Garcia v. Duvall et al

Filing 51

MEMORANDUM-DECISION and ORDER: ORDERED that 50 Report and Recommendation is ACCEPTED and ADOPTED in its entirety. ORDERED that 48 Motion for Summary Judgment is GRANTED and that plaintiff's complaint is dismissed.Signed by Judge Glenn T. Suddaby on 1/9/12.{order served via regular mail on all non-ecf parties} (nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
CESAR GARCIA,
Plaintiff,
9:09-CV-0884
(GTS/RFT)

v.
M. DUVALL, Corr. Officer, Cape Vincent C.F.;
BACKUS, Corr. Officer, Cape Vincent CF.;
STACEY, Corr. Officer, Cape Vincent C.F.;
LAWTON, Corr. Officer, Cape Vincent C.F.;
R. GRAVES, Corr. Sergeant, Cape Vincent C.F.;
and MEANEY, Corr. Sergeant, Cape Vincent C.F.,
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

CESAR GARCIA
Plaintiff, Pro Se
112 Saratoga Avenue, B-S
Yonkers, New York 10705
HON. ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

DAVID L. COCHRAN, ESQ.
Assistant Attorney General

HON. 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 Cesar Garcia
(“Plaintiff”) against the six above-named New York State correctional employees (“Defendants”),
are (1) Defendants’ motion for summary judgment, and (2) United States Magistrate Judge
Randolph F. Treece’s Report-Recommendation recommending that Defendants' motion be
granted and that Plaintiff’s Complaint be dismissed. (Dkt. Nos. 48, 50.) For the reasons set forth
below, Magistrate Judge Treece’s Report-Recommendation is accepted and adopted in its
entirety; Defendants’ motion is granted; and Plaintiff’s complaint is dismissed.

I.

RELEVANT BACKGROUND
Construed with the utmost of liberality, Plaintiff's Complaint alleges that, while he was

incarcerated at Cape Vincent Correctional Facility (“Cape Vincent C.F.”) in Cape Vincent, New
York, on November 14, 2007, Defendants violated his rights under the Eighth Amendment of the
United States Constitution by using excessive force against him. (See generally Dkt. No. 1.)
Familiarity with the factual allegations supporting this claim is assumed in this Decision and
Order, which is intended primarily for review by the parties. (Id. at 5.)
On April 5, 2011, Defendants filed a motion for summary judgment seeking dismissal of
this action based on Plaintiff’s failure to exhaust his available administrative remedies before he
filed this action on August 4, 2009. (Dkt. No. 48, Attach. 9.) Despite the fact that the Court sua
sponte extended the deadline for Plaintiff’s response to Defendants’ motion (out of an extension
of special solicitude to him as a pro se civil rights litigant), Plaintiff did not submit a response to
Defendants’ motion. (Dkt. No. 49.) On August 12, 2011, Magistrate Judge Treece issued a
Report-Recommendation recommending that Defendants’ motion be granted. (Dkt. No. 50.)
Familiarity with the grounds of Magistrate Judge Treece’s Report-Recommendation is assumed in
this Decision and Order, which is intended primarily for the review of the parties. (Id.) Plaintiff
has not filed an Objection to Magistrate Judge Treece’s Report-Recommendation, and the
deadline by which to do so has expired. (See generally Docket Sheet.)
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,

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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
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
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.”).
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).
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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 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 Unopposed Motions for Summary Judgment

Magistrate Judge Treece correctly recited the legal standard governing unopposed motions
for summary judgment. (Dkt. No. 50, at 2-4.) As a result, that standard is incorporated by
reference in this Decision and Order.
III.

ANALYSIS
Because Plaintiff has not filed an Objection to Magistrate Judge Treece’s Report-

Recommendation and the time in which to do so has expired, the Court need review the Report4

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.).
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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).
4

Recommendation for only clear error, pursuant to the standard of review recited above in Part
II.A of this Decision and Order. After doing so, the court concludes that Magistrate Judge
Treece's thorough Report-Recommendation is not clearly erroneous. (Dkt. No. 50 [ReportRecommendation].) Magistrate Judge Treece employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts. (Id.) As a result, the Court adopts the
Report-Recommendation in its entirety for the reasons stated therein. The Court would add only
that Magistrate Judge Treece’s Report-Recommendation would survive even a de novo review.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 50) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 48) is
GRANTED, and that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED. The clerk is directed
to enter judgment and close this case.
Dated: January 9, 2012
Syracuse, New York

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