         10-2881-pr
         Dorsey v. Fisher
                                 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.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of March, two thousand and twelve.
 5
 6       PRESENT: BARRINGTON D. PARKER,
 7                RICHARD C. WESLEY,
 8                         Circuit Judges
 9                SIDNEY H. STEIN,*
10                         District Judge.
11
12       LEROY DORSEY,
13
14                                     Plaintiff-Appellant,
15
16                      v.                                           10-2881-pr
17
18       COMM. BRIAN FISHER, N.Y.S.D.O.C.S ET AL EMPLOYEES,
19       SUPERINTENDENT RAYMOND J. CUNNINGHAM, WOODBOURNE CORR. FAC.,
20       JEAN G. KING, D.S.P WOODBOURNE, C. DAVIS, F.R.P.
21       COORDINATOR, COUNSILOR WOODBOURNE, C.C. SCHLIFIKIN,
22       COUNSILOR, WOODBOURNE, SGT. HOPKINS, WOODBOURNE CORR., SGT.
23       R MITCHELL, WOUDBOURNE CORR., C.O. SHANE HOWE, C.O. SHANE
24       HOWE, WOODBOURNE CORR., D.S.S PAUL GONYEA, WOODBOURNE CORR.,
25       SMITH, C.O.-W.C.F., C.O. JERRY STEFANUK, C.O.-W.C.F.
26       CARTWRIGHT, SGT. CAPELLO, MCCOY,
27
28                                     Defendants-Appellees.
29
30
31


                *
                The Honorable Sidney H. Stein, of the United States
         District Court for the Southern District of New York, sitting by
         designation.
 1   FOR APPELLANT:     JAMES J. BEHA II (Daniel J. Kramer, on
 2                      the brief), Paul, Weiss, Rifkind, Wharton
 3                      & Garrison LLP, New York, NY
 4
 5   FOR APPELLEES:     SUDARSANA SRINIVASAN, Assistant Solicitor
 6                      General (Barbara D. Underwood, Solicitor
 7                      General, Michael S. Belohlavek, Senior
 8                      Counsel, on the brief), for Eric T.
 9                      Schneiderman, Attorney General of the
10                      State of New York, New York, NY
11
12        Appeal from the United States District Court for the
13   Southern District of New York (Berman, J.).
14
15       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

16   AND DECREED that the judgment of United States District

17   Court for the Southern District of New York is AFFIRMED.

18       Plaintiff-Appellant Leroy Dorsey appeals from an order

19   of the United States District Court for the Southern

20   District of New York (Berman, J.), granting defendants-

21   appellees’ motion to dismiss Dorsey's complaint.   On

22   November 18, 2008, Dorsey, proceeding pro se, filed a Third

23   Amended Complaint pursuant to 42 U.S.C. § 1983 alleging,

24   inter alia, that the defendants, employees of the New York

25   State Department of Correctional Services ("DOCS"), violated

26   his constitutional rights under the First, Fourth, Fifth,

27   Eighth, Ninth, and Fourteenth Amendments while Dorsey was

28   incarcerated at Woodbourne Correctional Facility

29   ("Woodbourne").   On appeal, Dorsey challenges only the

30   district court's dismissal of his claims against Sergeant

                                   2
1    Mitchell, Sergeant Cappello, and Deputy Superintendent Paul

2    Gonyea (collectively, the "Appellees") for First Amendment

3    retaliation.

4        We review de novo a district court's dismissal of a

5    complaint pursuant to Rule 12(b)(6), “accepting all factual

6    allegations in the complaint and drawing all reasonable

7    inferences in the plaintiff's favor.”   ATSI Commc'n, Inc. v.

8    Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007).   To survive

9    a motion to dismiss, a complaint must plead “enough facts to

10   state a claim to relief that is plausible on its face.”

11   Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).     In

12   applying this standard, we assume the parties’ familiarity

13   with the underlying facts, the procedural history, and the

14   issues presented for review.

