Bonano v. Staniszewski et al

Filing 131

ORDER re 111 REPORT AND RECOMMENDATIONS re 98 Notice of MOTION for Summary Judgment (Defendants' Notice of Motion for Summary Judgment) filed by NY State Division of Parole, Terrence X. Tracy, William McCartney, Ilene Staniszewski, Francis J. Ca --- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, upon due consideration and review, and including those portions of the Report and Recommendation issued by the Hon. Lois Bloom on September 2, 2016, ("R & R") to which the parties did not object, the recommendations contained in the R & R are adopted in their entirety. Accordingly, as there is no genuine issue of material fact, Defendants motion for summary judgment is granted, and this case is di smissed. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of appeal. This case was previously closed by Court Order. The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se plaintiff. SO ORDERED by Chief Judge Dora Lizette Irizarry on 9/22/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL BONANO, pro se,
:
:
Plaintiff,
:
:
MEMORANDUM AND ORDER
-against:
ADOPTING REPORT AND
:
RECOMMENDATION
SENIOR PAROLE OFFICER ILENE
:
12-CV-5879 (DLI) (LB)
STANISZEWSKI, et al.,
:
:
Defendants.
:
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DORA L. IRIZARRY, Chief United States District Judge:
On November 26, 2012, Plaintiff Michael Bonano (“Plaintiff”), proceeding pro se, initiated
this action against Defendants Senior Parole Officer Ilene Staniszewski, Bureau Chief William
McCartney, Assistant Commissioner Andrea W. Evans, Chief Counsel Terrence X. Tracy, Drug
Treatment Court Case Manager Amanda Meeks, Assistant Director of Operations Francis J.
Caruso, and the New York State Division of Parole (collectively, “Defendants”), alleging various
claims under 42 U.S.C. § 1983. See Complaint (“Compl.”), Dkt. Entry No. 1. In decisions dated
August 29, 2013 and July 21, 2014, the Court dismissed some claims on statute of limitations and
immunity grounds. See Aug. 29, 2013 Mem. & Order (“Aug. 2013 M & O”), Dkt. Entry No. 7;
Jul. 7, 2014 Mem. & Order (“Jul. 2014 M & O”). The “causes of action” identified in the
Complaint are distilled into: (1) miscalculation the maximum expiration date of his sentence (e.g.,
Compl. at 25-26); (2) falsification of parole records in opposing his application for a drug diversion
program (e.g., Id. at 23-25); and (3) First Amendment Retaliation (e.g., Id. at 23-26).
Defendants moved for summary judgment on Plaintiff’s remaining claims on June 5, 2015.
See Mem. of Law in Supp. of Def. Mot. for Sum. J. (“Def. Mot.”), Dkt. Entry No. 104. Plaintiff
opposed with an eighty-five page submission. See Resp. to Mot. (“Pl. Opp.”), Dkt. Entry No. 105.

Defendants served their reply, and filed the fully briefed motion, on November 24, 2015. See Reply
Mem. of Law in Further Supp. of Def. Mot. for Sum. J. (“Def. Reply”), Dkt. Entry No. 106.
On June 16, 2016, this Court referred the motion for summary judgment to United States
Magistrate Judge Lois Bloom for a preparation of a Report and Recommendation (“R & R”). On
September 2, 2016, Magistrate Judge Bloom issued a thorough and well-reasoned R & R
recommending that the Court grant Defendants’ motion in its entirety and dismiss the action. In
assessing the motion, the magistrate judge found that: (1) New York State is shielded against §
1983 actions by the Eleventh Amendment (R & R at 9-10); (2) challenges concerning the duration
of Plaintiff’s imprisonment are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny
(Id. at 10-15); (3) submission of false information regarding Plaintiff’s application to a
discretionary drug diversion program does not concern a protected liberty interest (Id. at 15-16);
and (4) Plaintiff failed to establish either an “adverse action” or a causal connection between the
protected conduct and the alleged retaliatory conduct (Id. at 16-21).
After the time to file objections expired and the Court entered an Order adopting the R &
R, this Court received a letter from Plaintiff requesting an extension of time within which to file
his objections. See Mot. for Extension, Dkt. Entry No. 113. Despite the lateness of the request,
and in deference to Plaintiff’s pro se status, the request was granted, and Plaintiff’s time to object
was extended until December 15, 2016. See Nov. 16, 2016 Order. Plaintiff’s objections were
received on December 28, 2016. See Objs. to R & R, (“Objs.”), Dkt. Entry No. 119.1 Defendants

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Plaintiff supplemented his objections with materials missing from the initial filing. See Dec. 19, 2016 Not.
(“Objs. Supp.”), Dkt. Entry No. 120.

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opposed. See Def. Resp. in Opp. to Pl. Objs. to R & R and Mem. of Law in Opp. to Pl. Mot. for
Sanctions2 (“Objs. Opp.”), Dkt. Entry No. 127.
For the reasons below, the objections are overruled, the R & R is adopted in its entirety,
and this action is dismissed.
DISCUSSION3
When a party objects to an R&R, a district judge must make a de novo determination as to
those portions of the R & R to which a party objects. See FED. R. CIV. P. 72(b)(3); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the
district courts of this Circuit, “[i]f a party simply relitigates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” Antrobus v. New York City Dep’t
of Sanitation, No. 11-CV-5434 (CBA) (LB), 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016)
(internal citations and quotation marks omitted); see also Rolle v. Educ. Bus Transp., Inc., No. 13CV-1729 (SJF) (AKT), 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17, 2014) (“[A] rehashing of the
same arguments set forth in the original papers . . . would reduce the magistrate’s work to
something akin to a meaningless dress rehearsal.”) (internal citations and quotation marks
omitted). On the other hand, the Second Circuit Court of Appeals has suggested that a clear error
review may not be appropriate “where arguably ‘the only way for [a party] to raise . . . arguments
[is] to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 520 n.2 (2d Cir. 2017) (quoting Watson v.
Geithner, No. 11-CV-9527 (AJN), 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)).
Nonetheless, a court will not “ordinarily . . . consider arguments, case law and/or evidentiary
material which could have been, but [were] not, presented to the magistrate judge in the first

