13-4226-pr
Nelson v. McGrain


                          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, 40 Foley Square, in the City of New
York, on the 5th day of March, two thousand fifteen.

PRESENT: REENA RAGGI,
                 RICHARD C. WESLEY,
                 GERARD E. LYNCH,
                                 Circuit Judges.
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JEFFREY A. NELSON,
                                 Plaintiff-Appellant,

                        v.                                                 No. 13-4226-pr

MARC MCGRAIN, Correctional Officer,
                                 Defendant-Appellee.
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FOR APPELLANT:                            Jeffrey A. Nelson, pro se, Attica, New York.

FOR APPELLEE:                            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,
                                         New York.




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

of New York (Michael A. Telesca, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is VACATED IN PART and the

case is REMANDED for further proceedings consistent with this order.

       New York State prisoner Jeffrey A. Nelson, proceeding pro se, sued Correctional

Officer Marc McGrain, pursuant to 42 U.S.C. § 1983, for conduct allegedly violative of the

Eighth Amendment prohibition of cruel and unusual punishment and the First Amendment

prohibition of retaliation for protected speech, specifically, the filing of prison grievances.

The district court granted summary judgment in favor of McGrain, and Nelson now

appeals from that judgment insofar as it dismissed his First Amendment claim.1 We

review an award of summary judgment de novo, resolving all factual ambiguities and

drawing all reasonable inferences in favor of nonmovant Nelson, and we will affirm only if

the record reveals no genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Nagle v.

Marron, 663 F.3d 100, 104–05 (2d Cir. 2011).2 We assume the parties’ familiarity with


1
  This Court granted Nelson leave to proceed in forma pauperis on May 8, 2014, only with
respect to his First Amendment retaliation claim, and dismissed the appeal in all other
respects. We therefore review the district court’s decision only insofar as it dismissed
Nelson’s First Amendment claim.
2
  Although the district court’s decision was ambiguous as to the relief it granted, having
cited the standards for both a motion to dismiss and a motion for summary judgment, we
deem it to have granted summary judgment in favor of McGrain. Indeed, McGrain moved
for summary judgment and supported his motion with evidence outside the pleadings.
See Fed. R. Civ. P. 12(d) (stating that court must treat Rule 12(b)(6) motion as one for
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the underlying facts, the procedural history of the case, and the issues on appeal, which we

reference only as necessary to explain our decision to vacate in part and remand.

       To state a First Amendment retaliation claim, a prisoner must demonstrate

(1) protected speech or conduct, (2) adverse action by the defendant, and (3) a causal

connection between the two. See Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003).

While the filing of prison grievances is a protected activity, see id. at 352–53; Graham v.

Henderson, 89 F.3d 75, 80 (2d Cir. 1996), “[o]nly retaliatory conduct that would deter a

similarly situated individual of ordinary firmness from exercising his or her constitutional

rights constitutes an adverse action.” Davis v. Goord, 320 F.3d at 353 (internal quotation

marks omitted). In making the latter determination, a court’s inquiry “must be tailored to

the different circumstances in which retaliation claims arise, bearing in mind that prisoners

may be required to tolerate more than average citizens before a retaliatory action taken

against them is considered adverse.”        Id. (internal quotation marks and alterations

omitted). Nevertheless, a prisoner can state a retaliation claim in the absence of actual

deterrence. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (“[T]he fact that a

particular plaintiff . . . responded to retaliation with greater than ‘ordinary firmness’ does

not deprive him of a cause of action.”).

       Although the district court acknowledged that Nelson asserted claims under the

First and Eighth Amendments, it appears to have analyzed his claims only under the latter,

summary judgment where “matters outside the pleadings are presented to and not excluded
by the court”). We therefore review the district court’s decision under the standard
governing an award of summary judgment.
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performing no independent First Amendment analysis of Nelson’s claim of retaliation.

See Nelson v. McGrain, No. 12 Civ. 6292 (MAT), 2013 WL 5739043, at *2–3 (W.D.N.Y.

Oct. 22, 2013). Accordingly, we vacate the judgment insofar as it awarded judgment on

Nelson’s First Amendment claim and remand for the district court to consider that claim in

the first instance.

       The district court is further directed to consider whether Nelson’s allegations,

understood as retaliation claims, excused any failure to exhaust administrative remedies as

to his sexual assault allegations and his claim that false misbehavior reports were filed

against him. See Hemphill v. New York, 380 F.3d 680, 686–90 (2d Cir. 2004) (excusing

failure to exhaust where (1) administrative remedies unavailable to inmate, (2) defendants

waive defense of non-exhaustion or are estopped by own conduct inhibiting inmate’s

exhaustion, or (3) special circumstances justify inmate’s failure to exhaust administrative

remedies).

       The judgment of the district court is VACATED IN PART and the case is

REMANDED for further proceedings consistent with this order.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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