Goodson v. Artus et al

Filing 49

MEMORANDUM-DECISION and ORDER: ORDERED that 46 Report and Recommendation is accepted and adopted in its entirety. ORDERED that 43 Motion for Summary Judgment is granted in part and denied in part as set forth in this Memorandum-Decision and Order. 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. Signed by Judge Glenn T. Suddaby on 3/27/12. {order served via regular mail on all non-ecf parties}(nas)

lUNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
THOMAS GOODSON,
Plaintiff,

9:09-CV-0494
(GTS/DRH)

v.
DALE ARTUS, Superintendent, Clinton Corr.
Facility; “JOHN” MENARD, Sergeant, Clinton
Corr. Facility; “JOHN” SILVER, Sergeant, Clinton
Corr. Facility; “JOHN” RENADETTE, Corr.
Officer, Clinton Corr. Facility; and “JOHN DOE,”
Corr. Officer, Clinton Corr. Facility,
Defendants.
___________________________________________
APPEARANCES:

OF COUNSEL:

THOMAS GOODSON, 90-T-1254
Plaintiff, Pro Se
Great Meadow Correctional Facility
P.O. Box 51
Comstock, New York 12821
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

MEGAN M. BROWN, 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 Thomas
Goodson (“Plaintiff”) against the five above-captioned New York State correctional employees
(“Defendants”), are the following: (1) Defendants’ for summary judgment;1 (2) United States
Magistrate Judge David R. Homer’s Report-Recommendation recommending Defendants motion

1

Defendant Silver has not joined Defendants in this motion. (Dkt. No. 43; Dkt.
No. 46, at 17, n.9.)

be granted in part and denied in part; and (3) Defendant Renadette’s Objection to the ReportRecommendation. (Dkt. Nos. 43, 46, 48.) For the reasons set forth below, Magistrate Judge
Homer’s Report-Recommendation is accepted and adopted in its entirety; Defendants’ motion is
granted in part and denied in part; and all of Plaintiff’s claims are dismissed, except for his
Eighth Amendment claims and his conspiracy claims against Defendants Renadette and Silver.
I.

RELEVANT BACKGROUND
A.

Plaintiff’s Complaint

Construed with the utmost of special liberality, Plaintiff’s Complaint alleges that on April
4, 2006, at Clinton Correctional Facility, the five above-captioned Defendants violated his
constitutional rights in the following manner: (1) Defendant Menard threatened Plaintiff with
bodily harm if he ever again exposed himself to a correctional facility nurse practitioner passing
by his cell (as he was alleged to have done earlier that day, while he was using the toilet), in
violation of the Eighth Amendment; (2) Defendant Silver sexually assaulted Plaintiff in a
bathroom while escorting him to a physical therapy appointment, in violation of the Eighth
Amendment; (3) Defendant “John Doe” sexually assaulted and/or failed to protect Plaintiff from
the alleged sexual assault, by assisting Defendant Silver during the sexual assault; (4) Defendant
Renadette failed to protect Plaintiff from the alleged sexual assault, by knowing of Defendant
Menard’s physical threat against Plaintiff, by having reason to know that Defendant Silver
intended to harm Plaintiff, but failing to accompany Plaintiff into the bathroom during his
transport to physical therapy, in violation of the Eighth Amendment; and (5) Defendant Artus
failed to properly supervise Defendants. (See generally Dkt. No. 1.) Plaintiff also asserts a
conspiracy claim against all Defendants, under 42 U.S.C. § 1983, arising from the abovedescribed events. (Id.) Finally, Plaintiff asserts various state law claims against Defendants,
arising from the alleged sexual assault. (Id.)
2

Because this Decision and Order is intended primarily for the review of the parties, the
Court will not recite in detail the remaining factual allegations giving rise to these claims, but
will refer the reader to the Complaint in its entirety, as well as Magistrate Judge Homer’s
Report-Recommendation, which accurately summarizes those factual allegations. (Dkt. Nos. 1,
46.) As a result of these alleged violations, Plaintiff seeks injunctive and monetary relief. (Dkt.
No. 1.)
B.

