Walker v. Senecal

1
23-6557
Walker v. Senecal
In the
United States Court of Appeals
FOR THE SECOND CIRCUIT
AUGUST TERM 2024
No. 23-6557
C ARLTON WALKER,
Plaintiff-Appellant,
v.
RICHARD S ENECAL, BRIAN BENWARE,
Defendants-Appellees.*
On Appeal from the United States District Court
for the Northern District of New York
ARGUED: N OVEMBER 22, 2024
D ECIDED: MARCH 6, 2025
Before: LIVINGSTON, Chief Judge, and J ACOBS and MENASHI ,
Circuit Judges.
Plaintiff-Appellant Carlton Walker sued state officials and
prison officers under 42 U.S.C. § 1983 for violations of his
constitutional rights to freedom of speech, due process, and the equal
protection of the laws. The district court either dismissed the claims
* The Clerk of Court is directed to amend the caption as set forth above.

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or awarded summary judgment to the defendants. We conclude that
Walker identified a genuine dispute of material fact as to whether an
officer’s destruction of a draft amended complaint, the officer’s threat
of retaliation if Walker were to file a grievance about the destruction,
and a physical assault by other officers who repeated the threat—
taken together—amount to an adverse action that was causally
related to his protected speech and therefore violated his right to
freedom of speech. We vacate the judgment of the district court with
respect to that claim and remand for further proceedings. We affirm
the judgment in all other respects.
MEHWISH ASLAM S HAUKAT (Gregory Cui, on the brief),
Roderick & Solange MacArthur Justice Center,
Washington, DC, for Plaintiff-Appellant.
B EEZLY J. KIERNAN, Assistant Solicitor General (Barbara
D. Underwood, Solicitor General, Andrea Oser, Deputy
Solicitor General, on the brief), on behalf of Letitia James,
Attorney General of the State of New York, New York,
NY, for Defendants-Appellees.
PER C URIAM:
Based on his treatment as an inmate at the Bare Hill
Correctional Facility, Plaintiff-Appellant Carlton Walker sued New
York State officials and prison officers under 42 U.S.C. § 1983 for
alleged violations of his constitutional rights to freedom of speech,
due process, and the equal protection of the laws. The U.S. District
Court for the Northern District of New York addressed Walker’s
claims in three stages. First, it screened Walker’s pro se complaint
pursuant to 28 U.S.C. § 1915A and identified cognizable claims for
retaliation in violation of the First Amendment against two prison

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officers: Defendants-Appellees Richard Senecal and Brian Benware.
The district court dismissed with prejudice Walker’s due process and
equal protection claims against the governor, the attorney general,
and the judges of the New York Court of Appeals. 1 Second, the
district court adopted the report and recommendation of a magistrate
judge to grant Benware’s motion to dismiss and to grant in part
Senecal’s motion to dismiss. Third, again adopting the
recommendation of the magistrate judge, the district court granted
Senecal’s motion for summary judgment.
We conclude that Walker identified a genuine dispute of
material fact regarding his claim against Senecal for retaliation in
violation of the First Amendment. Walker alleges that Senecal
destroyed his legal complaint, that Senecal threatened to harm him if
he filed a grievance, and that two officers assaulted him while
repeating Senecal’s threat. These allegations, taken together,
plausibly suggest that Senecal took an adverse action against Walker
that was causally related to Walker’s protected speech. At the same
time, we conclude that the district court correctly dismissed the other
claims against Senecal and Benware as either de minimis or as not
plausibly related to Walker’s protected speech. The district court
correctly dismissed the due process and equal protection claims
insofar as those claims challenge the validity of Walker’s
confinement. We vacate the judgment of the district court with
respect to the retaliation claim against Senecal and remand for further
proceedings. We affirm the judgment in all other respects.
1 Walker sought declaratory and injunctive relief against these defendants
for “their individual and collective failure and refusal to provide [Walker]
with a forum with full and fair opportunity to establish his innocence, and
to obtain his release from the fundamentally unjust conviction and
unlawful imprisonment.” App’x 120.

