Vail v. Lashway et al

Filing 52

DECISION and ORDER: ORDERED that Magistrate Judge Treece's Report-Recommendation (Dkt. No. 51 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. Signed by Judge Glenn T. Suddaby on 9/15/14. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
TIMOTHY A. VAIL,
Plaintiff,
9:12-CV-1245
(GTS/RFT)

v.
AMBER LASHWAY, Nurse Practitioner,
Clinton Corr. Facility; VONDA JOHNSON,
M.D., Facility Health Servs. Dir., Clinton Corr.
Facility; and DR. MARCO BERARD, M.D.,
Surgeon Alice Hyde Med. Ctr.,
Defendants.
_________________________________________
APPEARANCES:

OF COUNSEL:

TIMOTHY A. VAIL, 89-C-1513
Plaintiff, Pro Se
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

GREGORY J. RODRIQUEZ, 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 Timothy A.
Vail (“Plaintiff”) against the three above-captioned Defendants, are Defendants’ motion for
summary judgment and United States Magistrate Judge Randolph F. Treece’s ReportRecommendation recommending that Defendants’ motion be granted and that Plaintiff’s
Complaint be dismissed. (Dkt. Nos. 37, 43, 51.) Plaintiff has not filed an Objection to the

Report-Recommendation, and the deadline by which to do so has expired. (See generally
Docket Sheet.) For the reasons set forth below, the Report-Recommendation is adopted in its
entirety, Defendants’ motion is granted, and Plaintiff’s Complaint is dismissed.
Generally, in his Report-Recommendation, Magistrate Judge Treece rendered the
following conclusions: (1) Plaintiff has failed to establish an Eighth Amendment medicalindifference claim against (a) Defendants Lashway, Johnson, and Berard for failing to administer
pain medication, (b) Defendants Lashway and Johnson for failing to address Plaintiff’s
withdrawal symptoms after his Ultram prescription was discontinued, (c) Defendants Lashway
and Johnson for failing to properly and timely treat Plaintiff’s dislocated shoulder and knee
injury, (d) Defendant Berard for failing to timely treat Plaintiff’s shoulder injury, and (e)
Defendants Lashway, Johnson and Berard with respect to a “handful” of missed appointments
during Plaintiff’s treatment period; (2) Plaintiff has failed to establish a First Amendment
retaliation claim alleging that Defendants conspired to deny him medical care as a result of
Plaintiff’s filing grievances concerning his medical treatment; and (3) Plaintiff has failed to
establish a supervisory-liability claim against Defendant Johnson with regard to any
constitutional violations (allegedly) committed by Defendants Lashway and/or Berard. (Dkt.
No. 51, at Parts II.B. to II.D.) Familiarity with the factual findings supporting these conclusions
is assumed in this Decision and Order, which is intended primarily for review by the parties.
Where, as here, no objection is made to a portion of a report-recommendation, the Court
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.; see also Batista v. Walker, 94-CV-2826, 1995 WL
2

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).
After carefully reviewing the relevant filings in this action, the Court can find no clear
error in the Report-Recommendation: Magistrate Judge Treece employed the proper standards,
accurately recited the facts, and reasonably applied the law to those facts. As a result, the Court
accepts and adopts the Report-Recommendation for the reasons stated therein. (Dkt. No. 51.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 51) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: September 15, 2014
Syracuse, New York

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