Smith v. Wilson et al

Filing 25

ORDER: ORDERS that 24 Report and Recommendation is adopted in its entirety. ORDERS that 20 Motion for Summary Judgment is granted in its entirety. Signed by U.S. District Judge Mae A. D'Agostino on 9/30/13. {order served via regular mail on plaintiff}(nas, )

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

9:12-cv-01152
(MAD/RFT)

G. WILSON, Nurse; OFFICER DUMAS, Correction
Officer; LIRA, Deputy of Programs,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PAUL SMITH
00-A-2268
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants

DOUGLAS J. GOGLIA, AAG
Assistant Attorney General

Mae A. D'Agostino, U.S. District Judge:
ORDER
On July 9, 2012, pro se Plaintiff Paul Smith commenced this action pursuant to 42 U.S.C.
§ 1983 and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”),
alleging deprivation of his civil rights under the United States Constitution. Plaintiff’s complaint
alleges that Defendants refused to grant him a reasonable accommodation for his disability while
he was an inmate in the custody of the Department of Corrections and Community Supervision

(“DOCCS”).
Currently before the Court is Defendants’ Motion for Summary Judgment in lieu of
Answering Plaintiff’s Complaint, which seeks the dismissal of Plaintiff’s claims due to Plaintiff’s
alleged failure to exhaust his administrative remedies, and on the merits for Plaintiff’s failure to
plead or prove his claims. Defendants also argued that they are entitled to the defense of qualified
immunity. See Dkt. No. 20-3.
In a September 11, 2013 Report and Recommendation, Magistrate Judge Randolph F.
Treece recommended that Defendants’ motion be granted in its entirety. See Dkt. No. 24.
Specifically, Magistrate Judge Treece found that it would be well within the court’s discretion to
recommend dismissal of this action based upon Plaintiff’s failure to prosecute this matter and his
apparent abandonment of his claims. Plaintiff has not responded to Defendants’ motion, or any
other correspondence from this Court since October 22, 2012. See id. at 3-4. Nevertheless,
Magistrate Judge Treece analyzed Defendants’ motion on the merits and, affording Plaintiff the
liberal standard owed to pro se litigants, recommended that Plaintiff’s complaint be dismissed.
See id. at 6-18.
First, Magistrate Judge Treece recommended dismissal of Plaintiff’s ADA claim because
“Defendants have produced sufficient documentary and testimonial evidence to meet their burden
of establishing the absence of any genuine issue of material fact as to two of the three elements of
Plaintiff’s ADA claim.” See id. at 9. Magistrate Judge Treece next recommended that the Court
grant Defendants’ motion for summary judgment on Plaintiff’s Eighth Amendment cruel and
unusual punishment claims since Plaintiff’s claims could not be maintained in light of
Defendants’ uncontroverted evidence in support of their motion. See id. at 16. As to Plaintiff's
First Amendment claim, the report-recommendation found that Plaintiff’s conclusory allegations
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failed to specify any facts regarding this claim and, therefore, were insufficient as a matter of law.
See id. at 19.
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. 08-322, 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).
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Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen (14) days within which to file
objections to Magistrate Judge Treece’s Report and Recommendation. See Dkt. No. 24 at 18
(warning that “FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW” (citations omitted) (emphasis in
original)). Neither Plaintiff nor Defendants filed any objections within the prescribed time
period. Accordingly, the Court will review Magistrate Judge Treece’s Report and
Recommendation for clear error.
Having carefully reviewed the September 11, 2013 Report and Recommendation and the
applicable law, the Court finds that Magistrate Judge Treece correctly recommended that the
Court should grant Defendants’ motion seeking summary judgment and dismissal of all claims.
Magistrate Judge Treece properly determined that Plaintiff had failed to respond to Defendants’
motion after repeated attempts by this Court to warn him of the consequences of such failure.
Moreover, Magistrate Judge Treece’s analysis of the merits of Defendants’ motion, giving special
solicitude afforded to pro se litigants, appropriately recommended that this case be dismissed.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Treece’s September 11, 2013 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. 20) is GRANTED in
its entirety; and the Court further

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ORDERS that this case is DISMISSED; 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 30, 2013
Albany, New York

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