12-1593 Barclay v. New York



## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20 th day of February, two thousand fifteen.

PRESENT: A MALYA L. K EARSE , D EBRA A NN L IVINGSTON , S USAN L. C ARNEY , Circuit Judges.

_____________________________________ H. P ATRICK B ARCLAY , Plaintiff-Appellant ,

v. No. 12-1593

S TATE OF N EW Y ORK , S UPERINTENDENT T HOMAS R ICKS , C APTAIN R ACETTE , S ERGEANT Z ODIAC , D IRECTOR D ONALD S ELSKY , C ORRECTION C OUNSELOR T. H UTCHINS , C ORRECTION O FFICER A. L A C LAIR , C ORRECTION O FFICER J ANE D OE , C ORRECTION O FFICER J OHN R OE , L IEUTENANT D U B RAY , C ORRECTION O FFICER R. R ICHARD , H EARING O FFICER C HO D ROWN , S ERGEANT M ARLOW , C ORRECTION O FFICER A SHLAW , C ORRECTION O FFICER G HOSTLAW , C ORRECTION O FFICER K ISSANE , S TEWARD J. K ELLY , C ORRECTION O FFICER J OHN D OE , C ORRECTION O FFICER J OHNM OE , H EARING O FFICER M. S MITH , E STATE OF C URTIS D ROWN , S UBSTITUTED FOR D EFENDANT C HO D ROWN , Defendants-Appellees

.

_____________________________________ FOR PLAINTIFF-APPELLANT: H. Patrick Barclay, pro se, New York, NY.

FOR DEFENDANTS-APPELLEES: 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, NY.

Appeal from a judgment of the United States District Court for the Northern District of New York (Strom, J

. 1 ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED

. Appellant H. Patrick Barclay, formerly an in mate in the custody of the New York State Department of Corrections and Community Serv ices (“DOCCS”), proceedi ng pro se, appeals the district court’s partial grant of summary judgment dismissing his clai m related to the denial of his request to attend his mother’s fune ral, and his claim that he was re taliated against for exercising his protected religious rights. He also appeals the jury verdict, which found for the defendants on the remainder of his claims, arguing th at various errors deprived him of a fair trial. We assume the parties’ familiarity with the underlying facts, the procedural hi story of the case, and the issues on appeal.

1 The Honorable Lyle E. Strom, of the United States District Cour t for the District of Nebraska, sitting by designation.3 We review a district court’s gr ant of summary judgment de novo. Back v. Hastings on

Hudson Union Free Sch. Dist. , 365 F.3d 107, 122 (2d Cir. 2004) . Summary judgment is appropriate when, viewing the evidence in the light most favorable to the non-moving party, Nabisco, Inc. v. Warner-Lambert Co. , 220 F.3d 43, 45 (2d Cir. 2000), “t here is no genuine dispute as to any material fact and the movant is entitl ed to judgment as a matter of law,” Fed. R. Civ. P. 56(a). “A dispute is not ‘genuine ’ unless ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Nabisco , 220 F.3d at 45 (quoting Anderson v. Liberty Lobby,

Inc. , 477 U.S. 242, 248 (1986)). “We review a district court’s evidentiary ru lings for abuse of disc retion, and will reverse only for manifest error.” Cameron v. City of New York , 598 F.3d 50, 61 (2d Cir. 2010) (quoting Manley v. AmBase Corp. , 337 F.3d 237, 247 (2d Cir. 2003)) (inter nal quotation marks omitted). We also review for abuse of discretion rulings that resolve objections to assigned pro bono

counsel. See Carpenter v. Republic of Chile , 610 F.3d 776, 780 (2d Cir. 2010).

I. Partial Summary Judgment

The Prison Litigation Reform Act of 1995 (“PL RA”) mandates that inmates exhaust the

