Green v. Greene et al

Filing 172

DECISION AND ORDER: ORDERED, that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 168 ) is ACCEPTED and ADOPTED in its entirety. ORDERED, that Defendant's second motion for summary judgment (Dkt. No. 161 ) is GRANTED. ORDERED, that Plaintiff's Third Amended Complaint (Dkt. No. 93 ) is DISMISSED. Signed by Judge Glenn T. Suddaby on 5/22/13. (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.
CHARLES BLOOD, Corrections Officer,
Great Meadow Correctional Facility,
Defendant.
_________________________________________
APPEARANCES:

OF COUNSEL:

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 Defendant
The Capitol
Albany, New York 12224

ROGER W. KINSEY, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Shawn
Green (“Plaintiff”) against Great Meadow Correctional Facility Corrections Officer Charles
Blood (“Defendant”) are (1) Defendant’s second motion for summary judgment (Dkt. No. 161),
(2) United States Magistrate Judge David E. Peebles’ Report-Recommendation recommending
that Defendant's motion be granted (Dkt. No. 168), and (3) Plaintiff’s Objections to the ReportRecommendation (Dkt. No. 171). For the reasons set forth below, the Report-Recommendation

is accepted and adopted in its entirety, Defendant’s motion is granted, and Plaintiff’s Third
Amended Complaint is dismissed.
I.

RELEVANT BACKGROUND
A.

Relevant Procedural History and Claim

Plaintiff filed his Complaint in this action on April 2, 2007. (Dkt. No. 1.) On March 5,
2010, Plaintiff filed a Third Amended Complaint, which is the operative pleading in this action.
(Dkt. No. 93.) Generally, construed with the utmost of liberality, Plaintiff's Third Amended
Complaint alleges, in pertinent part, that, while he was incarcerated in keeplock confinement at
Great Meadow Correctional Facility in Comstock, New York, Defendant Blood wrongfully
denied him daily exercise during a third-day period between approximately October 16, 2006,
and November 16, 2006, in violation of the Eighth Amendment. (Id.) Familiarity with the
remaining procedural history of this action, and the remaining factual allegations supporting this
Eighth Amendment claim, are assumed in this Decision and Order, which is intended primarily
for review by the parties.
B.

Parties’ Briefing on Defendant’s Second Motion for Summary Judgment

Generally, Defendant’s second motion for summary judgment asserts the following three
arguments: (1) Plaintiff has failed to adduce admissible evidence establishing, or even allege
facts plausibly suggesting, the personal involvement of Defendant in the Eighth Amendment
violation alleged, but rather suggests only his involvement in a denial of exercise on November
7, 2006, due to the fact that, at the time the keeplock recreation list was made on that date,
Plaintiff was not inside his cell but was at the infirmary for his insulin shot; (2) Plaintiff has
failed to adduce admissible evidence establishing, or even allege facts plausibly suggesting, the

2

existence of either the objective or subjective elements of such an Eighth Amendment claim
against Defendant; and (3) based on the current record, Defendant is protected from liability as a
matter of law by the doctrine of qualified immunity. (Dkt. No. 161, Attach. 2, at Points I
through III.)
Generally, liberally construed, Plaintiff’s opposition to Defendant’s motion asserts the
following three arguments: (1) a genuine dispute of material fact exists regarding whether
Defendant was personally involved in the Eighth Amendment violation alleged, because the
lack-of-personal-involvement doctrine relied on by Defendant applies only to supervisory
officials, and Plaintiff has not alleged Defendant to be such a supervisory official; (2) a genuine
dispute of material fact exists regarding whether Defendant was involved in, and/or was
responsible for, Plaintiff’s missing exercise during the entirety of his keeplock confinement in
October and November of 2006, as evident from (a) Grievance Numbers 41-659-06, 41-835-06
and 41-608-06 (which pertained to Defendant), and (b) the B-block log book entries during that
period (which show that Plaintiff was not at the infirmary for his insulin shot but was inside his
cell during the morning chow runs when the keeplock recreation lists were made); and (3)
qualified immunity is inappropriate under the circumstances, because the right to meaningful
exercise was clearly established during the time in question. (Dkt. No. 167, at Points I through
III.)
C.