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BACKGROUND
According to the allegations of Walker’s complaint, in
September 2017 Senecal stopped Walker outside the prison mess hall,
grabbed legal materials he was holding, and “ripped out the first 18
[p]ages” of a draft amended complaint. App’x 104-05. Senecal told
Walker that “[h]e took [the pages] because [Walker] was challenging
the prison condition[s] and [he] ha[d] the Commissioner[’s] name on
it and the Superintendent[’s] name.” Id. at 241. On October 2, 2017,
Walker told Senecal that he would file a grievance against him for
ripping out the pages, and Senecal responded that “if he []ever put
his name on any grievance concerning him ripping out the pages, he
would make sure that [Walker] end[ed] up dead or in the Box,”
referring to the Special Housing Unit of the prison. Id. at 106. Another
officer repeated Senecal’s threat that day, emphasizing that “Senecal
is crazy, and mean[s] what he said.” Id. The following day, two
unnamed officers “rushed” into the bathroom after Walker, and
“slapped [Walker] around, pushed him, [and] roughed him up.” Id.
at 106-07. The assailants asked Walker “if he [saw] how easily he
could get kill[ed] for filing grievances against Officer Senecal” and
repeated Senecal’s threat that filing grievances would mean “going to
the Box or end[ing] up dead.” Id.
Walker further alleges that Senecal “recruited” Benware to take
two other retaliatory actions on October 10, 2017: (1) filing a
“fabricated” misbehavior report against Walker and (2) firing Walker
from his position as a law clerk in the prison law library. Id. at 110.
Walker suggests that Senecal instigated these acts because, before
Benware filed the report or fired Walker, Walker saw Benware
“le[ave] out of the Law Library, and [go] to an area where Officer
Senecal was hanging out with other Officers.” Id. at 108. Walker
challenged the findings of the misbehavior report through an internal

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grievance procedure and in state court, but the findings were upheld.
See In re Walker v. Yelich, 95 N.Y.S.3d 648, 649 (3d Dep’t 2019).
Over five months later—during a period between March 23,
2018, and June 29, 2018—Senecal on five occasions either conducted
or directed other officers to conduct a “rough search” of Walker, as
Senecal allegedly described it, that Walker alleges was “akin to a
vicious assault,” App’x 110-13, and the district court called a “pat
frisk[],” Walker v. Senecal, No. 20-CV-82, 2021 WL 3793771, at *1
(N.D.N.Y. Aug. 26, 2021). Senecal conducted only one of the searches
himself. After the final search, Senecal threatened that if Walker filed
a grievance against him, he would impose a ban on recreation
whenever he was on duty. Senecal denies many of these allegations.2
STANDARD OF REVIEW
“We review a district court’s grant of a motion to dismiss de
novo, accepting as true all factual claims in the complaint and drawing
all reasonable inferences in the plaintiff’s favor.” Schiebel v. Schoharie
Cent. Sch. Dist., 120 F.4th 1082, 1092 (2d Cir. 2024) (quoting Henry v.
County of Nassau, 6 F.4th 324, 328 (2d Cir. 2021)). In conducting that
review, we are not “required to accept as true allegations that are
2 With respect to the alleged destruction of part of Walker’s amended
complaint, Senecal attests that “I briefly checked Walker’s bag to determine
whether the legal materials were his, and then I instructed Walker to bring
his bag back to his dorm and then come back for chow with the rest of his
dorm. I did not confiscate, destroy, or remove any of Walker’s legal
materials.” App’x 351. With respect to the alleged threat, Senecal attests that
he “never threatened or harassed Carlton Walker, verbally or otherwise,”
or “use[d] abusive language toward Carlton Walker or engage[d] in
retaliation against him.” Id. “Resolutions of credibility conflicts and choices
between conflicting versions of the facts are matters for the jury,” however,
“not for the court on summary judgment.” United States v. Rem, 38 F.3d 634,
644 (2d Cir. 1994).

