Simpson v. Rodas et al

Filing 136

DECISION and ORDER: ORDERED that 129 Report and Recommendation is accepted and adopted in its entirety. ORDERED that 117 Motion for Summary Judgment is granted. ORDERED that Plaintiff's Amended Complaint (Dkt. No. 5) is DISMISSED in its entirety. Signed by Judge Glenn T. Suddaby on 1/23/15. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________________
THEODORE SIMPSON,
Plaintiff,
9:12-CV-1482
(GTS/DEP)

v.
BEN OAKES, Physician Assistant, Southport Corr. Facility;
C. FELKER, Nurse Admin., Southport Corr. Facility;
DR. H. SILVERBERG, M.D., Great Meadow Corr. Facility;
DR. KARANDY, M.D.; Great Meadow Corr, Facility; and
J. COLLINS, Nurse Admin., Great Meadow Corr. Facility,
Defendants.
_________________________________________________
APPEARANCES:

OF COUNSEL:

THEODORE SIMPSON, 96-A-3862
Plaintiff, Pro Se
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this prisoner civil rights action filed pro se by Theodore
Simpson (“Plaintiff”) against the five above-captioned correctional employees (“Defendants”),
are United States Magistrate David E. Peebles’ Report-Recommendation recommending
Defendants’ motion for summary judgement be granted and that Plaintiff’s Amended Complaint
be dismissed, and Plaintiff’s Objection thereto. (Dkt. Nos. 129, 134.) For the reasons set forth

below, the Report-Recommendation is accepted and adopted, Defendants’ motion is granted, and
Plaintiff’s Amended Complaint is dismissed.
I.

RELEVANT BACKGROUND
Because this Decision and Order is intended primarily for the review of the parties, the

Court will not recite this action’s procedural history, those of Plaintiff’s claims that were still
pending when Defendants filed their motion for summary judgment, and the parties’ briefing on
that motion. Rather, the Court will respectfully refer the reader to Magistrate Judge Peebles’
Report-Recommendation, which accurately conveys that information.
II.

STANDARD OF REVIEW
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

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

first instance.2 Similarly, a district court will ordinarily refuse to consider argument that could
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

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
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

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
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
Based on a careful review of this matter, the Court can find no error with Magistrate

Judge Peebles’ thorough Report-Recommendation. (Dkt. No. 129.) Magistrate Judge Peebles
employed the proper legal standards, accurately recited the facts, and reasonably applied the law
to those facts. (Id.) As a result, the Report-Recommendation is accepted and adopted in its
entirety for the reasons stated therein. The Court would add only two brief points.
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.
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).
4

First, despite receiving a 60-day extension by which to file his Objections, Plaintiff filed
Objections that, even when construed with the utmost of liberality, largely fail to specifically
challenge Magistrate Judge Peebles’ Report-Recommendation, or assert any arguments that were
not asserted in his underlying opposition memorandum of law. (Compare Dkt. No. 134 [Plf.’s
Objections] with Dkt. No. 129 [Report-Recommendation] and Dkt. No. 125 [Plf.’s Opp’n Memo.
of Law].) As a result, those portions of Magistrate Judge Peeble’s Report-Recommendation are
subject to merely a clear error review, which they easily survive under the circumstances.
Second, the remainder of the Report-Recommendation survives a de novo review. For
example, to the extent that Plaintiff argues, in his Objections, that he was prejudiced by
Defendants’ failure to assert their failure-to-exhaust argument in prior submissions to the Court,
Plaintiff is advised that Defendants asserted an exhaustion defense in their Answer to his
Amended Complaint and therefore preserved that affirmative defense. (See Dkt. No. 80, at ¶
14.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 129) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 117) is
GRANTED; and it is further
ORDERED that Plaintiff’s Amended Complaint (Dkt. No. 5) is DISMISSED in its
entirety.
Dated: January 23, 2015
Syracuse, New York

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