Somerville v. Saunders et al

Filing 59

ORDER: ORDERS that Magistrate Judge Peebles' July 11, 2013 Report and Recommendation is ADOPTED in its entirety for the reasons set forth therein; and the Court further ORDERS that Plaintiff's motion for summary judgment (Dkt. No. 48 ) is DENIED. Signed by U.S. District Judge Mae A. D'Agostino on 8/5/2013. (ptm) (Copy served on plaintiff by regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
DIONISIO SOMERVILLE,
Plaintiff,
vs.

9:11-cv-556
(MAD/DEP)

J. SAUNDERS, Correction Officer, Great Meadow
Correctional Facility; BEZIO, Correction Officer,
Great Meadow Correctional Facility; A. WHITE,
Correction Officer, Great Meadow Correctional
Facility; LAWRENCE, Correction Officer, Great
Meadow Correctional Facility; M. SAGE, Correction
Officer, Great Meadow Correctional Facility; M.
KUHL, Correction Officer, Great Meadow
Correctional Facility; VANDENBURG, Correction
Officer, Great Meadow Correctional Facility; CROSS,
Correction Officer, Great Meadow Correctional
Facility; and MULLIGAN, Correction Officer, Great
Meadow Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

DIONISIO SOMERVILLE
93-A-1106
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
Plaintiff pro se
OFFICE OF THE NEW YORK STATE
ATTORNEY GENERAL
The Capital
Albany, New York 12224
Attorneys for Defendants

KEITH A. MUSE, AAG
WILLIAM J. MCCARTHY, AAG
STEPHEN M. KERWIN, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, a New York State prison inmate, commenced this action against nine corrections

officers employed at Great Meadow Correctional Facility. See Dkt. No. 1. In his complaint,
Plaintiff alleges that he was subjected to an unprovoked attack by Defendants, violating his rights
under the Eighth Amendment to the United States Constitution, and causing him to sustain
injuries requiring medical treatment.
On October 3, 3012, Plaintiff filed a motion for summary judgment. See Dkt. No. 48.
Defendants have opposed the motion. See Dkt. No. 53. On July 11, 2013, Magistrate Judge
Peebles issued a Report and Recommendation in which he recommended that the Court deny the
motion because "plaintiff's allegations are sharply contested by defendants, and the record now
before the court reflects the existence of disputed issues of material fact concerning the extent of
force applied by defendants and whether it was justified under the circumstances[.]" See Dkt. No.
58. Currently before the Court is Magistrate Judge Peebles' July 11, 2013 Report and
Recommendation, to which neither party has submitted objections.
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).
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 pleading. 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. 2505, 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
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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
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").
In reviewing 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, 303 U.S. 519, 520, 92 S. Ct. 594,
30 L. Ed. 2d 652 (1972)) (other citations omitted). "Indeed, the Second Circuit has stated that
'[i]mplicit in the right to self-representation is an obligation on the part of the court to make
reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights
because of their lack of legal training."' Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983)). This does not mean, however, that a pro se litigant is excused from following the
procedural requirements of summary judgment. See id. (citing Showers v. Eastmond, No. 00
CIV. 3725, 2001 WL 527484, *2 (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) (quoting Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
Having reviewed Magistrate Judge Peebles' Report and Recommendation, the parties'
submissions, and the applicable law, the Court finds that Magistrate Judge Peebles correctly
recommended that the Court should deny Plaintiff's motion for summary judgment. As
Magistrate Judge Peebles correctly determined, Defendants have sharply contested Plaintiff's
allegations. The parties do not dispute that a confrontation occurred between Plaintiff and some
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corrections officers named as Defendants, and that it evolved into a physical altercation causing
Plaintiff and at least one corrections officer, Defendant Saunders, to suffer injuries. While
Plaintiff maintains that the attack upon him was entirely unprovoked, see Dkt. No. 48-4 at ¶ 2,
Defendants portray Plaintiff as the aggressor, and argue that any force utilized against him was
only to the degree necessary to subdue him and restore discipline. See Dkt. No. 53-8 at ¶ 6; Dkt.
No. 53-8 (Exhibit "1") at 7. Since material issues of fact exist as regarding the incident, its
genesis, and whether the force was applied for the purpose of causing Plaintiff harm or instead for
the purpose of maintaining order, the Court finds that Magistrate Judge Peebles correctly
determined that Plaintiff's motion for summary judgment should be denied.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Peebles' July 11, 2013 Report and Recommendation is
ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Plaintiff's motion for summary judgment (Dkt. No. 48) is DENIED; and
the Court further
ORDERS that the Clerk of the Court shall serve this Order on all parties in accordance
with the Local Rules.

IT IS SO ORDERED.
Dated: August 5, 2013
Albany, New York

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