Jones v. Smith et al
Filing
137
MEMORANDUM-DECISION and ORDER: ORDERED, that Magistrate Judge Andrew T. Baxter's May 20, 2015 Order and Report-Recommendation (Dkt. No. 134 ) is ADOPTED in its entirety. ORDERED that defendants' motion for partial summary judgment (Dkt. No. 124 .) is GRANTED on the grounds raised therein and Jones' following claims are dismissed: 1. All claims for injunctive relief dismissed as moot; 2. All claims against defendants in their official capacities dismissed with prejudice; 3. All claims against defendant Fischer dismissed due to lack of personal involvement; 4. Eighth Amendment claims against defendants Smith, Griffin, Khramova, Schoonmaker, Gusman, and Brown; 5. Retaliation claim against defendant Maly, but only to the e xtent that it was predicated on an allegation of verbal harassment, dismissed with prejudice; 6. Due process and right to privacy claims against defendant Pingotti. ORDERED that all RLUIPA and First Amendment Religion claims against defendants Rapp and Horowitz are DISMISSED sua sponte, with prejudice. ORDERED that Judge Baxters denial of Jones' motion to amend is AFFIRMED. Signed by Judge Gary L. Sharpe on 9/30/15. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MICHAEL JONES,
9:09-cv-1058
(GLS/ATB)
Plaintiff,
v.
JOSEPH SMITH et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Michael Jones
Pro Se
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
CATHY Y. SHEEHAN
Assistant Attorney General
Gary L. Sharpe
District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Michael Jones alleges violations of the First, Eighth,
and Fourteenth Amendments of the United States Constitution pursuant to
42 U.S.C. § 1983 against numerous employees of New York State
Department of Corrections and Community Supervision (DOCCS) at
Shawangunk Correctional Facility and Eastern Correctional Facility in their
official and individual capacities. (Compl., Dkt. No. 1.) Jones also alleges
a violation of the Religious Land Use and Institutionalized Persons Act
(RLUIPA).1 (Id. at 5.) Pending before the court are Jones’ objections to
the R&R and an appeal from the denial of his motion to amend.2 (Dkt. No.
135.) For the reasons that follow, the R&R is adopted in its entirety and
the denial of Jones’ motion to amend his complaint is affirmed.
II. Background
While incarcerated at Schawagunk, Jones converted to Judaism.
(Dkt. No. 131, Attach. 3 at 87.) Since Jones’ conversion, he allegedly
received cold kosher meals three times per day, seven days per week.
(Id., Attach. 2 at 29; Compl. ¶ 7-m.) Jones alleged he had high blood
1
See 42 U.S.C. §§ 2000cc-2000cc-5.
2
Although Jones does not identify his arguments directed to the denial of his motion as
an appeal of a non-dispositive order, (Dkt. No. 134 at 2-3), or fully comply with the Local
Rules, see N.D.N.Y. L.R. 72.1(b), because Jones proceeds pro se the court liberally construes
these arguments as an appeal subject to review under Rule 72(a) of the Federal Rules of Civil
Procedure.
2
pressure, (Compl. ¶ 7-e), and, in 2009, requested low sodium kosher
meals, (Dkt. No. 131, Attach. 2 at 28.). Jones also requested two hot
meals per day. (Id.) Jones’ requests were denied. (Id. at 29-30.) As a
result, Jones allegedly changed his diet to non-kosher, low sodium meals.
(Compl. ¶ 7-l.)
On May 13, 2009, Jones was transferred to Eastern and escorted
into his assigned double cell. (Defs.’ Statement of Material Facts (SMF)
¶ 3, Dkt. No. 124, Attach. 2.) Jones allegedly informed the escorting officer
that his assignment to a double cell and top bunk would exacerbate injury
to his back and knees. (Compl. ¶ 8-j.) In response, escorting officers
allegedly issued a disciplinary ticket and escorted Jones to the special
housing unit (SHU). (Id. ¶ 8-k.)
Jones’ allegations arise from conduct during his incarceration at
Shawangunk and Eastern between 2006 and 2009. (Compl. at 6-22.)
After the close of discovery, defendants moved for partial summary
judgment. (Dkt. Nos. 124, 125.) Jones opposed and cross-moved to
amend his complaint to join three parties. (Dkt. No. 131.)
In an Order and Report-Recommendation (R&R) filed May 20, 2015,
Magistrate Judge Andrew T. Baxter recommended to grant defendants’
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partial motion for summary judgment and to dismiss Jones’ First
Amendment and RLUIPA causes of action sua sponte. (Dkt. No. 134 at 2.)
