Free USCA Mandate - District Court of Connecticut - Connecticut

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{ . `· Case 3·O2-cv—O1609-AWT Document 71 Fnled O3 I
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{ ‘ I UNITED STATES comzcr or O2 C`] {6
{ FOR THE SECOND CIRCU2i§[{1j* TMOM SOA
{ SUMMARY ORDER U (__
{ THIS SUMMARY ORDER WILL NOT BE {FEDERAL -
I REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO
{ THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF
{ THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN
{ A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL
{ A ESTOPPEL OR RES JUDICATA. _ {
{ I At a stated term of the United States Court of Appeals_
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, at Foley Square, in the City of New York,
on the 15rhday of February two thousand and six.
PRESENT: €,,{,_·g$_5_(:;Q{0¤zrUF
HON. DENNIS JACOBS, 49* **-*5.,%
HON. JOSE A. CABRANES, SQ
HON. ROBERT D. SACK,. :3 FEB 1 5 2006 "’
CIRCUIT JUDGES. We
_____ _ _________ _ ____. 6.£g!I_é&¤cRn:¥¤;;u<`{ _ X
DUANE ZIEMBA, I (AND CEB ’
Plaintiff~Appellant,
-V_- No. O5—I1.6I3—pr
MARGARET CLARK, Ind, JOHN J.
` ARMSTRONG, Ind, LARRY MYERS, Ind, . S
Defendants~Appellees.
_ ____ _ ____ - - ..... - E.--- - ———— —X .
APPEARING FOR PLAINTIFF—APPELLANT: DUANE ZIEMBA, Lrg g,
Newtown, CT (Q_1I
submission) {
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{I _ - Case 3:02-cv-016O WT Document 71 Filed O3/2g§OO6 Page20f4
1
| APPEARING FOR DEFENDANTS~APPELLEES: MATTHEW B. BEIZER,
[ Assistant Attorney
1 General, (Richard
· Blumenthal, Attorney
1 General, on_the brief),
) Hartford, CT, (gg
1 submission) i
1 5 1
i 3 Appeal from the United States District Court for the `
i 4 District of Connecticut (Thompson, gg).
5 .
6 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
7 DECREED that the judgment of the district court be AFFIRMED.
. 8 .
i 9 Plaintiff—Appellant Duane Ziemba challenges the
( 10 judgment of the district court, dismissing on summary
~ 11 judgment his 42 U.S.C. § 1983 claims against three employees
12 of the Northern Correctional Institution (“Northern”): Nurse
13 Margaret Clark, Commissioner John Armstrong, and Warden
14 Larry Myers. We assume that the parties are familiar with
15 the facts, the procedural history, and the scope of the
16 issues presented on appeal.
17
18 (1) The district court dismissed claims involving
19 conduct occurring prior to September 1999 on the basis of
20 the “prior pending action" doctrine. A district court may
21 stay or dismiss a suit that is duplicative of another ,
22 federal court suit as part of its general power to j
23 administer its docket. Curtis v. Citibank, N.A., 226 F.3d
24 133, 138 (2d Cir. 2000). We review such dismissals of
25 claims for an abuse of discretion; we find no abuse here.
26 Ziemba has filed multiple actions in the district court: at
27 least two that pre—date this action and include Ziemba's
28 claims regarding the 1998 and pre—September 1999 events at
29 Northern. The district court acted within its discretion in
30 dismissing claims that are the subject of other, earlier .
l 31 lawsuits.
32
33 (2) Ziemba challenges the grant of summary judgment on
34 his retaliation claims. We review an order granting summary
35 judgment dg novo. See Eeingold v. New York, 366 F.3d 138,
36 148 (2d Cir. 2004). In determining whether there are
37 genuine issues of material fact, we are “required to resolve
38 all ambiguities and draw all permissible factual inferences
39 in favor of the party against whom summary judgment is
Q- i
y 7 (

| .
I _ ° Case 3:02-cv-O16OHH@WT Document 71 Filed O3/2g%%OO6 Page30f4
) l sought." ldg (internal quotation marks omitted). However,
2 reliance on conclusory statements or mere allegations is
i 3 insufficient to defeat a summary judgment motion. gee Ying `
i 4 Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. (
W 5 1993). 1
. 6 , , _ , 1
1 7 A retaliation claim will not survive summary judgment {
= 8 unless the plaintiff discharges his burden to show: “(1)
I 9 that the speech or conduct at issue was protected, (2) that y
10 the defendant took adverse action against the plaintiff,_and
H (3) that there was a causal connection between the protected I
12 speech and the adverse action.” Dawes v. Walker, 239 F.3d · -
13 489, 492 (2d Cir. 2001), overruled on other groungg, . .
14 Swierkiewicz v. Sorema Nggg, 534 U.S. 506 (2002). ‘
15
i 16 _With respect to defendant Nurse Clark, Ziemba alleges
17 that she subjected him to a four~point restraint in October
18 1999, and falsified records regarding the incident in
19 retaliation for his suing her. However Ziemba fails to
20 I allege any facts to show that Clark even knew of his
21 lawsuits against other employees of Northern prior to July
22 2000 (Clark herself was not named in a lawsuit until then). _
23 Ziemba has therefore failed to show that Clark had an
24 improper motive, and the district court properly granted
25 summary judgment for Clark. `
26
27 With respect to defendants Commissioner Armstrong and
28 Warden Myers, Ziemba claims they retaliated against him for ·
29 his filing of prior lawsuits by failing to remedy violations i
30 he complained of and failing to adequately supervise prison -
31 employees. To prevail under a theory of supervisory .
32 liability, a plaintiff must show that the defendant: (i)
33 personally participated in the alleged constitutional
34 violation, (ii) was grossly negligent in supervising
35 subordinates who committed the violation, or (iii) exhibited
36 deliberate indifference to his rights by failing to act on
37 information indicating that unconstitutional acts were
38 occurring. gee Provost v. City of Newburgh, 262 F.3d 146,
39 154 (2d Cir. 2001). Ziemba provide no evidence of
40 unconstitutional violations occurring in or after September .
41 1999 in which either Armstrong or Myers participated
42 personally, or as to which they were grossly negligent in
43 their supervising duties or deliberately indifferent to his
44 rights. Accordingly, defendants Armstrong and Myers were
45 entitled to summary judgment.
46
3-
1

. . - . Case 3§O2-CV-O160 VVT Document 71 Filed O3/256006 Page4¤f4
1** _ J: /
1 For the forsgoing rsasons, tho judgment; of the district I `
2 court; is AFFIRMED.
N 3
4 FOR THE COURT: i
i 5 Rossann B. Ma Kschnis, Clerk
6 .. /l
7 _ By: `
8
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