Young v. Fischer et al

Filing 75

ORDER: ORDERS that 72 Report and Recommendation is adopted in its entirety. ORDERED that 62 Motion to Dismiss is denied. Signed by U.S. District Judge Mae A. D'Agostino on 3/26/15.{order served via regular mail on plaintiff} (nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
PETER YOUNG,
Plaintiff,
vs.

9:12-cv-1642
(MAD/TWD)

GRAHAM, et al.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PETER YOUNG
08-R-0331
Upstate Correctional Facility
Post Office Box 2001
Malone, New York 12953
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

HEATHER R. RUBENSTEIN, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS"), commenced this action pro se under 42 U.S.C. § 1983. See
Dkt. No. 1. Upon initial review, this Court dismissed Plaintiff's Fourteenth Amendment due
process claims with prejudice against Defendants Parmiter and Vasile for deprivation of property,
and Plaintiff's First Amendment claim against Defendant Parmiter for denial of access to the
courts. See Dkt. No. 44. The Court further dismissed without prejudice Plaintiff's First
Amendment denial of access to the courts claims against Defendants Fischer, Schug, and Fagen,
Plaintiff's First Amendment free exercise claims against Defendants Graham and Chandler,

Plaintiff's First Amendment mail interference claims against Defendants Schug and Putnam, and
Plaintiff's Eighth Amendment conditions of confinement claims against Defendants Schug,
Casler, Heath, and Fagen. See id.
The Court directed Defendants to respond to the following claims: (1) the First
Amendment retaliation and mail interference claims, and the Eighth Amendment conditions of
confinement and excessive force claims against Defendant Fischer; (2) the First Amendment
retaliation, mail interference, denial of access to the courts claims, the Eighth Amendment
excessive force claim, and the Fourteenth Amendment due process claims for violating Plaintiff's
right to refuse unwanted medical care and for deprivation of property against Defendant Graham;
(3) the First Amendment retaliation claim and the Eighth Amendment conditions of confinement
claim against Defendant Brower; (4) the First Amendment retaliation, mail interference, and
denial of access to the courts claims, and the Eighth Amendment conditions of confinement claim
against Defendant Chandler; (5) the First Amendment retaliation, mail interference, and denial of
access to the courts claims against Defendant Casler; (6) the First Amendment retaliation, mail
interference, and denial of access to the courts claims against Defendant Heath; (7) the First
Amendment retaliation claim against Defendant Fagen; and (8) the Eighth Amendment excessive
force claim against Defendant Vasile. Dkt. No. 44 at 29-30.
On April 30, 2014, Defendants filed a motion to dismiss, alleging that Plaintiff's amended
complaint fails to comply with Rules 8 and 10(b) of the Federal Rules of Civil Procedure. See
Dkt. No. 62. In a March 9, 2015 Report-Recommendation, Magistrate Judge Theresa Wiley
Dancks recommended that the Court deny Defendants' motion. See Dkt. No. 72. Specifically,
Magistrate Judge Dancks recommended that the Court deny Defendants' motion because "the
Court's extensive and detailed initial order provided Defendants with fair notice of the claims
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asserted against them[,]" and therefore dismissal under Rule 8 of the Federal Rules of Civil
Procedure is not appropriate. Id. at 10. Further, Magistrate Judge Dancks found that dismissal
under Rule 10 is not appropriate because "Defendants are not prejudiced by the amended
complaint's lack of numbered paragraphs" due to this Court's initial review of the amended
complaint, which gave Defendants knowledge of the claims to which they were required to
respond. Id. at 11. Neither party objected to Magistrate Judge Dancks' Report-Recommendation.
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) (2006). When
a party, however, 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) (2006).
A litigant's failure to file objections to a magistrate judge's report-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 & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)
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(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).
When considering a Rule 12(b)(6) motion, the court accepts the material facts alleged in
the complaint as true, drawing all inferences in favor of the non-moving party. See, e.g., Miller v.
Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003) (citing Patel v. Contemporary
Classics of Beverley Hills, 259 F.3d 123, 126 (2d Cir. 2001)). The court is not bound, however,
to accept as true legal conclusions with the appearance of factual statements. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
The moving party has the heavy burden of showing that the plaintiff is not "entitled to offer
evidence in support [his] claims." Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.
1995) (citations omitted). Thus, the court should only dismiss a 12(b)(6) motion where the
plaintiff provides no "plausible" basis to support his claims. See Twombly, 550 U.S. at 556-57.
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
When a party proceeds pro se, the court must liberally construe his pleadings, holding
them to a standard less stringent than formal pleadings drafted by lawyers. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). If a pro se plaintiff's complaint alleges civil rights violations, the
court must construe his pleadings with "particular generosity." Davis v. Goord, 320 F.3d 346,
350 (2d Cir. 2003) (quoting Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002)). Further,
when a pro se plaintiff faces a motion to dismiss, the court may consider "materials outside the
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complaint to the extent they are consistent with the allegations in the complaint." Donhauser v.
Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004).
Having reviewed Magistrate Judge Dancks' thorough and well-reasoned ReportRecommendation and the parties' submissions, the Court finds that she correctly determined that
the Court should deny Defendants' motion to dismiss because the amended complaint, and the
Court's initial review thereof, provided Defendants with fair notice of the claims asserted against
them and to which they have to respond.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' March 9, 2015, Report-Recommendation is
ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss (Dkt. No. 62) is DENIED; and the Court
further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties
according to the Local Rules.
IT IS SO ORDERED.
Dated: March 26, 2015
Albany, New York

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