Hudson v. Heath et al

Filing 40

ORDER: ORDERS that 38 Report and Recommendation is ADOPTED in its entirety for the reasons stated therein. ORDERS that 28 Motion to Dismiss for Failure to State a Claim is GRANTED in part and DENIED in part. ORDERS that Defendant Heath i s DISMISSED from this action. ORDERS that Defendant's motion to dismiss for failure to state a claim is DENIED with respect to Plaintiff's claims against Defendant Albright. Signed by U.S. District Judge Mae A. D'Agostino on 8/29/14. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CALVIN HUDSON,
Plaintiff,
vs.

9:12-cv-01655
(MAD/TWD)

WAYNE HEATH, Superintendent, Greene
Correctional Facility; and JOY ALBRIGHT,
Nurse Administrator, Greene Correctional
Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

CALVIN HUDSON
09-A-6214
Greene Correctional Facility
P.O. Box 975
Coxsackie, New York 12051
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

RICHARD LOMBARDO, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Pro se plaintiff, Calvin Hudson, a former inmate of the New York State Department of
Corrections and Community Supervision ("DOCCS"), brought this civil rights action pursuant to
42 U.S.C. § 1983, alleging violations of his Eighth Amendment rights. See Dkt. No. 27.
Plaintiff's claims arose on August 2, 2012, while he was in the custody of the New York State
Department of Corrections and Community Supervision ("DOCCS") as an inmate in the Greene
Correctional Facility ("Greene C.F."). Specifically, Plaintiff's amended complaint contains the
following claims: (1) that medical staff at Greene C.F. provided constitutionally inadequate

medical care; and (2) that Defendant Albright was aware of these violations and was deliberately
indifferent by failing to remedy Plaintiff's issues. See generally Dkt. No. 27.
On July31, 2014, Magistrate Judge Dancks issued a Report-Recommendation and Order
recommending that Defendants' motion to dismiss for failure to state a claim be granted in part
and denied in part. See Dkt. No. 38. Specifically, Magistrate Judge Dancks recommended that
the Court grant the motion as to Defendant Heath and deny the motion as to Defendant Albright.
Neither party objected to Magistrate Judge Dancks' recommendation, nor asked for an extension
of time to do so.
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, 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
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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 motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief. See Patane v.
Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal
sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all
reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493
F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not
extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Although a court's review of a motion to dismiss is generally limited to the facts presented in the
pleading, the court may consider documents that are "integral" to that pleading, even if they are
neither physically attached to, nor incorporated by reference into, the pleading. See Mangiafico
v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282
F.3d 147, 152-53 (2d Cir. 2002)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the
claim," see Fed. R. Civ. P. 8(a)(2), with sufficient factual "heft to 'sho[w] that the pleader is
entitled to relief[,]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted).
Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief
above the speculative level," see id. at 555 (citation omitted), and present claims that are
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"plausible on [their] face," id. at 570. "The plausibility standard is not akin to a 'probability
requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it 'stops short of the line between possibility and
plausibility of "entitlement to relief."'" Id. (quoting [Twombly, 550 U.S.] at 557, 127 S. Ct.
1955). Ultimately, "when the allegations in a complaint, however true, could not raise a claim of
entitlement to relief," Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims
across the line from conceivable to plausible, the[ ] complaint must be dismissed[,]" id. at 570.
"[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) (qquoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
In the present matter, Magistrate Judge Dancks provided Plaintiff adequate notice that he
was required to file objections to the Report-Recommendation and Order, and specifically
informed him that failure to object to any portion of the report would preclude his right to
appellate review. See Dkt. No. 38. Specifically, Magistrate Judge Dancks informed plaintiff that
"FAILURE TO OBJECT TO THIS REPORT WITHIN 14 DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72, 6(a), 6(e)." See id. Magistrate Judge Dancks clearly provided Plaintiff with
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sufficient notice of the consequences of failing to object to the Report-Recommendation and
Order.
Having carefully reviewed the July 31, 2014 Report-Recommendation and Order, the
Court finds that Magistrate Judge Dancks correctly determined that the Court should grant in part
and deny in part Defendants' motion to dismiss for failure to state a claim. Specifically, the Court
finds that Magistrate Judge Dancks correctly determined that Defendant Heath should be
dismissed because the amended complaint fails to plausibly allege Defendant Heath was
personally involved in the allegedly inadequate medical care. Further, the Court finds that the
recommendation correctly determined that Defendants' motion should be denied with respect to
Plaintiff's claims against Defendant Albright regarding the medical care he received on August 2,
2012.
Wherefore, the Court hereby
ORDERS that Magistrate Judge Dancks' July31, 2014 Report-Recommendation and
Order is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion to dismiss for failure to state a claim (Dkt. No. 28) is
GRANTED in part and DENIED in part; and the Court further
ORDERS that Defendant Heath is DISMISSED from this action; and the Court further
ORDERS that Defendant's motion to dismiss for failure to state a claim is DENIED with
respect to Plaintiff's claims against Defendant Albright; 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: August 29, 2014
Albany, New York
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