David HOLMES, Plaintiff-Appellant, v. HAUGEN, Correctional Officer, Eastern Correctional Facility, True, Correctional Officer, Eastern Correctional Facility, Defendants-Appellees, John Doe III, Correctional Officer, Eastern Correctional Facility, Brown, Superintendent, Eastern Correctional Facility, Healy, Dep., Eastern Correctional Facility, Lt. Simmons, Eastern Correctional Facility, Defendants, 356 F. App'x 507

SUMMARY ORDER In this action under 42 U.S.C. § 1983, plaintiff-appellant David Holmes (“plaintiff’ or “Holmes”), an inmate at the Eastern Correctional Facility, appeals from the district court’s grant of

summary judgment to the defendants-appellees. Specifically, Holmes alleges that defendants-ap-pellees, who are correctional officers at the prison, violated his constitutional rights under the First and Fourteenth Amendments by retaliating against him and by singling him out for unfavorable treatment. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues. We review the grant of

summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In determining whether there are genuine issues of material fact, we resolve any ambiguities and draw all permissible factual inferences in favor of the non-movant. See Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003). Despite this deference, a non-movant cannot defeat a motion for

summary judgment merely through conclusory statements or allegations. See Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.2002). In order to state a claim for retaliation, a plaintiff must prove that (1) he was “engaged in constitutionally protected conduct,” and (2) the conduct was “a substantial or motivating factor for the adverse actions taken by prison officials.” Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003).

The privilege of qualified immunity, however, generally shields government officials from liability for damages on account of their performance of discretionary official functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Ying Jing Gan v. City of New York, 996 F.2d 522, 531 (2d Cir.1993). In Rodriguez v. Phillips, we held that confronting a correctional officer about his

interpretation of an institutional policy was not a clearly established First Amendment right. See 66 F.3d 470, 478-79 (2d Cir.1995). Here, even if it could be said that the correctional officers retaliated against Holmes, the discipline at issue arose out of Holmes’s decision to question the correctional officers’s

interpretation of a prison policy. Accordingly, the defendants-appellees are entitled to qualified immunity on this claim. See Kelsey v. County of Schoharie, 567 F.3d 54, 61 (2d Cir.2009). While the Equal Protection Clause is most commonly used to bring claims alleging discrimination based on membership in a protected class, a plaintiff can proceed as a “class-of-one” by establishing that he or she “has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.” Village of Willowbrook v.

Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Because Holmes has neither alleged, nor provided a basis for a jury to infer, that correctional officer Haugen knew that other inmates were going to the law library, the defendants-appellees are entitled to

summary judgment on Holmes’s equal protection claim. See Giordano v. City of New York, 274 F.3d 740, 751 (2d Cir.2001) (holding that the district court properly granted

summary judgment in favor of the defendants on the plaintiffs class-of-one equal protection claim because there was no evidence in the record that the defendants knew that they were treating the plaintiff differently from anyone else). Accordingly, the judgment of the district court is hereby AFFIRMED.