18-3269 Ford v. Deacon 

## 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 (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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 25 th day of November, two thousand nineteen. 3 4 PRESENT: 5 RICHARD C. WESLEY, 6 DEBRA ANN LIVINGSTON, 7 JOSEPH F. BIANCO, 8 Circuit Judges. 9

_____________________________________ 10 11 Corey Ford, 12 13 Plaintiff-Appellant , 14 15 v. 18-3269 16 17 Sgt. R. Deacon, Shawangunk Correctional 18 Facility, C.O. J. Phillips, Shawangunk 19 Correctional Facility, AKA T. Phillips, 20 Christopher Miller, Superintendent, Great 21 Meadow Correctional Facility, R. Eastman, 22 Deputy Superintendent of Security, Great 23 Meadow Correctional Facility, Sgt. C. Fraser, 24 Great Meadow Correctional Facility, C.O. 25 Daniel McClenning, Great Meadow Correctional 26 Facility, 27 28 Defendants-Appellees , 29 30 Albert Prack, Director of Special Housing Unit 31 (SHU), Anne M. McGrath, Assistant 322 Commissioner of Movement and Control of 33 DOCCS, Veron J. Fonda, Director of Inspector 34 General’s Office of DOCCS, AKA Vernon J. 35 Fonda, E. Demo, Investigator of the Inspector 36 General’s Office of DOCCS, 37 38 Defendants . 39

_____________________________________ 40 41 FOR PLAINTIFF-APPELLANT: Corey Ford, pro se , Auburn, NY. 42 43 FOR DEFENDANTS-APPELLEES: Barbara D. Underwood, Solicitor General, 44 Victor Paladino, Brian D. Ginsberg, 45 Assistant Solicitors General, for Letitia 46 James, Attorney General of the State of New 47 York, Albany, NY. 48 49 50 Appeal from a judgment of the United States Dist rict Court for the Nort hern District of New 51 York (D’Agostino, J. ; Dancks, M.J. ). 52
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 53 DECREED that the judgment of the district court is AFFIRMED