Plaintiff’s motion for sanctions will be addressed in a separate ECF Order to be issued after the posting of
this Memorandum and Order.
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The Court assumes familiarity with the facts as set forth in the R & R. See R & R at 2-8.

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instance.” Santiago v. City of New York, No. 15-CV-517 (NGG) (RER), 2016 WL 5395837, at *1
(E.D.N.Y. Sept. 26, 2016) (internal citation and quotation marks omitted). After its review, the
district court may then “accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3);
see also 28 U.S.C. § 636(b)(1).
When an individual is proceeding pro se, his objections “generally [should be] accorded
leniency and should be construed to raise the strongest arguments that they suggest.” Williams v.
Woodhull Med. & Mental Health Ctr., 891 F. Supp. 2d 301, 310 (E.D.N.Y. 2010) (internal citations
and quotation marks omitted). “Nevertheless, even a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s
proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument.” Pinkney v. Progressive Home Health Servs., No. 06-CV-5023 (LTS) (JCF), 2008 WL
2811816, at *1 (S.D.N.Y. Jul. 21, 2008), aff’d 367 F. App’x 210 (2d Cir. 2010) (internal citations
and quotation marks omitted).
A.

PLAINTIFF’S OBJECTIONS
Plaintiff’s four objections are that the magistrate judge erred by: (1) applying an incorrect

summary judgment standard (Objs. at 7-8); (2) misapplying the Supreme Court’s guidance in Heck
v. Humphrey (Objs. at 8-15); (3) finding that he failed to present a prima facie claim of First
Amendment Retaliation (Objs. at 15-19; Objs. Supp. at 4); and (4) coming to incorrect factual
conclusions (Objs. at 1-7).
1. The Magistrate Judge Stated the Proper Standard for Summary Judgment
In a sweeping objection to the R&R, Plaintiff claims that the magistrate judge misstated
the standard for evaluating a motion for summary judgment. See Objs. at 7-8. Such a conclusory
argument, even from a pro se party, merely requires this Court to review the relevant portion of
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the R & R for clear error. See Williams, 891 F. Supp. 2d at 310. The Court finds no clear error in
the summary judgment standard stated by the magistrate judge. See R & R at 8-9 (internal citations
and quotation marks omitted); see also Fabrikant v. French, 691 F.3d 193, 205 (2d Cir. 2012);
F.D.I.C. v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010); Hayut v. State Univ. of N.Y., 352
F.3d 733, 743 (2d Cir. 2003). Accordingly, this objection is overruled.
2. Heck’s Favorable Termination Requirement Bars Plaintiff’s Claims Concerning
the Duration of His Sentence
Plaintiff also challenges the magistrate judge’s interpretation and application of Heck to
his claims concerning the duration of his incarceration. The Court reviews this objection de novo.
In Heck, the Supreme Court held that:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a §
1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.
512 U.S. at 486-87 (emphasis in original). The principle discussed in the passage quoted above
bars actions that necessarily impugn the propriety of a conviction or sentence unless it has been
invalidated. This prohibition extends to any § 1983 action if a successful claim “would necessarily
demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 8182 (2005) (internal citations omitted).
The Court finds that the holding of Heck and its progeny squarely bars all of the § 1983
claims that would call the duration of Plaintiff’s sentence into question. Such claims are nothing
more than roundabout ways of asking this Court to meddle, inappropriately, in the criminal
sentence imposed and calculated by New York State. The Court cannot and will not address such
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§ 1983 claims absent a showing that Plaintiff’s sentence meets the favorable termination
requirement.
Consequently, Plaintiff’s objections are overruled, the R & R is adopted, and any claims
challenging the duration of the state sentence are dismissed.
3. The Magistrate Judge Made Proper Factual Determinations and Correctly Found
that Plaintiff Failed to Present a Prima Facie Claim of Retaliation
Plaintiff’s two remaining objections rehash arguments made before the magistrate judge in
his opposition to the motion for summary judgment. In fact, the objections consistently cite to his
previous submission for those arguments. See, e.g., Objs. at 3-6 (citing Plaintiff’s opposition
papers to support the objection concerning factual conclusions), 15-16 (citing Plaintiff’s
opposition papers to support his retaliation claim). Since Plaintiff merely regurgitates the
arguments he already presented in the first instance, and the Court finds no clear error in the
referenced portions of the R & R, these objections are overruled.
CONCLUSION
For the reasons set forth above, upon due consideration and review, and including those
portions of the R & R to which the parties did not object, the recommendations contained in the R
& R are adopted in their entirety. Accordingly, as there is no genuine issue of material fact,
Defendants’ motion for summary judgment is granted, and this case is dismissed.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of
appeal.
SO ORDERED.

/s/
DORA L. IRIZARRY
Chief Judge

Dated: Brooklyn, New York
September 22, 2017

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