Barnes v. Fischer et al

Filing 609

ORDER: ORDERED that the Report-Recommendation and Order (Dkt. No. 590 ) is ADOPTED in its entirety. ORDERED that Barnes' motion for summary judgment (Dkt. No. 435 ) is DENIED. ORDERED that defendants' cross-motion for summary jud gment (Dkt. No. 485 ) is GRANTED IN PART and DENIED IN PART as follows: GRANTED as to Barnes' first, second, fourth, fifth, sixth, seventh, eighth, and ninth causes of action in his amended complaint (Dkt. No. 186 ); and GRANTED as to Barnes& #039; third cause of action as against defendants Fischer and Bellnier; and GRANTED as to Barnes' twelfth cause of action regarding the incidents of July 31, 2010, August 3, 2010, and November 5, 2010; and GRANTED as to Barnes' tenth cause of action as against defendants Labarge and Scott; and GRANTED as to Barnes' eleventh cause of action except as against Defendant Uhler regarding the September 23, 2011 disciplinary hearing; and DENIED in all other respects. ORDERED that the Clerk terminate the following defendants from this action: Joseph Bellnier, Michael Eddy, Brian Fischer, Brian Fournier, Matthew Gervais, Jeffrey Hyde, Clarence Labarge, A. Lashway, John Leclair, Albert Prack, Richard Rakoce, R. Scott, Darrin Snyder , Andrew Street, and Bradley Thompson. ORDERED that Barnes' motion for sanctions (Dkt. No. 435 , Attach. 1 at 2) is DENIED. ORDERED that Barnes' motion to strike (Dkt. No. 435, Attach. 1 at 2) and motion to appoint counsel (Dkt. N o. 435, Attach. 1 at 4) are DENIED with leave to renew in connection with trial. ORDERED that Barnes' requests for injunctive relief (Dkt. No. 602 , 604 , 608 ) are DENIED. ORDERED that this case is now deemed trial ready and a trial scheduling order will be issued in due course. Signed by Senior Judge Gary L. Sharpe on 9/28/18.{order served via regular mail on plaintiff} (nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JESSIE J. BARNES,
Plaintiff,

9:13-cv-164
(GLS/DJS)

v.
BRIAN FISCHER et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Jessie J. Barnes
Pro Se
09-B-2707
Upstate Correctional Facility
P.O. Box 2000
Malone, NY 12953
FOR THE DEFENDANT:
HON. BARBARA D. UNDERWOOD
New York Attorney General
The Capitol
Albany, NY 12224

MELISSA A. LATINO
ADRIENNE J. KERWIN
Assistant Attorneys General

Gary L. Sharpe
Senior District Judge
ORDER
On March 16, 2018, Magistrate Judge Daniel J. Stewart filed a
Report-Recommendation and Order (R&R), which recommends that

Barnes’ motion for summary judgment, (Dkt. No. 435), be denied and
defendants’ cross-motion for summary judgment, (Dkt. No. 485), be
granted in part and denied in part. (Dkt. No. 590.) Pending are Barnes’
objections to the R&R, (Dkt. Nos. 592, 595),1 and defendants’ objections to
the R&R, (Dkt. No. 600).
Only specific objections warrant de novo review. See Almonte v.
N.Y.S. Div. of Parole, No. Civ. 904CV484, 2006 WL 149049, at *4-6
(N.D.N.Y. Jan. 18, 2006). Objections that are general, conclusory,
perfunctory, or a mere reiteration of an argument already made to the
Magistrate Judge trigger only clear error review. See Rahman v. Fischer,
No. 9:10–cv–1496, 2014 WL 688980, at *1 (N.D.N.Y. Feb. 20, 2014).
1.

Barnes’ Objections

Even on de novo review,2 Barnes’ objections fail. The majority of

1

Pursuant to the court’s April 6, 2018 Order, (Dkt. No. 597), Barnes filed objections,
(Dkt. No. 598), which superseded his prior objections, (Dkt. Nos. 592, 595). However, he then
filed a letter requesting that his later objections, (Dkt. No. 598), be disregarded and his prior
objections, (Dkt. No. 592, 595), be considered, “as they . . . cover all [his] issues.” (Dkt. No.
599 at 1.) The court thus disregards Barnes’ later-filed objections.
2

Although clear error review seems warranted for at least some of Barnes’ objections,
due to Barnes’ prolific and prolix filings, (see, e.g., Dkt. No. 435, Attach. 2; Dkt. No. 469; Dkt.
No. 483), it is difficult to say with precision which of his objections merely reiterate arguments
that he has already made to Judge Stewart.