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wholly conclusory.” Krys v. Pigott, 749 F.3d 117, 128 (2d Cir. 2014). “To
survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
We similarly “review a district court’s grant of summary
judgment de novo.” Kravitz v. Purcell, 87 F.4th 111, 118 (2d Cir. 2023).
“Summary judgment is proper only when, construing the evidence in
the light most favorable to the non-movant, ‘there is no genuine
dispute as to any material fact and the movant is entitled to judgment
as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011)
(quoting Fed. R. Civ. P. 56(a)). Throughout our analysis, “[w]e
liberally construe pleadings and briefs submitted by pro se litigants,
reading such submissions to raise the strongest arguments they
suggest.” Kravitz, 87 F.4th at 119 (quoting Publicola v. Lomenzo, 54 F.4th
108, 111 (2d Cir. 2022)).
DISCUSSION
Walker argues that the district court erred in dismissing his
claims and in granting summary judgment to Senecal. With respect to
his claims for retaliation in violation of the First Amendment, Walker
argues (1) that his allegations plausibly establish a causal connection
between his protected speech and Benware’s actions, and (2) that the
district court failed to consider the aggregate effect of Senecal’s
alleged conduct. With respect to his equal protection and due process
claims, he argues that the district court erred because the claims do
not challenge the validity of his confinement but seek only a fair
opportunity to litigate his innocence.
We conclude that Walker has identified a genuine dispute of
material fact with respect to his First Amendment retaliation claim

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against Senecal. When considered together, Senecal’s purported
conduct—the destruction of Walker’s legal materials, the threat to kill
Walker or throw him in the box for filing a grievance, and the attack
by two officers who repeated the threat—plausibly suggests an
adverse action that was causally related to Walker’s protected speech.
At the same time, we conclude that the district court correctly
dismissed Walker’s remaining claims against Benware and Senecal
because the alleged retaliatory conduct was either de minimis or
unrelated to Walker’s speech. The district court also did not err by
dismissing Walker’s equal protection and due process claims.
I
To sustain a claim for retaliation in violation of the First
Amendment under § 1983, a prisoner must demonstrate “(1) that the
speech or conduct at issue was protected, (2) that the defendant took
adverse action against the plaintiff, and (3) that there was a causal
connection between the protected speech 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)). The parties do not dispute
that Walker’s allegations meet the first requirement because the filing
of a lawsuit or a grievance is protected conduct. See Espinal, 558 F.3d
at 129; Gill, 389 F.3d at 384.
To constitute “adverse action,” conduct must be of the “type
that would deter ‘a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights.’” Hayes v. Dahlke, 976
F.3d 259, 272 (2d Cir. 2020) (quoting Davis v. Goord, 320 F.3d 346, 353
(2d Cir. 2003)). “[T]his objective test applies even where a particular
plaintiff was not himself subjectively deterred; that is, where he
continued to file grievances and lawsuits.” Gill, 389 F.3d at 381. We
“look to the specific circumstances in which retaliation claims arise,
‘bearing in mind that prisoners may be required to tolerate more than

