Green v. Greene et al

Filing 156

MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 152 ) is ACCEPTED and ADOPTED in its entirety. ORDERED, that Defendants' motion for summary judgment (Dkt. No. 145 ) is GRANTED in pa rt and DENIED in part. All of Plaintiff's claims in his Third Amended Complaint (Dkt. No. 93 ) are DISMISSED with prejudice, EXCEPT for his Eighth Amendment claim against Defendant Blood alleging deprivation of exercise during keeplock confinem ent, which remains PENDING in this action. Defendant Blood is granted LEAVE to file a second motion for summary judgment as to the above-described claim within thirty (30) days of the date of this Decision and Order. Signed by Judge Glenn T. Suddaby on 3/28/12. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
SHAWN GREEN,
Plaintiff,
9:07-CV-0351
(GTS/DEP)

v.
DARWIN LaCLAIR, Superintendent, Great Meadow
Corr. Facility; ESTATE OF RICHARD W. POTTER,
Admin. Deputy, Great Meadow Corr. Facility;
R.K. WOODS, Captain, Great Meadow Corr. Facility;
WINCHELL, Sergeant, Great Meadow Corr. Facility;
G. BLOOD, Great Meadow Corr. Facility;
R. McCLURE, Corrections Officer, Great Meadow
Corr. Facility; ELMI, Imam, Great Meadow Corr.
Facility; T. NESMITH, Nurse Practitioner, Great
Meadow Corr. Facility; and JOHN DOE,
Defendants.
______________________________________________
APPEARANCES:
SHAWN GREEN, 97-A-0801
Plaintiff, Pro Se
Auburn Correctional Facility
P.O. Box 618
Auburn, New York 13021
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

ROGER W. KINSEY, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Shawn
Green (“Plaintiff”) against the nine above-named Defendants, are the following: (1) Defendants’
motion for summary judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 145); (2) United States

Magistrate Judge David E. Peebles’ Report-Recommendation recommending that Defendants'
motion be granted in part and denied in part (Dkt. No. 152); and (3) Plaintiff’s Objections to the
Report-Recommendation (Dkt. No. 155). For the reasons set forth below, the ReportRecommendation is accepted and adopted in its entirety, and Defendants’ motion is granted in
part and denied in part.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Third Amended Complaint

Generally, construed with the utmost of liberality, those portions of Plaintiff's Third
Amended Complaint surviving the Court’s Orders of July 2, 2010, and February 18, 2011, allege
that, while Plaintiff was incarcerated at Great Meadow Correctional Facility in Comstock, New
York, his constitutional rights were violated by Defendants in the following manner: (1)
Defendants Winchell and McClure retaliated against him for filing grievances in violation of the
First Amendment; (2) Defendants Winchell, Nesmith, Elmi and John Doe denied him equal
protection of the laws in violation of the Fourteenth Amendment; (3) Defendant Blood
wrongfully denied him medications and physical exercise in violation of the Eighth Amendment;
and (4) Defendants LaClair, Woods and Potter were personally involved in the above-described
constitutional violations by creating the policies under which the violations occurred, recklessly
supervising the employees who committed the violations, and/or failing to remedy the violations
after being informed of them through report or appeal. (See generally Dkt. No. 93 [Plf.’s Third
Am. Compl.].) Familiarity with the remaining factual allegations supporting these claims is
assumed in this Decision and Order, which is intended primarily for review by the parties.

2

B.

Parties’ Briefing on Defendants’ Motion for Summary Judgment

Generally, in support of their motion for summary judgment, Defendants assert the
following four arguments: (1) Plaintiff has failed to adduce admissible record evidence
establishing the personal involvement of Defendants LaClair, Woods, and Potter in the
underlying constitutional violations; (2) Plaintiff has failed to adduce admissible record evidence
establishing a claim for discrimination, retaliation, denial of exercise, denial of religious
activities and meals, out and/or deliberate indifference to his serious medical needs; (3) based on
the current record, Defendants are protected from liability as a matter of law by the doctrine of
qualified immunity; and (4) Plaintiff has failed to meet his burden for obtaining a preliminary
injunction, and his claims for injunctive relief are barred by 42 U.S.C. § 1983. (See generally
Dkt. No. 145, Attach. 3 [Defs.’ Memo. of Law].)
Generally, in opposition to Defendants’ motion, Plaintiff asserts the following five
arguments: (1) Plaintiff has adduced admissible record evidence establishing a claim for the
denial of exercise (e.g., that there are no “daily housing block entries” indicating that he was
allowed exercise during the entire 30 days that he was confined under keeplock status, and he
was unable to exercise in his cell door to poor ventilation); (2) Plaintiff has adduced admissible
record evidence establishing a retaliation claim (particularly a causal connection between the
adverse action he experienced and his protected speech); (3) Plaintiff has adduced admissible
record evidence establishing the personal involvement of Defendants LaClair, Potter and Woods
in the constitutional violations alleged (through the three ways described above in Part I.A. of
this Decision and Order); (4) Plaintiff has adduced admissible record evidence establishing a
claim for discrimination against Defendants Winchell, Nesmith, Elmi and John Doe (for the first