Parties’ Briefing on Defendants’ Motion for Summary Judgment

Generally, in their motion for summary judgment, Defendants assert the following five
arguments: (1) Plaintiff has failed to allege facts plausibly suggesting, and/or adduce admissible
record evidence establishing, the personal involvement of Defendants Menard, Renadette, and
Artus in the underlying constitutional violations; (2) the Court does not possess subject-matter
jurisdiction over Plaintiff’s state law claims based on New York Correction Law § 24 and the
doctrine of standing; (3) Plaintiff has failed to allege facts plausibly suggesting, and/or adduce
admissible record evidence establishing, a claim for conspiracy under 42 U.S.C. § 1983; (4)
because Plaintiff has failed to name or serve Defendant “John Doe,” that Defendant should be
dismissed from the action without prejudice; and (5) based on the current record, Defendants are
protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt. No. 43.)
Liberally construed, Plaintiff’s response to Defendants’ motion asserts the following
three arguments: (1) Plaintiff has alleged facts plausibly suggesting a 42 U.S.C. § 1983
conspiracy claim; (2) based on the current record, genuine disputes of material fact exist
precluding summary judgment on Plaintiff’s Eighth Amendment claims and 42 U.S.C. § 1983
conspiracy claims; and (3) based on the current record, a genuine dispute of material fact exists
as to whether Defendants are protected from liability by the doctrine of qualified immunity.
(Dkt. No. 45.)
3

C.

Magistrate Judge Homer’s Report-Recommendation

Generally, Magistrate Judge Homer’s Report-Recommendation recommends that
Defendants’ motion for summary judgment be granted essentially for the reasons stated by
Defendants, except with regard to Plaintiff’s Eighth Amendment claim and 42 U.S.C. § 1983
conspiracy claim against Defendant Renadette. (See generally Dkt. No. 46.) With regard to
those claims against Defendant Renadette, Magistrate Judge Homer concluded that genuine
disputes of material fact exist due to Plaintiff’s assertions that (1) Defendant Renadette left
Plaintiff alone with Defendant Silver shortly before Defendant Silver sexually assaulted Plaintiff,
then resumed escorting Plaintiff after the assault, and (2) Defendant Renadette subsequently told
Defendant Menard that Plaintiff had had two therapy sessions that day, one with physical
therapy and one with Defendant Silver (indicating that Defendant Renadette knew of Defendant
Silver’s “proclivity to act outside the scope of his professional duties”). (Id. at 4, 11, 13.)
D.

Defendant Renadette’s Objection to the Report-Recommendation

Generally, in his Objection, Defendant Renadette asserts the following two arguments:
(1) there is no admissible evidence in the record from which a rational fact-finder could conclude
that Defendant Renadette knew or should have known, before he left Plaintiff alone with
Defendant Silver, that Defendant Silver was going to sexually assault Plaintiff; and (2) there is
no admissible evidence in the record from which a rational fact-finder could conclude that
Defendant Renadette knew or should have known, after he resumed escorting Plaintiff, that
Defendant Silver had sexually assaulted Plaintiff, because (a) after the alleged assault Plaintiff
acted as if everything was normal, and (b) it is entirely speculative to conclude from Defendant
Renadette’s comment to Defendant Menard that Renadette knew that Plaintiff had been
subjected to anything more than a verbal threat. (Dkt. No. 48.)

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Plaintiff did not submit an Objection to the Report-Recommendation, and the time in
which to do so has expired.
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review Governing a 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
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).2
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.3
2

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.”).
3

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.”).
5

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.4 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.5 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.6
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).

4

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).
5

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.).
6

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).
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B.

Standard of Review Governing Motions for Summary Judgment

Magistrate Judge Homer accurately recites the legal standard governing motions for
summary judgment. (Dkt. No. 46, at 5-6.) As a result, that well-known standard is incorporated
by reference in this Decision and Order, which (again) is intended primarily for the review of the
parties.
III.

ANALYSIS
A.

