Reeder v. Hogan et al
Filing
46
MEMORANDUM-DECISION and ORDER: ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 34 ) is ACCEPTED and ADOPTED in its entirety; ORDERED that Defendants' motion to dismiss for failure to prosecute (Dkt. No. 33 ) is GRANTED. ORDERED that this action is DISMISSED in its entirety. Signed by Judge Glenn T. Suddaby on 10/13/11.{order served via regular mail on all non-ecf parties} (nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
RASZELL REEDER,
Plaintiff,
v.
9:09-CV-0977
(GTS/DEP)
MICHAEL HOGAN, OMH Commissioner;
JOANNE WALDRON, Unit Chief, Clinton Correctional
Facility; MAUREEN BOSCO, Forensic Program
Administrator, Clinton Correctional Facility;
GREGORY SAVAGE; Mental Health Counselor,
Clinton Correctional Facility; JAMES MORGAN,
Associate Director of Quality Management, New York
State Office of Mental Health; TARA BROSSEAU,
I.G.P. Supervisor, Clinton Correctional Facility;
THOMAS LAVALLEY, also known as Thomas
Lavalle; DALE ARTUS, Superintendent, Clinton
Correctional Facility; STEVEN RACETTE;
Deputy Superintendent of Security, Clinton
Correctional Facility,
Defendants.
_______________________________________________
APPEARANCES:
OF COUNSEL:
RASZELL REEDER, 94-A-6388
Plaintiff, Pro Se
Clinton Correctional Facility
P.O. Box 2002
Dannemora, New York 12929
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
HON. GLENN T. SUDDABY, United States District Judge
JUSTIN C. LEVIN, ESQ.
Assistant Attorney General
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Raszell
Reeder (“Plaintiff”), are the following: (1) a motion filed by the nine above-captioned
individuals (“Defendants”) requesting that this action be dismissed, pursuant to Fed. R. Civ. P.
41(b), based upon Plaintiff's failure to diligently prosecute this action, and comply with the
Court's Orders and the Local Rules of Practice in this District (Dkt. No. 33); (2) a ReportRecommendation, issued by United States Magistrate Judge David E. Peebles, recommending
that Defendants’ motion be granted and that this action be dismissed pursuant to Fed. R. Civ. P.
41(b) (Dkt. No. 34); and (3) Plaintiff’s Objection and Supplemental Objection to the ReportRecommendation (Dkt. Nos. 35, 40).1 For the reasons set forth below, the ReportRecommendation is accepted and adopted in its entirety; Defendants’ motion is granted; and
Plaintiff’s Complaint is dismissed in its entirety.
I.
RELEVANT BACKGROUND
A.
Plaintiff’s Original Complaint, Defendants’ First Motion to Dismiss, and
Magistrate Judge Peebles’ First Report-Recommendation on that Motion
Plaintiff filed his Complaint on August 28, 2009, alleging a host of civil rights claims
against Defendants. (Dkt. No. 1.) For a more detailed recitation of Plaintiff’s claims, and the
factual allegations giving rise to those claims, the Court refers the reader to the Complaint in its
entirety, Magistrate Judge Peebles’ thorough Report-Recommendation, and Part I.A. of the
Court’s Decision and Order of March 31, 2011. (Dkt. Nos. 1, 28, 30.)
1
The Court notes that, on June 29, 2011, Plaintiff submitted a letter to the Clerk of
the Court asking whether his Objection had been received. (Dkt. No. 43.) The Clerk docketed
this letter as a "Second Supplemental Objection." (Id.) However, the Court does not construe
that letter as attempting to supplement Plaintiff’s Objections.
2
On March 5, 2010, Defendants filed a motion to dismiss Plaintiff’s Complaint for failure
to state a claim upon which relief can be granted. (Dkt. No. 21.) On March 1, 2011, Magistrate
Judge Peebles issued a Report-Recommendation recommending that Defendants’ motion be
granted and that Plaintiff’s Complaint be dismissed, with leave to file an Amended Complaint
with regard to Plaintiff’s claims for medical indifference, excessive force, inadequate conditions
of confinement, and mail tampering. (Dkt. No. 28.)
B.
