Justice v. Hulihan et al

Filing 57

MEMORANDUM-DECISION AND ORDER: ORDERED that Magistrate Judge David E. Peebles' July 31, 2014 Amended Report and Recommendation (Dkt. No. 55 ) is ADOPTED in its entirety. ORDERED that Wiggins' motion for summary judgment (Dkt. No. 50 ) is GRANTED. ORDERED that Justice's claim against Wiggins (Compl. at 31) is DISMISSED and the Clerk is ordered to terminate Wiggins as a defendant in this action. Signed by Chief Judge Gary L. Sharpe on 9/30/14. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOHN D. JUSTICE,
Plaintiff,

9:11-cv-419
(GLS/DEP)

v.
R. WIGGINS et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
John D. Justice
Pro Se
87-B-0385
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
FOR THE DEFENDANTS:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224

CATHY Y. SHEEHAN
Assistant Attorney General

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se John D. Justice commenced this action against

defendants William Hulihan, Charles Tapia, R. Wiggins, Christopher
Holmer, Eric Chandler, the Town of Marcy, Hon. Donald S. Buttenschon,
Scott D. McNamara, Robert L. Bauer, Michael Hulihan, Richard Roy, and
Brian Fischer pursuant to 42 U.S.C. §§ 1983 and 1985. (Compl., Dkt. No.
1.) Following initial review of the complaint, this court dismissed all but two
of Justice’s causes of action: an Eighth Amendment claim that corrections
officers were deliberately indifferent and failed to protect Justice from an
assault by a fellow inmate, and a Fourteenth Amendment procedural due
process claim that evidence was intentionally withheld from Justice during
a disciplinary hearing. (Dkt. No. 8 at 15-16, 20-21, 22.) Two additional
defendants were dismissed on summary judgment, (Dkt. No. 49 at 12-13),
leaving only claims against Wiggins and Fischer. Wiggins has since filed
his own motion for summary judgment. 1 (Dkt. No. 50.) In an Amended

1

Due to a somewhat unusual procedural history, this is the second time this court has
been presented with the claims against Wiggins on summary judgment. On October 4, 2013,
this court rejected Judge Peebles’ recommendation that summary judgment be granted to
Wiggins, because defendants’ summary judgment motion at issue was “‘equivocal concerning
its scope.’” (Dkt. No. 49 at 9 (quoting Dkt. No. 47 at 10).) Specifically, in its decision on that
R&R, the court noted that, although defendants’ notice of motion named all four defendants still
in the case at that time, the accompanying memorandum of law made no argument with
respect to Wiggins; therefore, the court denied the motion with respect to Wiggins, but
permitted him to file his own dispositive motion within fourteen days of the date of that
Memorandum-Decision and Order, (id. at 10), which he subsequently did, (Dkt. No. 50).

2

Report and Recommendation 2 (R&R) dated July 31, 2014, Magistrate
Judge David E. Peebles recommended that Wiggins’ motion be granted
and the claim against him be dismissed. (Dkt. No. 55.) Justice
subsequently filed objections to the R&R. 3 (Dkt. Nos. 54, 56.) For the
reasons that follow, the R&R is adopted in its entirety, and Wiggins’ motion
for summary judgment is granted.
II. Background4
Justice is an inmate in the custody of the New York State Department
of Corrections and Community Supervision (DOCCS). (Dkt. No. 41, Attach.
14 ¶ 1.) During the relevant time period, Justice was incarcerated in the
Mid-State Correctional Facility. (Id. ¶ 6.)
As relevant to this motion, on July 26, 2008, Wiggins was a

2

The court notes that Judge Peebles initially issued an R&R on July 15, 2014,
recommending that Wiggins’ motion for summary judgment be granted, and also, apparently
inadvertently, recommending that all of Justice’s remaining claims be dismissed. (Dkt. No. 53
at 18.) However, as Justice pointed out in his objections to that initial R&R, only Wiggins had
moved for summary judgment, so his claim against Fischer was not before the court. (Dkt. No.
54 at 2-3.) Accordingly, Judge Peebles issued an amended R&R, recommending only that the
claims against Wiggins be dismissed. (Dkt. No. 55 at 18.) It is that recommendation that is
currently before this court.
3

The operative objections were filed by Justice in response to Judge Peebles’ initial
R&R, (Dkt. No. 54), but, in light of the issuance of the amended R&R, Justice asked that the
court apply these objections to Judge Peebles’ amended recommendations, (Dkt. No. 56 at 3).
4

Unless otherwise noted, the facts are not in dispute. For further factual background,
the court directs the parties to its earlier decision in this case. (Dkt. No. 49 at 3-5.)