Those Portions of the Report-Recommendation Not Regarding Plaintiff’s
Claims Against Defendant Renadette

Because Plaintiff did not object to Magistrate Judge Homer’s recommendations regarding
Plaintiff’s claims against Defendants Artus, Menard and “John Doe,” and his state law claims
against Defendant Renadette, those recommendations are reviewed only for clear error. After
carefully considering all the papers in the action, the Court finds that those recommendations are
free of any clear error, for the reasons stated by Magistrate Judge Homer. The Court would add
only four brief points.
First, these portions of Magistrate Judge Homer’s thorough and correct ReportRecommendation would survive even a de novo review.
Second, the above-described claims in Plaintiff’s Complaint are dismissed on the
alternative ground that Plaintiff failed to submit a proper Rule 7.1 Response (i.e., admitting or
denying each of the factual assertions contained in Defendants’ Rule 7.1 Statement in matching
numbered paragraphs, supported by accurate record citations). (Compare Dkt. No. 43, Attach. 1
[Defs.’ Rule 7.1 Statement] with Dkt. No. 45, at 1 [Plf.’s “Statement of Disputed Factual
Issues”].) The Court notes that Plaintiff received adequate advanced notice of his need to do so.
(Dkt. No. 43, Attach. 9 [“Notification of the Consequences of Failing to Respond to a Summary

7

Judgment Motion.”].)7 Apparently understanding the need to do file a proper response to
Defendants’ motion, Plaintiff requested, and was granted, an extension of the response deadline.
(Dkt. No. 44; Text Order filed May 4, 2011.)
Third, Plaintiff’s state law claims and claims against Defendant “John Doe” are
dismissed on the alternative ground that, in his response papers, Plaintiff failed to respond to
Defendants arguments that (1) the Court does not possess subject-matter jurisdiction over
Plaintiff’s state law claims under New York Correction Law § 24 and the doctrine of standing,
and (2) Defendant “John Doe” should be dismissed from this action without prejudice, because
Plaintiff has failed to name or serve that Defendant. 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, Plaintiff has met its lightened burden with respect to the two abovedescribed arguments. (Indeed, the Court would find that Plaintiff has met its burden even if the
Court were to subject Plaintiff’s arguments to the more rigorous scrutiny appropriate for
contested arguments.)
Fourth, and finally, while certain of Defendants’ arguments vacillate between Fed. R.
Civ. P. 12(b)(6) and Fed. R. Civ. P. 56, the Court’s decision hinges on Fed. R. Civ. P. 56,

7

See also N.D.N.Y. 7.1(a)(3) (a copy of which was on file in Plaintiff’s
correctional facility during the time in question); Northern District’s Pro Se Handbook, at 41 (a
copy of which was on file in Plaintiff’s correctional facility during the time in question);
Goodson v. Evans, 04-CV-6394, Decision and Order (S.D.N.Y. filed July 18, 2006) (Larimer, J.)
(dismissing plaintiff’s pro se prisoner civil rights complaint, in large part because he failed to
respond to defendants’ motion for summary judgment despite having received notice of the
consequences of failing to do so).
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because it is based on the admissible record evidence that has been adduced by the parties
(including Plaintiff’s verified Complaint). Even if the Court were to base its decision on Fed. R.
Civ. P. 12(b)(6), it would still dismiss Plaintiff’s above-described claims with prejudice, given
its conclusion that any amendment would be futile, given the substantive nature of the pleading
defects in Plaintiff’s detailed (but simply non-actionable) claims.
For all of these reasons, the above-described portions of Magistrate Judge Homer’s
Report-Recommendation are accepted and adopted, and the claims discussed in them are
dismissed with prejudice (except for Plaintiff’s claims against the Defendant “John Doe,” which
are dismissed without prejudice).
B.

Those Portions of the Report-Recommendation Regarding Plaintiff’s Claims
Against Defendant Renadette

Because Defendant Renadette’s Objection was sufficiently specific, the Court conducts a
de novo review of Magistrate Judge Homer’s recommendations regarding Plaintiff’s claims
against Defendant Renadette. After carefully considering all the papers in the action, the Court
finds that those recommendations are correct in all respects, for the reasons stated by Magistrate
Judge Homer. The Court would add only three brief points.
First, Plaintiff’s failure to submit a proper Rule 7.1 Response does not also result in the
dismissal of Plaintiff’s federal claims against Defendant Renadette, because the Court cannot
turn a blind eye to the rather-obvious admissible record evidence that exists creating a genuine
dispute of material fact with regard to Plaintiff’s federal claims against Defendant Renadette.
Second, the Court notes that, among the record evidence that creates a genuine dispute of
material fact with regard to Plaintiff’s federal claims against Defendant Renadette is Plaintiff’s
verified (and notarized) Complaint, which carries the force and effect of an affidavit, for

