11-1445-pr
Smith v. Levine, et al.

                                      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 31st day of January, two thousand thirteen.

PRESENT:

           JOSÉ A. CABRANES,
           RICHARD C. WESLEY,
           DEBRA ANN LIVINGSTON,
                                Circuit Judges.
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JULIO ISLEY SMITH,

                      Plaintiff-Appellant,

                               -v.-                                                              No. 11-1445-pr

JAMES LEVINE, Prison Guard, C.F. KELLY, JR., Captain,

                      Defendants-Appellees,

GARY GREENE, Superintendent, JOHN DOE, Prison Guard,
JOHN DOE, MICHAEL MOLISANI,

                      Defendants.
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FOR PLAINTIFF-APPELLANT:                                                  JAMES DARROW (Alexandra A.E. Shapiro, on the
                                                                          brief), Shapiro, Arato & Isserles LLP, New York,
                                                                          NY.


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FOR DEFENDANTS-APPELLEES:                                        MARTIN A. HOTVET, Assistant Attorney General
                                                                 (Barbara D. Underwood, Solicitor General,
                                                                 Andrea Oser, Deputy Solicitor General, on the
                                                                 brief), for Eric T. Schneiderman, Attorney General
                                                                 of the State of New York.

      Appeal from a March 22, 2011 judgment entered by the United States District Court for the
Northern District of New York (Glenn T. Suddaby, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the March 22, 2011 judgment of the District Court be VACATED and the cause
REMANDED for further proceedings.

         Plaintiff Julio Isley Smith appeals an order of the District Court dismissing his claims against
James Levine, a guard, and C.F. Kelly, formerly a captain at the Great Meadow Correctional Facility,
where Smith was formerly imprisoned. He also appeals an order of the District Court that granted
summary judgment to Gary Greene,1 Superintendent of Great Meadow, and to Kelly, on the theory
that, even if Kelly were to be reinstated as a defendant, summary judgment would be appropriate.
Smith claims that Levine and Kelly unlawfully retaliated against him for exercising his First Amendment
rights when they transferred him to another prison. We assume familiarity with the underlying facts and
procedural history of this case.

                                                  BACKGROUND

         At the time of the relevant events, Smith was an inmate at the Great Meadow Correctional
Facility in Comstock, New York. He claims that, on February 27, 2006, he witnessed several guards
assault another inmate. Thereafter, he filed a grievance with the New York State Inspector General
(“NYSIG”), complaining that a fellow Muslim inmate had been beaten on account of his religion. He
further claims that the defendants, in retaliation for his complaint and in order to prevent a
representative from NYSIG from interviewing him, placed him “on a 72 hour investigation,” and then
transferred him to Auburn Correctional Facility, where he was forced to spend some time in the
restrictive Special Housing Unit (“SHU”).

        On April 17, 2006, Smith filed a pro se complaint claiming violation of his First Amendment
rights. He subsequently filed an amended complaint, naming Greene, Kelly, Levine, and four other
guards—Michael Molisani, Colleen Russell, and two John Does—as defendants. Molisani, Russell, and
the two John Does were later dismissed from the suit by the District Court, and are not subjects of the
current appeal. On March 24, 2008, Judge Lawrence E. Kahn dismissed the amended complaint as to


    1 We denied Smith’s motion for leave to proceed in forma pauperis as to Greene, and dismissed Greene from this appeal by

order issued November 28, 2011.
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Kelly and Levine on the ground that the amended complaint failed to make specific allegations
concerning their personal involvement in the decision to transfer Smith, leaving only Greene as a
defendant. On March 16, 2010, Judge Glenn T. Suddaby, who had assumed responsibility for the case,
denied Greene’s first motion for summary judgment, based on the Report and Recommendation of
Magistrate Judge Andrew T. Baxter, in order to permit Smith an opportunity to conduct further
discovery to ascertain who ordered his transfer.