administrative remedies available to them before they seek relief in federal court for any suit concerning prison life. See Porter v. Nussle , 534 U.S. 516, 532 (2002). The PLRA requires “proper exhaustion,” which means “using all st eps that the agency holds out, and doing so properly.” Woodford v. Ngo , 548 U.S. 81, 90 (2006) (quoting Pozo v. McCaughtry , 286 F.3d 1022, 1024 (7th Cir. 2002)) (emphasis omitted). Th is entails completing the administrative review process in accordance with the procedural rules prescrib ed by the relevant state prison grievance process, and providing “[ t]he level of detail necessary in a grievance to comply with the4 grievance procedures.” Jones v. Bock , 549 U.S. 199, 218 (2007). The district court correctly ruled that Barc lay had failed to exha ust his administrative remedies with respect to the denial of his f uneral request. Although the court did not expressly address the issue, Barclay’s assertion that a November 2000 letter to the DOCCS Commissioner constituted “proper” exhaustion lacks merit. Th is letter, which was not part of the summary judgment record and was admitted at trial for other purposes, was entirely concerned with a separate, unrelated grievance, a nd contained only a sing le sentence referenci ng the denial of his funeral request. Even if the letter’s lone refere nce to the denial of Barclay’s funeral request was enough to notify prison officials of the nature of his grievance, such an informal complaint is insufficient to satisfy the PL RA’s exhaustion requirement. See Macias v. Zenk , 495 F.3d 37, 43-44 (2d Cir. 2007) (holding that informal compla ints alerting prison officials to nature of grievance were not “p roper exhaustion”). Barclay’s argument on appeal , that the legal materials a llegedly confiscated from him contained additional evidence of his proper exhaustion, is similarly unavailing. By his own admission, the alleged confiscation of these ma terials took place in August 2009. The district court granted summary judgment, in part based on Barclay’s failure to exhaust, in March 2009. Thus, the alleged confiscation some five months after the court’s ruling did not prevent Barclay from presenting to the court any relevant legal ma terials bearing on the issue of exhaustion prior to its ruling. The district court also correctly ruled that Barclay’s First Amendment retaliation claim was entirely conclusory, as he had not pleaded any facts that suggested a retaliatory motive for the

treatment of his kufi. To succe ed on a First Amendment retali ation claim under § 1983, a prisoner5 must establish “(1) that the [ac tivity] at issue was protected, (2 ) that the defendant took adverse action against the plaintiff, and (3) that ther e was a causal connection between the protected [activity] and the adverse action.” Espinal v. Goord , 558 F.3d 119, 128 (2d Cir. 2009) (quoting Gill v. Pidlypchak , 389 F.3d 379, 380 (2d Cir. 2004)) (internal quotation marks omitted). There was no evidence in the record to suggest a causal connection between Barcla y’s protected religious activity and the alleged treatment of his kufi. In opposing defe ndants’ properly supported motion for summary judgment, Barclay was not entitled to rely on his own conclusory allegations. See,

e.g. , Gottlieb v. County of Orange , 84 F.3d 511, 518 (2d Cir. 1996); Kulak v. City of New York , 88 F.3d 63, 71 (2d Cir. 1996).

II. Pre-trial Motions With respect to Barclay’s motion for the return of allegedly confiscated legal materials, as well as the related requests for a spoliation inference and to be allowed to argue to the jury that such a confiscation occurred, the district cour t reasonably rejected th e requests, given the undisputed evidence that the defendants had not im properly confiscated Barclay’s legal papers. Barclay confirmed that he had been offered a ba g of legal materials bearing his name that he refused to accept, and that the ba g was thereafter securely stored at Elmira Correctional Facility. And he admitted at trial that the bag remained secure ly stored there. At that point, Barclay was no longer incarcerated, having been re leased in February 2011, and was free to retr ieve the bag from

Elmira. His failure to do so belies his assertion th at the bag’s contents were necessary for him to adequately prosecute his claims. The district court also reasonably denied Ba rclay’s motion to re-open discovery on the eve

of trial so that he could obtain records for hi s recent medical treatment and a court-appointed6 expert to evaluate the integrity of the videotap e purporting to show the June 2001 pat frisk that Barclay claimed injured him. Barclay initiate d this action in 2002, and discovery closed in February 2008. In opposing the defendants’ su mmary judgment motion in March 2008, Barclay did not argue that he required addi tional discovery. However, nearly four years later, he moved to re-open discovery less than two months before th e scheduled trial date. As the district court noted, the medical records that Barclay sought to obt ain were unlikely to be relevant to his claims, which were by then ten years old. And Barclay ha d never been denied access to the videotape; he had ample opportunity to seek an e xpert to review its integrity be fore discovery was closed. The

court was thus well within its discretion in denying the motion. See Burlington Coat Factory Warehouse Corp. v. Esprit de Corp. , 769 F.2d 919, 925-28 (2d Cir. 1985). On appeal, Barclay for the first time challeng es the medical records that were filed under seal in connection with the defendants’ summary judgment motion, arguing that he was prejudiced by the denial of his motion to re-open discovery because he was thereby prevented from rebutting

those records with his own medical evidence regarding the injuries he allegedly sustained in the June 2001 pat frisk. This argument is meritless. The records Barclay challenges pertain to his continued need for a cane on or before February 2000, and are thus irrelevant to any injuries allegedly sustained thereafter. Barclay also argues that discovery was not in f act closed when he made his motion, but that the discovery deadline had been stayed for purposes of mediation, that he r eceived no notice of the deadline’s reinstatement, and that the court allowed the deposition of defendant Selsky to proceed after the supposed closing of discovery in Febr uary 2008. This argument is similarly without merit. The record reflects that Barclay was advi sed that discovery had cl osed in February 2008,7 and that his opposition to the defendant’s summar y judgment motion would be due in March.