3

time identified as “P. Van Guilder”); and (5) Plaintiff has met his burden for obtaining a
preliminary injunction. (See generally Dkt. No. 149, Attach. 2 [Plf.’s Opp’n Memo. of Law].)
Generally, in their reply, Defendants argue that, because Plaintiff has failed to properly
oppose their Local Rule 7.1 Statement, he has effectively admitted the factual assertions
contained in Defendants’ Rule 7.1 Statement. (Dkt. No. 150.)
C.

Magistrate Judge Peebles Report-Recommendation

Generally, Magistrate Judge Peebles’ Report-Recommendation recommends that
Defendant’s motion be granted in part and denied in part. (See generally Dkt. No. 152.) More
specifically, Magistrate Judge Peebles recommends that all the claims in Plaintiff’s Third
Amended Complaint be dismissed, except for his Eighth Amendment claim against Defendant
Blood relating to the alleged deprivation of exercise during Plaintiff’s keeplock confinement,
due to a genuine dispute of material fact that exists with regard to that claim, based on the
current record. (Id. at 36-38, 54.) However, Magistrate Judge Peebles recommends that
Defendants’ motion be denied only without prejudice with regard to that claim, permitting
Defendants to file a second motion for summary for summary judgment on that claim, within
thirty days of the Court’s Decision and Order on Defendants’ first motion. (Id.) Familiarity with
the remaining grounds of Magistrate Judge Peebles’ Report-Recommendation is assumed in this
Decision and Order, which is intended primarily for the review of the parties.
D.

Plaintiff’s Objections to the Report-Recommendation

Generally, in his Objections, Plaintiff asserts the following five arguments: (1)
Magistrate Judge Peebles erred by not finding either (a) sufficiently significant adverse action
against Plaintiff by Defendant Winchell or (b) a causal connection between Plaintiff’s grievance

4

and that adverse action (particularly considering Defendant Winchell’s relationship to Scott
Winchell, previously dismissed from this action); (2) Magistrate Judge Peebles did not give
Plaintiff an adequate opportunity to conduct pre-trial discovery before issuing his ReportRecommendation on Defendants’ motion for summary judgment; (3) Magistrate Judge Peebles
incorrectly found that Defendant Elmi had a “legitimate penological interest” in failing to make
accommodations for National of Islam (“NOI”) religious services; (4) Magistrate Judge Peebles
incorrectly found that Defendant Winchell had a “legitimate penological interest” in taking the
actions that he took regarding Plaintiff’s program assignment; and (5) Magistrate Judge Peebles
wrongfully recommended that Defendant Blood be permitted a second opportunity to move for
summary judgment. (Dkt. No. 155, at 5-11.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).1

1

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
5

When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). 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.2
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.3 Similarly, when an objection merely reiterates the same arguments made
by the objecting party in its original papers submitted to the magistrate judge, the Court subjects
that portion of the report-recommendation challenged by those arguments to only a clear error
review.4 Finally, when no objection is made to a portion of a report-recommendation, the Court
2

See 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”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
3

See also 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).
4

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); 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
6

subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.5
After conducting 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.

Legal Standard Governing a Motion for Summary Judgment

Magistrate Judge Peebles correctly recited the legal standards governing a motion for
summary judgment. (Dkt. No. 152, at 7-10.) As a result, that standard is incorporated by
reference in this Decision and Order, which (again) is intended primarily for the review of the
parties.
III.

ANALYSIS
Even when construed with the utmost of liberality, Plaintiff’s Objections largely reiterate

the arguments that Plaintiff previously presented in his submission to Magistrate Judge Peebles.
(Compare Dkt. No. 149, Attach. 2, at 5-15 [Plf.’s Opp’n Memo. of Law] with Dkt. No. 155 at 5-