          On September 24, 2010, defendants filed an affidavit signed by Kelly asserting that it was, in
fact, Kelly who ordered the transfer, but that he did so “to preserve the safety and security of the facility
in light of information [he] had received that [Smith] was attempting to rile up other inmates.” On
February 1, 2011, Magistrate Judge Baxter issued a second Report and Recommendation, concluding
that Greene’s renewed motion for summary judgment should be granted. On March 22, 2011, Judge
Suddaby adopted the recommendation of Magistrate Judge Baxter and granted summary judgment to
Greene. The summary judgment rested on three main grounds: (1) no reasonable jury could find any
personal involvement by Greene; (2) it was not “clearly established that filing a complaint about the
treatment of another inmate constituted constitutionally protected speech,” and therefore defendants
would be entitled to qualified immunity; and (3) Smith was transferred for non-retaliatory reasons, as
demonstrated by Kelly’s affidavit.

        Smith then filed this appeal and moved to proceed in forma pauperis. On November 28, 2011, we
granted his motion in part and denied it in part. Specifically, we dismissed his appeal with respect to his
claims against Greene, Molisani, Russell, and the two John Does. However, we appointed pro bono
counsel and directed briefing on whether the District Court erred in determining that: “(1) Appellant’s
amended complaint had failed to sufficiently allege the personal involvement of defendants Kelly and
Levine; (2) Appellant had not engaged in constitutionally protected activity; and (3) the law surrounding
Appellant’s protected activity was not ‘clearly established’ in March 2006.” Smith v. Levine, No. 11-1445-
pr (2d Cir. Nov. 28, 2011) (order granting motion to proceed in forma pauperis in part). With the benefit
of briefing and oral argument, we now consider those issues.

                                              DISCUSSION

         We note at the outset that defendants have conceded issues (2) and (3). That is, they do not
argue that Smith did not engage in a constitutionally protected activity nor that the law surrounding that
activity—namely, his filing of a grievance related to the assault on his fellow inmate—was not clearly
established at the time. Instead, defendants urge us to consider a separate ground for affirmance, which
is that Smith’s transfer from Great Meadow to Auburn was not an adverse action. First, we address
whether Kelly and Levine were properly dismissed from this action and, second, we consider
defendants’ new claim that Smith did not suffer an adverse action.



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A.      Dismissal of Kelly and Levine

         We review de novo a district court’s grant of a motion to dismiss under Rule 12(b)(6), accepting
all of the complaint’s factual allegations as true and drawing all reasonable inferences in the plaintiff’s
favor. Forest Park Pictures v. Universal Television Network, Inc., 683 F.3d 424, 429 (2d Cir. 2012). “[T]he
submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest
arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal
quotation marks omitted) (emphasis in original). On the other hand, “because prisoner retaliation
claims are easily fabricated, and accordingly pose a substantial risk of unwarranted judicial intrusion into
matters of general prison administration, we are careful to require non-conclusory allegations.” Bennett v.
Goord, 343 F.3d 133, 137 (2d Cir. 2003) (quotation marks omitted).

         The District Court dismissed Smith’s amended complaint against Kelly and Levine because the
complaint gave “no indication” that either had any personal involvement in the alleged retaliatory
transfer. To prevail in a First Amendment retaliation claim under 42 U.S.C. § 1983, “a plaintiff must
show by a preponderance of the evidence that the defendant was personally involved—that is, he
directly participated—in the alleged constitutional deprivations.” Gronowski v. Spencer, 424 F.3d 285, 293
(2d Cir. 2005); see also Farid v. Ellen, 593 F.3d 233, 249 (2d Cir. 2010).

          Although Smith’s amended complaint may not contain the specificity desired in all contexts,
given the “special solicitude” accorded to pro se complaints, Triestman, 470 F.3d at 475, we hold that the
District Court erred in dismissing the amended complaint against Kelly and Levine. In particular, Smith
alleges that it was Kelly who instructed the guards to place him on the 72 hour investigation, one day
prior to his transfer. Joint App’x 39. The obvious inference to be drawn from the sequence of Smith’s
allegations is that the investigation was a precursor to his transfer and that, inasmuch as Kelly ordered
the investigation, he had a direct role in the transfer. As for Levine, Smith alleges that he was the guard
who actually removed him from his cell and put him on his way to Auburn. Smith further alleges that
Levine told the guards at Auburn that the transfer was executed as punishment for his written
complaints to NYSIG, and that, as a direct result, the guards at Auburn placed him in the SHU. Id. at
39-41.