Magistrate Judge Peebles Report-Recommendation

On February 25, 2013, Magistrate Judge Peebles issued a Report-Recommendation
recommending that Defendant’s motion be granted. (Dkt. No. 168.) Generally, in his ReportRecommendation, Magistrate Judge Peebles found as follows: (1) the current record shows

3

Defendant’s personal involvement in the denial of Plaintiff’s recreation on, at most, one day
(specifically, November 7, 2006); (2) the record contains no admissible evidence establishing the
objective element of Plaintiff’s Eighth Amendment claim against Defendant, because (a) the
overwhelming weight of the record evidence (e.g., Grievance Nos. 41,835-06 and 41-569-06)
does not support a claim that Plaintiff was denied recreation for 30 days but only for, at most, a
week, which is a constitutionally insignificant period of time, (b) Defendant’s justification for
denying Plaintiff recreation on November 7, 2006 (i.e., that Plaintiff was at the infirmary when
the recreation list was made) is supported by, and not contradicted by, the record, and (c)
Plaintiff’s declaration testimony that he overheard Defendant instruct another officer to deprive
him of recreation is so wholly devoid of detail and uncorroborated by the record as to be
incredible as a matter of law; (3) the record contains no admissible evidence establishing the
subjective element of Plaintiff’s Eighth Amendment claim against Defendant, because neither
Plaintiff’s Third Amended Complaint nor his response in opposition to Defendant’s motion even
alleges or argues that Plaintiff’s health or safety was at risk due to the alleged deprivation or that
Defendant knew of that risk; and (4) because adequate grounds existed on which to recommend
the granting of Defendant’s motion, no recommendation is needed regarding Defendant’s
qualified immunity argument. (Id. at Part III.C.)
D.

Plaintiff’s Objections to the Report-Recommendation

On May 11, 2013, after being granted an extension of time in which to do so, Plaintiff
submitted his Objections to the Report-Recommendation. (Dkt. No. 171.) Generally, liberally
construed, Plaintiff’s Objections argue that Magistrate Judge Peebles’ findings are erroneous for
the following five reasons: (1) Magistrate Judge Peebles incorrectly determined that Plaintiff was

4

deprived of exercised for, at most, only one week, by (a) basing his determination on only
Grievance Nos. 41,835-06 and 41,659-06, and Defendant’s declaration, (b) failing to inspect the
B-block log book entries during the 30-day period of Plaintiff’s keeplock confinement, and (c)
failing to acknowledge that Grievance No. 41,500-06 (dated October 25, 2006) was in fact
related to Defendant even though it did not name him; (2) Magistrate Judge Peebles incorrectly
determined that the B-block log book entries do not reveal any evidence that Plaintiff was inside
his cell on the morning of November 7, 2006, when in fact the entry for that date shows that
Plaintiff was taken to the infirmary 13 minutes after the recreation list was made; (3) because
Defendant did not adduce evidence that Plaintiff attended keeplock exercise during the 30-day
period in question, or had out-of-cell or in-cell opportunities for exercise available, Magistrate
Judge Peebles could not have found in Defendant’s favor with regard to the objective element of
an Eighth Amendment claim; (4) a genuine dispute of material fact exists with regard to the
subjective element of an Eighth Amendment claim based on the evidence that Defendant (a)
intentionally did not wear his name tag while on duty, (b) only reluctantly provided his name to
Plaintiff on November 7, 2006, and (c) falsely stated that Plaintiff was at the infirmary when the
recreation list was made on November 7, 2007; and (5) Magistrate Judge Peebles improperly
made a credibility determination with regard to Plaintiff’s declaration, in violation of Jeffreys v.
City of New York, 426 F.3d 549 (2d Cir. 2005). (Dkt. No. 171, at Parts B and C.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review of Report-Recommendation

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

5

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 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

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.”).
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.”).
6

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
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 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).

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
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

B.

Legal Standard Governing Motion for Summary Judgment

Magistrate Judge Peebles correctly recited the legal standard governing motions for
summary judgment. (Dkt. No. 171, at Part III.A.) As a result, this standard is incorporated by
reference in this Decision and Order, which (again) is intended primarily for the review of the
parties.
III.