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average citizens, before a retaliatory action taken against them is
considered adverse.’” Hayes, 976 F.3d at 272 (quoting Davis, 320 F.3d
at 353). “In order to satisfy the causation requirement, allegations
must be ‘sufficient to support the inference that the speech played a
substantial part in the adverse action.’” Davis, 320 F.3d at 354 (quoting
Dawes v. Walker, 239 F.3d 489, 492 (2d Cir. 2001)).
Courts must approach prisoner retaliation claims with
“skepticism and particular care, because virtually any adverse action
taken against a prisoner by a prison official—even those otherwise
not rising to the level of a constitutional violation—can be
characterized as a constitutionally proscribed retaliatory act.” Dolan
v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quoting Davis, 320 F.3d at
352). Moreover, “claims of retaliation are difficult to dispose of on the
pleadings because they involve questions of intent and are therefore
easily fabricated.” Dawes, 239 F.3d at 491. For these reasons, we
require that prisoner retaliation claims be “supported by specific and
detailed factual allegations, not stated in wholly conclusory terms.”
Dolan, 794 F.3d at 295 (internal quotation marks omitted).
A
The district court granted Benware’s motion to dismiss in full.
On appeal, Benware concedes that Walker plausibly alleges the first
two elements of a First Amendment retaliation claim. He argues only
that Walker fails to plausibly allege a causal relationship between his
protected speech and Benware’s conduct. We agree.
Walker fails to plausibly allege that Benware even knew of the
protected speech, let alone that it “played a substantial part in
[Benware’s] adverse action.” Davis, 320 F.3d at 354 (quoting Dawes,
239 F.3d at 492). The fact that shortly before Walker was fired,
Benware “went to an area where Officer Senecal was hanging out

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with other Officers” does not alone support such an inference. App’x
108. Walker additionally alleges that Benware stated that “he did not
want to speak about [the firing] because the situation is above him
and out of his hand,” id. at 109, which similarly does not plausibly
suggest a causal relationship with the protected speech. And Walker
cannot rely on the bare conclusory allegation that Senecal “recruited
Officer Benware to … fire[] him from the Law Library.” Id. at 110.
Walker notes that only eight days passed between his filing of
a grievance against Senecal and Benware’s actions. “We have held
that the temporal proximity of an allegedly retaliatory misbehavior
report to a grievance may serve as circumstantial evidence of
retaliation.” Hayes, 976 F.3d at 273 (quoting Gayle v. Gonyea, 313 F.3d
677, 683 (2d Cir. 2002)). Especially when the grievance did not involve
the defendant, however, we require further allegations to plausibly
establish retaliatory animus. Compare Kotler v. Boley, No. 21-1630, 2022
WL 4589678, at *3 (2d Cir. Sept. 30, 2022) (identifying “a reasonable
inference that the defendants had a retaliatory motivation for the
search” based on allegations not only of temporal proximity but also
of a defendant’s “alleged statement tying the search to [the plaintiff’s]
advocacy” and the defendants’ “false and contradictory testimony at
the hearing about the reason for the search”), with Dorsey v. Fisher,
468 F. App’x 25, 27-28 (2d Cir. 2012) (explaining that a “temporal
connection does not suffice to plead causation” when the plaintiff
“has not provided any plausible reason why [one officer] would file
an allegedly false misbehavior report other than that [the plaintiff]
filed a grievance against [a different officer]”). Without such
allegations, a mere “temporal connection does not suffice to plead
causation” in this case. Dorsey, 468 F. App’x at 28.
In fact, the additional factual material in the complaint suggests
that Benware lacked retaliatory animus. As Walker acknowledges in

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the complaint, he was found guilty of the charges in the misbehavior
report after a hearing, and a state court sustained the charges. See
Walker, 95 N.Y.S.3d at 649. Beyond the conclusory assertion that the
report was “fabricated,” Walker fails to allege any facts suggesting
that he did not commit the charged conduct. Thus, Walker has not
plausibly alleged that the misbehavior report was even false—let
alone that it was fabricated in retaliation for protected speech.
Moreover, the complaint identifies two plausible non-retaliatory
reasons for Walker’s firing: (1) that Walker committed the conduct
charged in the misbehavior report, and (2) that Walker was working
on personal legal matters in the library when he was required to assist
other inmates.3 These allegations of plausible non-retaliatory reasons
reinforce the lack of plausible allegations of retaliation. We affirm the
judgment of the district court insofar as it dismissed the First
Amendment retaliation claim against Benware.
B
On a motion from the defendants, the district court dismissed
most of the claims against Senecal but allowed discovery on two
aspects of Walker’s First Amendment retaliation claim: Senecal
allegedly destroyed Walker’s legal complaint, and he threatened to
kill Walker or throw him in the box if he filed a grievance. After
discovery on those issues, the district court granted summary
judgment to Senecal because neither destroying Walker’s complaint
nor making a threat was sufficiently serious to qualify as an adverse
action in violation of the First Amendment.
3 Walker alleges that immediately after firing him, Benware said that
Walker “should … never have [been] in possession of his legal documents
which he brought to him, Officer Benware, for copying, because only on
[Walker’s] days off [could Walker] have his personal legal materials in the
Law Library.” App’x 110.