Court’s Decision and Order of March 31, 2011, Regarding Defendants’ First
Motion to Dismiss
On March 31, 2011, this Court issued a Decision and Order that (1) accepted and adopted
in Magistrate Judge Peebles’ Report-Recommendation its entirety, (2) granted Defendants'
motion to dismiss for failure to state a claim upon which relief can be granted, (3) dismissed with
prejudice Plaintiff's conspiracy claim, his retaliation claim(s), his interference-with-thegrievance-process claim, and his New York State tort claim(s), and (4) dismissed without
prejudice, and with leave to file an Amended Complaint within thirty days, Plaintiff's
excessive-force claim, his medical-indifference claim, his mail-tampering claim, and his
inadequate-conditions-of-confinement claim. (Dkt. No. 30.) This Court also advised Plaintiff
that his entire action would be dismissed unless his amended complaint was limited to the claims
dismissed without prejudice, and cured the pleading defects identified in Magistrate Judge
Peebles' Report-Recommendation, and in Part III of the Court’s Decision and Order. (Id.)
C.
Plaintiff’s Amended Complaint, Defendants’ Current Motion to Dismiss, and
Magistrate Judge Peebles’ Report-Recommendation on that Motion
On April 25, 2011, Plaintiff filed an Amended Complaint. (Dkt. No. 31.) However,
Plaintiff’s Amended Complaint failed to comply with the terms of Magistrate Judge Peebles’
Report-Recommendation (which, again, was adopted by this Court in its entirety). (Compare
3
Dkt. No. 31 with Dkt. No. 28.) As a result, out of an extension of special solicitude to Plaintiff,
on April 29, 2011, Magistrate Judge Peebles issued a Decision and Order that (1) stayed
discovery, and (2) granted Plaintiff an additional thirty days (i.e., until May 31, 2011, once
weekends and federal holidays are considered) to file a Second Amended Complaint that
complied with the terms of the Report-Recommendation issued on March 1, 2011, and the
Decision and Order adopting that Report-Recommendation, issued on March 31, 2011. (Dkt.
No. 32.) In that Decision and Order, Magistrate Judge Peebles specifically notified Plaintiff that,
“unless he files a [Second] [A]mended [C]omplaint fully complying with the terms of this
decision and order within thirty (30) days from the date of the filing of this order, I will
recommend to District Judge Suddaby that this action be dismissed in its entirety.” (Id. at 7.)
However, Plaintiff failed to file such a Second Amended Complaint. (See generally
Docket Sheet.)
As a result, on June 3, 2011, Defendants filed a motion seeking dismissal of this action
based on Plaintiff’s failure to submit a Second Amended Complaint in accordance with the
Court’s Decision and Order of March 31, 2011. (Dkt. No. 33.)
On June 16, 2011, Magistrate Judge Peebles issued a second Report-Recommendation
recommending that this action be dismissed in its entirety, pursuant to Fed. R. Civ. P. 41(b),
based on Plaintiff’s failure to prosecute the action or comply with a Court order. (Dkt. No. 34.)
In support of his recommendation, Magistrate Judge Peebles found that each of the five-factors
considered in deciding a motion to dismiss for failure to prosecute weighed in favor of dismissal.
(Id.)
4
D.
Plaintiff’s Objection and Supplemental Objection
On June 27, 2011, Plaintiff sent the Court a form Affidavit in Support of a Motion to
Appeal In Forma Pauperis, which he indicated was his “Objection [to the] Recommendation.”
(Dkt. No. 35.) On that same day, Plaintiff also filed an interlocutory appeal from the ReportRecommendation to the Second Circuit (Dkt. No. 36), a motion to appeal in forma pauperis
(Dkt. No. 37), and another affidavit in support of that motion (Dkt. No. 40), which the Clerk of
the Court liberally construed, and docketed, as a Supplemental Objection to the ReportRecommendation (id.).
