13-3197-pr
Rosales v. Kikendall

                           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
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 26th day of March, two thousand fifteen.

Present:    ROBERT A. KATZMANN,
                  Chief Judge,
            JOHN M. WALKER, JR.,
            DENNY CHIN,
                  Circuit Judges.
____________________________________________________________

LUIS ROSALES,

               Plaintiff-Appellant,

               -v-                                          No. 13-3197-pr

PAUL H. KIKENDALL, ASSISTANT COMMISSIONER, DONALD SELSKY, DIRECTOR
SPECIAL HOUSING, RYAN ENGLISH, ROBERT A. KIRKPATRICK, SUPERINTENDENT,
M. KEARNEY, CAPTAIN, KEN KIELISZEK, INMATE GRIEVANCE SUPERVISOR, L.
HIGLEY, INMATE GRIEVANCE SERGEANT, SERGEANT ANDRUSZ, BENSON,
CORRECTIONAL OFFICER, STREIT, CORRECTIONAL OFFICER, J. KENNEDY,
COMMISSIONER HEARING OFFICER, LIEUTENANT KNEENAN, INMATE
GRIEVANCE COORDINATOR,

            Defendants-Appellees.
____________________________________________________________

For Plaintiff-Appellant:              KAREN R. KING (Alex M. Hyman, on the brief), Paul,
                                      Weiss, Rifkind, Wharton & Garrison LLP, New York, New
                                      York.



                                                1
For Defendants-Appellees:              JONATHAN D. HITSOUS (Andrew B. Ayers, on the brief), for
                                       Barbara D. Underwood, Solicitor General, and Eric T.
                                       Schneiderman, Attorney General of the State of New York,
                                       Albany, New York.




       Appeal from the United States District Court for the Western District of New York
(Larimer, J. & Telesca, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court is hereby VACATED and this case is

REMANDED for further proceedings consistent with this order.

       Plaintiff-Appellant Luis Rosales appeals from a July 25, 2013 judgment dismissing this

case, which followed a January 6, 2010 order granting a motion to dismiss (Larimer, J.) and a

July 24, 2013 order granting summary judgment (Telesca, J.). Rosales, who is currently

incarcerated, alleges that prison authorities retaliated against him for filing grievances by falsely

charging him with misconduct, and deprived him of due process during the adjudication of those

misconduct charges. We assume the parties’ familiarity with the relevant facts, procedural

history of the case, and the issues presented for review.

       We begin with Rosales’s First Amendment retaliation claim. The district court granted

summary judgment on this claim because it found that there was no evidence of a causal link

between Rosales’s grievances and Benson’s subsequent misconduct report. The district court

reasoned that Rosales filed a grievance on July 28, 2006, but did not suffer the adverse action

until the October 24, 2006 misbehavior report, and that this nearly three-month gap was too

attenuated to support an inference that Benson had filed the misbehavior report in retaliation for

Rosales’s grievances.




                                                  2
       We find that triable issues of fact exist as to whether there was a causal link between the

grievances and the misconduct report. First, although Rosales filed an initial grievance on July

28, 2006, he continued to complain over the subsequent two-and-half months. In fact, on October

19—five days before the October 24 misbehavior report—Rosales sent a letter to Superintendent

Kirkpatrick asking about complaints filed by Rosales’ wife on his behalf. This much tighter

temporal connection supports an inference of a causal link between Rosales’s grievances and the

misbehavior report. See, e.g., Treglia v. Town of Manlius, 313 F.3d 713, 720‒21 (2d Cir. 2002)

(finding that temporal proximity should be measured by looking at the entire timeline of

protected activity). Second, there is direct evidence of a causal connection between the

grievances and the misbehavior report: Rosales has repeatedly claimed that Benson and others

threatened to “set [him] up” if he did not resign his position on the Inmate Grievance Resolution

Committee. See, e.g., J.A. 27. Accordingly, we conclude that the district court erred by finding

that there were no genuine disputes about the casual connection between Rosales’s protected

activity and the alleged retaliation. Moreover, while the defendants contend that they would have

still disciplined Rosales for the October 24 incident even in the absence of the grievances,

Rosales hotly contests that he engaged in any of the charged misconduct upon which defendants

base their argument. At most, then, defendants have identified a disputed issue of fact about

whether there still would have been a basis to punish Rosales. We therefore vacate the district

court’s grant of summary judgment on this claim.

       We next turn to Rosales’s procedural due process claim. “To award damages under 42

U.S.C. § 1983 for an alleged violation of procedural due process, a court must find that, as the

result of conduct performed under color of state law, the plaintiff was deprived of life, liberty, or

property without due process of law.” Bedoya v. Coughlin, 91 F.3d 349, 351 (2d Cir. 1996). The




                                                  3
district court granted summary judgment on this claim because it found that “some evidence”

supported Kennedy’s decision at the Tier III hearing. See Special App. 27 (citing Superintendent,

Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 457 (1985)). The district court further found

that Rosales’s other claims of constitutional error at the proceeding, including his claims of

inadequate legal assistance, were “harmless error not warranting denial of summary judgment.”