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Walker argues that the district court failed to consider Senecal’s
actions as a course of conduct that rose to the level of an adverse
action. We agree that destroying Walker’s amended complaint,
threatening him, and having two officers attack him the next day—
when taken together—plausibly qualify as an adverse action. And
Walker has identified a genuine dispute about whether that conduct
was causally related to his protected speech. The district court
therefore erred in concluding that those allegations were insufficient
to survive summary judgment. The district court did not err in
dismissing Walker’s claims that relied on other allegations.
1
The district court rejected all but two of Walker’s allegations
against Senecal at the motion to dismiss stage, concluding that Walker
had failed to establish the second element of a First Amendment
retaliation claim: an adverse action. Walker contends that the district
court erred by considering each of his allegations in isolation rather
than as a single course of retaliatory conduct. “Our precedent allows
a combination of seemingly minor incidents to form the basis of a
constitutional retaliation claim once they reach a critical mass.”
Tripathy v. McKoy, 103 F.4th 106, 118 (2d Cir. 2024) (quoting Phillips v.
Bowen, 278 F.3d 103, 109 (2d Cir. 2002)). While “incidents that are
relatively minor and infrequent will not meet that standard,”
retaliatory conduct reflecting a “pattern of nearly constant
harassment” will do so. Id. (quoting Deters v. Lafuente, 368 F.3d 185,
189 (2d Cir. 2004)).
At the same time, a district court may exclude some allegations
from aggregate consideration. In Davis, for example, we approved of
the dismissal of allegations deemed “de minimis” or conclusory while
permitting others involving the same defendants to proceed. 320 F.3d
at 353; see also Morales v. Mackalm, 278 F.3d 126, 131-32 (2d Cir. 2002).

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Thus, the fact that a plaintiff has alleged some adverse acts does not
excuse him from establishing that those acts plausibly had more than
a de minimis effect. And for an act to be considered part of a single
course of conduct, the plaintiff must plausibly allege a nexus to that
course of conduct; bare allegations of conspiracy will not suffice. See,
e.g., Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (requiring “a
showing of more than the linkage in the prison chain of command”).
Applying these principles to this case, we vacate in part and
affirm in part the judgment of the district court with respect to
Senecal’s motion to dismiss. The district court erred by not
considering Walker’s allegations about the attack by two officers in
conjunction with Senecal’s threat. Walker alleges that the day after
Senecal threatened Walker—warning that if he filed a grievance, he
would “end up dead or in the Box”—two officers confronted him in
the bathroom. App’x 106. The two officers “slapped [Walker] around,
pushed him, roughed him up,” and repeated Senecal’s threat that if
he filed a “grievance complaint against Officer Senecal, [Walker]
would be going to the Box or end up dead.” Id. at 107. The two officers
told Walker that their attack showed “how easily [Walker] could get
kill[ed] for filing grievances against Officer Senecal.” Id. at 106-07.
A physical attack by prison officers may qualify as an adverse
action, see Espinal, 558 F.3d at 129, and Walker plausibly alleges a
causal connection between the attack and his protected speech: the
officers themselves said they were retaliating against him because of
his grievance against Senecal. The follow-up assault makes Senecal’s
statements more than an empty threat. Compare Hayes, 976 F.3d at 274
(“Threats accompanied by some action … surely constitute adverse
action.”), with Hill v. Chalanor, 128 F. App’x 187, 189 (2d Cir. 2005)
(“The alleged threats made by [an officer], without any allegation that
the [officer] carried through on those threats, did not constitute

