Smith v. Perlman et al

Filing 91

ORDER: ORDERED, that Magistrate Judge Hummel's February 18, 2014 Report-Recommendation and Order (Dkt. No. 90 ) is ADOPTED in its entirety for the reasons set forth therein. ORDERED, that Plaintiff's motion for partial summary judgment (Dkt. No. 73 ) is DENIED. ORDERED, that Defendants' cross motion for summary judgment (Dkt. No. 81 ) is GRANTED. ORDERED, that Plaintiff's motion for a temporary restraining order and preliminary injunction (Dkt. No. 79 ) is DENIED. ORDERED, that the Clerk of the Court shall enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 3/13/14. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
AUREL SMITH,
Plaintiff,
vs.

9:11-cv-00020
(MAD/CFH)

KENNETH PERLMAN, Deputy Commissioner
of Programs, NYS Department of Correctional
Services; MARK LEONARD, Director of
Ministerial Services, NYS Department of
Correctional Services; DANIEL MARTUSCELLO,
Superintendent of Coxsackie Correctional Facility;
CAPTAIN R. SHANLEY, Captain, Acting Deputy
Superintendent of Security at Coxsackie Correctional
Facility; JEFFREY A. HALE; HARRY S. GRAHAM,
Superintendent of Auburn Correctional Facility;
G. ROBINSON, Deputy Superintendent of Auburn
Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

AUREL SMITH
02-A-6279
Attica Correctional Facility
Box 149
Attica, New York 14011
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants

KEVIN M. HAYDEN, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER

Plaintiff, an inmate currently in the custody of the New York State Department of
Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. §
1983, alleging that Defendants violated his constitutional rights under the First and Fourteenth
Amendment, as well as his rights under the Religious Land Use and Institutionalized Persons Act
of 2000 ("RLUIPA"). See Dkt. Nos. 1, 47. In a Report-Recommendation and Order dated
February 18, 2014, Magistrate Judge Hummel recommended that the Court deny Plaintiff's
motion for partial summary judgment, grant Defendants' cross motion for summary judgment,
deny Plaintiff's motion for a preliminary injunction, and dismiss this case. See Dkt. No. 90.
Neither party has objected to Magistrate Judge Hummel's Report-Recommendation and Order.
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
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
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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).
A court may grant a motion for summary judgment only if it determines that there is no
genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c) (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2502, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where
the non-movant either does not respond to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
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the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to
"make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). "However, this does
not mean that a pro se litigant is excused from following the procedural requirements of
summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484,
*1 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's 'bald assertion,' completely
unsupported by evidence" is not sufficient to overcome a motion for summary judgment." Lee v.
Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d
Cir. 1991)).
Having carefully reviewed Magistrate Judge Hummel's February 18, 2014 ReportRecommendation and Order, the parties' submissions and the applicable law, the Court finds that
Magistrate Judge Hummel correctly recommended that the Court should deny Plaintiff's motion
for partial summary judgment, deny Plaintiff's motion for injunctive relief, grant Defendants'
cross motion for summary judgment, and dismiss this case. See Dkt. No. 90.
In the alternative, the Court finds that Defendants are entitled to qualified immunity. Even
if the Court found questions of fact as to whether Plaintiff's constitutional rights had been
violated, the record clearly establishes that it was objectively reasonable for Defendants to believe
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that their conduct did not violate Plaintiff's clearly established rights. The record establishes that
all decisions at issue were made with legitimate government interests or with the safety of the
facility in mind. As such, the Court grants Defendants' motion for summary judgment on this
alternative ground.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Hummel's February 18, 2014 Report-Recommendation
and Order is ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Plaintiff's motion for partial summary judgment (Dkt. No. 73) is DENIED;
and the Court further
ORDERS that Defendants' cross motion for summary judgment (Dkt. No. 81) is
GRANTED; and the Court further
ORDERS that Plaintiff's motion for a temporary restraining order and preliminary
injunction (Dkt. No. 79) is DENIED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor 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 13, 2014
Albany, New York

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