9

purposes of a motion for summary judgment.8
Third, and finally, another piece of record evidence that creates such a genuine dispute of
material fact are those portions of Plaintiff’s deposition transcript and verified Complaint in
which he indicated that, when Defendant Menard physically threatened Plaintiff for exposing
himself to a nurse practitioner, not only did Defendant Renadette hear Menard but Defendant
Silver also heard Menard. (Dkt. No. 43, Attach. 3, at 49-50 [attaching pages “48” and “49” of
Plf.’s Dep. Tr.]; Dkt. No. 1, at 12-13.) As a result, it would be entirely rational for a fact-finder
to conclude that Defendant Renadette had reason to know that Plaintiff would be subjected to
something more than a verbal threat from Defendant Silver in the bathroom. (Furthermore, the
fact that Defendant Silver wanted to be alone with Plaintiff in a bathroom appears to undermine
a conclusion that Silver merely wanted to verbally threaten Plaintiff.)
C.

Other Claims

Plaintiff’s state law claims against Defendant Silver are sua sponte dismissed with
prejudice for lack of subject-matter jurisdiction pursuant to Fed. R. Civ. P. 12(h)(3) for the
reasons offered by Defendants (regarding Plaintiff’s state law claims against Defendants Artus,
Menard and Renadette) in their memorandum of law. (Dkt. No. 43, Attach. 5, at 11-13
[attaching pages “9” through “11” of Defs.’ Memo. of Law].)
Finally, it appears probable to the Court that Plaintiff’s request for an injunctive relief
(i.e., an Order “enjoining defendants . . . from retaliating against plaintiff for bringing this

8

Generally, a verified complaint filed by a plaintiff has the force and effect of an
affidavit. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 219 (2d. Cir. 2004) (“[A] verified
pleading . . . has the effect of an affidavit and may be relied upon to oppose summary
judgment.”); Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d Cir. 2001) (holding that plaintiff
“was entitled to rely on [his verified amended complaint] in opposing summary judgment”), cert.
denied, 536 U.S. 922 (2002); Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1993) (“A verified
complaint is to be treated as an affidavit for summary judgment purposes.”).
10

action”) is moot for two reasons: (1) after filing this action, he was transferred away from
Defendants, to another correctional facility (i.e., Great Meadow Correctional Facility); and (2)
the injunction he requests is an Order prohibiting Defendants from doing what the law already
prohibits them from doing. However, because Defendants did not move on Plaintiff’s request
for injunctive relief, the Court will not address it sua sponte in this Decision and Order.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Homer’s Report-Recommendation (Dkt. No. 46) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 43) is
GRANTED in part, and DENIED in part, in the following respects:
(1) all of Plaintiff’s claims against Defendants Artus and Menard are
DISMISSED with prejudice;
(2) all of Plaintiff’s claims against Defendant “John Doe” are DISMISSED
without prejudice pursuant to Fed. R. Civ. P. 4(m) and Local Rule 4.1(b) of the Local
Rules of Practice for this Court;
(3) Plaintiff’s state law claims against Defendant Renadette are DISMISSED
with prejudice;
(4) Plaintiff’s state law claims against Defendant Silver are sua sponte
DISMISSED with prejudice for lack of subject-matter jurisdiction pursuant to Fed. R.
Civ. P. 12(h)(3); and
(5) Plaintiff’s following claims SURVIVE Defendants’ motion for summary
judgment:

11

(a) Plaintiff’s Eighth Amendment claim and 42 U.S.C. § 1983 conspiracy
claim against Defendant Renadette; and
(b) Plaintiff’s Eighth Amendment claim and 42 U.S.C. § 1983 conspiracy
claim against Defendant Silver; 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 pretrial conference with
counsel will be scheduled in this action, at which time the Court will schedule a date certain for
jury trial on Plaintiff's Eighth Amendment claims and 42 U.S.C. §1983 conspiracy claims against
Defendant Renadette and Defendant Silver. Counsel are directed to appear at the final pretrial
conference with settlement authority from the parties.
Dated: March 27, 2012
Syracuse, New York

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