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them take issue with Judge Stewart’s analysis of the evidence.3 For largely
the same reasons as set forth in Judge Stewart’s thorough and detailed
sixty-seven-page R&R, the court rejects Barnes’ objections.4 Regarding
Barnes’ objection that defendants destroyed evidence, (Dkt. No. 592 at 5),
that argument was addressed by Judge Stewart’s December 8, 2015
Decision and Order, (Dkt. No. 334). That Decision and Order stated that
the issue of an adverse inference charge is deferred until the time of trial.
(Id. at 17.) Thus, Judge Stewart appropriately declined to decide the issue
in the R&R.
Barnes also objects to the R&R on the basis that Judge Stewart
failed to address his motion for sanctions, motion to strike, and motion to

3

For example, Barnes objects to the dismissal of his July 31, 2010 use of force claim
“as it is against [the] weight of [the] evidence,” (Dkt. No. 592 at 1), and the dismissal of his
supervisory liability claim against defendant Brian Fischer for various evidentiary reasons, (Dkt.
No. 595 ¶¶ 1-9).
4

Barnes objects that the R&R fails to address certain defendants’ “retaliatory or
discriminatory denial of razor [sic] for sixteen consecutive (16) months.” (Dkt. No. 592 at 3.)
But that claim is not one of Barnes’ claims. Indeed, Barnes fails to provide a citation to his
amended complaint, (Dkt. No. 186), for such a claim, and he cannot raise a new claim for the
first time at summary judgment, see McChesney v. Bastien, No. 9:10–CV–1409, 2012 WL
4338707, at *5 n.14 (N.D.N.Y. Sept. 20, 2012) (collecting cases); Casseus v. Verizon, N.Y.
Inc., 722 F. Supp. 2d 326, 344 (E.D.N.Y. 2010) (collecting cases). The same is true regarding
Barnes’ objection to the dismissal of the August 3, 2010 use of force incident “on the basis it is
predicated on defendants[’] denial of medical care.” (Dkt. No. 592 at 3-4.)

3

appoint counsel. (Dkt. No. 592 at 2, 5.)5 Barnes’ motion for sanctions is
denied for the same reason that the motion for sanctions that he filed after
filing for summary judgment, (Dkt. No. 565), was denied, (Dkt. No. 572).
Barnes’ objection “to [the] entire report” on the basis of the failure to
address his motion to strike, (Dkt. No. 592 at 5), is rejected. Aside from
Barnes’ failure to offer any non-conclusory evidence that the September 9,
2011 video was altered, the R&R denies summary judgment for defendants
as to the September 9, 2011 incident—a ruling favorable to Barnes. (Dkt.
No. 590 at 40-43.)6 His motion to strike, as well as his motion to appoint
counsel, are denied with leave to renew in connection with trial.
2.

Defendants’ Objections

Defendants object that Judge Stewart failed to sufficiently consider
the objective and subjective elements of an Eighth Amendment violation
regarding the May 19, 2011 and May 25, 2011 incidents. (Dkt. No. 600 at
2-11.) This is a specific objection meriting de novo review. For the
reasons set forth in the R&R, (Dkt. No. 590 at 33-38), the court rejects

5

These motions—included as part of Barnes’ notice of motion, (Dkt. No. 435, Attach. 1
at 2, 4)—are needles in the haystack of his prolix summary judgment filings.
6

Barnes’ motion to strike is denied with leave to renew in connection with trial.

4

defendants’ objection. Defendants’ argument that Barnes cannot establish
the subjective element, (Dkt. No. 600 at 7), is incorrect. As explained in
the R&R, the parties’ contentions create a disputed issue of material fact
that cannot be resolved at summary judgment. (Dkt. No. 590 at 33-37.)
Defendants’ argument regarding the objective element boils down to
their contention that Judge Stewart “should have given more weight to the
circumstances surrounding the alleged use of excessive force and the
seriousness, or lack thereof, of the alleged injury.” (Dkt. No. 600 at 4.)
However, as explained in the R&R, the absence of serious injury is
relevant but not determinative. (Dkt. No. 590 at 37-38 (citing Hudson v.
McMillian, 503 U.S. 1, 7 (1992)).) Moreover, defendants are not
necessarily correct that “some overt, pronounced motion would be visible
in the video” if Barnes’ allegations are true. (Dkt. No. 600 at 5-6.) Indeed,
there is no video evidence of the May 19, 2011 incident, and, as the R&R
describes, the May 25, 2011 video “does not necessarily rule out the
possibility that the [defendants in question] were manipulating or twisting
the handcuffs to inflict pain and discomfort upon [Barnes].” (Dkt. No. 590
at 36.) Although defendants make various additional arguments as to why
the objective element cannot be satisfied—Barnes’ misconduct and
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uncooperative behavior, (Dkt. No. 600 at 6), the presence of a supervisor
at all times, (id. at 7), and the lack of an audible order to twist Barnes’
handcuffs, (id.)—none of them are determinative.7
As part of their objection to the May 19, 2011 and May 25, 2011
claims, defendants argue that Barnes cannot establish a failure to
intervene. (Dkt. No. 600 at 8-11.) But defendants are not necessarily
correct that “[i]f the [c]ourt cannot observe what the [d]efendant[s] . . . were
doing to [Barnes’] handcuffs by way of the cameras, certainly no bystander
[defendant] positioned outside the cell beyond the perspective of any such
camera could observe what occurred in the cell,” (id. at 9). Depending on
where the bystander defendants were positioned, perhaps the alleged
twisting could be seen from a different angle. As the R&R correctly notes,
questions of fact exist regarding the exact participants in the incidents and
whether certain defendants had the obligation and ability to intervene.
(Dkt. No. 590 at 38.) Thus defendants’ argument is rejected.
Defendants’ second objection is that Barnes fails to meet his burden

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Defendants’ tight handcuffing cases, (Dkt. No. 600 at 4-5), are unavailing because at
issue is “the possibility that the [defendants] were manipulating or twisting the handcuffs to
inflict pain and discomfort upon [Barnes],” (Dkt. No. 590 at 36), and not that they merely
handcuffed him tightly.