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adverse action.”). And it plausibly suggests that Senecal
“authorize[d], order[ed], or help[ed]” perpetrate the assault. See
Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014). Therefore, the
district court should not have dismissed the allegations.
We have said that a retaliatory pat frisk may also support a
claim of First Amendment retaliation. See Hundley v. Frunzi, No. 23-
581, 2024 WL 3886996 (2d Cir. Aug. 21, 2024). In Hundley, however,
the frisk allegedly took place inside the plaintiff’s cell in violation of
protocol. Id. at *4 n.2. The extraordinary character of the frisk made a
difference because we have held in prior cases that “[a]dditional
searches and pat frisks,” Kenlock v. Mele, No. 22-2799, 2023 WL
8538182, at *3 (2d Cir. Dec. 11, 2023), and “searches of [the plaintiff’s]
person,” Dorsey, 468 F. App’x at 27, do not qualify as adverse actions.
We need not decide whether the alleged frisks in this case plausibly
represented a departure from how such frisks are normally
conducted. Regardless of the character of the frisks, Walker fails
plausibly to allege a causal relationship between the frisks and his
protected speech. Walker’s allegations that the frisks were part of
Senecal’s efforts to “recruit[] other officers to help him carry [out] his
hatred for [Walker]” and “abuse [Walker]” are too conclusory to
support an inference of causation. App’x 110. And the circumstantial
allegations do not show causation. The first alleged search was
conducted on March 23, 2018, more than five months after Walker
filed his grievance and after Senecal’s last alleged retaliatory act. As
noted above, while we have “not drawn a bright line to define the
outer limits beyond which a temporal relationship is too attenuated
to establish a causal relationship,” Espinal, 558 F.3d at 129 (quoting
Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d
545, 554 (2d Cir. 2001)), we generally require something more than
temporal proximity to establish retaliatory animus. In this case, the
allegedly retaliatory conduct—searches of an inmate—routinely

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occurs in prison and is “essential to the effective security of penal
institutions.” Hudson v. Palmer, 468 U.S. 517, 529 (1984). That makes
inferring retaliatory animus from mere temporal proximity all the
more difficult.
The allegations here lack the “further factual enhancement”
necessary to cross “the line between possibility and plausibility.”
Twombly, 550 U.S. at 557. Senecal himself conducted only one of the
searches, and he did so more than eight months after Walker filed his
grievance. Walker alleges that two of the other searches—conducted
by unnamed officers—were prompted by “Senecal’s unwritten rule
which prohibited [Walker] from eating on the A Side of the Messhall.”
App’x 110. These allegations do not allow a plausible inference that
the searches were causally related to Walker’s protected speech. The
district court did not err in concluding that the allegations did not
support a plausible claim.
We further conclude that the district court did not err in
rejecting the remaining allegations at the motion to dismiss stage.
First, the district court correctly rejected as de minimis Walker’s
allegations related to Senecal’s interfering with his access to the mess
hall, preventing him from eating in the “special diet” area, and asking
him to show his Diet Card. Walker does not directly dispute that
ruling on appeal. Second, the district court correctly rejected Walker’s
allegation related to Senecal’s threatened recreation ban. The alleged
threat occurred on June 29, 2018—more than nine months after
Walker’s grievance against Senecal—and did not occur as part of a
single course of conduct. As the magistrate judge concluded, these
“alleged threats were vague and lacked the specificity and
seriousness ‘to deter an inmate from exercising his First Amendment
rights.’” Walker v. Senecal, No. 20-CV-82, 2021 WL 3813081, at *8
(N.D.N.Y. July 19, 2021), report and recommendation adopted, No. 20-