15       To establish a prima facie case of First Amendment

16   retaliation, Dorsey must demonstrate: "(1) that the speech

17   or conduct at issue was protected, (2) that the defendant

18   took adverse action against the plaintiff, and (3) that

19   there was a causal connection between the protected speech

20   and the adverse action."   Gill v. Pidlypchak, 389 F.3d 379,

21   380 (2d Cir. 2004) (internal quotation marks omitted).

22   “Only retaliatory conduct that would deter a similarly

23   situated individual of ordinary firmness from exercising his

                                    3
1    or her constitutional rights constitutes an adverse action

2    for a claim of retaliation.”   Davis v. Goord, 320 F.3d 346,

3    353 (2d Cir. 2003) (internal quotation marks omitted).

4    Notably, we approach prisoner retaliation claims "with

5    skepticism and particular care, because virtually any

6    adverse action taken against a prisoner by a prison

7    official—even those otherwise not rising to the level of a

8    constitutional violation—can be characterized as a

9    constitutionally proscribed retaliatory act." Id. at 352

10   (internal quotation marks omitted).

11       Here, Dorsey failed to state a claim for retaliation

12   that is plausible on its face against any of the Appellees.

13   Dorsey’s claim against Mitchell fails because none of

14   Mitchell’s alleged conduct constitutes “adverse action.”

15   Dorsey's claims of retaliatory verbal abuse by Mitchell do

16   not include any allegations of physical harm, nor are they

17   alleged with any specificity to suggest that they would

18   deter a prisoner of ordinary firmness from exercising his

19   constitutional rights.   Similarly, allegations that Mitchell

20   ordered or otherwise conducted two searches of Dorsey’s cell

21   and two searches of his person over a six-month period are

22   insufficient to show adverse action.

23       Dorsey also alleges that Mitchell threatened to destroy

                                    4
1    any grievance Dorsey filed and that Mitchell removed from

2    the prison mailbox a grievance Dorsey filed.    Even assuming

3    that the destruction of grievances is an adverse action,

4    Dorsey's complaint fails to plead more than the sheer

5    possibility that Mitchell, in fact, destroyed the

6    grievances.    Dorsey merely alleges that because Mitchell

7    threatened to throw away his grievances, Mitchell was

8    responsible when they later “disappeared” from Dorsey's

9    mailbox.   Without more, where, as here, the plaintiff

10   alleges the ultimate fact of retaliation in a conclusory and

11   speculative manner, he fails to state a claim for

12   retaliation.    See, e.g., Flaherty v. Coughlin, 713 F.2d 10,

13   13 (2d Cir. 1983).

14       Dorsey’s claims against Cappello and Gonyea fail

15   because Dorsey has not alleged a causal connection between

16   their acts and Dorsey’s protected speech.    To sufficiently

17   allege a causal connection, Dorsey’s allegations must

18   support an inference that the protected conduct was "a

19   substantial or motivating factor for the adverse actions

20   taken by prison officials."    Bennett v. Goord, 343 F.3d 133,

21   137 (2d Cir. 2003).    With respect to Cappello, Dorsey has

22   not provided any plausible reason why Cappello would file an

23   allegedly false misbehavior report other than that Dorsey

                                    5
1    filed a grievance against Mitchell.     This alone is

2    insufficient to show Cappello’s retaliatory intent.

3    Similarly, the fact that Dorsey filed a grievance against

4    Mitchell does not support an inference that Gonyea

5    retaliated against Dorsey by sentencing him to seventy-five-

6    days’ solitary confinement.     Finally, Dorsey’s contention

7    that Gonyea retaliated against him because Dorsey filed a

8    separate § 1983 action against Gonyea is insufficient to

9    show retaliatory intent.     The § 1983 action was filed at an

10   unspecified point in the year prior to Dorsey's disciplinary

11   hearing before Gonyea.     Without any more specificity, that

12   temporal connection does not suffice to plead causation.

13       We have considered Dorsey’s remaining arguments and,

14   after a thorough review of the record, find them to be

15   without merit.

16       For the foregoing reasons, the judgment of the district

17   court is hereby AFFIRMED.
18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20
21
22




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