Benitez v. Parmer et al

Filing 112

DECISION AND ORDER: ORDERED, that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 110 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion for summary judgment (Dkt. No. 102 ) is GRANTED. ORDERED that P laintiff's Second Amended Complaint (Dkt. No. 30 ) is DISMISSED in its entirety. The Court certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from this Decision and Order would not be taken in good faith. Signed by Judge Glenn T. Suddaby on 3/30/15. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
HENRY BENITEZ,
Plaintiff,
9:12-CV-0448
(GTS/DEP)

v.
WILLIAM PARMER, Nurse Practitioner,
Upstate Corr. Facility, sued in his individual
capacity; and CARL J. KOENIGSMANN,
Deputy Comm’r and Chief Med. Officer, NYS
DOCCS, sued in his official capacity,
Defendants.
__________________________________________
APPEARANCES:
HENRY BENITEZ, 97-A-2553
Plaintiff, Pro Se
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

CATHY Y. SHEEHAN, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Henry
Benitez (“Plaintiff”) against the two above-captioned New York State correctional employees
(“Defendants”), are (1) United States Magistrate Judge David E. Peebles’ ReportRecommendation recommending that Defendants’ motion for summary judgment be granted,
and (2) Plaintiff’s Objections to the Report-Recommendation. (Dkt. Nos. 110, 111.) For the

reasons set forth below, Magistrate Judge Peebles’ Report-Recommendation is accepted and
adopted in its entirety, and Defendants’ motion for summary judgment is granted.
I.

RELEVANT BACKGROUND
Familiarity with this action’s procedural history, Plaintiff’s Eighth Amendment

deliberate-indifference claim, and the grounds of Magistrate Judge Peebles’ ReportRecommendation is assumed in this Decision and Order, which is intended primarily for the
review of the parties.
Liberally construed, Plaintiff’s Objections assert that the Report-Recommendation
contains five errors. (DKt. No. 111.) First, argues Plaintiff, in finding that the record does not
indicate that Plaintiff satisfied 16 of the criteria for anti-viral therapy listed in the New York
State Department of Corrections and Community Supervision’s Hepatitis C Guidelines
(“DOCCS HCV Guidelines”), Magistrate Judge Peebles failed to recognize that individuals
diagnosed with chronic HCV cannot be deemed, with a reasonable degree of medical certainty,
eligible for anti-HCV therapy prior to undergoing a liver biopsy. (Id.)
Second, argues Plaintiff, in finding that he failed to satisfy the DOCCS HCV Guidelines
criterion recommending that anti-HCV therapy be considered for only patients who have an
absolute neutrophil count (or “ANC”) of greater than 1,000 and a platelet count of greater than
50,000 / cubic ml, Magistrate Judge Peebles failed to recognize that (a) Plaintiff’s failure to
satisfy that criterion in November of 2011 did not constitute an absolute contraindication to antiHCV therapy under the DOCCS HCV Guidelines, and (b) all of Plaintiff’s outside treating
physicians reported that each would recommend that Plaintiff be afforded anti-HCV therapy
notwithstanding that he had an ANC of less than 1,000 and a platelet count of less than
50,000/cubic ml (thus plaguing Magistrate Judge Peebles’ finding with an impermissible

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credibility determination regarding contradictory proof). (Id.)
Third, argues Plaintiff, in finding that he that he failed to satisfy the DOCCS HCV
Guidelines criterion requiring high motivatation (due to his documented history of refusing
medical care), Magistrate Judge Peebles impermissibly discounted Plaintiff’s affidavit testimony
stating that (a) he never refused medical treatment for his HCV, (b) he filed numerous grievances
seeking anti-viral therapy from 2002 to 2012, and (c) his outside doctors deemed him to be a
very motivated patient for anti-HCV therapy purposes. (Id.)
Fourth, argues Plaintiff, in finding that Defendant Parmer did not ignore an excessive risk
to Plaintiff’s health by considering but not ordering a biopsy, Magistrate Judge Peebles ignored
(a) Plaintiff’s affidavit testimony of his difference of opinion with Parmer, (b) evidence that
Parmer knew the contents of the DOCCS HCV Guidelines, (c) the indication in Plaintiff’s blood
test reports that his alanine aminotransferase (“ALT”) levels remained sufficiently elevated to
warrant a liver biopsy, and (d) written statements of Parmer indicating that his treatment plan
was merely to order blood tests to monitor Plaintiff’s ALT levels. (Id.)
Fifth, argues Plaintiff, in finding nothing in the record to support Plaintiff’s claim that the
three reasons offered by Defendant Koenigsmann for refusing to prescribe HCV-therapy for
Plaintiff were pretextual, Magistrate Judge Peebles ignored (a) Plaintiff’s sworn statement to the
contrary, (b) the DOCCS HCV Guidelines, (c) consultation reports of a number of Plaintiff’s
outside treating doctors stating that anti-HCV therapy was not contraindicated due to Plaintiff’s
low ANC and low platelet count, (d) statements from Plaintiff’s outside treating doctors that
Plaintiff was very interested in obtaining anti-HCV therapy, (e) Plaintiff’s sworn statement that
he had never refused treatment for his HCV, and (f) grievances that Plaintiff had filed against
Koenigsmann, Parmer and other prison medical staff employees regarding their respective
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refusal to afford Plaintiff a repeat liver biopsy and anti-HCV therapy (thus again
plaguingMagistrate Judge Peebles’ finding with an impermissible credibility determination
regarding contradictory proof). (Id.)
II.