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CV-82, 2021 WL 3793771 (N.D.N.Y. Aug. 26, 2021). Walker does not
allege that Senecal followed through on the threat, and whether
“[t]hreats [were] accompanied by some action” informs the
determination of whether there was an adverse action. Hayes, 976 F.3d
at 274.
2
The district court permitted two of Walker’s allegations to
proceed to discovery: (1) that Senecal “ripped out the first 18 [p]ages”
of his amended complaint, and (2) that Senecal threatened Walker
that he would “end up dead or in the Box” if “he []ever put his name
on any grievance concerning him ripping out the pages.” App’x 105-
06. As noted above, the district court did not consider the threat in
conjunction with the alleged bathroom attack on Walker, and it is
unclear whether Walker was entitled to pursue discovery with
respect to the attack. The district court ultimately granted Senecal’s
motion for summary judgment, concluding that neither the
destruction of the amended complaint nor the threat—each analyzed
in isolation—was sufficiently adverse. The district court did not reach
the issue of causation or that of whether Senecal was entitled to
qualified immunity.
We conclude that the district court erred in failing to consider
the aggregate deterrent effect of Senecal’s purported conduct in
assessing whether an adverse action occurred. 4 Taken together,
4 To be sure, Senecal’s threat and his destruction of legal materials related
to different forms of protected speech: filing a complaint and writing a
grievance. But a court may still consider the aggregate deterrent effect
because the two instances of protected speech were intertwined. An
inmate’s ability to file a grievance to seek redress for an officer’s destruction
of his legal materials relates to the deterrent effect of the destruction. Absent
the ability to seek redress, a plaintiff may assume that the destruction of
legal materials could be repeated, and inmates will accordingly “believe

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Walker’s allegations suffice to establish at least a genuine dispute of
material fact as to whether the effect was sufficiently adverse.
Accordingly, the district court should not have granted Senecal’s
motion for summary judgment.
We need not decide here whether the act of destroying the
amended complaint, standing alone, would be sufficiently adverse.
But we note that other circuits have concluded that destruction or
confiscation of legal materials may amount to an adverse action.5 The
Sixth Circuit, for example, has reasoned that destruction of legal
materials involves not only “‘potential’ interference with protected
speech” but a direct impediment to the plaintiff’s engaging in that
speech. Richards, 96 F.4th at 918 (quoting Bell, 308 F.3d at 605). Such
an impediment “may … cause[] others to believe that any efforts they
might expend in preparing legal claims would be wasted since any
materials they prepared could easily be destroyed or confiscated.” Id.
(quoting Bell, 308 F.3d at 605). This reasoning suggests that
destruction of legal materials is not analogous to destruction of other
forms of personal property.
The deterrent effect of an officer’s destruction of legal materials
will necessarily vary with the “specific circumstances” in which it
occurs. Hayes, 976 F.3d at 272. Here, those circumstances included
(1) a subsequent threat of death or confinement to the Special
that any efforts they might expend in preparing legal claims would be
wasted.” Bell v. Johnson, 308 F.3d 594, 605 (6th Cir. 2002). In other words, if
an officer not only destroys an inmate’s legal materials but also threatens to
kill that inmate if he files a grievance about the destruction, the inmate is
more likely to be deterred from reproducing such legal materials.
5 See Richards v. Perttu, 96 F.4th 911, 918 (6th Cir. 2024); Bell v. Johnson, 308
F.3d 594, 604 (6th Cir. 2002); Penrod v. Zavaras, 94 F.3d 1399, 1404 (10th Cir.
1996); Wright v. Newsome, 795 F.2d 964, 968 (11th Cir. 1986).

