Linares v. McLaughlin , 423 F. App'x 84 ( 2011 )

10-1267-pr
Linares v. Mahunik
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 1st day of June, two thousand eleven.
PRESENT: JOHN M. WALKER, JR.,
BARRINGTON D. PARKER,
DENNY CHIN,
Circuit Judges.
- - - - - - - - - - - - - - - - - - - -x
JORGE LINARES,
Plaintiff-Appellant,
-v.- 10-1267-pr
KENNETH MCLAUGHLIN,
Defendant,
DAVID MAHUNIK, JOHN BURGE,
Defendants-Appellees.
- - - - - - - - - - - - - - - - - - - -x
FOR DEFENDANT-APPELLANT: JORGE LINARES, pro se, Cape
Vincent, New York.
FOR APPELLEE: FRANK BRADY, Assistant Solicitor
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, Albany, New York.
Appeal from a judgment of the United States District
Court for the Northern District of New York (Suddaby, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Jorge Linares, proceeding pro se, appeals
from a judgment of the district court dismissing his complaint
brought pursuant to 42 U.S.C. § 1983 alleging, inter alia, First
Amendment retaliation. We assume the parties' familiarity with
the underlying facts and the procedural history of the case.
On appeal, Linares raises two arguments:
(1) defendants' motion for summary judgment was barred by res
judicata; and (2) the district court erroneously determined that
he failed to exhaust his claim that corrections officer David
Mahunik retaliated against him on April 17, 2005. Because he has
not raised any other issues on appeal, we consider his remaining
claims abandoned. See Cruz v. Gomez, 202 F.3d 593, 596 n.6 (2d
Cir. 2000).
Linares's res judicata argument is rejected, as
different standards apply to Rule 12(b)(6) motions to dismiss and
Rule 56 motions for summary judgment. On a motion to dismiss, a
district court "must accept all allegations in the complaint as
true and draw all inferences in the non-moving party's favor."
Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003) (internal quotation marks omitted). The denial of a
defendant's motion to dismiss is not a final determination on the
merits barring further litigation of the claims in question under
-2-
the doctrine of res judicata. See Allen v. McCurry, 449 U.S. 90,
94 (1980); Bernard v. Cnty. of Suffolk, 356 F.3d 495, 501-02 (2d
Cir. 2004). Even after denying a motion to dismiss, a district
court may still grant a summary judgment motion if, based upon
the evidence presented, there was no genuine dispute as to any
material fact and the moving party was entitled to judgment as a
matter of law. Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). Thus, Linares's
argument is without merit.
As for Linares's second argument, the district court in
fact held that he did administratively exhaust his claim that
Mahunik retaliated against him on April 17, 2005 by placing a
weapon in his cell and filing a false misbehavior report against
him. Linares v. Mahunik, No. 05 Civ. 625 (GTS) (RFT), 2009 WL
3165660, at *4-5, 11 (N.D.N.Y. Sept. 29, 2009). We therefore
construe this argument as a challenge to the district court's
dismissal of his retaliation claim on the merits.
This Court reviews a grant of summary judgment de novo,
applying the standard applied by a trial court. See Miller, 321
F.3d at 300. To establish a case of retaliation in violation of
the First Amendment, a plaintiff must demonstrate that: (1) he
engaged in protected conduct; (2) the defendant took adverse
action against him; and (3) there was a causal connection between
the two. See Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003). A grievance against a prison official is "protected
conduct." See Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002).
-3-
Linares alleged that Mahunik was aware of prior
informal complaints he made against Mahunik to Deacon John
Tomandle and retaliated against Linares because he made those
complaints. Upon close of discovery, however, Linares presented
no evidence that Mahunik was aware of these informal complaints.
Moreover, Linares testified at deposition that he had no idea why
Mahunik had been harassing him and that it might have been
related to his criminal conviction, contradicting his claim that
Mahunik retaliated against him for making informal complaints.
He also failed to submit his own affidavit or an affidavit from
Deacon Tomandle to support his claim. Although Linares requested
permission to depose Deacon Tomandle, he only did so for the
first time in his objections to the magistrate judge's report and
recommendation on summary judgment -- well after the close of
discovery. We thus conclude that Linares failed to meet his
burden upon summary judgment. See Washington v. Cnty. of
Rockland, 373 F.3d 310, 321 (2d Cir. 2004) (holding that, where
movant at summary judgment demonstrates absence of genuine issue
of material fact, burden shifts to nonmovant to adduce evidence
establishing existence of an issue of material fact).
We have considered Linares's other arguments on appeal
and have found them to be without merit. For the foregoing
reasons, the judgment of the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
-4-