Perry v. Ogdensburg Correctional Facility et al

Filing 87

ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 85 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendant's Motion (Dkt. No. 77 ) for summary judgment is GRANTED in its entirety. ORDERED, that Plaintiff's Cro ss-Motion (Dkt. No. 80 ) for summary judgment is DENIED. ORDERED, that Plaintiff's Amended Complaint (Dkt. No. 32 ) is DISMISSED in its entirety with prejudice. Signed by Senior Judge Lawrence E. Kahn on 5/24/16. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
HOWARD PERRY,
Plaintiff,
-against-

9:10-cv-1033 (LEK/TWD)

OGDENSBURG CORRECTIONAL
FACILITY, et al.,
Defendants.

ORDER
This matter comes before the Court following a Report-Recommendation filed on April 19,
2016, by the Honorable Thérèse Wiley Dancks, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3. Dkt. No. 85 (“Report-Recommendation”). Plaintiff timely filed
Objections on May 5, 2016. Dkt. No. 86 (“Objections”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s reportrecommendation, the party “may serve and file specific, written objections to the proposed findings
and recommendations.” FED. R. CIV. P. 72(b); L.R. 72.1(c). If no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the
magistrate judge, a district court need review that aspect of a report-recommendation only for clear
error. Chylinski v. Bank of Am., N.A., 434 F. App’x 47, 48 (2d Cir. 2011); Barnes v. Prack, No.
11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d
301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL
3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s

proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument.”). “A [district] judge . . . 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).
Judge Dancks determined that although Plaintiff failed to respond to the statement of
material facts filed by Defendants as required under Local Rule 7.1(a)(3), the Court would invoke
its discretion to review the entire record when evaluating the parties’ respective Motions for
summary judgment. Rep.-Rec. at 7. The Court found that since Plaintiff’s Amended Complaint
was verified, the Court could treat it as an affidavit in opposition to Defendant’s Motion for
summary judgment. Id. at 7-8. Additionally, even though Plaintiff’s Cross-Motion for summary
judgment and Opposition to Defendant’s Motion were unsworn and therefore typically inadmissible,
in deference to Plaintiff’s pro se status, the Court would consider these documents. Id. at 8.
Plaintiff objects to Judge Dancks’ finding that Plaintiff’s claims do not give rise to an Eighth
Amendment violation. Objs. at 4. Judge Dancks found that Defendants appeared to have conceded
that Plaintiff had a serious medical need, but that Defendants did not deny Plaintiff medical
treatment and were not deliberately indifferent to Plaintiff’s serious medical need. Rep.-Rec. at 1617.
Plaintiff argues that Defendant Rupert’s decision to transfer Plaintiff to Clinton Correctional
Facility for a psychiatric evaluation, which caused a delay in the diagnosis and treatment of his
small bowel obstruction, amounts to deliberate indifference. Objs. at 3. However, as Judge Dancks
correctly stated, Plaintiff has not set forth any evidence to suggest that the minimal delay in
diagnosing his small bowel obstruction was deliberate or caused a worsening of his condition.
Rep.-Rec. at 18. Moreover, Defendants set forth specific evidence suggesting that the need for
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Plaintiff to undergo a psychiatric evaluation was more pressing than addressing his stomach pain.
Id. As Judge Dancks reasoned, a difference of opinion between a prisoner and prison officials
regarding medical treatment does not constitute deliberate indifference. Id. (citing Chance v.
Armstrong, 143 F.3d 698, 709 (2d Cir. 1998)). Judge Dancks relied on Plaintiff’s medical records
from July 9, 2008 through July 11, 2008, which showed that Plaintiff had received treatment during
that period, to conclude that no reasonable jury could find that either Defendant Rupert or Coryer
had been deliberately indifferent to Plaintiff’s medical needs. Id. The Court agrees with Judge
Dancks’ recommendation and finds that Plaintiff has failed to meet his burden of showing that there
is a genuine issue of material fact that would allow a reasonable jury to find that Defendants were
deliberately indifferent to Plaintiff’s serious medical needs.
Judge Dancks recommended that Plaintiff’s Eighth Amendment supervisory claim against
Defendant Sears be dismissed based on Plaintiff’s failure to allege that Sears was personally
involved in any of the alleged events. Id. at 20. In support of this finding, Judge Dancks relied on
Plaintiff’s deposition testimony, during which he stated that Sears was named as a Defendant
because he was the supervisor at Ogdensburg C.F. and that he had no personal interactions with
Sears. Id. at 20 (citing Dkt. No. 77-7 at 15-16). Plaintiff conceded that Defendant Sears was not
personally involved in the events alleged and requested that Defendant Sears be granted summary
judgment. Dkt. No. 80 at 7. The Court agrees that Defendant Sears is entitled to summary
judgment on the merits of Plaintiff’s Eighth Amendment claim.
Additionally, Plaintiff asks the Court to overlook his failure to comply with Local Rule
7.1(a)(3). Objs. at 4. Consistent with Judge Dancks’ recommendation, the Court has invoked its
discretion in light of Plaintiff’s pro se status and has overlooked Plaintiff’s failure to comply with
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Local Rule 7.1(a)(3), instead considering the record as a whole when reviewing Defendant’s Motion
for summary judgment. Finally, Plaintiff requests leave of the Court to file a “response mirroring
defendants memorandum of law in support of defendants motion for summary judgment.” Id.
While the Court is mindful of Plaintiff’s pro se status, Plaintiff was already given the opportunity to
submit a response to Defendant’s Memorandum of law and did submit such a response. See Dkt.
No. 81. Therefore, Plaintiff’s request to submit additional briefing is denied.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 85) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Defendant’s Motion (Dkt. No. 77) for summary judgment is GRANTED
in its entirety; and it is further
ORDERED, that Plaintiff’s Cross-Motion (Dkt. No. 80) for summary judgment is
DENIED; and it is further
ORDERED, that Plaintiff’s Amended Complaint (Dkt. No. 32) is DISMISSED in its
entirety with prejudice; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

May 24, 2016
Albany, New York

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