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 and Recommendation (Dkt. No. 34 ) is ADOPTED in its entirety. ORDERED that Tabor's motion to dismiss (Dkt. No. 31 ) is GRANTED and Herring's amended complaint (Dkt. No. 30) is DISMISSED. ORDERED that the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 6/30/14. (served via regular mail on plaintiff) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
FOR THE PLAINTIFF:
Gouverneur Correctional Facility
Scotch Settlement Road
P.O. Box 480
Gouverneur, NY 13642
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
defendant B. Tabor, correction officer, pursuant to 42 U.S.C. § 1983. (Am.
Compl., Dkt. No. 30.) Herring’s amended complaint alleges violations of
the Eighth Amendment, for which he seeks declaratory and injunctive relief,
as well as damages. (Id.)
Tabor filed a pre-answer motion to dismiss, (Dkt. No. 31), to which
Herring failed to respond. In a Report and Recommendation (R&R) dated
April 29, 2014, Magistrate Judge David E. Peebles recommended that
Tabor’s motion be granted, and Herring’s amended complaint be dismissed
with prejudice. (Dkt. No. at 34 at 19-20.) Herring has filed objections to the
R&R, which are now before the court. (Dkt. No. 35.) 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
Department of Correction and Community Supervision (DOCCS). (See
generally Am. Compl.) During the relevant time period, Herring was
incarcerated in the Marcy Correctional Facility. (Id. ¶¶ 2, 3.) While an
The facts are drawn from Herring’s amended complaint and presented in the light
most favorable to him.
inmate at Marcy, Herring worked on the lawns and grounds crew with other
inmates. (Id. ¶ 12.) On July 17, 2012, Herring was assigned to clean the
grounds around a fenced in area of the Regional Mental Health Unit
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. ¶¶ 16, 18.) 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. ¶ 13.) Despite a fear of having urine or feces thrown at him and
contracting a disease, Herring complied with Tabor’s order. (Id. ¶¶ 18, 21.)
Herring was provided with plastic gloves to use while cleaning, and, with
the gloves on, disposed of a shirt that had feces on it by placing the shirt in
a bag. (Id. ¶¶ 19-21.)
Herring commenced this action by filing a complaint in November
2012, naming Tabor, DOCCS, RMHU, and Correction Sergeant Smith as
defendants. (Compl., Dkt. No. 1.) Herring also filed motions for leave to
proceed in forma pauperis, (Dkt. Nos. 2, 7), and to appoint counsel, (Dkt.
No. 4). Following initial review of that complaint by this court, Herring’s
motion to proceed in forma pauperis was granted, but his claims against
Smith, DOCCS, and RMHU were dismissed in their entirety, leaving only
an Eighth Amendment conditions of confinement claim against Tabor, and
his motion to appoint counsel was denied without prejudice. (Dkt. No. 12 at
Tabor then moved to dismiss Herring’s complaint for failure to state a
claim.2 (Dkt. No. 18.) Thereafter, Herring filed two more motions to
appoint counsel, (Dkt. Nos. 20, 25), both of which were denied without
prejudice to renew once a decision was rendered on Tabor’s motion to
dismiss, (Dkt. Nos. 21, 26). Subsequently, the court granted Tabor’s
motion to dismiss, with leave to replead. (Dkt. No. 28.) In accordance with
the court’s Order, Herring filed a timely amended complaint, (Dkt. No. 30),
which Tabor promptly moved to dismiss, (Dkt. No. 31). In his R&R, Judge
Peebles recommended dismissal of Herring’s amended complaint, with
prejudice. (Dkt. No. 34.) Herring then filed his now pending objections.
In the alternative, Tabor sought to revoke Herring’s in forma pauperis status. (Dkt.
(Dkt. No. 35.)
III. Standard of Review
Before entering final judgment, this court routinely reviews all report
and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements 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 filed, 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. 3 See id. at
In his objections, Herring primarily asserts that Tabor’s conduct
constituted deliberate indifference and that Herring has properly alleged an
“[A] report is clearly erroneous if the court determines that there is a mistake of fact or
law which is obvious and affects substantial rights.” Almonte, 2006 WL 149049, at *6.
Eighth Amendment violation. (Dkt. No. 35 ¶¶ 5-6.) Herring also takes
issue with the court’s denial of his motions to appoint counsel, and the fact
that Judge Peebles discussed Herring’s failure to respond to Tabor’s
motion to dismiss, and noted that, under this District’s Local Rules,
Herring’s failure to respond constituted consent to the relief sought. ( Id. ¶¶
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. (Dkt. No. 34 at 9-16.) Further,
while Judge Peebles recognized that Herring failed to respond to Tabor’s
motion, and noted that, under this District’s Local Rules, “a party who fails
to oppose a motion has effectively consented to the granting of the relief
sought,” (id. at 8-9), he nevertheless, “[i]n an abundance of caution,” went
on to consider the merits of Tabor’s motion, (id. at 9-18). Finally, as
Herring’s motions to appoint counsel were neither before him, nor relevant
to Tabor’s motion to dismiss, Judge Peebles did not discuss Herring’s
requests for the appointment of counsel.
Here, because Herring’s objections are all either conclusory in
nature, repeat arguments that he made in his complaint, or are wholly
unrelated to Judge Peebles’ R&R, 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. 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 and Recommendation (Dkt. No. 34) is ADOPTED in its entirety; and
it is further
ORDERED that Tabor’s motion to dismiss (Dkt. No. 31) is GRANTED
and Herring’s amended complaint (Dkt. No. 30) is DISMISSED; and it is
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
June 30, 2014
Albany, New York
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