Bennett v. Fischer et al

Filing 49

ORDER: ORDERS that Magistrate Judge Peebles' January 9, 2012 Report and Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendants' motion for judgment on the pleadings is GRANT ED in its entirety; and the Court further ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and close this case. Signed by Senior Judge Frederick J. Scullin, Jr on 3/27/2012. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________________
DELVILLE BENNETT,
Plaintiff,
v.

9:09-CV-1236
(FJS/DEP)

BRIAN FISCHER, Commissioner of New York State
Department of Correctional Services, in his individual
and official capacity; DALE ARTUS, Superintendent of
Clinton Correctional Facility, in his individual and official
capacity; and H. MARTIN, Correction Officer, in his
individual and official capacity,
Defendants.
_________________________________________________
APPEARANCES

OF COUNSEL

DELVILLE BENNETT
98-A-1110
Woodbourne Correctional Facility
99 Prison Road
P.O. Box 1000
Woodbourne, New York 12788
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

ADAM SILVERMAN, AAG

SCULLIN, Senior Judge
ORDER
Currently before the Court are Magistrate Judge Peebles' January 9, 2012 Report and
Recommendation, see Dkt. No. 46, and Plaintiff's objections thereto, see Dkt. No. 48.
Plaintiff Delville Bennett, a New York State prison inmate, commenced this civil rights

action pursuant to 42 U.S.C. § 1983 against Defendants. In his original complaint, Plaintiff
alleged that, while he was incarcerated at the Clinton Correctional Facility, Defendants violated
his constitutional rights under the First, Eighth, and Fourteenth Amendments. See generally Dkt.
No. 1. As a result of subsequent motion practice and this Court's Order dated January 4, 2011,
see Dkt. No. 35, Plaintiff's only remaining cause of action is a Fourteenth Amendment procedural
due process claim. This claim arose from an incident in which Plaintiff attended a religious
service at the Clinton Correctional Facility and served as a member of the choir and participated
in dancing and singing associated with the event. As he was exiting the chapel area, Defendant
Correctional Officer H. Martin confronted him and asked him to produce his identification card,
which Defendant Martin then confiscated. Plaintiff was later issued a misbehavior report
accusing him of creating a disturbance, participating in an unauthorized demonstration, and
refusing to obey a direct order. Following a disciplinary hearing to address those charges against
him, Plaintiff was found guilty of creating a disturbance and refusing to obey a direct order but
was acquitted of the unauthorized demonstration charge.
On June 24, 2011, Defendants filed a motion for judgment on the pleadings, see Dkt. No.
41, and Plaintiff opposed that motion, see Dkt. No. 45. In a Report and Recommendation dated
January 9, 2012, Magistrate Judge Peebles recommended that this Court grant Defendants'
motion for judgment on the pleadings without leave to replead because Plaintiff failed to
plausibly demonstrate both (1) the deprivation of a liberty interest sufficient to trigger the
protections of the Fourteenth Amendment and (2) the denial of any procedural safeguards to

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which he was entitled in connection with that alleged deprivation.1 See Dkt. No. 46 at 12-14.
Plaintiff objected to Magistrate Judge Peebles' recommendation. See Dkt. No. 48.
Where a party makes specific objections to portions of a magistrate judge's report and
recommendation, the court conducts a de novo review of those recommendations. See Trombley
v. Oneill, No. 8:11-CV-0569, 2011 WL 5881781, *2 (N.D.N.Y. Nov. 23, 2011) (citing Fed. R.
Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C)). Where a party makes no objection or makes only
conclusory or general objections, however, the court reviews the report and recommendation for
"clear error" only. See Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 1794741, *1 (N.D.N.Y.
June 23, 2009) (quotation omitted). After conducting the appropriate review, a district court may
decide to accept, reject, or modify those recommendations. See Linares v. Mahunik, No. 9:05CV-625, 2009 WL 3165660, *10 (N.D.N.Y. Sept. 29, 2009) (quoting 28 U.S.C. § 636(b)(1)(C)).

1

In his Report and Recommendation, Magistrate Judge Peebles found that "[e]ven the
imposed penalty of sixty days of disciplinary SHU confinement — a penalty which apparently
was never served — would be insufficient under ordinary circumstances to satisfy the liberty
deprivation element of a cognizable due process claim." See Dkt. No. 46 at 15-16 (citations
omitted). Should Plaintiff have evidence tending to show that he had suffered other direct
consequences as a result of his disciplinary hearing that could satisfy the liberty interest
deprivation provision of the Fourteenth Amendment, Magistrate Judge Peebles encouraged
Plaintiff to raise such evidence in his objections. See id. at 16. Finally, based on the substantive
shortcomings in Plaintiff's complaint, Magistrate Judge Peebles recommend that this Court deny
Plaintiff leave to amend his complaint because any such amendment would be futile. See id.
In his objections, Plaintiff submitted evidence that his sixty-day suspension was, in fact,
suspended and that he would not have to undergo any SHU confinement unless Plaintiff "get[s]
in any [more] trouble" relating to the church, as his sixty-day penalty was "just going to be held
over [his] head." See Dkt. No. 48 at 2-3. Plaintiff also contended that "if he practiced his
religious freedom (dancing during the service) again . . . he would receive 60 days SHU time."
See id. at 5. Plaintiff received what amounted to a warning, rather than a constitutionally
cognizable deprivation of his First or Fourteenth Amendment rights; and, as Magistrate Judge
Peebles held, even if he did receive a penalty of sixty days of disciplinary SHU confinement, this
would be insufficient to establish a due process violation.
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The Court has conducted a de novo review of Magistrate Judge Peebles' Report and
Recommendation in light of Plaintiff's specific objections. Having completed its review, the
Court hereby
ORDERS that Magistrate Judge Peebles' January 9, 2012 Report and Recommendation is
ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion for judgment on the pleadings is GRANTED in its
entirety; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendants and
close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: March 27, 2012
Syracuse, New York

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