6

with respect to his First Amendment retaliation claims. (Dkt. No. 600 at 1112.) This specific objection is also rejected. The court does not agree that
Barnes’ misconduct is an intervening event such that it defeats the
inference of causation, (id. at 12), especially because defendants fail to
offer explanatory details or a record citation to show that the relevant facts
are uncontroverted. Moreover, although defendants argue that “[Barnes]
does not otherwise allege that . . . [d]efendants were personally involved in
the incidents,” (id. at 12), this contradicts their admission in the previous
page that “[Barnes] alleges that [d]efendants Wood and Derouchie ‘staged’
the excessive force incidents on May 19, 2011 and/or May 25, 2011,” (id.
at 11).
3.

Barnes’ Request for Injunctive Relief

After the R&R was filed, in a letter dated July 24, 2018, Barnes
requested various forms of injunctive relief, including an order to “direct
defendants[’] counsel to investigate the defendants Donald Uhler, Steven
Salls[,] and their designees,” to be “provided with manilla [sic] envelopes,”
and to “stop . . . [the] obstruction of justice conduct destruction of all
grievances [sic]” of non-party Donna Wilcox. (Dkt. No. 602 at 2.) In
addition to the reasons articulated in defendants’ response, (Dkt. No.
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6038), Barnes’ request for injunctive relief is denied because “the facts
underlying the request for injunctive relief are essentially unrelated to the
underlying facts of the claims in this action.” Haden v. Hellinger, 9:14-CV0318, 2016 WL 589703, at *2 (Feb. 11, 2016) (internal quotation marks
and citation omitted). Barnes’ additional requests for injunctive relief, (Dkt.
Nos. 604, 608), which ask, among other things, for the court to order the
production of videotapes of events that far postdate the allegations in his
amended complaint, are denied for the same reasons.
Accordingly, it is hereby
ORDERED that the Report-Recommendation and Order (Dkt. No.
590) is ADOPTED in its entirety9; and it is further
ORDERED that Barnes’ motion for summary judgment (Dkt. No. 435)
is DENIED; and it is further
ORDERED that defendants’ cross-motion for summary judgment

8

In defendants’ response, Assistant Attorney General James J. Seaman stated,
“Please accept this letter as my notice of appearance for defendants in this case.” (Dkt. No.
603 at 1.) This does not comply with N.D.N.Y. L.R. 83.2(a). Mr. Seaman must file a written
notice of appearance.
9

There is one exception—the R&R’s recommendation to dismiss defendants Mark
Boyd, Trevor Dunning, and James Sorrells, (Dkt. No. 590 at 66), is not adopted. As claims
against each of them survive for trial, (Dkt. No. 590 at 35-38 (Boyd); 40-43 (Dunning); 19-24
(Sorrells)), they are not dismissed.

8

(Dkt. No. 485) is GRANTED IN PART and DENIED IN PART as follows:
GRANTED as to Barnes’ first, second, fourth, fifth, sixth,
seventh, eighth, and ninth causes of action in his amended
complaint (Dkt. No. 186); and
GRANTED as to Barnes’ third cause of action as against
defendants Fischer and Bellnier; and
GRANTED as to Barnes’ twelfth cause of action regarding the
incidents of July 31, 2010, August 3, 2010, and November 5,
2010; and
GRANTED as to Barnes’ tenth cause of action as against
defendants Labarge and Scott; and
GRANTED as to Barnes’ eleventh cause of action except as
against Defendant Uhler regarding the September 23, 2011
disciplinary hearing; and
DENIED in all other respects; and it is further
ORDERED that the Clerk terminate the following defendants from
this action: Joseph Bellnier, Michael Eddy, Brian Fischer, Brian Fournier,
Matthew Gervais, Jeffrey Hyde, Clarence Labarge, A. Lashway, John
Leclair, Albert Prack, Richard Rakoce, R. Scott, Darrin Snyder, Andrew
9

Street, and Bradley Thompson; and it is further
ORDERED that Barnes’ motion for sanctions (Dkt. No. 435, Attach. 1
at 2) is DENIED; and it is further
ORDERED that Barnes’ motion to strike (Dkt. No. 435, Attach. 1 at 2)
and motion to appoint counsel (Dkt. No. 435, Attach. 1 at 4) are DENIED
with leave to renew in connection with trial; and it is further
ORDERED that Barnes’ requests for injunctive relief (Dkt. No. 602,
604, 608) are DENIED; and it is further
ORDERED that this case is now deemed trial ready and a trial
scheduling order will be issued in due course; and it is further
ORDERED that the Clerk provide a copy of this Order to the parties
in accordance with the Local Rules of Practice.
IT IS SO ORDERED.
September 28, 2018
Albany, New York

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