Burgess v. Fischer et al

Filing 70

ORDER that 69 Report and Recommendations is ACCEPTED and ADOPTED in its entirety. ORDERED granting 61 Motion for Judgment on the Pleadings and plaintiff's complaint is DISMISSED in its entirety. Signed by Judge Glenn T. Suddaby on 3/10/09. {order served via regular mail on all non-ecf parties}(nas)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK __________________________________________ HERBERT BURGESS, Plaintiff, v. BRIAN FISCHER; ROBERT K. WOODS; JAMES T. BEZIO; T. ASHLAW; MICHAEL EDDY; LOUISE TICHENOR; PAT JOHNSON; and SGT. MARTIN, Defendants. __________________________________________ APPEARANCES: HERBERT BURGESS, 93-A-3237 Plaintiff, Pro Se Attica Correctional Facility Box 149 Attica, NY 14011 HON. ANDREW M. CUOMO Attorney General for the State of New York Counsel for Defendants The Capitol Albany, New York 12224 HON. GLENN T. SUDDABY, United States District Judge DECISION and ORDER Currently before the Court in this pro se prisoner civil rights action are Defendants' motion for judgment on the pleadings, and United States Magistrate Judge David R. Homer's Report-Recommendation recommending that Defendants' motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) be granted. (Dkt. Nos. 61, 69.) Plaintiff did not file any objections to the Report-Recommendation. For the reasons set forth below, the ReportCHRISTOPHER W. HALL, ESQ. Assistant Attorney General OF COUNSEL: Civil Case No. 9:07-CV-0204 (GTS/DRH)

Recommendation is accepted and adopted in its entirety, Defendants' motion for judgment on the pleadings is granted, and Plaintiff's Complaint is dismissed. I. RELEVANT BACKGROUND Plaintiff filed his Complaint in this action on February 26, 2007. Liberally construed, Plaintiff's Complaint alleges that, in 2005 and 2006 at Sing Sing and Upstate Correctional Facilities, the above-captioned Defendants (1) violated his First Amendment rights when they retaliated against him for filing complaints (e.g., filing false misbehavior reports against him, etc.), (2) violated his Eighth Amendment rights when they denied him adequate protection after he was labeled as a "snitch," and then provided him inadequate medical care after an assault, and (3) violated his Fourteenth Amendment rights when they sentenced him to excessive confinement in a Special Housing Unit. (See generally Dkt. No. 1.) On September 11, 2008, Defendants filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), seeking dismissal of Plaintiff's Complaint in its entirety. (Dkt. No. 61.) Generally, Defendants argue that Plaintiff's Complaint should be dismissed because the same claims asserted in this action were, or could have been, litigated in at least three prior actions by Plaintiff in this Court: (1) Burgess v. Tichenor, 05-CV-1476-LEK-GHL (N.D.N.Y.); (2) Burgess v. Friedmann, 05-CV-0379-NAM-DRH (N.D.N.Y.); and (3) Burgess v. Alexander, 05-CV-0142-GLS-DEP (N.D.N.Y.). (Dkt. No. 61, Part 6, at 5-9.) Furthermore, Defendants argue, because Plaintiff entered into Stipulations of Discontinuance in those actions on June 1, 2006, Plaintiff is barred him from relitigating these claims. (Id.)

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On September 19, 2008, Plaintiff submitted his response in opposition to Defendants' motion. (Dkt. No. 64.) On February 12, 2009, Magistrate Judge Homer issued a ReportRecommendation recommending that Defendants' motion be granted. (Dkt. No. 69.) As previously stated, Plaintiff did not file any objections to the Report-Recommendation. II. ANALYSIS For the sake of brevity, the Court will not recite the well-known legal standard of clear error that governs the review of a magistrate judge's report-recommendation to which a party has made no objection, pursuant to 28 U.S.C. § 636(b)(1)(C). Rather, the Court will merely refer the parties to its decision in Vigliotti v. Daly, 05-CV-1320, 2008 WL 5423453, at *1 (N.D.N.Y. Dec. 30, 2008) (Suddaby, J.). After carefully reviewing all of the papers in this action, including Magistrate Judge Homer's thorough Report-Recommendation, the Court concludes that the Report-Recommendation is not clearly erroneous. Magistrate Judge Homer employed the proper legal standards, accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court adopts the Report-Recommendation for the reasons stated therein.1 ACCORDINGLY, it is ORDERED that Magistrate Judge Homer's Report-Recommendation (Dkt. No. 69) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants' motion for judgment on the pleadings (Dkt. No. 61) is GRANTED; and it is further

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The Court notes that the Report-Recommendation would survive even a de novo 3

review.

ORDERED that Plaintiff's Complaint (Dkt. No.1) is DISMISSED in its entirety. Dated: March 10, 2009 Syracuse, New York

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