Cannon v. Wood et al
Filing
66
DECISION and ORDER: ORDERED that Magistrate Judge Treece's Report-Recommendation (Dkt. No. 65 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion for summary judgment (Dkt. No. 59 ) is GRANTED with res pect to Plaintiff's First Amendment retaliation claim against Defendants Winston and St. Mary, and those claims are DISMISSED. ORDERED that Defendants' motion for summary judgment (Dkt. No. 59 ) is DENIED with respect to Plaintiff 39;s Eighth Amendment excessive-force claim against Defendants Wood and Reif, and Plaintiff's Eighth Amendment failure-to-protect claim against Defendant Eddy, which shall proceed to trial. ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for appointment of counsel for an appeal is granted. ORDERED that upon assignment of Pro Bono Counsel, a final pretrial confer ence with counsel only will be scheduled in this action, at which time the Court will schedule a jury trial for Plaintiff's Eighth Amendment excessive force claim against Defendants Wood and Reif, and Plaintiff's Eighth Amendment failure to protect claim against Defendant Eddy. Counsel are directed to appear at the final pretrial conference with settlement authority from the parties. Signed by Judge Glenn T. Suddaby on 3/6/13. {order served via regular mail on plaintiff}(nas )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
MARK E. CANNON,
Plaintiff,
9:10-CV-1332
(GTS/RFT)
v.
E. WOOD, Corr. Officer, Upstate Corr. Facility;
K. ST. MARY, Corr. Officer, Upstate Corr. Facility;
B. RELF,1 Corr. Officer, Upstate Corr. Facility;
R. WINSTON, Corr. Officer, Upstate Corr. Facility; and
M. EDDY, Sergeant, Upstate Corr. Facility,
Defendants.
______________________________________________
APPEARANCES:
OF COUNSEL:
MARK E. CANNON, 08-A-0822
Plaintiff, Pro Se
Great Meadow Correctional Facility
Box 51
Comstock, New York 12821
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224
KRISTA A. ROCK, ESQ.
Assistant Attorney General
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Mark E.
Cannon (“Plaintiff”) against the five above-captioned New York State correctional employees
(“Defendants”) pursuant to 42 U.S.C. § 1983, are Defendants’ motion for summary judgment
1
The correct spelling of this Defendant’s name appears to be “Reif.” (Dkt. No. 65,
at 1, n.1; Dkt. No. 59, Attach. 1.)
(Dkt. No. 59), and United States Magistrate Judge Randolph F. Treece’s ReportRecommendation recommending that Defendants’ motion be granted in part and denied in part
(Dkt. No. 65). Neither party filed an objection to the Report-Recommendation, and the time in
which to do so has expired. For the reasons set forth below, the Report-Recommendation is
accepted and adopted in its entirety, and Defendants’ motion is granted with respect to Plaintiff’s
First Amendment claim of retaliation against Defendants Winston and St. Mary, and denied as to
Plaintiff’s remaining Eighth Amendment claims of excessive force and failure to protect against
Defendants Reif, Wood, and Eddy.
I.
RELEVANT BACKGROUND
Generally, in his Complaint, Plaintiff alleges that, between approximately February 2010
and May 2012, at Upstate Correctional Facility, Defendants violated his constitutional rights in
the following manner: (1) Defendants Winston and St. Mary retaliated against Plaintiff for filing
two grievances against them, in violation of the First Amendment, by (a) denying him access to
the barbershop for three months, (b) telling him he did not deserve “Level 3” status (which
permits prisoners more privileges), and (c) making disparaging comments about Plaintiff to
another officer (Correctional Officer Price) who subsequently filed a false misbehavior report
against him; (2) Defendants Wood and Reif used excessive force against him as he was
handcuffed during a cell transport, in violation of the Eighth Amendment; and (3) Defendant
Eddy (the superior of Defendants Wood and Reif) failed to protect Plaintiff from the use of that
excessive force despite being present and witnessing it, in violation of the Eighth Amendment.
(See generally Dkt. No. 1.)
Generally, in their motion for summary judgment, Defendants assert the following three
arguments: (1) based on the admissible record evidence, no rational fact finder could conclude
2
that Plaintiff has established a retaliation claim against Defendants Winston or St. Mary; (2)
based on the admissible record evidence, no rational fact finder could conclude that Plaintiff has
established an excessive-force claim against Defendants Wood and Reif, or a failure-to-protect
claim against Defendant Eddy; and (3) in any event, based on the current record, Defendants
Wood, Reif and Eddy are protected from liability as a matter of law by the doctrine of qualified
immunity. (Dkt. No. 59, Attach. 2, at Points I through IV.)