ANALYSIS
For the sake of brevity, the Court will assume that Plaintiff’s Objections specifically

address Magistrate Judge Peebles’ recommendations, and do so through arguments not presented
by Plaintiff in his response papers submitted to Magistrate Judge Peebles–although that is a close
question given the overlap in the record evidence relied on by Plaintiff in both sets of papers.
(Compare Dkt. No. 167 with Dkt. No. 171.) In any event, even applying a de novo standard of
review, the Court must, and does, reject each of Plaintiff’s Objections, and adopt Magistrate
Judge Peebles’ thorough and correct Report-Recommendation for the reasons stated therein.
(Dkt. No. 168.)
More specifically, with regard to Plaintiff’s first objection (i.e., that Magistrate Judge
Peebles incorrectly determined that Plaintiff was deprived of exercise for, at most, only one
week), Plaintiff glosses over the fact that, in relying on “the B-block log book entries,” Plaintiff
cited “Docket [‘Dkt.’] No. 120-7.” (Dkt. No. 167, at 1.) As correctly observed by Magistrate
Judge Peebles, the attachment to that docket entry contains no such log book entries. (See
generally Dkt. No. 120, Attach. 7.) In opposing Defendant’s motion for summary judgment,
Plaintiff had the duty to, inter alia, “set forth a specific citation to the record where the factual

8

issue arises.” N.D.N.Y. L.R. 7.1(b)(3).6 He had been repeatedly informed of that duty.7 It was
not Magistrate Judge Peebles’ duty to scour the affidavits and exhibits presented by the parties
on Defendant’s motion for summary judgment–much less the 387 pages contained a random
docket entry existing outside of the record on Defendant’s motion–in search for a dispute of
material fact.8
In any event, even if admissible record evidence exists from which a rational factfinder
could conclude that Plaintiff was deprived of exercise for a duration of time of between one and
four weeks, Plaintiff has failed to adduce admissible record evidence from which a rational
factfinder could conclude that Defendant was responsible for that deprivation. Any assertion
that Defendant was responsible for deprivations occurring before November 7, 2006, is mere
speculation and conjecture. Not only did Grievance No. 41,500-06 (dated October 25, 2006)

6

He is not excused from this duty because he is proceeding pro se in a civil rights
case. See Cusamano v. Sobek, 604 F. Supp.2d 416, 426-27 & nn.4, 6 (N.D.N.Y. 209) (Suddaby,
J.) (citing cases).
7

(See, e.g., Dkt. No. 161, at 3 [attaching Rule 7.1 Notice]; Dkt. No. 145, at 3
[attaching Rule 7.1 Notice]; N.D.N.Y. L.R. 7.1[a][3] [stating relevant rule, which was on file at
Plaintiff’s correctional facility when he prepared his response papers]; Dkt. No. 150 [Defs.’
Reply on Their First Motion for Summary Judgment, arguing that, because Plaintiff had failed to
properly oppose their Local Rule 7.1 Statement, he has effectively admitted the factual assertions
contained in their Rule 7.1 Statement].)
8

See Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (“We
agree with those circuits that have held that Fed. R. Civ. P. 56 does not impose an obligation on
a district court to perform an independent review of the record to find proof of a factual
dispute.”) (citations omitted); Monahan v. New York City Dep't of Corr., 214 F.3d 275, 291 (2d
Cir.2000) (noting that the Local Rules require the parties “to clarify the elements of the
substantive law which remain at issue because they turn on contested facts” and the Court “is not
required to consider what the parties fail to point out”) (internal quotation marks and citations
omitted); accord, Lee v. Alfonso, No. 04-1921, 2004 WL 2309715 (2d Cir. Oct. 14, 2004), aff'g,
97-CV-1741, 2004 WL 5477530, at *4 (N.D.N .Y. Feb. 10, 2004) (Scullin, J.) (granting motion
for summary judgment);
9

not specifically name Defendant, that grievance was never even alleged by Plaintiff (in his Third
Amended Complaint) as involving Defendant. (Dkt. No. 171, Attach. 1, at 1-2; Dkt. No. 93, at ¶
25.) In any event, even if that grievance did somehow involve Defendant, that fact would extend
the deprivation period to approximately two or three weeks in length, still a constitutionally
insignificant period. (Dkt. No. 168, at 16.) (As for Plaintiff’s declaration testimony that he
overheard Defendant instruct another officer to deprive him of recreation, that declaration is
discussed below, in the Court’s analysis of Plaintiff’s fifth objection.)
With regard to Plaintiff’s second objection (i.e., that Magistrate Judge Peebles incorrectly
overlooked the fact that the B-block log book entry for November 7, 2006, shows that Plaintiff
was taken the infirmary 13 minutes after the recreation list was made during the morning chow
run), the Court will (again, for the sake of brevity) set aside the obvious fact that it is very
possible that the morning chow run, which apparently started at 7:12 a.m., did not in fact reach
Plaintiff’s cell until after he left for the infirmary, at 7:25 a.m. Such a delay would be entirely
consistent with Plaintiff’s statement on February 6, 2007, to Sergeant M. Hoy, that he was not in
his cell during the morning chow run on October 7, 2006. (Dkt. No. 161, Attach. 5, at 7.) In any
event, more important is the fact that the lack-of-a-specific-record-citation point and
insignificant-duration point made by the Court above with regard to Plaintiff’s first objection
apply also with regard to this second objection.
With regard to Plaintiff’s third objection (i.e., that Magistrate Judge Peebles erred in
finding in Defendant’s favor with regard to the objective element of an Eighth Amendment
claim, because Defendant did not adduce evidence that Plaintiff attended keeplock exercise
during the 30-day period in question, or had out-of-cell or in-cell opportunities for exercise