3

corrections officer who worked on the 2-H housing unit. (Def.’s Statement
of Material Facts (SMF) ¶ 1, Dkt. No. 50, Attach. 2.) On that date, Justice
was assaulted by Sean McAleese, a fellow inmate at Mid-State. (Compl. at
15; Dkt. No. 41, Attach. 14 ¶ 14.) During the altercation, Justice suffered a
facial injury which required medical attention. (Dkt. No. 41, Attach. 14
¶ 17.)
As a result of the incident, both Justice and McAleese were accused
of violating prison rules and issued misbehavior reports. (Dkt. No. 41,
Attach. 3 ¶ 11.) Following a disciplinary hearing, Justice was disciplined for
failing to report his injury. (Dkt. No. 41, Attach. 2 at 43-44.) Justice alleges
that Wiggins “authorized . . . McAleese to assault” him. (Compl. at 17.) At
his disciplinary hearing, Justice testified that “[i]nmates had come to tell
[him] that [other inmates] were given the green light to get at [him],” and
that it was Wiggins who “gave . . . the green light” for the assault. (Dkt. No.
23, Attach. 1 at 27.) Wiggins denies that he ever gave such authorization.
(Def.’s SMF ¶ 2.)
III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
4

party properly objects to a specific element of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
Justice’s claim against Wiggins arises from Wiggins’ alleged
authorization of the assault on Justice. (Compl. at 17.) In his R&R, Judge
Peebles recommended that summary judgment be granted in favor of
Wiggins because Justice has failed to submit any admissible record
evidence in support of his allegation that Wiggins authorized inmate
McAleese to assault Justice. (Dkt. No. 55 at 9-10.) As noted by Judge
Peebles, the only evidence submitted by Justice with respect to this claim
is his own testimony from his disciplinary hearing, where he testified that
another inmate told him that he heard Wiggins authorize the assault on
5

Justice, which plainly constitutes inadmissible hearsay. (Id. at 9-10; Dkt.
No. 23, Attach. 1 at 27-28, 35); see Burlington Coat Factory Warehouse
Corp. v. Esprit de Corp., 769 F.2d 919, 924 (2d Cir. 1985) (“[A party]
cannot rely on inadmissible hearsay in opposing a motion for summary
judgment.”).
Although Judge Peebles noted Justice’s argument that he should be
granted an opportunity to conduct further discovery, pursuant to Fed. R.
Civ. P. 56(d), Judge Peebles recommended that this request be denied
because discovery in this case closed in June 2012, after several
extensions, and thus Justice had ample time to conduct discovery. (Dkt.
No. 55 at 11-13.) In addition, Justice has failed to demonstrate that he has
made any prior attempts to obtain an affidavit, which he now seeks, from
the inmate who allegedly heard Wiggins authorize the assault. (Id. at 1316.) Lastly, Judge Peebles recommended that, even if the court were to
construe Justice’s request as an application to reopen discovery, that
request should likewise be denied, because Justice was provided with
ample time while discovery was still open to pursue the evidence he now
seeks, and he has failed to demonstrate good cause to reopen discovery at
this late stage, after the filing of summary judgment motions. (Id. at 16-17.)
6

In his objections, Justice fails to raise any specific arguments to the
R&R that would merit de novo review. See Almonte, 2006 WL 149049, at
*4-5. He merely repeats his argument, which he initially made in his
response to Wiggins’ summary judgment motion, (Dkt. No. 52 at 4-6), that
he should be permitted to conduct additional discovery pursuant to Fed. R.
Civ. P. 56(d). (Dkt. No. 54 at 1-2.) Although he appears to assert that the
court’s prior orders have precluded him from obtaining any discovery from
Wiggins, (id. (citing Dkt. Nos. 22, 33)), as Judge Peebles indicates, in none
of these motions to compel did Justice seek the inmate affidavit that he
now seeks.5 (Dkt. No. 55 at 13-16.) Accordingly, the court has reviewed
Judge Peebles’ recommendations for clear error and found none, and the
R&R is therefore adopted in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ July 31, 2014
Amended Report and Recommendation (Dkt. No. 55) is ADOPTED in its
entirety; and it is further
5

Justice also argues that he should be entitled to relief pursuant to Rule 56(d) because
Wiggins has not responded by way of a reply brief. (Dkt. No. 54 at 2.) However, this argument
is of no moment, given the court’s determination that Justice has not demonstrated entitlement
to such relief in the first place.

7

ORDERED that Wiggins’ motion for summary judgment (Dkt. No. 50)
is GRANTED; and it is further
ORDERED that Justice’s claim against Wiggins (Compl. at 31) is
DISMISSED and the Clerk is ordered to terminate Wiggins as a defendant
in this action; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 30, 2014
Albany, New York

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