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.).
5

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
7

11 [Plf.’s Obj.].)6 As explained above in Part II.A. of this Decision and Order, when an
objection merely reiterates the same arguments made by the objecting party in its original papers
submitted to the magistrate judge, the Court subjects that portion of the report-recommendation
challenged by those arguments to only a clear error review. Here, after carefully considering
the relevant papers in this action, the Court concludes that Magistrate Judge Peebles’ thorough
Report-Recommendation is not clearly erroneous. Magistrate Judge Peebles employed the
proper standards, accurately recited the facts, and reasonably applied the law to those facts. (See
generally Dkt. No. 152.) As a result, the Court adopts the Report-Recommendation in its
entirety for the reasons stated therein. The Court would add only two brief points.
First, Magistrate Judge Peebles’ Report-Recommendation would survive even a de novo
review. This conclusion applies not only to the portions of the Report-Recommendation
challenged by Plaintiff through his repetitive arguments in his Objection but to those portions
challenged by Plaintiff through his two new arguments in his Objections. See, supra, note 6 of
this Decision and Order (describing those portions).7 More specifically, with regard to Plaintiff’s
argument that he did not receive adequate discovery before responding to Defendants’ motion
for summary judgment, the Court finds (1) he did in fact receive an adequate opportunity to

6

The only two arguments in Plaintiff’s Objections that were not previously
presented in his submission to Magistrate Judge Peebles are his arguments that (1) Magistrate
Judge Peebles did not give Plaintiff an adequate opportunity to conduct pre-trial discovery
before issuing his Report-Recommendation on Defendants’ motion for summary judgment, and
(2) Magistrate Judge Peebles wrongfully recommended that Defendant Blood be permitted a
second opportunity to move for summary judgment. (Compare Dkt. No. 149, Attach. 2, at 5-15
[Plf.’s Opp’n Memo. of Law] with Dkt. No. 155 at 5-11 [Plf.’s Obj.].)
7

However, the Court notes that, to the extent that any of the 13 pages of exhibits
attached to Plaintiff’s Objections were not part of the record presented to Magistrate Judge
Peebles’ on Defendants’ motion, the Court declines to consider them. See, supra, note 2 of this
Decision and Order.
8

conduct discovery, based on a review of the docket, (2) permitting him to raise such an argument
for the first time at this late stage of the action would waste judicial resources and unacceptably
frustrate the purpose of the Magistrates Act, and (3) he has failed to satisfy the requirements of
Fed. R. Civ. P. 56(d).8 Moreover, with regard to Plaintiff’s argument that Magistrate Judge
Peebles wrongfully recommended that Defendant Blood be given a second opportunity to move
for summary judgment, the Court finds that such a brief opportunity is entirely fair, reasonable
and efficient under the circumstances, particularly given the extraordinary special solicitude that
Plaintiff has been granted in terms of the drafting and construction of his pleadings thus far in
this action.9
Second, Magistrate Judge Peebles’ Report-Recommendation is further supported by the
fact that, in his opposition papers, Plaintiff failed to oppose Defendants’ qualified immunity
argument. (Compare Dkt. No. 145, Attach. 3 [Defs.’ Memo. of Law] with Dkt. No. 149, Attach.
2 [Plf.’s Opp’n Memo. of Law].) When a party opposing a motion for summary judgment fails to
respond to an argument contained in the motion, the moving party’s burden with respect to that
argument is lightened such that, in order to succeed, the argument need only have facial merit.
Rescuecom Corp. v. Chumley, 07-CV-0690, 2011 WL 2791272, at *3 & n.4 (N.D.N.Y. July 14,
2011) (Suddaby, J.) (collecting authorities). Here, the Court finds that, at the very least,

8

To obtain relief under Fed. R. Civ. P. 56(d), a litigant must submit an affidavit
showing “(1) what facts are sought to resist the motion and how they are to be obtained, (2) how
those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the
affiant has made to obtain them, and (4) why the affiant has been unsuccessful in those efforts.”
Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303 (2d Cir. 2003). Here, Plaintiff has
done none of those three things.
9

The Court notes that it is entirely excusable, under the circumstances, for
Defendant Blood to have overlooked certain of Plaintiff’s allegations and arguments concerning
him, given the nature of Plaintiff’s Third Amended Complaint and motion papers.
9

Defendants have met their lightened burden with respect to their qualified-immunity argument.
(Indeed, the Court would find that Defendants have met their burden even if the Court were to
subject Defendants’ argument to the more rigorous scrutiny appropriate for a contested
argument.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 152) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 145) is
GRANTED in part and DENIED in part, as follows:
(1) all of Plaintiff’s claims in his Third Amended Complaint (Dkt. No. 93)
are DISMISSED with prejudice, EXCEPT for his Eighth Amendment claim
against Defendant Blood alleging deprivation of exercise during keeplock
confinement, which remains PENDING in this action; and
(2) Defendant Blood is granted LEAVE to file a second motion for
summary judgment as to the above-described claim within thirty (30) days of the
date of this Decision and Order.
Dated: March 28, 2012
Syracuse, New York

10