Smith v. United States of America et al
Filing
93
DECISION AND ORDER: The 89 Report and Recommendation is accepted for the reasons therein with the exception of the recommendation that the Court not dismiss Plaintiff's FTCA claim. ORDERED, that Defendants' motion for summary judgment be (1) DENIED as to Plaintiff's claim against Fehlner for violation of his Fourteenth Amendment Rights regarding a biased hearing officer; and (2) GRANTED, as to Plaintiff's (a) FTCA claim; and (b) Eighth Amendment Claim for cruel and unusu al punishment, and as to all other remaining claims against Defendant Fehlner. ORDERED, that Plaintiff's cross-motion for summary judgement is DENIED in all respects. Signed by Senior Judge Thomas J. McAvoy on 9/28/12. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
BENJAMIN SMITH,
Plaintiff,
vs.
9:09-CV-729
UNITED STATES OF AMERICA,
and JOHN FEHLNER,
Defendants.
___________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge
DECISION & ORDER
This pro se civil rights action brought pursuant to 42
U.S.C. § 1983 was referred to the Hon. David R. Homer, United
States Magistrate Judge, for a Report-Recommendation pursuant to
28 U.S.C. § 636(b) and Local Rule 72.3(c).
The Report-Recommendation dated July 5, 2012 recommended
that: (1) Defendants’ motion for summary judgment be DENIED as to
Plaintiff’s (a) FTCA claim; and (b) Fourteenth Amendment claim
regarding a biased hearing officer1; (2) Defendants’ motion for
summary judgment be GRANTED as to Plaintiff’s Eighth Amendment
claim regarding unsanitary conditions in his cell, and all other
1
On page 17 of the Report-Recommendation, Magistrate Judge
Homer states that the Defendants’ motion for summary judgment on
this issue should be denied. But, the conclusion incorrectly
states that it should be granted.
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claims against Defendant Fehlner; and (3) Plaintiff’s crossmotion for summary judgment be DENIED in all respects.
Defendants filed timely objections to the ReportRecommendation with respect to the claims under the FTCA only.
Plaintiff filed untimely objections to the Report-Recommendation
and, therefore, will not be considered by the Court.
When timely objections to a magistrate judge’s ReportRecommendation are lodged, 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).
After such a review, the Court may
“accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate
judge with instructions.” Id.
With respect to those portions of
the Report-Recommendation to which no objections are made, the
Court reviews for plain error or manifest injustice.
Accordingly, the Court will only review the FTCA claims under the
de novo standard, and all other claims under the clearly
Using these standards, and upon review of the Report and
Recommendations, this Court has determined to accept the
recommendations of Magistrate Judge Homer for the reasons therein
with the exception of the recommendation that the Court not
dismiss Plaintiff’s FTCA claim.
2
An FTCA claim is generally determined by the law of the
state where the act or omission occurred, in this case, New York.
Shields v. U.S. Fed. Bureau of Prisons, No. 8:08-CV-632(NAM/DEP),
2012 WL 2803399, at *1 (N.D.N.Y. July 15, 2010); see Liranzo v.
United States, 690 F.3d 78, 86 (2d Cir. 2012) (citing 28 U.S.C. §
1346(b)(1)). Pursuant to New York state law, a plaintiff must
prove three elements to prevail on a negligence claim: (1) the
existence of a duty owed by the defendant to the plaintiff; (2) a
breach of this duty; and (3) resulting injury to the plaintiff.
Shields 2012 WL 2803399 at *1 (citing Alfaro v. Wal-Mart Stores,
Inc., 210 F.3d 111, 114 (2d Cir. 2000)). As to the second
element, the plaintiff has to demonstrate that the defendant
either created the dangerous or defective condition which caused
the accident, or that they had actual or constructive notice of
it. Dima v. Breslin Realty, Inc., 658 N.Y.S.2d 115, 116 (2d Dep’t
1997); see Gordon v. Am. Museum of Natural History, 67 N.Y.2d
836, 837 (2d Dep’t 1986). To constitute constructive notice, a
defect must be visible and apparent and exist for a sufficient
length of time prior to the accident to permit defendant to
discover and remedy it. Gordon 67 N.Y.2d at 837.
Here, even if the Court were to consider Plaintiff’s
untimely objections and assume arguendo that his injuries were
not work related, the FTCA claim is insufficient to survive
summary judgment. Defendants offered the declaration of the
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factory manager, Dean Peterson, stating that he had no personal
knowledge of any other accidents involving any chair during his
twenty-year tenure. Peterson Decl. at ¶7.
In response, Plaintiff fails to provide sufficient evidence
that Defendants had notice, actual or constructive, a necessary
element under New York state law. Shields 2012 WL 2803399 at *1.
Plaintiff relies solely upon Defendants’ lack of knowledge of the
chair’s twelve-year age and purported out-datedness. Smith
Objections at 2.
Plaintiff does not provide evidence that the
chair was visibly hazardous, but speculates that discovery of the
chair’s age upon inspection would lead a reasonable person to
believe it was dangerous. Smith Objections at 2; Smith Cross-Mot.
Summ. J. at 19. Plaintiff fails to provide sufficient evidence
that Defendant had actual notice of the chair’s deterioration.
Plaintiff similarly fails to offer sufficient evidence of
constructive notice that the defect was visible and apparent and
existed for a sufficient amount of time prior to the accident.
Gordon 67 N.Y.2d at 837.
Even assuming Defendant was aware the
chair was twelve-years old, that fact standing alone is
insufficient to demonstrate actual or constructive notice.
To the extent that Plaintiff seeks to recover on a Products
Liability theory, his claims must be dismissed.
Nowhere does he
proffer evidence from which it can reasonably be concluded that
the chair was negligently designed or manufactured. See Lancaster
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Silo & Block Co. V. N. Propane Gas Co., 427 N.Y.S.2d 1009, 1013
(2d Dep’t 1980).
It is therefore ORDERED that Defendants’ motion for summary
judgment be (1) DENIED as to Plaintiff’s claim against Fehlner
for violation of his Fourteenth Amendment Rights regarding a
biased hearing officer; and (2) GRANTED, as to Plaintiff’s (a)
FTCA claim; and (b) Eighth Amendment Claim for cruel and unusual
punishment, and as to all other remaining claims against
Defendant Fehlner; and it is further ORDERED that Plaintiff’s
cross-motion for summary judgement is DENIED in all respects.
IT IS SO ORDERED.
Dated:September 28, 2012
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