Id. at 28.

        As the defendants concede, the district court erred by applying the “some evidence”

standard to Rosales’s claim. The “some evidence” standard governs how courts review a prison’s

substantive determination of guilt. See Franco v. Kelly, 854 F.2d 584, 588 (2d Cir. 1988). But

Rosales did not challenge the substance of the disciplinary action, which had in any event

already been overturned by the New York state courts. Instead, Rosales challenged the

procedures by which he was found guilty.

        Nonetheless, the defendants contend that we should affirm the grant of summary

judgment for three reasons, none of them persuasive. First, they argue that they assisted Rosales

to the best of their ability. Yet, even if we were to recognize a “best of their ability” defense to a

procedural due process claim, that would at most create a jury issue about whether the

defendants provided assistance “in good faith and in the best interests” of Rosales. Eng v.

Coughlin, 858 F.2d 889, 898 (2d Cir. 1988).

        Second, the defendants contend that any violation of Rosales’s due process rights was

harmless, because he did not identify any exculpatory evidence that was excluded as a result. But

this argument misstates the record. Rosales has identified at least some evidence that could have

changed the outcome of the disciplinary proceedings. Specifically, one of Rosales’s fellow

inmates, Mohamed Abbas, sent at least one letter to prison officials stating that he had witnessed




                                                   4
the alleged October 24 incident, that Rosales was “innocent,” and that Abbas wished to testify on

Rosales’s behalf. See J.A. 81. Had the defendants “attempt[ed] to determine independently who

the most relevant witnesses might be and to interview them,” Eng, 858 F.2d at 898, there is at

least a reasonable chance that they would have uncovered Abbas’s exculpatory testimony.

Accordingly, there are disputed issues of fact about whether any violations of Rosales’s due

process rights were harmless.

        Third, defendants assert that they are shielded by qualified immunity, because no clearly

established federal law required them to identify unknown witnesses. But in Ayers v. Ryan, 152

F.3d 77, 82 (2d Cir. 1998), we explained that “[t]his Court’s decision in Eng v. Coughlin . . . ,

clarified for ‘future cases’ that an inmate transferred between facilities has the right to good faith

assistance, and that ‘an assigned assistant who does nothing’ violates due process.” Accordingly,

defendants are not entitled to qualified immunity at this stage in the proceedings. As such,

because the district court applied the wrong legal standard in evaluating Rosales’s procedural

due process claim, we vacate the district court’s grant of summary judgment on that claim as

well.

        Finally, we address Rosales’s claim against Kearney for failing to turn over the

exculpatory letter he received from Mohamed Abbas, the inmate who claimed to have witnessed

the October 24 incident. The district court dismissed this claim because, even assuming that

Brady principles apply in prison disciplinary hearings, “[t]here is no indication of what the

substance of [Abbas’s] testimony would have been, much less that it would have been

exculpatory with respect to [Rosales].” Special App. 10‒11. But while the district court correctly

noted that Rosales’s complaint did not recite allegations about the substance of Abbas’s potential

testimony, Rosales attached Abbas’s letter to his opposition to the defendant’s motion to dismiss.




                                                  5
See J.A. 81. This letter stated that Abbas “would like to testif[y] in [Rosales’s] hearing because

[Rosales] is innocent.” Id. Accordingly, the district court erred when it concluded that there was

no indication that the testimony would have been exculpatory. Although we recognize that

Rosales did not attach the Abbas letter to his initial complaint, Rosales was proceeding pro se at

the time, and the district court should have treated Rosales’s opposition as a constructive motion

to amend his pleadings. See, e.g., Washington v. James, 782 F.2d 1134, 1138‒39 (2d Cir. 1986)

(“[B]ecause [the plaintiff] was pro se and because a party may, as a matter of right, amend his

complaint once at any time before a responsive pleading is served, the court, when ruling on a

Rule 12 motion, should have given [the plaintiff] the benefit of the doubt, giving consideration to

the affidavit and treating the complaint as if it had been amended.”). Accordingly, we vacate the

dismissal of this claim, and remand for further consideration.

       The district court did not consider the question of whether Kearney was shielded by

qualified immunity with respect to this claim. On remand, we suggest that the district court, after

providing the parties an opportunity to be heard, consider this question as soon as practicable.

Because, in the event that immunity is appropriate, it is immunity from further litigation “rather

than a mere defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009).

       We have considered the defendants’ remaining arguments, and find them to be without

merit. Accordingly, for the foregoing reasons, the judgment of the district court is VACATED,

and this case is REMANDED for further proceedings.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




                                                 6
