10-1485-cr
Murray v. Hulihan

                                 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.


       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30th day of August, two thousand eleven.

PRESENT:

         RALPH K. WINTER,
         JOSEPH M. MCLAUGHLIN,
         JOSÉ A. CABRANES,
                      Circuit Judges.

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JOEL MURRAY,

                    Plaintiff-Appellant,

                    v.                                                               No. 10-1485-cr

WILLIAM F. HULIHAN, Superintendent, Mid-State Correctional Facility;
M. DEBRACCIO, Correction Counselor, Mid-State Correctional Facility;
R. FERRARO, Correction Counselor, Mid-State Correctional Facility;
W. KOAGLE, Correction Counselor, Mid-State Correctional Facility;
S. MOORE, Correction Counselor, Mid-State Correctional Facility;
B. SIMONS, Senior Correction Counselor, Mid-State Correctional Facility;
C. CHEYNE, Social Worker; M. STRUMLOFLER, Mid-State Correctional Facility,
                   Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:                         JOEL MURRAY, pro se, Elmira, NY.

FOR DEFENDANTS-APPELLEES:                        OWEN DEMUTH, Assistant Solicitor General (Denise
                                                 A. Hartman, Assistant Solicitor General; Barbara D.
                                                 Underwood, Solicitor General, on the brief), for Eric T.
                                                 Schneiderman, Attorney General for the State of New
                                                 York, Albany, NY.

       Appeal from a March 31, 2010, judgment of the United States District Court for the
Northern District of New York (Norman A. Mordue, Chief Judge; Andrew T. Baxter, Magistrate Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-appellant Joel Murray (“plaintiff”), pro se, appeals the judgment of the District Court
adopting the Magistrate Judge’s report and recommendation (“R&R”) granting judgment on the
pleadings to defendants, various state actors whom plaintiff encountered while incarcerated in the
New York State Department of Correctional Services at Mid-State Correctional Facility, and
dismissing plaintiff’s 42 U.S.C. § 1983 action for failure to state a claim upon which relief may be
granted. We assume the parties’ familiarity with the underlying facts, proceedings below, and
specification of issues on appeal.

         We review de novo a district court’s grant of judgment on the pleadings, drawing all factual
inferences in favor of the non-moving party. See, e.g., Desiano v. Warner-Lambert & Co., 467 F.3d 85,
89 (2d Cir. 2006). Dismissal on the pleadings is appropriate when the complaint, including
accompanying exhibits and documents incorporated by reference, fails to plead “enough facts to
state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (a claim will have “facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged”).

        In his 42 U.S.C. § 1983 action, plaintiff asserted, inter alia, that defendants violated his First
Amendment rights by taking various actions to prevent him from completing the Alcohol and
Substance Abuse Treatment (“ASAT”) program as retaliation against him for filing a series of
inmate grievances. To state a First Amendment retaliation claim, a plaintiff must plead facts from
which a court can reasonably infer that (1) plaintiff engaged in constitutionally protected conduct,
(2) defendants took an adverse action against plaintiff that was substantially motivated by that
conduct, and (3) the protected conduct and adverse action were causally connected. Bennett v. Goord,


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343 F.2d 133, 137 (2d Cir. 2003). Defendants cannot be liable for First Amendment retaliation if
they would have taken the adverse action even in the absence of the protected conduct. Id.

        Following de novo review of the record, we affirm the judgment of the District Court for
substantially the reasons stated by the Magistrate Judge in his thorough and well-reasoned R&R,
which the District Court adopted in toto after conducting a de novo review, see Order, Murray v.
Hulihan, Docket No. 08-CV-912 (N.D.N.Y. Mar. 31, 2010). As the Magistrate Judge noted,
although filing grievances is constitutionally protected conduct, plaintiff failed to claim facts
indicating that his filing of grievances either substantially motivated or actually caused defendants’
allegedly adverse actions. In contrast, plaintiff concedes that the ASAT program dictated those
actions as legitimate remedial responses to plaintiff’s violations of the program’s rules, which
indicates that defendants would have taken similar measures regardless of whether plaintiff had filed
grievances. Accordingly, plaintiff failed to state a valid First Amendment retaliation claim.

                                         CONCLUSION
       We have considered plaintiff’s other arguments on appeal and have found them to be
without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.




                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




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