Judge Baxter also denied Jones’ motion to amend his complaint. (Id. at
49-50.)
III. Standard of Review
A.
Objections to the R&R
Before entering final judgment, this court routinely reviews all report
and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904 CV 484, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006). In
those cases where no party has filed an objection, or only a vague or
general objection has been filed, this court reviews the findings and
recommendations of the magistrate judge for clear error. See id.
B.
Appeal of a Magistrate Order
When reviewing an appeal from a pretrial non-dispositive motion
decided by a magistrate judge, the court will affirm the order unless it is
clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ.
4
P. 72(a). Courts have generally held that motions to amend a complaint
are non-dispositive. See Rubin v. Valicenti Advisory Servs., Inc., 471 F.
Supp. 2d 329, 333 (W.D.N.Y. 2007). Under a clearly erroneous standard,
a district court can reverse a magistrate judge’s order only if the court “‘is
left with the definite and firm conviction that a mistake has been
committed.’” Gualandi v. Adams, 385 F.3d 236, 240 (2d Cir. 2004)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Under a contrary to law standard, a district court can reverse a magistrate
judge’s order only if the order fails to apply the relevant law. See OlaisCastro v. United States, 416 F.2d 1155, 1158 n.8 (9th Cir. 1969) (“The
term ‘contrary to law’ means contrary to any existing law.” (citing Callahan
v. United States, 285 U.S. 515, 517 (1932)). “[M]agistrate judges are
afforded broad discretion in resolving non-dispositive disputes and reversal
is appropriate only if their discretion is abused.” Am. Stock Exch., LLC v.
Mopex, Inc., 215 F.R.D. 87, 90 (S.D.N.Y. 2002).
IV. Discussion
A.
Objections to the R&R
Jones objects to Judge Baxter’s failure to address his claim that the
denial of his request for hot, low sodium kosher meals violates the Eighth
5
Amendment. (Dkt. No. 135 at 3.) Judge Baxter generically addressed
Jones’ claim in a footnote and concluded that Jones did not allege any of
the necessary elements to state a violation of the Eighth Amendment.
(Dkt. No. 134 at 39 n.15.) Construing Jones’ argument liberally, the court
treats his objection as invoking de novo review. Ultimately, while the court
recognizes that the procedural posture is summary judgment, it agrees
with Judge Baxter that the complaint is devoid of factual allegations to
support an Eighth Amendment violation.
To establish an Eighth Amendment claim involving prison conditions,
a plaintiff must demonstrate that: (1) the alleged deprivation is sufficiently
serious and (2) prison officials acted with deliberate indifference to the
inmate’s health and safety. See Farmer v. Brennan, 511 U.S. 825, 834
(1994). The Eighth Amendment requires prisons to provide “nutritionally
adequate food that is prepared and served under conditions which do not
present an immediate danger to the health and well being of the inmates
who consume it,” and “under certain circumstances a substantial
deprivation of food may well be recognized as being of constitutional
dimension.” Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir. 1983) (internal
quotation marks and citations omitted). Here, however, Jones fails to
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sufficiently allege he was deprived of any meals or that his food was
contaminated. See Curtis v. Fischer, No. 9:12-CV-1140, 2014 WL
5769410, at *7 (N.D.N.Y. Aug. 11, 2014) (prisoner failed to state a claim
under the Eighth Amendment when denied kosher low sodium, high fiber
diet but offered a non-kosher medically prescribed alternative), report and
recommendation rejected on other grounds 2014 WL 5769656 (N.D.N.Y.
Nov. 5, 2014); Phelan v. Hersh, No. 9:10-CV-0011, 2011 WL 6031940, at
*12 (N.D.N.Y. Sept. 13, 2011) (“There is no constitutional right to have a
hot meal every day, but only that inmates be provided nutritionally
adequate food prepared under safe conditions.” (citation omitted)), report
and recommendation adopted, 2011 WL 6031071 (N.D.N.Y. Dec. 5, 2011);
cf. Robles, 725 F.2d at 16 (holding that inmates’ allegations that
corrections officers contaminated inmate meals with glass, human waste,
and rocks were sufficient to state an Eighth Amendment claim).
Accordingly, the court agrees with Judge Baxter that Jones’ claim must fail.
Jones’ remaining objections are general, triggering clear error review.
Upon reviewing the R&R for clear error and finding none, the court adopts
it in its entirety.
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B.