Construed with the utmost of special liberality, Plaintiff’s Objection and Supplemental
Objection argue that Magistrate Judge Peebles erred in recommending the dismissing of his
action for the following four reasons: (1) when Magistrate Judge Peebles cited a legal decision
dismissing a complaint that was six years old, he committed an erroneous finding of fact,
because the current case is only some two years old; (2) Plaintiff did not file a Second Amended
Complaint by May 31, 2011, because he did not receive treatment for his “mental illness[,]”
causing his “mental health to get wors[e]”; (3) while he did not file a Second Amended
Complaint by May 31, 2011, he “did have all legal documents [for this action] correctly copied
in numbers ready immediate response before the [May 31, 2011, filing] deadline”; and (4) he
effectively met the filing deadline of May 31, 2011, by sending “evidence” and “legal
documents” to the “Northern District Court” (as confirmed by “facility correspondence dept.”),
which documents the Clerk’s Office “misplaced.” (Dkt. Nos. 35, 40.)
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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.”).
6
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 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).
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).
7
B.
Standard Governing Review of Motion to Dismiss Pursuant to Fed. R. Civ. P.
41(b)
Magistrate Judge Peebles correctly recited the legal standard governing a dismissal for
failure to prosecute an action, pursuant to Fed. R. Civ. P. Rule 41(b). (Dkt. No. 34.) As a result,
this standard is incorporated by reference in this Decision and Order.
III.
ANALYSIS
Even when construed with the utmost of special liberality, Plaintiff’s Objection and
Supplemental Object contain only one specific objection to a portion of a Magistrate Judge
Peebles' Report-Recommendation: an objection that, when Magistrate Judge Peebles cited a legal
decision dismissing a complaint that was six years old, he committed an erroneous finding of
fact, because the current case is only some two years old. Subjecting that portion of Magistrate
Judge Peebles’ Report-Recommendation to a de novo review, the Court finds that it survives that
review.
Magistrate Judge Peebles never rendered a factual finding that Plaintiff’s case was six
years old. Rather, he rendered a factual finding that, under the circumstances, “it seems quite
likely that memories of the events in question have faded, relevant documents have been
discarded, and potential witnesses have been transferred to other correctional facilities.” (Dkt.
No. 34, at 9.) In addition, he supported that factual finding by citing a case (in which the
complaint was six years old) standing for the proposition that “[t]he passage of time always
threatens difficulty as memories fade.” (Id. at 9-10.) Magistrate Judge Peebles’ factual finding
was correct in all respects. In further support of that finding, the Court notes that the alleged
actions giving rise to the claims in this action were taken between twenty-six and thirty months
ago, by more than nine individuals, at two different locations (i.e., Clinton Correctional Facility
and the New York State Office of Mental Health). (See generally Dkt. No. 1.) Moreover, the
8
Court notes that numerous decisions exist finding that passages of time of less than twenty-six
months increases the risk that memories may fade, documents may be destroyed, and witnesses
may disappear.7
As for the remainder of Plaintiff’s Objections, they are not sufficiently specific to trigger
a de novo review, because they do not identify the portion(s) of the Report-Recommendation
challenged. (See, supra, Part II.A. of this Decision and Order [reciting legal standard governing
Objections].) For example, Plaintiff’s three arguments regarding why he did not formally meet,
and/or why he effectively met, the deadline of May 31, 2011, do not identify whether they are
intended to challenge Magistrate Judge Peebles findings regarding (1) the duration of Plaintiff's
failure to comply with the Court’s Orders and Local Rules of Practice, (2) whether Plaintiff was
on notice that failure to comply would result in dismissal, (3) whether Defendants are likely to
be prejudiced by further delay in the proceedings, (4) a balancing of the Court's interest in
managing its docket with Plaintiff's interest in receiving a fair chance to be heard, or (5) whether
the Court has adequately considered a sanction less drastic than dismissal. (See generally Dkt.
Nos. 35, 40.) As a result, the remainder of Magistrate Judge Peebles’ Report-Recommendation
is subject to only a clear-error review by the Court. It clearly survives that review for the
reasons stated therein. (Dkt. No. 34, at 3-10.)
7
See, e.g., Nash v. Messima, 10-CV-0305, 2011 WL 3847341, at *3 (N.D.N.Y.
