DeBlasio v. Rosati et al

Filing 31

ORDER: ORDERS that Magistrate Judge Lowe's August 15, 2011 Report-Recommendation is ACCEPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendant Whetherell's motion to dismiss is GRANTED; and the Cour t further ORDERS that Plaintiff may file an amended complaint within THIRTY (30) DAYS of the date of this Order; and the Court further ORDERS that, if Plaintiff fails to file an amended complaint within THIRTY (30) DAYS of the date of this Order, the Clerk of the Court shall terminate Defendant Whetherell from this action, without further order of this Court. Signed by U.S. District Judge Mae A. D'Agostino on 9/15/2011. (ptm, ) {Copy of Order Served on plaintiff by regular mail}

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
PHILIP DEBLASIO,
Plaintiff,
vs.

9:10-cv-1436
(MAD/GHL)

C. ROSATI, Correctional Officer, Great Meadow
Correctional Facility; and SARAH
WHETHERELL, Social Worker I, Great Meadow
Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PHILIP DEBLASIO
09-A-6404
Marcy Correctional Facility
P.O. Box 3600
Marcy, New York 13403
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

ADRIENNE J. KERWIN, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
On November 15, 2010, Plaintiff pro se commenced this civil rights action pursuant to 42
U.S.C. § 1983. See Dkt. No. 1. In his complaint, Plaintiff alleges that Defendant Rosati subjected
him to excessive force and that Defendant Rosati would not have had access to him if Defendant
Whetherell had processed paperwork to release him from the Special Housing Unit ("SHU"). See
id.

Specifically, Plaintiff claims that, on September 28, 2009, Defendant Rosati subjected him
to excessive force while he was housed in the SHU. See id. at 4, 7. Plaintiff alleges that
Defendant Rosati should not have had access to him because "they passed a new law prior to this
incident . . . that means basically that a level I inmate/patient cannot spend more than 30 days at a
time in SHU." See id. at 8.1 Plaintiff alleges that Defendant Whetherell, who served as Plaintiff's
primary therapist, did not "put that paperwork in" to remove Plaintiff from the SHU because "she
was mad at [Plaintiff] because of the way [he] disrespected her on 8-7-09." See id. Plaintiff states
that "Sarah W[h]etherell [is] responsible and a party to this entire ordeal. She didn't physically
hurt me but she is just as guilty. And I will prove she conspired to encourage . . . C. Rosati to
brutally hurt me." See id. at 9. Further, Plaintiff alleges that Defendant "W[h]etherell's
mistreatment was considered cruel and unusual punishment by not getting me out of the SHU on
time. She let me suffer by not doing her job & talking with me during those 68 days." See id. at
5. In his prayer for relief, Plaintiff seeks surgery on his face to remove scars from Defendant
Rosati's alleged use of excessive force and $1,000,000 in compensatory damages. See id. at 6.
On February 2, 2011, Defendant Whetherell filed a motion to dismiss. In her motion,
Defendant Whetherell argued that the only allegations in the complaint regarding her is that she
failed to process paperwork necessary to end Plaintiff's time in the SHU and that she failed to talk
to Plaintiff while he was housed in the SHU, which are insufficient to establish an Eighth
Amendment violation. See Dkt. No. 10-1 at 2.

The "new law" to which Plaintiff refers is the SHU Exclusion Law, which regulates
disciplinary housing for mentally ill inmates. See N.Y. Corr. Law § 137 (McKinney 2011).
Although the legislation was enacted in 2008, the portion of the law to which Plaintiff refers did
not go into effect until July 1, 2011. See id.
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In a Report-Recommendation dated August 15, 2011, Magistrate Judge Lowe
recommended that the Court find that Defendant Whetherell had no obligation under the New
York SHU Exclusion Law to ensure that Plaintiff was released from the SHU after thirty days
because the law did not go into effect until July 1, 2011. See Dkt. No. 28 at 4. Further,
Magistrate Judge Lowe found that the complaint fails to state a claim on this theory even if
Defendant Whetherell had such an obligation under the SHU Exclusion law because "'more than
mere "but for" causation is required to impose Section 1983 liability . . . '" See id. (quoting
Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 162 (S.D.N.Y. 2009)). Finally, Magistrate
Judge Lowe recommended that the Court sua sponte dismiss Plaintiff's retaliation claim against
Defendant Whetherell because of the claim's conclusory nature and Plaintiff's failure to allege that
he engaged in any protected speech or conduct. See id. at 5-6. Neither party objected to
Magistrate Judge Lowe's August 15, 2011 Report-Recommendation.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After 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).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
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Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Having reviewed Magistrate Judge Lowe's August 15, 2011 Report-Recommendation and
the applicable law, the Court concludes that Magistrate Judge Lowe correctly recommended that
the Court should grant Defendant Whetherell's motion to dismiss, but afford Plaintiff an
opportunity to amend. Further, Magistrate Judge Lowe correctly determined that, to the extent
Plaintiff has attempted to allege that Defendant Whetherell retaliated against him because of the
way he disrespected her, he has failed to state a plausible cause of action.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Lowe's August 15, 2011 Report-Recommendation is
ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendant Whetherell's motion to dismiss is GRANTED; and the Court
further
ORDERS that Plaintiff may file an amended complaint within THIRTY (30) DAYS of
the date of this Order; and the Court further
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ORDERS that, if Plaintiff fails to file an amended complaint within THIRTY (30) DAYS
of the date of this Order, the Clerk of the Court shall terminate Defendant Whetherell from this
action, without further order of this Court; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.

IT IS SO ORDERED.
Dated: September 15, 2011
Albany, New York

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