Konovalchuk v. Cerminaro et al

Filing 110

ORDER: ORDERS that 107 Report and Recommendations is adopted in its entirety. ORDERS that Plaintiff's motion for summary judgment (Dkt. No. 94 ) is DENIED. ORDERS that the State Defendants' motion for summary judgment (Dkt. No . 97 ) is GRANTED. ORDERS that the County Defendants' cross-motion for summary judgment (Dkt. No. 98 ) is GRANTED. ORDERS that the City Defendants' cross-motion for summary judgment (Dkt. No. 100 ) is GRANTED as to the failure to intervene claims against Defendant Scully and the municipal liability claim against Defendant City of Utica but DENIED in all other respects. Signed by U.S. District Judge Mae A. D'Agostino on 1/24/14. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
RUSLAN KONOVALCHUK,
Plaintiff,
vs.

9:11-cv-01344
(MAD/CFH)

MICHAEL F. CERMINARO, Police Officer, Utica
Police Department; ANKEN, Police Officer, Utica
Police Department; FRENCH, Police Officer, Utica
Police Department; AIMEDIN MEKIC, Police
Officer, Utica Police Department, OFFICER MOORE,
Police Officer, Utica Police Department, SCULLY,
Police Sgt., Utica Police Department; TIMOTHY
MOORE, Investigator, Utica Police Department;
PETRIE, Police Officer, Utica Police Department;
CUDA, Parole Officer; PEZDEK, Parole Officer;
CARROL, Senior Parole Officer; CITY OF UTICA;
COUNTY OF ONEIDA; ALBAN URYNIAK, Utica
Police Sgt.; JAMES WATSON, Utica Police Captain;
JEFFREY FARRELL, Oneida County Sheriff Deputy,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

RUSLAN KONOVALCHUK
12-B-1663
Clinton Correctional Facility
P.O. Box 2002
Dannemora, New York 12929
Plaintiff pro se
OFFICE OF CORPORATION
COUNSEL - City of Utica
One Kennedy Plaza
Utica, New York 13502
Attorneys for Defendants Cerminaro, Anken,
French, Mekic, Moore, Scully, Timothy Moore,
Petrie, City of Utica, County of Oneida,
Uryniak, Watson, and Farrell

JOHN P. ORILIO, ESQ.
JOAN K. HARRIS, ESQ.
MARK C. CURLEY, ESQ.

BARTH, SULLIVAN & BEHR

DAVID H. WALSH, IV, ESQ.

224 Harrison Street
Syracuse, New York 13202
Attorneys for the County Defendants
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants Cuda,
Pezdek, and Carrol

KRISTEN M. QUARESIMO, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983,
alleging that Defendants violated his rights under the First, Fourth, and Fourteenth Amendments
of the United States Constitution. See Dkt. No. 56. The named Defendants are nine law
enforcement officers of the Utica Police Department and the City of Utica (the "City
Defendants"), a Deputy Sheriff from the Oneida County Sheriff's Department and the County of
Oneida (the "County Defendants"), and three New York State Parole Officers (the "State
Defendants"). See id.
In his complaint, Plaintiff contends that Defendant Farrell violated his First and
Fourteenth Amendment rights when Defendant Farrell denied him food and water, and exposed
him to second hand smoke, all done in retaliation for filing a complaint against the arresting
officers. See Dkt. No. 56 at ¶ 38. Further, Plaintiff alleges that his Fourth Amendment right
against the use of excessive force was violated when: (1) Defendants Cerminaro, Anken, French,
Mekic, Moore, Cuda, and Pezdek assaulted him while he was hand-cuffed, lying face-down on
the ground; (2) Defendant Carroll gripped his neck and attempted to assault him with a police
radio; and (3) Defendant Cerminaro choked him twice and dragged him to the police vehicle,
2

hitting his head on the car door. Liberally construed, the complaint also appears to contend that
he was arrested without probable cause. Moreover, Plaintiff claims that his Fourteenth
Amendment rights were violated when: (1) Defendants Carroll, Uryniak, Scully, and Moore
failed to intervene when he was being assaulted on the ground and slammed against a wall; (2)
Defendants Cuda, Pezdek, Anken, Scully, Uryniak, and Moore failed to intervene when
Defendant Carroll was holding him in a tight grip and threatened him with a radio; (3) Defendants
Anken, French, Mekic, Moore, Uryniak, Scully, Carroll, Cuda, and Pezdek failed to intervene
when Defendant Cerminaro choked him twice and hit his head on the police car door; and (4)
Defendants Cerminaro, Petrie, and Watson denied him medical care after being informed that he
was hurt and in pain. As to Defendants Oneida and Utica, Plaintiff contends that they failed to
train their employees, resulting in the above unconstitutional conduct.
Currently pending before the Court are (1) Plaintiff's motion for summary judgment (Dkt.
No. 94); (2) the State Defendants' motion for summary judgment (Dkt. No. 97); (3) the County
Defendants' cross-motion for summary judgment (Dkt. No. 98); and (4) the City Defendants'
cross-motion for summary judgment (Dkt. No. 100). Although Plaintiff responded to the City
Defendants' motion, he failed to respond to the County Defendants and the State Defendants'
motions for summary judgment, despite being given notice of the consequences for failing to
respond. See Dkt. No. 97 at 1-2; Dkt. No. 98-7.
In an October 30, 2013 Report-Recommendation and Order, Magistrate Judge Hummel
recommended that the Court (1) deny Plaintiff's motion for summary judgment; (2) grant the State
Defendants' motion for summary judgment; (3) grant the County Defendants' cross-motion for
summary judgment; and (4) grant-in-part and deny-in-part the City Defendants' cross-motion for

3

summary judgment. See Dkt. No. 107. None of the parties objected to the ReportRecommendation 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
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).
4

Having carefully reviewed the October 30, 2013 Report-Recommendation and Order, the
parties' submissions and the applicable law, the Court finds that Magistrate Judge Hummel
correctly recommended that the Court (1) deny Plaintiff's motion for summary judgment; (2)
grant the State Defendants' motion for summary judgment; (3) grant the County Defendants'
cross-motion for summary judgment; and (4) grant-in-part and deny-in-part the City Defendants'
cross-motion for summary judgment. See Dkt. No. 107. As to the City Defendants' cross-motion
for summary judgment, Magistrate Judge Hummel determined that the motion should be granted
as to the failure to intervene claims against Defendant Scully and the claim of municipal liability
against Defendant City of Utica, but denied in all other respects. See id. at 47. Upon review of
the thorough and well-reasoned Report-Recommendation and Order, the Court finds that
Magistrate Judge Hummel did not clearly err in any of his recommendations.
Wherefore, the Court hereby
ORDERS that Magistrate Judge Hummel's October 30, 2013 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 summary judgment (Dkt. No. 94) is DENIED; and
the Court further
ORDERS that the State Defendants' motion for summary judgment (Dkt. No. 97) is
GRANTED; and the Court further
ORDERS that the County Defendants' cross-motion for summary judgment (Dkt. No. 98)
is GRANTED; and the Court further
ORDERS that the City Defendants' cross-motion for summary judgment (Dkt. No. 100) is
GRANTED as to the failure to intervene claims against Defendant Scully and the municipal

5

liability claim against Defendant City of Utica but DENIED in all other respects;1 and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: January 24, 2014
Albany, New York

As a result of this Order, Defendants Cuda, Pezdek, Carroll, City of Utica, County of
Oneida, and Farrell are terminated from this case.
1

6