. 54 Appellant Corey Ford, pro se , sued corrections officers a nd prison officials under 42 U.S.C. 55 § 1983, alleging violations of the First, Eighth, and Fourteenth Amendments. He generally alleged 56 that corrections officers retaliated against him for assaulting another corre ctions officer and for 57 filing grievances by labeling him a gang member in order to keep him in the Special Housing Unit 58 (“SHU”); assigning him to prison ce lls that were kept in poor condition; and throwing away his 59 legal papers. He also asserted procedural due process violations in relation to his placement in 60 administrative segregation. A magistrate judge recommended granting summary judgment in 61 favor of the defendants and the di strict court adopted the recommendation. We assume the parties’ 62 familiarity with the underlying fact s, the procedural history of the case, and the issues on appeal. 633 We review a grant of summary judgment de novo , “resolv[ing] all ambiguities and 1 draw[ing] all inferences ag ainst the moving party.” Garcia v. Hartford Police Dep’t , 706 F.3d 2 120, 126–27 (2d Cir. 2013) (per curiam). “Summary judgment is proper only when, construing 3 the evidence in the light most fa vorable to the non-movant, ‘there is no genuine dispute as to any 4 material fact and the movant is entitl ed to judgment as a matter of law.’” Doninger v. Niehoff , 642 5 F.3d 334, 344 (2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). 6 I. First Amendment Retaliation 7 “To prove a First Amendment reta liation claim under Section 1983, a prisone r must show 8 . . . (1) that the speech or conduct at issue was pr otected, (2) that the defendant took adverse action 9 against the plaintiff, an d (3) that there was a ca usal connection between the protected speech and 10 the adverse action.” Espinal v. Goord , 558 F.3d 119, 128 (2d Cir. 20 09) (quotation marks and 11 citation omitted). On appeal, Ford asserts that th e December 2013 search of his cell and 12 subsequent labeling of him as a Bloods gang member constituted retaliation for filing grievances 13 against Sargent Richard Deacon. 14 Ford failed to offer sufficient eviden ce showing that the December 2013 search was 15 conducted in retaliation for the grievances he filed against Deacon. Deacon denied ordering any 16 search of Ford’s cell. Ford did not offer any ev idence establishing what role, if any, Deacon had 17 in the December 2013 search, an d a contraband form showed that other corrections officers 18 conducted the search. The only possible connection between the two events is temporal proximity: 19 Ford filed a grievance against Deacon in August 2013 and the search occurred four months later. 20 But temporal proximity alone, particularly where th e time lapse is four months, is insufficient to 21 establish a retaliation claim. See Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995) (noting that 224 if the only evidence of causal connection was tem poral proximity or circ umstantial evidence, “we 1 might be inclined to affirm the grant of su mmary judgment based on the weakness of Colon’s 2 case”); Williams v. King , 763 F. App’x 36, 38–39 (2d Cir. 2019); Neron v. Cossette , 419 F. App’x 3 123, 124 (2d Cir. 2011). 4 Although Ford asserted that Deacon later obtain ed a greeting card seized from his cell and 5 labeled him a gang member as a result, there is little connecting this act to Ford’s August 2013 6 grievance because Deacon was not involved in th e search and would have no control over what 7 items were confiscated. Further, Ford’s ultimate allegation—that Deacon sought to label Ford as 8 a gang member to keep him in the SHU—is not s upported by the record. Ford’s later placement 9 in administrative segregation was not only base d on Deacon’s statement that Ford was a gang 10 member, but also based on confirmation from an inve stigator in DOCCS’s central office, and Ford’s 11 overall disciplinary history. Ford therefore failed to establish that his ultimate label as a gang 12 member and placement in segr egation were connected to hi s grievances against Deacon. See Scott 13 v. Coughlin , 344 F.3d 282, 287–88 (2d Cir. 2003) (First Am endment retaliation claim fails where 14 defendants can show that the alle ged retaliatory action would have occurred without the retaliatory 15 motive). 16
II. Procedural Due Process 17 A. Administrative Segregation Hearing 18 To state a claim under § 1983 fo r denial of due process aris ing out of an administrative 19 segregation hearing, a plaintiff mu st show both that he: (1) possesse d an actual liberty interest; and 20 (2) was deprived of that interest without being afforded sufficient process. See Ortiz v. McBride , 21 380 F.3d 649, 654 (2d Cir. 2004). “To be actionable, th e liberty interest must subject the prisoner 225 to ‘atypical and significant hardship . . . in rela tion to the ordinary incidents of prison life.’” Vega 1 v. Lantz , 596 F.3d 77, 83 (2d Cir. 2010) (quoting Sandin v. Conner , 515 U.S. 472, 484 (1995)). 2 Even assuming that Ford has a liber ty interest based on his placement in administrative segregation, 3 he received adequate due process at his hearing. 4 Prior to placing a prisoner in administrat ive segregation, prison officials must provide 5 “some notice of the charges against him and an opport unity to present his views to the prison official 6 charged with deciding whether to transfer h im to [administrative segregation,] although not 7 necessarily a full hearing.” Proctor v. LeClaire , 846 F.3d 597, 609 (2d Cir. 2017) (quotation marks 8 omitted). Once this has occurred, officials need only conduct an informal review to determine 9 whether segregation is justified, and the final deci sion may rest on “‘pure ly subjective evaluations 10 and on predictions of future behavior.’” Id. (quoting Hewitt v. Helms , 459 U.S. 460, 474 (1983)). 11 Here, the record reflects that Ford was given bot h notice of the charges and an opportunity to be 12 heard on the segregation recomm endation at the hearing. 