Smith v. Fischer et al

Filing 56

ORDER granting 40 Motion for Summary Judgment; adopting Report and Recommendations re 51 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Peebles' August 18, 2014 Report and Recommendation is ADOPTED in its entire ty for the reasons stated therein; and the Court furtherORDERS that Defendants' motion for summary judgment (Dkt. No. 40) is GRANTED; and the Court further ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 9/26/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BRUNCE SMITH,
Plaintiff,
vs.

9:12-cv-997
(MAD/DEP)

BRIAN FISHER;
D. VENETTOZZI;
JOSEPH WOLCZYK,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

BRUNCE SMITH
99-A-2268
Clinton Correctional Facility
P. O. Box 2002
Dannemora, New York 12929
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capital
Albany, New York 12224
Attorneys for Defendants

KEITH J. STARLIN, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
On June 20, 2012, pro se Plaintiff Brunce Smith, 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 deprived him of his civil rights
under the Fourteenth Amendment to the United States Constitution. See Dkt. No. 1. Plaintiff
alleges that he was deprived of his procedural due process rights by Defendants' failure to notify
him that an administrative disciplinary hearing would take place in his absence, and of the

consequences of his failure to appear at the hearing. See id.1
Presently before the Court is Defendants' motion for summary judgment. See Dkt. No. 40.
Defendants argue that they are entitled to summary judgment because (1) Plaintiff cannot
demonstrate that each defendant was personally involved in the alleged constitutional violation,
and (2) no due process violation occurred. See id.
In an August 18, 2014, Report and Recommendation, Magistrate Judge Peebles
recommended that Defendants' motion for summary judgment be granted. See Dkt. No. 51.
Specifically, Magistrate Judge Peebles found that Plaintiff's successful New York State Supreme
Court Article 78 action did not collaterally estop this Court from determining whether a
constitutional violation occurred. "[U]nlike New York State law, the due process clause of the
Fourteenth Amendment to the United States Construction does not require that an inmate be
informed of his right to attend a disciplinary proceeding and the consequences of failing to do so
in order to find a knowing and voluntary waiver of that right. Because [Plaintiff's Article 78
proceeding] did not decide whether plaintiff's rights under federal law were violated, his decision
does not have preclusive effect in this action, where plaintiff seeks relief for an alleged violation
of his rights under the United States Constitution." Id. at 13-14. Magistrate Judge Peebles further
found it "immaterial to this action that New York State law requires that an inmate be informed of
the right to attend a disciplinary hearing and the consequences of failing to do so in order to
knowingly and voluntarily waive that right because there is no such requirement for an effective
waiver under the federal constitution." Id. at 17. Based on the undisputed facts in the record,
Magistrate Judge Peebles found that "no reasonable factfinder could conclude that plaintiff's
waiver of his right to attend the disciplinary hearing was involuntary or that plaintiff was deprived

For a complete summary of the relevant facts, the Court refers to Magistrate Judge
Peebles' August 18, 2014 Report and Recommendation. See Dkt. No. 51 at 3-8.
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his constitutional right to appear at the hearing and present a defense." Id. at 18-19.
Plaintiff filed a letter dated August 28, 2014, seeking an extension to file objections to
Magistrate Judge Peebles' Report and Recommendation, see Dkt. No. 52, which the Court granted
on September 3, 2014, see Dkt. No. 54. Thereafter, Plaintiff timely submitted objections to the
Report and Recommendation. See Dkt. No. 55. Plaintiff argues that Magistrate Judge Peebles
erred because "the court[']s focus is primarily upon the judge[']s decision within the Article 78
proceedings and not upon the law relating to these proceedings." Id. at 1. Plaintiff asserts that
summary judgment should have been denied because the inquiry into whether the conditions of
confinement were "atypical and significant," as required under relevant federal law, will
ordinarily require fact-finding. See id. at 3. Plaintiff also appears to assert that he intended to
plead an Eighth Amendment cruel and unusual punishment claim, which Magistrate Judge
Peebles did not address. See id. Plaintiff also cites to a number of state law cases for the
proposition that a waiver of a constitutional right must be voluntary, knowing, and intelligent.
See id. at 4.
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,
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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).
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 pleadings. 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. 2502, 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").
"[I]n 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, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to
"make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). "However, this does
not mean that a pro se litigant is excused from following the procedural requirements of
summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484,
*1 (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) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d
Cir. 1991)).
In the present matter, contrary to Plaintiff's contention, Magistrate Judge Peebles'
discussion of Plaintiff's Article 78 petition is relevant to a proper disposition of the pending
motion. Moreover, Magistrate Judge Peebles' analysis of whether issue preclusion, or collateral
estoppel, precluded this Court from deciding whether Plaintiff's constitutional rights were
violated included a thoughtful analysis of controlling federal law.
Plaintiff's objection on the grounds that summary judgment should have been denied
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because the conditions of his confinement were "atypical and significant" and "cruel and unusual"
is unavailing. First, Defendants did not seek summary judgment on the "atypical and significant"
prong of a federal due process claim. Rather, Defendants argued, and Magistrate Judge Peebles
found, that each of the procedural prerequisites to which an inmate is entitled before being
deprived of a constitutionally cognizable liberty interest were satisfied. As such, Magistrate
Judge Peebles' recommended that, even assuming that Plaintiff had a liberty interest and that
Plaintiff was deprived of such liberty interest, Defendants' motion for summary judgment be
granted. Second, Plaintiff's attempt to interpose an Eighth Amendment claim at this stage of the
litigation is inappropriate. "It is well settled that a litigant may not raise new claims not contained
in the complaint . . . in objections filed in response to a Magistrate Judge's report and
recommendation." Bermudez v. Waugh, No. 9:11–CV–0947, 2013 WL 654401, *6 (N.D.N.Y.
Feb. 21, 2013). Even were the Court to allow such a claim at this time, there is no support for it
in the record since Plaintiff has not made any specific allegations regarding the conditions he
endured while in the Special Housing Unit ("SHU"). "Restrictive SHU conditions on their own
do not per se rise to the level of cruel and unusual punishment." Booker v. Maly, No.
9:12–CV–246, 2014 WL 1289579, *16 (N.D.N.Y. Mar. 31, 2014) (citations omitted).
Plaintiff's objection based upon state law cases regarding waiver of a constitutional right is
also unavailing. Plaintiff cites to a number of New York state cases which were decided in the
context of Article 78 challenges to prison disciplinary proceedings. As discussed in the Report
and Recommendation, these cases are not determinative of the issues presented here.
Finally, Plaintiff's assertion that Magistrate Judge Peebles failed to construe the evidence
in the light most favorable to the party opposing a motion for summary judgment is unfounded.
Based upon the record presented, including Plaintiff's own admissions, Magistrate Judge Peebles
found that no reasonable factfinder could conclude that Plaintiff was deprived of his procedural
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due process rights. This finding was made in accordance with the court's obligation to draw all
reasonable inferences in Plaintiff's favor. Based on the foregoing, the Court finds that Magistrate
Judge Peebles correctly determined that Defendants' motion for summary judgment should be
granted and that Plaintiff's complaint should be dismissed.
After carefully considering Magistrate Judge Peebles' August 18, 2014 Report and
Recommendation, and the applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Peebles' August 18, 2014 Report and Recommendation
is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion for summary judgment (Dkt. No. 40) is GRANTED;
and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with Local Rules.
IT IS SO ORDERED.
Dated: September 26, 2014
Albany, New York

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