DECISION & ORDER On February 25, 2021, the pro se plaintiff, John M. Fitzak, commenced this action under 42 U.S.C. §1983 and the New York Labor Law (“Labor Law”). Docket Item 1. The defendants then moved to the dismiss the complaint, Docket Item 6, and on September 22, 2021, this Court granted the motion to dismiss in part, Docket Item 11. More specifically, this Court dismissed Fitzak’s official-capacity claims for money damages as well as his Labor Law claims, but it granted Fitzak leave to amend his remaining claims to correct the deficiencies noted in the Court’s decision. Id. at 11-12. On November 10, 2021, Fitzak filed an amended complaint alleging that the defendants retaliated against him in violation of his rights under the First Amendment.1 Docket Item 12. A month later, the defendants moved to dismiss the amended complaint. Docket Item 13. On January 4, 2022, Fitzak responded, Docket Item 15, and two weeks later, the defendants replied, Docket Item 16. On February 10, 2022, Fitzak moved for leave to file a surresponse. Docket Item 17. A short time after the Court granted that motion, Docket Item 18, Fitzak filed his surresponse, Docket Item 19. For the following reasons, the defendants’ motion to dismiss is granted and the case is closed. FACTUAL BACKGROUND2 Fitzak has sued Anthony J. Annucci, Acting Commissioner of the New York Department of Corrections and Community Supervision (“DOCCS”); Jason D. Effman, Associate Commissioner of DOCCS; and James O’Gorman, Deputy Commissioner of DOCCS, for alleged violations of Fitzak’s rights under the First and Fourteenth Amendments. See Docket Item 12. The amended complaint tells the following story. Fitzak is employed as a corrections officer at Orleans Correctional Facility (“Orleans”). Id. at 1. On March 1, 2018, he consented to an interview with Auditor Barbara King from Akron, Ohio, as a part of a Prison Rape Elimination Act (“PREA”) compliance audit.3 Id. at 8. To prepare for the audit, management at Orleans provided Fitzak and other staff with “a packet of possible questions” that might be asked in the audit interviews and “the appropriate responses” to those questions. Id. at 10; see also id. at 8-17 (question packet). At the start of Fitzak’s interview, King stated that “she was an independent auditor, [that] she had no connections to [Orleans] or to [DOCCS],” and that the “interview was voluntary…and…confidential.” Id. at 11. King also said “that there would be no names or identifiers of who was interviewed and…no repercussions or retaliation for talking to her.” Id. at 12. The interview included questions about DOCCS’s policy towards sexual abuse and sexual harassment and the training that officers received regarding sexual abuse and harassment. Id. at 13; see also id. at 8-17. During the interview, King asked Fitzak what he thought “would cause an inmate to be a victim of sexual abuse or sexual harassment.” Id. at 14. Based on his twenty-plus years of experience working in corrections, Fitzak responded “that 95 percent of sexual activity was probably consensual…; 3 percent could probably be attributed to karma, in that inmates today have the ability to get more information from the outside, through family and friends, in order to find out about other inmates’ crimes” (the “karma statement”); and “that the remaining 2 percent could possibly be a combination of both scenarios that ended up going to[o] far and became a criminal offense.” Id. at 15. In saying that three percent probably could be “attributed to karma,” Fitzak “in no way suggested nor defended this type of behavior as being appropriate.” Id. Indeed, Fitzak “does not believe that any form of sexual misconduct is condonable, whether ‘on the street’ or inside any type of facility.” Id. (bold and emphasis in original). He simply said “karma” as a “way to state that one’s actions, whether good or bad, have corresponding reactions.” Id. In other words, what Fitzak meant by the karma statement is that upon a prisoner’s finding out the basis for another prisoner’s incarceration, “some inmates may decide to exact their own form of justice.” Id. But Orleans officials viewed Fitzak’s karma statement differently. They characterized it as an “assert[ion] that inmates get what they deserve when they have been subject to sexual abuse.” Id. at 25. The day after the interview, a local union official advised Fitzak that Fitzak “was being ‘locked out,’ [i.e.] suspended without pay” and would be “issued a notice of discipline.” Id. at 16 (capitalization omitted). Later that same day, another union official contacted Fitzak and clarified that those actions were being taken because of Fitzak’s karma statement and because Fitzak’s interview “was the worst one that Auditor King had ever conducted.” Id. at 17. Fitzak was never issued a notice of discipline. Instead, on March 5, 2018, the very next business day, Orleans Facility Captain E. Raczkowski issued Fitzak “a Formal Counseling.” Id. at 21; see also id. at 25 (formal counseling). The formal counseling stated that Fitzak’s karma statement “could have been construed to undermine [DOCCS's] efforts to comply with federal law governing PREA during an audit being conducted at Orleans”; it directed Fitzak “to immediately attend PREA [t]raining in an effort to educate [him] about the law and DOCCS['s] policy.” Id. at 25. The formal counseling also stated that the “counseling [was] not meant to be personal or derogatory in nature but rather [was] meant to point out possible shortcomings in [Fitzak's] job performance and ways in which [he] may improve them.” Id. Fitzak received this formal counseling because King breached the promised confidentiality of the PREA audit interview. Id. at 21. In response to King’s breach of confidentiality, Fitzak filed a formal complaint against King with the United States Department of Justice. Id. at 22; see also id. at 27 (complaint).4 LEGAL PRINCIPLES “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)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). DISCUSSION “To state a valid claim under 42 U.S.C. §1983, the plaintiff must allege that the challenged conduct (1) was attributable to a person acting under color of state law, and (2) deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United States.” Whalen v. County of Fulton, 126 F.3d 400, 405 (2d Cir. 1997) (citing Eagleston v. Guido, 41 F.3d 865, 875-76 (2d Cir. 1994)). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). I. PERSONAL INVOLVEMENT In this Court’s prior decision, the Court reminded Fitzak that in amending his section 1983 claims, “liability under section 1983 may attach only upon a showing that a party was personally involved in causing the claimed injury.” Docket Item 11 at 7 n.2 (citing Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020)). As explained in this Court’s prior decision, to establish liability against a defendant under section 1983, “a plaintiff must plead and prove ‘that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.’” Tangreti, 983 F.3d at 618 (citing Iqbal, 556 U.S. at 676). It is not enough to assert that the defendant is a “link[] in the prison['s] chain of command.” See McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). Moreover, the theory of respondeat superior is not available in a section 1983 action. See Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003). Instead, “[t]he violation must be established against the supervisory official directly.” Tangreti, 983 F.3d at 618. In other words, the official must be personally involved. See Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) (“Proof of an individual defendant’s personal involvement in the alleged wrong is…a prerequisite to his liability on a claim for damages under §1983.”). Fitzak alleges that his First Amendment rights were violated when Facility Captain Raczkowski issued him a formal counseling because of Fitzak’s statements during the PREA interview. See Docket Item 12 at
