Gillard v. Rovelli et al
Filing
128
DECISION and ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 115 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendants' Motion (Dkt. No. 104 ) for judgment on the pleadings is GRANTED with respect to all claims aga inst all Defendants except for Plaintiff's Fourteenth Amendment Due Process claims against Defendants LaFountain and Zarnetski, consistent with the Report-Recommendation (Dkt. No. 115). Signed by Senior Judge Lawrence E. Kahn on 8/14/14. {order served via regular mail on plaintiff}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
GARY GILLARD,
Plaintiff,
-against-
9:12-CV-083 (LEK/CFH)
MICHAEL ROVELLI, et al.,
Defendants.
DECISION and ORDER
I.
INTRODUCTION
This pro se action under 42 U.S.C. § 1983 comes before the Court following a Report-
Recommendation filed on March 31, 2014, by United States Magistrate Judge Christian F. Hummel,
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). Dkt. No. 115 (“Report-Recommendation”).
Judge Hummel recommends that Defendants’1 Motion for judgment on the pleadings be granted as
to all claims except for the due process claims against Defendants Lafountain and Zarnetski.
Report-Rec. at 26; Dkt. No. 104. Plaintiff Gary Gillard (“Plaintiff”) timely filed Objections. Dkt.
No. 121 (“Objections”). For the following reasons, the Report-Recommendation is adopted in its
entirety.
II.
STANDARD OF REVIEW
When a party makes a timely objection to a Report-Recommendation, it is the duty of the
Court to “make 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). Where, however,
1
The Motion to dismiss was filed on behalf of all Defendants except for Defendant Nunez.
See Mot. at 1.
an objecting “party makes only conclusory or general objections, or simply reiterates his original
arguments, the Court reviews the Report and Recommendation only for clear error.” Farid v.
Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d
672, 679 (S.D.N.Y. 2007)) (citations omitted); see also Brown v. Peters, No. 95-CV-1641, 1997 WL
599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). “A [district] judge . . . 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).
III.
DISCUSSION
Plaintiff first argues that the Report-Recommendation “deliberately and wrongfully” cites
Plaintiff’s words in his Complaint. Objs. ¶¶ 2, 7, 19. The Court has reviewed each claim of an
erroneous citation to the Complaint, and finds Plaintiff’s argument is without merit.
Second, Plaintiff renews his argument that Defendant Kelly knew of a serious risk to
Plaintiff based on the threatening note. Objs. ¶ 3. Plaintiff already raised this argument in his
Response to Defendants’ Motion. See Dkt. No. 114 (“Response”) ¶ 7. Therefore, the Court reviews
this portion of the Report-Recommendation for clear error and finds none. See Report-Rec. at 15.
Third, Plaintiff renews his argument that Defendants violated Plaintiff’s constitutional rights
by informing other prisoners about Plaintiff’s crime of conviction and by uttering disparaging
remarks toward Plaintiff. See Objs. ¶¶ 4, 7, 14. Again, Plaintiff already raised this argument, see
Resp. ¶ 4, and therefore the court reviews this portion of the Report-Recommendation for clear
error, and finds none, see Report-Rec. at 15-23.
Next, Plaintiff argues that the Report-Recommendation improperly considered references
outside of the Complaint in ruling on the Motion to dismiss. Objs. ¶¶ 8-9. Specifically, Plaintiff
2
asserts that the Report-Recommendation references “Dkt. No. 114.” Id. However, “Dkt. No. 114”
refers to Plaintiff’s Response to Defendant’s Motion to dismiss. See Docket. In ruling on the
Motion to dismiss, it was proper for Judge Hummel to consider and reference Plaintiff’s arguments
in opposition.
Finally, Plaintiff argues that it was improper to dismiss his retaliation claim for lack of
showing a causal connection between the grievances he filed and Defendants’ adverse actions.
Objs. ¶¶ 17, 20; see also Report-Rec. at 24. Plaintiff contends that these matters are properly
reserved for discovery. Objs. ¶¶ 17, 20. However, while Plaintiff is not required to prove every
element of his claim at the pleading stage, his “[C]omplaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also FED. R.
CIV. P. 12(b)(6).
Here, Plaintiff has not provided any facts whatsoever regarding the grievances, e.g., the dates
grievances were filed, against whom they were filed, their contents, or whether they even concerned
Defendants, that would suggest a retaliatory motive by Defendants. See generally Resp.; Objs.
¶¶ 17, 20. “[T]he pleading standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 663 (citing Twombly, 550 U.S. at 555). Where a court is unable to
infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the
pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See
id. at 678-79.
3
Having found Plaintiff’s Objections to be without merit, the Court reviews the remainder of
the Report-Recommendation for clear error and finds none.
IV.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 115) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ Motion (Dkt. No. 104) for judgment on the pleadings is
GRANTED with respect to all claims against all Defendants except for Plaintiff’s Fourteenth
Amendment Due Process claims against Defendants LaFountain and Zarnetski, consistent with the
Report-Recommendation (Dkt. No. 115); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties.
IT IS SO ORDERED.
DATED:
August 14, 2014
Albany, NY
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?