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Housing Unit, and (2) a physical assault in which officers purported
to emphasize the seriousness of the threat. We conclude that the
combination of the destruction of legal materials, the subsequent
threat, and the follow-on assault by two officers who repeated the
threat suffices to establish a genuine question as to whether “a
similarly situated individual of ordinary firmness” would have been
deterred “from exercising his or her constitutional rights.” Hayes, 976
F.3d at 272 (quoting Davis, 320 F.3d at 353).
We additionally conclude that Walker has identified a genuine
dispute as to whether the destruction of legal materials, Senecal’s
threat, and the bathroom attack were causally related to his protected
speech. Walker alleges that Senecal ripped out the eighteen pages
from his amended complaint immediately after reading it. He further
claimed in his deposition testimony that Senecal “told [him] that”
“[h]e took [the eighteen pages] because [Walker] was challenging the
prison condition[s] and [he] ha[d] the Commissioner[’s] name on it
and the Superintendent[’s] name.” App’x 241. With respect to the
threat, Walker alleges that immediately after he informed Senecal that
he would be filing a grievance against him for ripping out the pages,
Senecal responded that “if he []ever put his name on any grievance
concerning him ripping out the pages, he would make sure that
[Walker] end[ed] up dead or in the Box.” Id. at 106. Two officers
repeated that exact threat the next day while attacking Walker in the
bathroom, showing him “how easily he could get kill[ed] for filing
grievances against Officer Senecal.” Id. at 106-07. These allegations
establish a genuine dispute as to causation.
Senecal argues in the alternative that he is entitled to qualified
immunity. Because the district court did not reach this issue, we leave
it for the district court to do so in the first instance. See Tanvir v. Tanzin,
894 F.3d 449, 472 (2d Cir. 2018) (“[I]t is our practice in this Circuit

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when a district court fails to address the qualified immunity defense
to remand for such a ruling.”) (quoting Eng v. Coughlin, 858 F.2d 889,
895 (2d Cir. 1988)); see also Havens v. James, 76 F.4th 103, 123 (2d Cir.
2023) (“We are ‘a court of review, not of first view.’”) (quoting Decker
v. Nw. Env’t Def. Ctr., 568 U.S. 597, 610 (2013)).
II
Walker argues that the district court erred in dismissing his due
process and equal protection claims with prejudice pursuant to 28
U.S.C. § 1915A(b). In his complaint, Walker sought declaratory and
injunctive relief against “Governor Cuomo, [Attorney General]
James, and each of the Judges of the New York Court of Appeals, for
their individual and collective failure and refusal to provide [Walker]
with a forum with full and fair opportunity to establish his innocence,
and to obtain his release from the fundamentally unjust conviction
and unlawful imprisonment.” App’x 120. The district court reasoned
that those claims were not cognizable under § 1983 but could be
brought only in a habeas action “[i]nsofar as [Walker] seeks
declaratory or injunctive relief related to ‘the very fact or duration of
his physical imprisonment.’” Walker v. Cuomo, No. 20-CV-82, 2020 WL
8483820, at *13 (N.D.N.Y. Mar. 31, 2020) (alteration omitted) (quoting
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)). Walker argues that
because he sought only a “full and fair opportunity” to litigate his
claimed innocence—not an actual determination of innocence—his
claims were cognizable under § 1983.
The district court clarified in a subsequent order that it had
dismissed with prejudice “only Walker’s Section 1983 claims that
sought monetary relief against the named defendants in their official
capacities, and declaratory and injunctive relief related to ‘the very
fact or duration of his physical imprisonment.’” Walker v. Senecal,
No. 20-CV-82, 2020 WL 4590680, at *2 (N.D.N.Y. July 30, 2020)

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(alteration omitted) (quoting Walker, 2020 WL 8483820, at *13). To the
extent that Walker could allege claims seeking procedural protections
that did not challenge his imprisonment, the district court allowed
him to file an amended complaint, which he did not do. We see no
error in this aspect of the judgment that warrants reversal.
CONCLUSION
We conclude that Walker has identified a genuine dispute of
material fact as to whether the destruction of his legal materials,
Senecal’s threat, and the subsequent bathroom attack—taken
together—amounted to an adverse action that was causally related to
his protected speech. To the extent that the district court granted
summary judgment on this claim, we vacate the judgment of the
district court and remand for further proceedings consistent with this
opinion. We affirm the judgment in all other respects.

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