Nelson v. Plumley et al

Filing 34

DECISION AND ORDER: The 32 Report and Recommendation is adopted in its entirety. ORDERED that defendants' motion to dismiss (Dkt. No. 25 ) is GRANTED in part. Plaintiff's damage claims against all of defendants in their official ca pacities are dismissed with prejudice. Plaintiff's claims for deliberate medical indifference against defendants Berggern, Galani, and Wright, and all his claims against defendant Waldron, in their individual capacities, are dismissed without pr ejudice to re - pleading. ORDERED that defendants' motion to dismiss (Dkt. No. 25 ) is DENIED as it relates to plaintiff's Eighth Amendment conditions of confinement claim asserted against defendant Berggern and Galani in their individua l capacities. ORDERED that plaintiff's procedural due process cause of action, arising from the disciplinary hearing conducted by defendant Miller, is DISMISSED unless, within thirty (30) days of the date of this Decision and Order, plaintiff notifies the Court and defendants' counsel, in writing, of his abandonment, for all time, of any claim associated with the duration of his confinement arising from the disciplinary proceeding conducted by defendant Miller. Signed by Senior Judge Thomas J. McAvoy on 3/18/13. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
JEFFREY A. NELSON,
Plaintiff,

9:12-CV-0422

v.
BRUCE PLUMLEY, et al.,
Defendants.
________________________________________
THOMAS J. McAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court

to the Hon. David E. Peebles, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c). In his
January 24, 2013 Report-Recommendation and Order, Magistrate Judge Peebles:
RECOMMENDED that defendants’ motion to dismiss (Dkt. No. 25) be
GRANTED, in part, and that plaintiff’s damage claims against all of
defendants in their official capacities, his claims for deliberate medical
indifference against defendants Berggern, Galani, and Wright and all claims
against defendant Waldron, be dismissed, with leave to replead, except as to
his cause of action for damages against all defendants in their official
capacities; and it is further hereby
RECOMMENDED that defendants’ motion to dismiss (Dkt. No. 25) be
otherwise DENIED, as it relates to plaintiff’s Eighth Amendment conditions of
confinement claim asserted against defendant Berggern and Galani; and it is
further hereby

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RECOMMENDED that plaintiff’s procedural due process cause of action, arising
from the disciplinary hearing conducted by defendant Miller, be DISMISSED, unless
within thirty days of the date of an order adopting this recommendation, plaintiff
notifies the court and defendants’ counsel, in writing, of his abandonment, for all
time, of any claim associated with the duration of his confinement arising from the
disciplinary proceeding conducted by defendant Miller.1
Rep. Rec., pp. 34-35.
Plaintiff filed objections to the Report-Recommendation and Order. Dkt. # 32.
II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,

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.” See 28
U.S.C. § 636(b)(1)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997)(The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate's findings.). “[E]ven a pro se party's objections to a
Report and Recommendation must be specific and clearly aimed at particular findings in
the magistrate's proposal, such that no party be allowed a second bite at the apple by
simply relitigating a prior argument.” Machicote v. Ercole, 2011 WL 3809920, at * 2

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Magistrate Judge Peebles reached this conclusion when addressing defendants’ challenge under
Heck v. Humphrey, 512 U.S. 477 (1994). In this regard, Judge Peebles correctly noted that
the Second Circuit has clarified that if, as a prerequisite for maintaining a section 1983 action, a
prisoner agrees to abandon any actual or potential challenge aimed at the duration of his
incarceration, then success in the section 1983 action will have no affect on the sanctions that relate
to the length of time served in prison, and, accordingly, the inmate may proceed with his a due
process claim. Peralta v. Vasquez, 467 F.3d 98, 105 (2d Cir. 2006), cert. denied sub nom., Jones v.
Peralta, 551 U.S. 1145 (2007). Under Peralta’s limited exception to the rule in [Edwards v. Balisok,
520 U.S. 641 (1997)], in order to pursue his section 1983 due process claim in this action, a plaintiff
must abandon – not just now, but for all time – any claims he may have with respect to the duration of
his confinement that arise out of the proceeding now challenged. Peralta, 467 F.3d at 104.
Rep. Rec. pp. 13-14.

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(S.D.N.Y., Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v.
7-Eleven, Inc., 662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same).
General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,
554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at
*2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, the Court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).
III.

DISCUSSION
Plaintiff makes objections to specific portions of Magistrate Judge Peebles’ Report-

Recommendation and Order, but the objection are wholly conclusory in nature, alleging,
essentially, that the magistrate judge wrongly decided certain issues. The Court does not
agree. Having considered Plaintiff’s objections and having completed a de novo review of
the issues raised by the objections, the Court accepts and adopts Magistrate Judge
Peebles’ recommendations for the reasons stated in his thorough report.
IV.

CONCLUSION
For the reasons discussed above, the Court accepts and adopts Magistrate Judge

Peebles’s January 24, 2013 Report-Recommendation and Order in its entirety. Therefore,
it is hereby
ORDERED that defendants’ motion to dismiss (Dkt. No. 25) is GRANTED in part.
Plaintiff’s damage claims against all of defendants in their official capacities are dismissed

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with prejudice. Plaintiff’s claims for deliberate medical indifference against defendants
Berggern, Galani, and Wright, and all his claims against defendant Waldron, in their
individual capacities, are dismissed without prejudice to re-pleading; and it is further
ORDERED that defendants’ motion to dismiss (Dkt. No. 25) is DENIED as it relates
to plaintiff’s Eighth Amendment conditions of confinement claim asserted against
defendant Berggern and Galani in their individual capacities; and, it is further
ORDERED that plaintiff’s procedural due process cause of action, arising from the
disciplinary hearing conducted by defendant Miller, is DISMISSED unless, within thirty (30)
days of the date of this Decision and Order, plaintiff notifies the Court and defendants’
counsel, in writing, of his abandonment, for all time, of any claim associated with the
duration of his confinement arising from the disciplinary proceeding conducted by
defendant Miller.
IT IS SO ORDERED
Dated: March 18, 2013

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