10

available), that objection misconstrues (1) the burden on Defendant’s motion (which is
essentially to show the absence of a genuine dispute of material fact that Defendant was involved
in an intentional or reckless deprivation other than one day in length, not that Plaintiff was free
from other deprivations at other people’s hands during that 30-day period), as well as (2) the
standard governing the objective element of an Eighth Amendment claim (which merely treats
the referenced factors as non-exhaustive and as part of a balancing test).
With regard to Plaintiff’s fourth objection (i.e., that a genuine dispute of material fact
exists with regard to the subjective element of an Eighth Amendment claim due to Defendant’s
asserted efforts to hide his identity from Plaintiff, and the fact that Defendant falsely stated that
Plaintiff was at the infirmary when the recreation list was made on November 7, 2007), Plaintiff
has failed to adduce any admissible record evidence establishing that, on November 7, 2007, (1)
Plaintiff’s health or safety would have been at risk if he was deprived of exercise that day, and
(2) Defendant knew that fact. Indeed, the latter finding would, again, be mere speculation and
conjecture, based on the current record.
With regard to Plaintiff’s fifth objection (i.e., that Magistrate Judge Peebles improperly
made a credibility determination with regard to Plaintiff’s declaration testimony that he
overheard Defendant instruct another officer to deprive him of recreation), the Court finds, as an
initial matter, that Magistrate Judge Peebles properly applied the rule in Jeffreys, for the reasons
that he states, and also because Plaintiff’s declaration testimony directly contradicts his
statement on February 6, 2007, to Sergeant M. Hoy, that he was not in his cell during the
morning chow run on October 7, 2006. (Dkt. No. 161, Attach. 5, at 7.)

11

In any event, even if the Court were not to discredit Plaintiff’s referenced declaration
testimony, that testimony would be insufficient to create a genuine dispute of material fact under
the circumstances. Plaintiff’s declaration testimony was as follows: “Plaintiff initially assume[d]
there [were] other reasons for him being deprived of keeplock exercise requested daily, until
actually overhearing Defendant Blood instructing another officer otherwise. See Grievance #41500/532-06.” (Dkt. No. 167, at ¶ 10.) Again, for the sake of brevity, the Court will set aside the
lack of any indication of where Plaintiff overheard this instruction, or to whom it was given;
rather, the Court will focus on the date of the allegedly overheard instruction.
The two grievances cited by Plaintiff in his declaration do not shed light on when he
heard the alleged instruction; rather, those grievances are dated October 25, 2006, and October
27, 2006 (more than a week before the deprivation of November 7, 2006), and do not contain
allegations regarding such an instruction. (Dkt. No. 161, Attach. 5, at 13; Dkt. No. 171, Attach.
1, at 1.) Granted, two other grievances–Grievance Nos. 41-835-06 and 41-659-06–indicate that
Plaintiff overheard the instruction on November 7, 2006. (Dkt. No. 161, Attach. 5, at 4-5.)
However, even if assumed to be true, such an instruction–which resulted in a deprivation for
only a day and, at most, a week–is simply not constitutionally significant. The inference that,
because Defendant gave that instruction on November 7, 2006, he must have also given the
instruction before that date is riddled with speculation and conjecture. Indeed, had Defendant
given the instruction before November 7, 2006, little reason would appear to exist for him to
repeat himself on November 7, 2006. Moreover, such an instruction, by itself, in no way
indicates that Defendant knew of any risk to Plaintiff’s health or safety resulting from his
deprivation of daily exercise.

12

Finally, in the alternative, the Court accepts Defendant’s qualified-immunity argument
for the reasons stated in his memorandum of law.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 168) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s second motion for summary judgment (Dkt. No. 161) is
GRANTED; and it is further
ORDERED that Plaintiff’s Third Amended Complaint (Dkt. No. 93) is DISMISSED.
Dated: May 22, 2013
Syracuse, New York

13