The case was indeed referred for mediation in July 2009, but nothing in the referral order suggested that discovery had been re-opened or stayed. Selsky’s video deposition, which took place in April 2012, was not cond ucted for traditional discovery purposes, but was taken in anticipation of Selsky’s una vailability for trial.

III. Trial Rulings

The district court did not abuse its discretion in denying Barclay’s request for substitute pro bono counsel. Barclay claimed that his appo inted counsel was insufficiently zealous, as evidenced by counsel’s involvement in the Se lsky deposition and failure to obtain favorable rulings on Barclay’s pre-trial motions. Howeve r, counsel protected Barclay’s interests by conducting a cross-examination of Selsky at his video depositi on, and the court’s denial of Barclay’s meritless motions does not reflect a l ack of zealousness on the part of his attorney. On appeal, Barclay argues that he should have been permitted to proceed pro se. However, to exercise his right to self-representa tion, Barclay had to assert the right in a timely manner, “preferably before trial,” and he had to “clearly and unequivocally discharge any lawyer previously retained.” Iannaccone v. Law , 142 F.3d 553, 558 (2d Cir. 1998). Barclay did neither; he waited until trial had already commenced to ma ke his request for new counsel, and, when the court, in its discretion, denied his request, he pr oceeded with the lawyer he had. Barclay did not ask to be allowed to proceed pro se. Thus, Barcla y was not denied his right to self-representation. Barclay’s argument that the cour t should have struck the jury pool is also without merit.

Juries in the Northern District are selected at random from voter registration lists, pursuant to 28 U.S.C. § 1863. See Northern District General Order 24, approved by the Circuit Council of the8 Second Circuit on January 16, 2009, reprinted in McKinney’s New York Rule s of Court, Vol. II— Federal District Courts 903-11 (2012 ed.). The use of voter registration lists as the sole source of names for jury selection wa s approved by this Court in United States v. Guzman , 468 F.2d 1245, 1247-49 (2d Cir. 1972). Barclay nevertheless ar gues that the jury pool in his case was unrepresentative. To raise such a challenge, he was required to follow the procedures set forth in 28 U.S.C. § 1867(c) and (d), requiring the filing of a motion with “a sworn statement of facts which, if true, would constitute a substantial failur e to comply with the provisions” of the Jury Selection and Service Act. 28 U.S.C. § 1867( d). Under § 1867(e), that procedure is the exclusive method by which a party in a civil case may challenge a jury as unrepresentative. Because Barclay failed to comply with these procedures, his challenge to the jury pool must fail.

See United States v. Jones , 480 F.2d 1135, 1139 (2d Cir. 1973). Finally, Barclay cannot show ma nifest error in any of the district court’s evidentiary

decisions. See Cameron , 598 F.3d at 61. With respect to the admission of the videotape depicting the June 2001 pat fris k, and contrary to Barclay’s ar gument on appeal, the defendants laid a proper foundation for the tape, which the court correctly found to be adequate. The court also reasonably allowed the admissi on of the photographs de picting Barclay in his cell. The photos themselv es refute Barclay’s argument on appeal that they were “inflammatory.” One photo showed Barclay sitti ng on his bed, and the other showed him with his hand pressed against the window pane of his ce ll. Nothing about these photos is unfairly prejudicial. The court’s admission of the Selsky video deposition under Fed. R. Civ. P. 32 was similarly not an abuse of discretion. Rule 32(a)(4) provides for the use of deposition testimony9 when a witness is unavailable. And, when a witn ess’s unavailability for tr ial is anticipated in advance, “depositions, including video depositions , provide a superior means” of securing the witness’s testimony for trial. Fed. R. Civ. P. 43, Advisory Committee Notes. Barclay does not challenge Selsky’s unavailability for trial. Instead, he argues that the court’s refusal to allow him to be present for the video deposition denied hi m his Sixth Amendment right of confrontation, and that, since discovery had already closed, it was unfair to allow the deposition to proceed while denying his own requests to re-o pen discovery. However, the Sixth Amendment right of confrontation does not appl y in this civil action. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”). And, as discussed above, the Selsky deposition was not conducted for discovery purposes, but rather, was convened due to Sels ky’s anticipated unavailability for trial. We have considered all of Barclay’s argumen ts and find them to be without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O = Hagan Wolfe, Clerk