Pacheco v. De Acevedo et al

Filing 128

DECISION and ORDER: ORDERED that Magistrate Judge Treece's Report-Recommendation (Dkt. No. 127 ) is accepted and adopted in its entirety; ORDERED that Defendants' second motion for summary judgment (Dkt. No. 111 ) is denied; ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for appointment of counsel for an appeal is granted; ORDERED that upon assignment of Pro Bon o Counsel, a final pretrial conference be scheduled in this action, at which time the Court will schedule for trial Plaintiff's Eighth Amendment return-to-work claims against Defendants Mitchell, Artus, Fournia, Rock, and White. The parties are directed to appear at the final pretrial conference with settlement authority. Signed by Judge Glenn T. Suddaby on 6/14/2011. (served plaintiff by regular mail)(mnc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
MILTON MUSA PACHECO,
Plaintiff,
9:05-CV-0998
(GTS/RFT)

v.
JOHN MITCHELL; BRAD FOURNIA;
DALE ARTUS; J. ROCK; and J. WHITE;
Defendants.
__________________________________________
APPEARANCES:

OF COUNSEL:

MILTON MUSA PACHECO, 79-B-0064
Plaintiff, Pro Se
Great Meadow Correctional Facility
Box 51
Comstock, New York 12821
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendant
The Capitol
Albany, New York 12224

C. HARRIS DAGUE, ESQ.
Assistant Attorney General

HON. GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Milton Musa
Pacheco (“Plaintiff”) pursuant to 42 U.S.C. § 1983, is United States Magistrate Judge Randolph
F. Treece’s Report-Recommendation recommending that Defendants’ second motion for
summary judgment be denied and this case be deemed trial ready as to Plaintiff's Eighth
Amendment return-to-work claims against Defendants John Mitchell, Dale Artus, Brad Fournia,
J. Rock, and J. White. (Dkt. No. 127). No party has filed Objections to the ReportRecommendation, and the deadline by which to do so has expired. (See generally Docket

Sheet.) For the reasons set forth below, Magistrate Judge Treece’s Report-Recommendation is
accepted and adopted in its entirety, and Defendants’ second motion for summary judgment is
denied.
I.

RELEVANT BACKGROUND
On March 31, 2010, the Court issued a Decision and Order granting in part and denying

in part Defendants’ motion for summary judgment. (Dkt. No. 105.) More specifically, the Court
dismissed all of Plaintiff’s claims except his Eighth Amendment return-to-work claims against
Defendants Rock, White, Fournia in their individual capacities. (Id.) The Court also afforded
Defendants an opportunity to file a second motion for summary judgment with regard to
Plaintiff's Eighth Amendment return-to-work claims against Defendants Rock, White, Fournia in
their individual capacities based on “the apparently inadvertent nature of Defendants' decision to
not move for dismissal of [these claims].” (Id.)
On May 26, 2010, Defendants’ filed a second motion for summary judgment. (Dkt. No.
111.) In their motion, Defendants argued as follows: (1) Defendants White and Fournia were not
present when Plaintiff was allegedly forced to work, and therefore they are entitled to summary
judgment; (2) Plaintiff has failed to establish that Defendants violated his Eighth Amendment
rights by sending him to work, and the record demonstrates that Defendants were not aware of a
medical 'no work' permit excusing Plaintiff from his work detail; and (3) Defendants are entitled
to qualified immunity because, without a valid “no work” permit, Defendants conduct was that
of a similarly situated reasonable correction officer. (Id.) On July 21, 2010, Plaintiff submitted
his response in opposition to Defendants’ second motion for summary judgment. (Dkt. Nos.
118.)
Meanwhile, on May 24, 2010, after being granted an extension of time in which to do so,
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Plaintiff had filed a motion for reconsideration of the Court’s Decision and Order of March 31,
2010. (Dkt. No. 110.) On August 24, 2010, the Court issued a Decision and Order granting in
part and denying in part Plaintiff's motion for reconsideration. (Dkt. No. 120.) More
specifically, the Court (1) granted Plaintiff’s motion with regard to his return-to-work claims
against Defendants Artus and Mitchell, reinstating these two individuals as Defendants in this
action, and (2) denied the remainder of Plaintiff’s motion. (Id.) In doing so, the Court granted
Defendants until September 17, 2010, to supplement their second motion for summary judgment
so as to move for summary judgment with regard to Plaintiff's return-to-work claims against
Defendants Artus and Mitchell. (Id.) However, despite having been granted two subsequent
extensions of time in which to do so. Defendants failed to so supplement their second motion for
summary judgment. (See generally Docket Sheet.)
On March 31, 2011, Magistrate Judge Treece issued a Report-Recommendation
recommending that Defendants' second motion for summary judgment be denied, and that this
case be deemed trial ready as to Plaintiff's Eighth Amendment return-to-work claims against
Defendants Mitchell, Artus, Fournia, Rock, and White. (Dkt. No. 127.) Familiarity with the
particular reasons supporting Magistrate Judge Treece’s Report-Recommendation is assumed in
this Decision and Order, which is intended primarily for the review of the parties. As of the date
of this Decision and Order, no party has filed Objections to the Report-Recommendation, and the
deadline by which to do so has expired. (See generally Docket Sheet.)
For a more detailed recitation of the procedural history of this action, as well as
Plaintiff’s Eighth Amendment return-to-work claims and the factual allegations that support
those claims the Court refers the reader to the Complaint in its entirety, Part I of the Court’s
Decision and Order of March 31, 2010, and Part I of Magistrate Judge Treece’s Report3