13 Ford primarily asserts that he did not receive adequate due process because Deputy 14 Superintendent Rodney Eastman, the hearing officer, fa iled to (1) permit Ford access to emails sent 15 by Deacon and a DOCCS inspector claiming that Ford was a gang member and (2) have Deacon 16 and the DOCCS investigator testify. But due pro cess did not require Eastma n to provide access to 17 the emails sent by Deacon. Ford received notice of th e administrativ e segregation 18 recommendation, including the fact that Sergeant Co lin Fraser recommended itin part based on his 19 gang membership and his history of violence. Although Ford did not receive the emails forming 20 the basis of the gang membership allegation prior to the hearing, the notice was sufficient for him 21 to respond to the recommendation and ask questions of Fraser, who did testify. See Taylor v. 226 Rodriguez , 238 F.3d 188, 193 (2d Cir. 2001) (notice is suffic ient when it include s specific facts to 1 enable a prisoner to respond them). And Fraser’s testimony at the hearing established that Deacon 2 and the investigator were the source for Fraser’s conclusion that Ford was a gang member. The 3 emails were not necessary to ob tain this information. Finall y, Ford never requ ested that any 4 witnesses testify. Because the no tice was sufficient for Ford to re spond to the charges and he had 5 the opportunity to learn the basis of Fraser’s be lief, Ford was afforded sufficient notice. 6 Ford further argues that Ea stman’s decision was arbitrary because no evidence had been 7 offered to support it. But this argument is meritless. Eastman’s decision was based on a review 8 of Ford’s disciplinary history, hi s behavior, and Fraser’s testimony. See Superintendent, Mass. 9 Corr. Inst., Walpole v. Hill , 472 U.S. 445, 454 (1985) (To meet “t he minimum requirements of 10 procedural due process,” a prison disciplinary de cision must be “supported by some evidence in the 11 record.” (quotation marks and citation omitted)). 12
B. Administrative Segregation Reviews 13 Once a prisoner is placed in administrative segregation, prison officials must conduct a 14 periodic review of the confinem ent to determine whether the pris oner remains a security risk. 15
Proctor , 846 F.3d at 609. Ford argues that he was denied appropriate revi ews because the first 16 review occurred 105 days after his placement in admin istrative segregation, rather than the 60 days 17 provided in DOCCS regulations. But a mere violation of state regulations does not amount to a 18 denial of due process under the Constitution. Bolden v. Alston , 810 F.2d 353, 358 (2d Cir. 1987). 19 Moreover, Ford remained in administrative segregation following his first review. See DeMichele 20 v. Greenburgh Cent. Sch. Dist. No. 7 , 167 F.3d 784, 790 (2d Cir. 1999) (“ [P]roof of prejudice is 217 generally a necessary but not su fficient element of a due pro cess claim.” (quotation marks and 1 citation omitted)). 2 Ford further argues that he did not receive an impartial review because Eastman, who 3 initially placed him in administrative segregation, served on the review committee. But there was 4 no conflict of interest because the purpose of th e periodic reviews was not to review Eastman’s 5 initial decision, but rather to dete rmine if continued confinement in administrative segregation was 6 warranted. See 7 N.Y.C.R.R. § 301.4(d). Therefore, Ford did not establish a due process 7 violation based on the periodic reviews. 8
III. Conditions of Confinement 9 To state an unsafe conditions of confinement cl aim, “the plaintiff must demonstrate that he 10 is incarcerated under conditions posing a substantia l risk of serious harm. . . . [and] that the 11 defendant prison officials possessed sufficient culpable intent.” Hayes v. N.Y.C. Dep’t of Corr. , 12 84 F.3d 614, 620 (2d Cir. 1996). A prison official po ssesses “culpable intent if he has knowledge 13 that an inmate faces a substantial risk of serious harm and he disreg ards that risk by failing to take 14 reasonable measures to abate the harm.” Id. 15 Even assuming that Ford offered sufficient ev idence to show an objective risk of harm 16 caused by the conditions in his cell, Ford failed to show that Eastman, Fraser, or Superintendent 17 Christopher Miller had culpable in tent. All three defendants stated that they had no involvement 18 in Ford’s cell assignment and had no knowledge of or responsibility for cell conditions. Ford 19 offered no evidence to contradict their statements . At most, Ford argued that Miller received 20 Ford’s grievances about his cell conditions, but this is not sufficient to establish that Miller 21 disregarded the risk by failing to take reasonable measures. Miller reviewed all the investigations 228 performed and confirmed that, where actual issu es were found, the prison was repairing or had 1 repaired the condition. Ford did not offer eviden ce to dispute that the prison exam ined the cell 2 conditions once he filed his grievances. See Farmer v. Brennan , 511 U.S. 825, 844 (1994) 3 (“[P]rison officials who actually knew of a substantia l risk to inmate health or safety may be found 4 free from liability if they responde d reasonably to the risk, even if the harm ultimately was not 5 averted.”). 6 IV. Denial of Access to the Courts 7 The Supreme Court has long recognized that pris oners have a right to meaningful access to 8 the courts and that prison officials are barred fr om “actively interfering with inmates’ attempts to 9 prepare legal documents.” Lewis v. Casey , 518 U.S. 343, 350 (1996). “To state a claim for 10 denial of access to the courts . . . a plaintiff must allege that the defendant took or was responsible 11 for actions that hindered [the] plainti ff’s efforts to pursue a legal claim.” Davis v. Goord , 320 F.3d 12 346, 351 (2d Cir. 2003) (quotation marks and citation omitted). 13 Ford failed to offer sufficient evidence to s how that Officer Daniel McClenning threw away 14 his legal papers. Ford stated he packed his own ba gs when preparing to tran sfer to a new institution 15 and he did not offer any evidence to contradict McClenning’s stat ement that he was not present 16 when Ford packed his belongings, that he had no ot her contact with Ford’s property, and that prison 17 workers were responsible for lo ading the transport van. Even assuming that McClenning ordered 18 Ford to sign an additional form, it does not show th at McClenning had any other contact with Ford’s 19 property. Because Ford did not establish that McClenning had any involvement in the 20 disappearance of his legal papers, the district court pr operly determined that the defendants were 21 entitled to summary judgment on th is claim. To the extent that Ford also asserts a First 229 Amendment retaliation claim against McClenning fo r the same acts, that claim also fails because 1 Ford did not establish that McClenni ng took any adverse act against him. See Espinal , 558 F.3d 2
at 128. 3 We have reviewed the remainder of Ford’s ar guments and find them to be without merit. 4 For the foregoing reasons, the judg ment of the district court is AFFIRMED

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FOR THE COURT: 6 Catherine O’Hagan Wolf e, Clerk of Court 7