Generally, in his Report-Recommendation, Magistrate Judge Treece found as follows: (1)
based on the admissible record evidence, no rational fact finder could conclude that Plaintiff has
established a retaliation claim against Defendants Winston or St. Mary; (2) based on the
admissible record evidence, a genuine dispute of material fact exists as to whether Defendants
Wood and Reif used excessive force against Plaintiff, and whether Defendant Eddy failed to
protect Plaintiff against the use of that excessive force; and (3) based on the admissible record
evidence, a genuine dispute of material fact exists as to whether Defendants Wood, Reif and
Eddy are protected from liability as a matter of law by the doctrine of qualified immunity. (Dkt.
No. 65, at Parts II.B. through II.E.) Familiarity with the grounds of Magistrate Judge Treece’s
Report-Recommendation is assumed in this Decision and Order, which is intended primarily for
review by the parties.
II.
APPLICABLE LEGAL STANDARDS
A.
Standard Governing Review of 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,
3
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
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
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.”).
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).
4
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).
B.
Standard Governing a Motion for Summary Judgment
Magistrate Judge Treece correctly recited the legal standard governing a motion for
summary judgment. (Dkt. No. 65, at Part II.A.) As a result, this standard is incorporated by
reference in this Decision and Order, which (again) is intended primarily for review by the
parties.
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).
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III.
ANALYSIS
Because neither party submitted an objection to the Report-Recommendation, the Court
reviews the Report-Recommendation for only clear error. See, supra, Part II.A of this Decision
and Order. After carefully reviewing the relevant filings in this action, the Court can find no
error in the Report-Recommendation. Magistrate Judge Treece employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court
accepts and adopts the Report-Recommendation for the reasons stated therein. (Dkt. No. 65.)
The Court would add only the Court’s decision to dismiss Plaintiff’s retaliation claim is
supported by each of the alternative reasons offered by Defendants for the dismissal of that
claim: (1) based on the admissible record evidence, no rational fact finder could conclude that
Plaintiff suffered sufficiently serious adverse action in order to establish a retaliation claim
against Defendants Winston and St. Mary because (a) Plaintiff was denied access to the
barbershop on only one occasion, which is de minimis, (b) being told that ones does not deserve
“Level 3” status as a prisoner is also de minimis, and (c) even if true, comments that an inmate is
being uncooperative during the retrieval of his feed up tray is also de minimis; and (2) in any
event, based on the admissible record evidence, no rational fact finder could conclude that a
causal connection has been established between any such adverse action and the protected
conduct, given that (a) Defendant Winston was never personally involved in the issuance of a
misbehavior report against Plaintiff, (b) Defendant St. Mary never told Correctional Officer
Price to close Plaintiff’s feed up slot or issue him a misbehavior report, and (c) any adverse
action that Plaintiff experienced was caused not by his grievances but by his own bad conduct.
(See generally Dkt. No. 59, Attach. 2, at Point I.)
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ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 65) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 59) is
GRANTED with respect to Plaintiff’s First Amendment retaliation claim against Defendants
Winston and St. Mary, and those claims are DISMISSED; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 59) is DENIED
with respect to Plaintiff’s Eighth Amendment excessive-force claim against Defendants Wood
and Reif, and Plaintiff’s Eighth Amendment failure-to-protect claim against Defendant Eddy,
which shall proceed to trial; and it is further
ORDERED that Pro Bono Counsel be appointed for the Plaintiff for purposes of trial
only; any appeal shall remain the responsibility of the plaintiff alone unless a motion for
appointment of counsel for an appeal is granted; and it is further
ORDERED that upon assignment of Pro Bono Counsel, a final pretrial conference with
counsel only will be scheduled in this action, at which time the Court will schedule a jury trial
for Plaintiff's Eighth Amendment excessive force claim against Defendants Wood and Reif, and
Plaintiff’s Eighth Amendment failure to protect claim against Defendant Eddy. Counsel are
directed to appear at the final pretrial conference with settlement authority from the parties.
Dated: March 6, 2013
Syracuse, New York
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