         We find that these allegations are sufficient to “suggest” Kelly and Levine’s direct involvement
in the alleged retaliation. Triestman, 470 F.3d at 474. We note, however, that the language in the
amended complaint barely makes out sufficient accusations regarding Levine, and we doubt that the
sparse descriptions of his participation will result, on further discovery, in a viable claim. Nonetheless,
we hold that it was error to dismiss Kelly and Levine from the lawsuit.




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B.       Summary Judgment2

         As noted above, the District Court granted summary judgment to all defendants on the theory
that it was not clearly established that Smith’s activity was protected by the First Amendment. Although
defendants now concede that the District Court’s decision cannot be upheld on that basis, they
nonetheless argue that summary judgment can be affirmed because Smith’s transfer was not an adverse
action or, if it was, that rule was not sufficiently established at the time, such that defendants are entitled
to qualified immunity. 3 This claim is without merit.

         “To prove a First Amendment retaliation claim under Section 1983, a prisoner must show (1)
that the speech or conduct 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 speech and the adverse
action.” Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009) (internal quotation marks omitted). An
adverse action is “conduct that would deter a similarly situated individual of ordinary firmness from
exercising . . . constitutional rights.” Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (internal
quotation marks omitted).

         Defendants contend that, because the conditions at Auburn were not appreciably worse than at
Great Meadow, the transfer was not an adverse action. This claim finds no support in the relevant case
law. We had stated, at least as early as 1998, that, while “[a] prisoner has no liberty interest in remaining
at a particular correctional facility,” prison authorities “may not transfer an inmate in retaliation for the
exercise of constitutionally protected rights.” Davis v. Kelly, 160 F.3d 917, 920 (2d Cir. 1998); see also
Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d Cir. 1997); Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987)
(“Of course, a claim for relief may be stated under section 1983 if otherwise routine administrative
decisions are made in retaliation for the exercise of constitutionally protected rights.”).

        Moreover, defendants’ argument finds no support in the record. Smith specifically alleges that
he was placed in a restrictive unit—also known as “the hole”—upon entering Auburn as a direct
consequence of his protected speech. Defendants do not contest that Smith was placed in the SHU.
Thus, even assuming, arguendo, that Smith does bear the burden of proving that he was subject to worse
conditions at the transferee prison, the issue remains disputed and is not amenable to resolution by


     2 As acknowledged above, this case has an unusual procedural posture. The District Court dismissed all defendants

except Greene on motions to dismiss. It then granted summary judgment to Greene, the sole remaining defendant.
However, the Report and Recommendation, adopted by the District Court in its grant of summary judgment, also held that,
assuming Kelly should be reinstated, he should be awarded summary judgment. We understand this reasoning to be an
alternate ground for Kelly’s dismissal and therefore now consider whether summary judgment was correctly awarded as to
Kelly.
     3We note that, although defendants devote little attention to the issue in their brief, the District Court also held that
Smith was transferred for security rather than retaliatory reasons, relying on Kelly’s affidavit. We think this issue was decided
prematurely and presents a disputed, material fact not properly resolved on summary judgment on the present record. See
Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545-46 (2d Cir. 2010).
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summary judgment on this record. In short, because Smith does claim that he suffered worse
conditions upon his transfer to Auburn, we need not determine whether, as a matter of law, Smith
suffered an adverse action. That issue may be resolved in due course by trial or, with the benefit of
further discovery, by motion for summary judgment.

       In sum, defendants have conceded that the reasoning relied upon by the District Court cannot
support a grant of summary judgment. Because defendants’ argument for alternative grounds for
affirmance is without merit on the record as it currently exists, we must vacate the judgment.

                                            CONCLUSION

       We have reviewed the record and the parties’ arguments on appeal, and we VACATE the March
22, 2011 judgment of the District Court, and REMAND for further proceedings consistent with this
order.

                                               FOR THE COURT,
                                               Catherine O’Hagan Wolfe, Clerk of Court




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