GOVERNING LEGAL STANDARD
When a specific objection is made to a portion of a magistrate judge's report-

recommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations,
or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R.
72.1(c).1 When performing such a de novo review, “[t]he judge may . . . receive further
evidence. . . .” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider
evidentiary material that could have been, but was not, presented to the magistrate judge in the
first instance.2 Similarly, a district court will ordinarily refuse to consider argument that could

1

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
2

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
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have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State
Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is
established law that a district judge will not consider new arguments raised in objections to a
magistrate judge's report and recommendation that could have been raised before the magistrate
but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.
Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge
will not consider new arguments raised in objections to a magistrate judge's report and
recommendation that could have been raised before the magistrate but were not.”) (internal
quotation marks omitted).
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court

district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
3

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
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subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.4
After conducing 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)(C).
III.

ANALYSIS
As an initial matter, the Court finds that, even when construed liberally, Plaintiff’s

Objections contain only five specific challenges to Magistrate Judge Peebles’ ReportRecommendation. (Compare Dkt. No. 110 [Report-Recommendation] with Dkt. No. 111 [Plf.’s
Obj.].) See also, supra, Part I of this Decision and Order. As a result, those portions of the
Report-Recommendation to which the challenges are not directed are subject to only a clearerror review, which the Court finds they easily survive for the reasons stated in the ReportRecommendation. (Dkt. No. 110.)
With regard to the remaining portions of the Report-Recommendation, after carefully

Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
4

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
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considering all the papers in this action, the Court finds no error in those portions: Magistrate
Judge Peebles employed the correct legal standards, accurately recited the facts, and properly
applied the law to those facts. (Id.) As a result, the Court adopts the challenged portions of the
Report-Recommendation for the reasons stated therein. (Id.) To those reasons the Court would
add only five points.
Plaintiff’s first argument fails because (a) the authority cited by him does not establish
the existence (in this action) of the fact he asserts, and (b) even if it did, the fact remains that the
DOCCS HCV Guidelines do not support the establishment of the second element of a deliberateindifference claim against Defendant Parmer (which is the point that Magistrate Judge Peebles
was making).
Plaintiff’ second argument fails because, regardless of the absolute or nonabsolute nature
of the contraindication to anti-HCV therapy and what his outside treating physicians did or did
not report, the fact remains that this particular criterion of the DOCCS HCV Guidelines does not
(and the DOCCS HCV Guidelines in general do not) support the establishment of the second
element of a deliberate-indifference claim against Defendant Parmer.
Plaintiff’s third argument fails because, regardless of the reason for Plaintiff’s
documented refusals of medical treatment for his HCV, the nature of his grievances, and what
his outside doctors did or did not deem, the fact remains that the refusals were reported in his
medical records such that this particular criterion of the DOCCS HCV Guidelines does not (and
the DOCCS HCV Guidelines in general do not) support the establishment of the second element
of a deliberate-indifference claim against Defendant Parmer.
Plaintiff’s fourth argument fails because none of the evidence he describes (i.e., his
difference of opinion with Parmer, Parmer’s knowledge of the contents of the DOCCS HCV

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Guidelines, Plaintiff’s elevated ALT levels, and Parmer’s stated treatment plan) support the
establishment of the second element of a deliberate-indifference claim against Defendant
Parmer.
Finally, Plaintiff’s fifth argument fails because none of the evidence he describes
establishes that any of the three reasons offered by Defendant Koenigsmann for refusing to
prescribe HCV-therapy for Plaintiff was pretextual. Rather, Plaintiff’s assertion of pretext is
based merely on speculation and conjecture.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 110) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 102) is
GRANTED; and it is further
ORDERED that Plaintiff’s Second Amended Complaint (Dkt. No. 30) is DISMISSED
in its entirety.
The Court certifies, for purposes of 28 U.S.C. § 1915(a)(3), that any appeal taken from
this Decision and Order would not be taken in good faith.
Dated: March 30, 2015
Syracuse, New York

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