noted, the medical records that Barclay sought to obtain were unlikely to be relevant to his claims,

which were by then ten years old. And Barclay had never been denied access to the videotape; he

had ample opportunity to seek an expert to review its integrity before discovery was closed. The

court was thus well within its discretion in denying the motion. See Burlington Coat Factory

Warehouse Corp. v. Esprit de Corp., 769 F.2d 919, 925-28 (2d Cir. 1985).

       On appeal, Barclay for the first time challenges the medical records that were filed under

seal in connection with the defendants’ summary judgment motion, arguing that he was prejudiced

by the denial of his motion to re-open discovery because he was thereby prevented from rebutting

those records with his own medical evidence regarding the injuries he allegedly sustained in the

June 2001 pat frisk. This argument is meritless. The records Barclay challenges pertain to his

continued need for a cane on or before February 2000, and are thus irrelevant to any injuries

allegedly sustained thereafter.

       Barclay also argues that discovery was not in fact closed when he made his motion, but that

the discovery deadline had been stayed for purposes of mediation, that he received no notice of the

deadline’s reinstatement, and that the court allowed the deposition of defendant Selsky to proceed

after the supposed closing of discovery in February 2008. This argument is similarly without

merit. The record reflects that Barclay was advised that discovery had closed in February 2008,


                                                 6
and that his opposition to the defendant’s summary judgment motion would be due in March.

The case was indeed referred for mediation in July 2009, but nothing in the referral order

suggested that discovery had been re-opened or stayed. Selsky’s video deposition, which took

place in April 2012, was not conducted for traditional discovery purposes, but was taken in

anticipation of Selsky’s unavailability for trial.

    III.    Trial Rulings

        The district court did not abuse its discretion in denying Barclay’s request for substitute pro

bono counsel.     Barclay claimed that his appointed counsel was insufficiently zealous, as

evidenced by counsel’s involvement in the Selsky deposition and failure to obtain favorable

rulings on Barclay’s pre-trial motions.       However, counsel protected Barclay’s interests by

conducting a cross-examination of Selsky at his video deposition, and the court’s denial of

Barclay’s meritless motions does not reflect a lack of zealousness on the part of his attorney.

        On appeal, Barclay argues that he should have been permitted to proceed pro se.

However, to exercise his right to self-representation, Barclay had to assert the right in a timely

manner, “preferably before trial,” and he had to “clearly and unequivocally discharge any lawyer

previously retained.” Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998). Barclay did neither;

he waited until trial had already commenced to make his request for new counsel, and, when the

court, in its discretion, denied his request, he proceeded with the lawyer he had. Barclay did not

ask to be allowed to proceed pro se. Thus, Barclay was not denied his right to self-representation.

        Barclay’s argument that the court should have struck the jury pool is also without merit.

Juries in the Northern District are selected at random from voter registration lists, pursuant to 28

U.S.C. § 1863. See Northern District General Order 24, approved by the Circuit Council of the


                                                     7
Second Circuit on January 16, 2009, reprinted in McKinney’s New York Rules of Court, Vol. II—

Federal District Courts 903-11 (2012 ed.). The use of voter registration lists as the sole source of

names for jury selection was approved by this Court in United States v. Guzman, 468 F.2d 1245,

1247-49 (2d Cir. 1972).      Barclay nevertheless argues that the jury pool in his case was

unrepresentative. To raise such a challenge, he was required to follow the procedures set forth in

28 U.S.C. § 1867(c) and (d), requiring the filing of a motion with “a sworn statement of facts

which, if true, would constitute a substantial failure to comply with the provisions” of the Jury

Selection and Service Act. 28 U.S.C. § 1867(d). Under § 1867(e), that procedure is the

exclusive method by which a party in a civil case may challenge a jury as unrepresentative.

Because Barclay failed to comply with these procedures, his challenge to the jury pool must fail.

See United States v. Jones, 480 F.2d 1135, 1139 (2d Cir. 1973).

       Finally, Barclay cannot show manifest error in any of the district court’s evidentiary

decisions. See Cameron, 598 F.3d at 61. With respect to the admission of the videotape

depicting the June 2001 pat frisk, and contrary to Barclay’s argument on appeal, the defendants

laid a proper foundation for the tape, which the court correctly found to be adequate.

       The court also reasonably allowed the admission of the photographs depicting Barclay in

his cell.      The photos themselves refute Barclay’s argument on appeal that they were

“inflammatory.” One photo showed Barclay sitting on his bed, and the other showed him with his

hand pressed against the window pane of his cell. Nothing about these photos is unfairly

prejudicial.

       The court’s admission of the Selsky video deposition under Fed. R. Civ. P. 32 was

similarly not an abuse of discretion. Rule 32(a)(4) provides for the use of deposition testimony


                                                 8
when a witness is unavailable. And, when a witness’s unavailability for trial is anticipated in

advance, “depositions, including video depositions, provide a superior means” of securing the

witness’s testimony for trial. Fed. R. Civ. P. 43, Advisory Committee Notes. Barclay does not

challenge Selsky’s unavailability for trial. Instead, he argues that the court’s refusal to allow him

to be present for the video deposition denied him his Sixth Amendment right of confrontation, and

that, since discovery had already closed, it was unfair to allow the deposition to proceed while

denying his own requests to re-open discovery.         However, the Sixth Amendment right of

confrontation does not apply in this civil action. See U.S. Const. amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him.”).    And, as discussed above, the Selsky deposition was not conducted for discovery

purposes, but rather, was convened due to Selsky’s anticipated unavailability for trial.

          We have considered all of Barclay’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.


                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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