Appeal
As noted above, the court construes Jones’ arguments directed to
the denial of his motion to amend his complaint as an appeal of a nondispositive order. See Fed. R. Civ. P. 72(a). Jones contends that he
should be permitted to amend his complaint to add additional parties
because defendants: (1) did not contest that a proposed party violated his
constitutional rights and (2) did not oppose joinder. (Dkt. No. 135 at 3.)
Jones proposed to join Robert Schattinger and Elizabeth Culkin, who
allegedly created DOCCS’ dietary menu, and “Sgt. Todd” to replace
defendant “Jane Doe,” who allegedly ordered Jones to SHU in May 2009
and took his knee braces. (Dkt. No. 131, Attach. 1 at 16-17.)
Judge Baxter held the proposed amendment would be futile because
it would not survive summary judgment. (Dkt. No. 134 at 49.) Judge
Baxter reasoned that Jones did not allege the personal involvement of
Schattinger and Culkin and, assuming personal involvement, Jones’ First
Amendment claim against them arising from the denial of hot, low sodium
kosher meals would fail. (Id.) Additionally, Judge Baxter held that the
addition of Sgt. Todd would be futile because Jones had no cognizable
Eighth Amendment claim against him. (Id.)
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Because a scheduling order had been entered, the standard to
evaluate leave to amend the pleadings is Rule 16(b) of the Federal Rules
of Civil Procedure rather than Rule 15(a). Grochowski v. Phoenix Constr.,
318 F.3d 80, 86 (2d Cir. 2003) (“Where a scheduling order has been
entered, the lenient standard under Rule 15(a), which provides leave to
amend shall be freely given, must be balanced against the requirement
under Rule 16(b) that the Court’s scheduling order shall not be modified
except upon a showing of good cause.”) (internal quotation marks and
citations omitted)); see also Parker v. Columbia Pictures Indus., 204 F.3d
326, 339-40 (2d Cir. 2000). Rule 16(b)(4) of the Federal Rules of Civil
Procedure provides that a scheduling order “may be modified only for good
cause and with the judge’s consent.” Fed R. Civ P. 16(b)(4). “To satisfy
the good cause standard the party must show that, despite its having
exercised diligence, the applicable deadline could not have been
reasonably met.” Enzymotec Ltd. v. NBTY, Inc., 754 F. Supp. 2d 527, 536
(E.D.N.Y. 2010) (internal quotation marks and citations omitted).
Here, Jones fails to demonstrate good cause. He did not seek leave
to amend his complaint until his opposition to defendants’ summary
judgment motion, (Dkt. No. 131, Attach. 1 at 16-17), long after the deadline
9
to file dispositive motions, (Dkt. No. 121).3 Jones never sought permission
to extend the time to amend his pleadings. Although Jones learned of Sgt.
Todd’s identity during discovery, (Dkt. No. 131, Attach. 3 at 15), he failed to
seek leave to amend at that point. With respect to the other proposed
parties, Jones fails to demonstrate that he diligently identified them.
Although Judge Baxter should have employed the Rule 16 standard, this
error is harmless because the court would have denied leave to amend
under either Rule 16 or Rule 15. See Bailey v. Christian Broad. Network,
483 F. App’x 808, 810 (4th Cir. 2012) (holding that the magistrate’s legal
error was harmless because the proper standard would have rendered the
same result). Accordingly, the denial of Jones’ motion to amend his
complaint is affirmed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Andrew T. Baxter’s May 20, 2015
Order and Report-Recommendation (Dkt. No. 134) is ADOPTED in its
entirety; and it is further
3
The scheduling order did not have a deadline to amend the pleadings but it was
necessarily before the deadline to file dispositive motions. (Dkt. No. 39, 121.)
10
ORDERED that defendants’ motion for partial summary judgment
(Dkt. No. 124.) is GRANTED on the grounds raised therein and Jones’
following claims are dismissed:
1.
All claims for injunctive relief dismissed as moot;
2.
All claims against defendants in their official capacities
dismissed with prejudice;
3.
All claims against defendant Fischer dismissed due to lack of
personal involvement;
4.
Eighth Amendment claims against defendants Smith, Griffin,
Khramova, Schoonmaker, Gusman, and Brown;
5.
Retaliation claim against defendant Maly, but only to the extent
that it was predicated on an allegation of verbal harassment,
dismissed with prejudice;
6.
Due process and right to privacy claims against defendant
Pingotti; and it is further
ORDERED that all RLUIPA and First Amendment Religion claims
against defendants Rapp and Horowitz are DISMISSED sua sponte, with
prejudice; and it is further
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ORDERED that Judge Baxter’s denial of Jones’ motion to amend is
AFFIRMED.
IT IS SO ORDERED.
September 30, 2015
Albany, New York
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