         12-4212
         Ford v. Smith



                              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 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 24th day of September, two thousand thirteen.
 4
 5       PRESENT:
 6                   GUIDO CALABRESI,
 7                   DEBRA ANN LIVINGSTON,
 8                   DENNY CHIN,
 9                         Circuit Judges.
10       _____________________________________
11
12       Corey Ford,
13
14                             Plaintiff-Appellant,
15
16                       v.                                          12-4212
17
18
19       C.O. Palmer, Correctional Officer, et al.,
20
21                             Defendants-Appellees.
22
23       _____________________________________
24
25
 1   FOR PLAINTIFF-APPELLANT:              Corey Ford, pro se, Wallkill, NY.
 2
 3   FOR DEFENDANTS-APPELLEES:             Eric T. Schneiderman, Attorney General of the
 4                                         State of New York, Barbara D. Underwood,
 5                                         Solicitor General, Andrea Oser, Deputy
 6                                         Solicitor General, Kate H. Nepveu, Assistant
 7                                         Solicitor General of Counsel, Albany, NY.

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

 9   Northern District of New York (Suddaby, J.).

10         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

11   ADJUDGED, AND DECREED that the judgment is AFFIRMED IN PART and

12   REVERSED IN PART, and the case is REMANDED for further proceedings

13   consistent with this order.

14         Appellant, Corey Ford, pro se, appeals from the district court’s grant of

15   summary judgment to the defendants, dismissing his civil rights complaint, and

16   from the district court’s sua sponte dismissal of Ford’s First Amendment

17   retaliation claim pursuant to the court’s authority under 28 U.S.C. § 1915A(b).

18   We reverse the district court’s sua sponte dismissal of Ford’s First Amendment

19   retaliation claim and affirm in all other respects. We assume the parties’

20   familiarity with the underlying facts, the procedural history of the case, and the

21   issues on appeal.



                                              2
 1                                      *        *         *

 2         We review the grant of summary judgment de novo with the view that

 3   “[s]ummary judgment is appropriate only if the moving party shows that there

 4   are no genuine issues of material fact and that the moving party is entitled to

 5   judgment as a matter of law.” Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292,

 6   300 (2d Cir. 2003). After an independent review of the record and relevant case

 7   law, we conclude that Ford’s appeal from the dismissal of his claims pursuant to

 8   42 U.S.C. § 1983, for the violation of his free exercise and equal protection rights,

 9   is without merit for substantially the reasons stated by the district court in its

10   order dated September 28, 2012.1

11         We reach a different conclusion regarding the dismissal of Ford’s First

12   Amendment retaliation claim. We review de novo dismissals pursuant to Rule

13   12(b)(6) and § 1915(e)(2). See Famous Horse Inc. v. 5th Ave. Photo Inc., 624 F.3d 106,

14   108 (2d Cir. 2010); Giano v. Goord, 250 F.3d 146, 150 (2d Cir. 2001). The complaint



           1
              We affirm the dismissal of Ford’s Religious Land Use and Incarcerated
     Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1, claims for the independent reason
     that RLUIPA does not provide a cause of action for damages against state
     officials in their official capacities, see Sossamon v. Texas, 131 S. Ct. 1651 (2011), or
     in their individual capacities, see Washington v. Gonyea, No. 11-980-cv 2013 WL
     4792375, at *2 (2d Cir. Sept. 10, 2013) (per curiam).

                                                 3
 1   must plead “enough facts to state a claim to relief that is plausible on its face.”

 2   Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Because Ford filed his

 3   complaint pro se, “it must be construed liberally to raise the strongest arguments

 4   it suggests.” Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013) (internal quotation

 5   marks and alterations omitted).

 6         Ford alleges that Correction Officer Law violated Ford’s First Amendment

 7   right to free speech when Law retaliated against Ford for reporting Law’s failure

 8   to provide Ford with hot water for his Ramadan breakfast. To prevail on a First

 9   Amendment retaliation claim brought under 42 U.S.C. § 1983, a prisoner must

10   demonstrate “(1) that the speech or conduct at issue was protected, (2) that the

11   defendant took adverse action against the plaintiff, and (3) that there was a causal

12   connection between the protected speech and the adverse action.” Espinal v.

13   Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal quotation marks omitted). “Only

14   retaliatory conduct that would deter a similarly situated individual of ordinary

15   firmness from exercising his or her constitutional rights constitutes an adverse

16   action for a claim of retaliation.” Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001)

17   overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002).

18   “This objective inquiry is not static across contexts, but rather must be tailored to


                                               4
 1   the different circumstances in which retaliation claims arise.” Dawes, 238 F.3d at

 2   493 (internal quotation marks omitted).

 3         The district court erred in its sua sponte dismissal of Ford’s retaliation claim

 4   on the basis that Officer Law’s alleged statements did not constitute “adverse

 5   action” as a matter of law. Ford’s amended complaint states that “plaintiff was

 6   threaten [sic] by C.O. Law defendant, to put some kind of substance in plaintiff’s

 7   hot water for writing complance [sic] and grievances to defendant Smith for

 8   being denied his right to practice his religion.” Read liberally, the complaint

 9   alleges that Officer Law threatened to poison Ford in retaliation for the

10   statements Ford made.2 The district court erred in reasoning, as a matter of law,

11   that verbal threats must be more definite and specific than Officer Law’s alleged

12   threat in order to constitute “adverse action.” In fact, in this context, the vague

13   nature of the alleged threat—i.e., not telling Ford when or how Officer Law

14   planned to poison him—could have enhanced its effectiveness as a threat and

15   increased the likelihood that a person of ordinary firmness would be deterred



           2
             While the retaliation claim was dismissed on the pleadings, we also note
     that this threat must be considered in the context of evidence in the record
     suggesting Law denied plaintiff hot water for retaliatory reasons on more than
     one occasion.

                                               5
 1   from filing additional grievances. Further, the district court’s reliance on the fact

 2   that Ford continued to file grievances was in error. Gill v. Pidlypchak, 389 F.3d

 3   379, 381 (2d Cir. 2004). As we have stated, the “objective test [for First

 4   Amendment retaliation] applies even where a particular plaintiff was not himself

 5   subjectively deterred; that is, where he continued to file grievances and lawsuits.”

 6   Id. Moreover, the record contains evidence that plaintiff was in fact deterred on

 7   one or more occasions from accepting hot water from Law. Accordingly, we

 8   conclude that Ford has plausibly alleged that Officer Law’s alleged actions

 9   constituted adverse action.

10         We have considered Ford’s remaining arguments and find them to be

11   without merit. For the foregoing reasons, the judgment of the district court is

12   AFFIRMED IN PART and REVERSED IN PART, and the case is REMANDED

13   for further proceedings consistent with this order.

14                                          FOR THE COURT:
15                                          Catherine O’Hagan Wolfe, Clerk




                                               6