Recommendation. (Dkt. Nos. 1, 105, 127.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review Governing a Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, the
Court makes a “de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1)(C).1
When only general objections are made to a magistrate judge's report-recommendation, or where
the objecting party merely reiterates the same arguments made in its original papers submitted to
the magistrate judge, the Court reviews the report-recommendation for clear error or manifest
injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22,
1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).2
Similarly, when a party makes no objection to a portion of a report-recommendation, the Court

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On de novo review, “[t]he judge may . . . receive further evidence. . . .” 28 U.S.C.
§ 636(b)(1)(C). However, a district court will ordinarily refuse to consider evidentiary material
that could have been, but was not, presented to the Magistrate Judge in the first instance. See,
e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a
magistrate's report before the district court, a party has no right to present further testimony
when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”).
2

See also Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F. Supp.
380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
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reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826,
1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R.
Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing
the appropriate review, the Court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
B.

Standard Governing a Motion for Summary Judgment

Because both the Court’s Decision and Order of March 31, 2010, and Magistrate Judge
Treece Report-Recommendation of March 31, 2011, correctly recite the legal standard governing
a motion for summary judgment, the Court will not repeat that legal standard in this Decision
and Order, which (again) is intended primarily for the review of the parties. (Dkt. No. 105 at 1316; Dkt. No. 127 at 4-5.)
III.

ANALYSIS
Because no party has filed Objections to Magistrate Judge Treece’s Report-

Recommendation and the time in which to do so has expired, the Court need review the ReportRecommendation for only clear error, pursuant to the standard or review recited above in Part
II.A. of this Decision and Order. After doing so, the Court concludes that Magistrate Judge
Treece’s Report-Recommendation is not clearly erroneous. Magistrate Judge Treece employed
the proper legal standards, accurately recited the facts, and reasonably applied the law to those
facts. As a result, the Court accepts and adopts the Report-Recommendation for the reasons
stated therein. The Court would add only that Magistrate Judge Treece’s thorough and correct
Report-Recommendation would survive even a de novo review.

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ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 127) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ second motion for summary judgment (Dkt. No. 111) is
DENIED; and it is further
ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial
only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for
appointment of counsel for an appeal is granted; and it is further
ORDERED that upon assignment of Pro Bono Counsel, a final pretrial conference be
scheduled in this action with the undersigned, at which time the Court will schedule for trial
Plaintiff’s Eighth Amendment return-to-work claims against Defendants Mitchell, Artus,
Fournia, Rock, and White. The parties are directed to appear at the final pretrial conference with
settlement authority.
Dated: June 14, 2011
Syracuse, New York

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