Aug. 30, 2011) (Suddaby, J.) (case was not yet 18 months old); Fitzgerald v. Cnty. of
Washington, 09-CV-0839, 2011 WL 3876534, at *3 (N.D.N.Y. Aug. 9, 2011) (Lowe, M.J.) (case
was not yet 25 months old), adopted by 2011 WL 3876539 (N.D.N.Y. Sept. 1, 2011)
(D’Agostino, J.); Johnson v. U.S. Dept. of Homeland Sec., 09-CV-0975, 2011 WL 2559560, at
*4 (N.D.N.Y. Apr. 29, 2011) (Peebles, J.) (case was approximately 20 months old), adopted by
2011 WL 2559545 (N.D.N.Y. June 27, 2011) (McAvoy, J.); Nieves v. Mueller, 07-CV-0003,
2008 WL 4663361, at *3 (N.D.N.Y. Oct. 20, 2008) (Kahn, J., adopting Report-Recommendation
of Lowe, M.J.) (case was not yet 23 months old); Harris v. Thompson, 07-CV-0772, 2008 WL
4610301, at *3 (N.D.N.Y. Oct. 15, 2008) (Scullin, J., adopting Report-Recommendation of
Lowe, M.J.) (case was not yet 15 months old).
9
In any event, even if the Court subjected the remainder of Magistrate Judge Peebles’
Report-Recommendation to a de novo review, it would find that those portions of the ReportRecommendation survive that review.
For example, Plaintiff provides no evidence in support of his vague and conclusory
argument that he did not file a Second Amended Complaint by May 31, 2011, because he did not
receive treatment for his “mental illness[,]” causing his “mental health to get wors[e].” (See
generally Dkt. Nos. 35, 40.)
Moreover, Plaintiff’s argument that he “did have all legal documents [for this action]
correctly copied in numbers ready immediate response before the [May 31, 2011, filing]
deadline” weighs against his mental health argument, and in favor of a finding that his failure to
meet the deadline was inexcusable.
Furthermore, Plaintiff’s argument that he effectively met the filing deadline of May 31,
2011, by sending “evidence” and “legal documents” to the “Northern District Court” which
documents the Clerk’s Office “misplaced” is unpersuasive for four reasons. First, again, he
offers no evidence, or even the date on which he allegedly filed those documents, in support of
this vague and conclusory argument. (See generally Dkt. Nos. 35, 40.) Second, such an
argument is belied by the fact that the Clerk’s Office has successfully received, and retained, the
sixteen (16) other documents that Plaintiff has filed in this action. (Dkt. Nos. 1, 2, 3, 4, 5, 22, 23,
29, 31, 35, 36, 37, 39, 40, 41, 43.)8 Third, the filing of “evidence” and “legal documents” is not
what the Court’s Orders (and Local Rules of Practice) required; what they required was the filing
of a Second Amended Complaint. Fourth, the alleged submission in question was untimely,
8
Indeed, the Court notes that, on April 29, 2011, in a related action, Plaintiff filed a
motion to amend his complaint, which the Court successfully received, and retained, on May 4,
2011. See Reeder v. Hogan, 09-CV-0520, Motion to Amend (N.D.N.Y. filed May 4, 2011).
10
because it occurred more than six weeks after the deadline set by Magistrate Judge Peebles in his
Decision and Order of April 29, 2011.
In addition, Magistrate Judge Peebles’ finding that (under the circumstances) the need to
alleviate congestion on the Court's docket outweighs Plaintiff's right to receive a further chance
to be heard in this case is further supported by the fact that this action is more than two years old
and discovery has not yet commenced in it. It is the need to monitor and manage dilatory cases
like this one that delay the resolution of other cases, and that contribute to the Second Circuit's
relatively long median time to disposition for prisoner civil rights cases.
Finally, Magistrate Judge Peebles’ finding that other sanctions (including a Decision and
Order chastising Plaintiff and providing him one final opportunity to file a Second Amended
Complaint) would be inadequate is further supported by the fact that, during the nearly four
months that have transpired since the filing of Magistrate Judge Peebles’ ReportRecommendation, Plaintiff has not filed a Second Amended Complaint. (See generally Docket
Sheet.)
For these reasons, Magistrate Judge Peebles’ Report-Recommendation is accepted and
adopted in its entirety. Defendants’ motion to dismiss for failure to prosecute is granted, and
this action is dismissed.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 34) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to dismiss for failure to prosecute (Dkt. No. 33) is
GRANTED; and it is further
11
ORDERED that this action is DISMISSED in its entirety.
Dated: October 13, 2011
Syracuse, New York
12
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