Herring v. Department of Corrections and Community Supervision et al
MEMORANDUM-DECISION AND ORDER: ORDERED, that Magistrate Judge David E. Peebles' July 1, 2013 Report-Recommendation and Order (Dkt. No. 22 ) is ADOPTED in its entirety. ORDERED, that Tabor's motion to dismiss (Dkt. No. 18 ) is GRANTED and Herring's complaint (Dkt. No. 1) is DISMISSED. ORDERED, that Herring may - in accordance with the requirements of, inter alia, Fed. R. Civ. P. 8(a) and N.D.N.Y. L.R. 7.1(a)(4) - file an amended complaint within thirty (30) days of this or der. ORDERED that, if Herring fails to file an amended complaint within thirty (30) days of this order, the Clerk shall CLOSE this action without further order of the court. Signed by Chief Judge Gary L. Sharpe on 11/20/13. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FOR THE PLAINTIFF:
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13021
FOR THE DEFENDANT:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
Albany, NY 12224
LAURA A. SPRAGUE
Assistant Attorney General
Gary L. Sharpe
MEMORANDUM-DECISION AND ORDER
Plaintiff pro se Melvin Herring commenced this action against
defendants Department of Correction and Community Supervision
(DOCCS), Marcy Regional Mental Health Unit (RMHU), correction officer
Tabor, B., and correction sergeant Smith pursuant to 42 U.S.C. § 1983.
(Compl., Dkt. No. 1.) Herring’s complaint alleges violations of the First and
Eighth Amendments. (Id.) Herring seeks declaratory and injunctive relief,
as well as damages. (Compl. ¶¶ 79-86.)
Tabor filed a pre-answer motion to dismiss. (Dkt. No. 18.) In a
Report-Recommendation and Order (R&R) dated July 1, 2013, Magistrate
Judge David E. Peebles recommended that Tabor’s motion be granted,
with leave to amend. (R&R at 26, Dkt. No. 22.) Both parties have filed
objections. (Dkt. Nos. 23, 24.) For the reasons that follow, the R&R is
adopted in its entirety.
Herring is an inmate in the custody of the New York State DOCCS.
(See generally Compl.) During the relevant time period, Herring was
incarcerated in the Marcy Correctional Facility. (Id. ¶ 2.) While an inmate
at Marcy, Herring worked on the lawns and grounds crew with other
The facts are drawn from Herring’s complaint and presented in the
light most favorable to him.
inmates. (Id. ¶ 16.) On July 17, 2012, Herring was assigned to clean the
grounds around a fenced in area of RMHU. (Id.) After the crew had
finished cleaning this area, Tabor ordered several crew members to then
clean out the recreation pens at RMHU, which were littered with items such
as food, paper, and clothing. (Id. ¶¶ 18, 20.) At some time prior to this
order, inmates on the crew had been advised that they should not get too
close to the RMHU recreation pens because RMHU inmates had a
tendency to throw urine and feces out of their cell windows. (Id. ¶ 17).
Herring had also indicated to Tabor that the area smelled of urine and
feces. (Id. ¶ 19.) However, Tabor denied smelling feces, and ordered the
inmates to begin cleaning the recreation pens. (Id. ¶¶ 19-20.)
Despite a fear of having urine or feces thrown at him and contracting
a disease, Herring complied with the order. (Id. ¶¶ 20, 63.) Herring was
provided with plastic gloves to use while cleaning, and, with the gloves on,
Herring disposed of a shirt that had feces on it by placing the shirt in a bag.
(Id. ¶¶ 22-23.) The next day, Herring filed a grievance to complain about
being required to clean the recreation pens, which Tabor allegedly knew
contained human waste. (Id. ¶ 25.)
III. Procedural History
Herring commenced this action by filing a complaint in November
2012. (Compl.) Following initial review of that complaint by this court,
Herring’s claims against Smith, DOCCS, and RMHU were dismissed, and
all three were dismissed as defendants in this action, leaving only an
Eighth Amendment conditions of confinement claim against Tabor. (Dkt.
No. 12 at 12-13.) Tabor then moved to dismiss Herring’s complaint for
failure to state a claim and, alternatively, to revoke Herring’s in forma
pauperis status. (Dkt. No. 18.)
IV. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *44
Each party has filed objections to the R&R. (Dkt. Nos. 23, 24.)
Herring makes several objections to the R&R, primarily asserting that
Tabor’s conduct constituted deliberate indifference and that Herring has
properly alleged an Eighth Amendment violation. (Dkt. No. 24 at 2-5.)
Tabor objects only to the portion of the R&R recommending that Herring be
given leave to amend his complaint. (Dkt. No. 23 at 1-2.)
Eighth Amendment Claim
In his R&R, Judge Peebles recommended dismissal of Herring’s
conditions of confinement claim because, as alleged, it did not rise to the
level of an Eighth Amendment violation. (R&R at 15-22.) Because
Herring’s objections are all either conclusory in nature or repeat arguments
that he made in his complaint and in his response to Tabor’s motion to
dismiss, they are reviewed under a clear error standard. See Almonte,
2006 WL 149049, at *4. The court has thoroughly reviewed the R&R for
clear error and found none. This portion of the R&R is therefore adopted,
and Herring’s claim against Tabor is dismissed.
Leave to Amend
Tabor has objected only to the portion of Judge Peebles’ R&R which
recommends granting Herring leave to amend his complaint. (Dkt. No. 23
at 1-2.) As this is a specific objection, it is reviewed de novo. See
Almonte, 2006 WL 149049, at *5.
Although in all cases “[t]he court should freely give leave [to amend]
when justice so requires,” Fed. R. Civ. P. 15(a)(2), “a pro se litigant in
particular should be afforded every reasonable opportunity to demonstrate
that he has a valid claim,” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000)
(internal quotation marks and citations omitted). Specifically, a complaint
filed by a pro se litigant “should not [be] dismiss[ed] without granting leave
to amend at least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.” Shomo v. City of N.Y., 579
F.3d 176, 183 (2d Cir. 2009) (internal quotation marks and citation
In light of this liberal standard, the court concludes that leave to
amend is appropriate, see Fed. R. Civ. P. 15(a)(2), and Herring is therefore
granted leave to file an amended complaint in compliance with, inter alia,
Fed. R. Civ. P. 8(a) and N.D.N.Y. L.R. 7.1(a)(4) within thirty days of this
order. Herring is advised that his amended complaint must be a complete
pleading that will replace and supersede the original complaint in its
As to the remaining portions of the R&R, the court has reviewed
them for clear error and has found none. Therefore, for the reasons
articulated in the R&R, this court adopts Judge Peebles’ recommendations,
and dismisses Herring’s complaint.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge David E. Peebles’ July 1, 2013
Report-Recommendation and Order (Dkt. No. 22) is ADOPTED in its
entirety; and it is further
ORDERED that Tabor’s motion to dismiss (Dkt. No. 18) is GRANTED
and Herring’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that Herring may—in accordance with the requirements
of, inter alia, Fed. R. Civ. P. 8(a) and N.D.N.Y. L.R. 7.1(a)(4)—file an
amended complaint within thirty (30) days of this order; and it is further
ORDERED that, if Herring fails to file an amended complaint within
thirty (30) days of this order, the Clerk shall CLOSE this action without
further order of the court; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
November 20, 2013
Albany, New York
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