White v. Beilein et al

Filing 194

DECISION AND ORDER: ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 186 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendants' motion for summary judgment (Dkt. No. 139 ) is GRANTED in part a nd DENIED in part such that all of the claims asserted in Plaintiff's Complaint (Dkt. No. 1) are DISMISSED except for Plaintiff's Eighth Amendment excessive force claim asserted against Defendant Drake, which SURVIVES Defendants' motio n. ORDERED that Pro Bono Counsel be appointed for Plaintiff for purposes of trial only (and not for any appeal) and that, upon assignment of Pro Bono Counsel, a final pretrial conference with counsel be scheduled, at which counsel for both parties shall appear with settlement authority. Signed by Chief Judge Glenn T. Suddaby on 3/29/16. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
JOHN H. WHITE,
Plaintiff,
9:13-CV-392
(GTS/CFH)

v.
DAVID ROCK, Superintendent; DONALD UHLER,
Dep. of Security; MICHAEL LIRA, Dep. of
Programs; RAYMOND DRAKE; JON OROPALLO;
ELIZABETH WHITE; and AMBER LASHWAY,
Nurse;
Defendants.
_____________________________________________
APPEARANCES:

OF COUNSEL:

JOHN H. WHITE, 08-A-3366
Plaintiff, Pro Se
Southport Correctional Facility
P.O. Box 2000
Pine City, New York 14871
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Defendants
The Capitol
Albany, New York 12224

LOIS JIM, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by John H.
White (“Plaintiff”) against the seven above-captioned employees of the New York State
Department of Corrections and Community Supervision (“Defendants”) pursuant to 42 U.S.C. §
1983, are the following: (1) Defendants' motion for summary judgment; (2) United States
Magistrate Judge Christian F. Hummel's Report-Recommendation recommending that

Defendants' motion be granted in part and denied in part; and (3) Plaintiff’s Objections to the
Report-Recommendation. (Dkt. Nos. 139, 186, 189.) For the reasons set forth below,
Magistrate Judge Hummel’s Report-Recommendation is accepted and adopted in its entirety; all
of the claims asserted in Plaintiff’s Complaint are dismissed except for his Eighth Amendment
excessive force claim against Defendant Drake, which survives Defendants’ motion.
I.

RELEVANT BACKGROUND
A.

Magistrate Judge Hummel’s Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Hummel rendered the
following recommendations: (1) that Plaintiff’s claims for monetary damages against Defendants
in their official capacities be dismissed pursuant to the Eleventh Amendment; (2) that Plaintiff’s
Eighth Amendment excessive force claim against Defendant Drake survive Defendants’ motion
due to a genuine dispute of material fact as to both the objective and subjective prongs of the
standard governing that claim; (3) that Plaintiff’s Eighth Amendment deliberate indifference
claim be dismissed based on his failure to adduce admissible record evidence establishing either
the objective or subjective prongs of the standard governing that claim; (4) that Plaintiff’s
supervisory-liability claims be dismissed based on his failure to adduce admissible record
evidence establishing the supervisory Defendants personal involvement in the Eighth
Amendment deliberate indifference violation alleged; (5) that Plaintiff’s state law claims be
dismissed as not actionable under 42 U.S.C. § 1983 and/or as barred by New York Correctional
Law § 24(1); and (6) that, in the alternative, Plaintiff’s claims against Defendants Rock, Uhler,
Lira, Oropallo, White, and Lashway be dismissed because, based on the current record, they are
protected from liability as a matter of law based on the doctrine of qualified immunity. (Dkt.
No. 186, Part II.)
2

B.

Plaintiff’s Objections to the Report-Recommendation

Generally, in his Objections, Plaintiff argues that the Court should reject the ReportRecommendation for the following reasons: (1) Magistrate Judge Hummel erroneously found
that Plaintiff provoked Defendant Drake; (2) by refusing to comply with Plaintiff’s request to
contact the medical staff to treat Plaintiff’s injuries, Defendant Drake not only failed to perform
his professional duties but interfered with his medical treatment; (3) Defendant Drakes statement
to Plaintiff following the attack (i.e., that he kicked the door which struck Plaintiff’s head
“Because I can”) further demonstrates Drake’s professional misconduct; (4) by refusing to
comply with Plaintiff’s request to contact the medical staff to treat Plaintiff’s injuries, Defendant
Drake similarly interfered with his medical treatment; (5) by failing to document Plaintiff’s
injuries and failing to arrive at Plaintiff’s cell in a timely fashion, Defendant White not only
failed to perform his professional duties but interfered with his medical treatment; (6) by failing
to arrive at Plaintiff’s cell in a timely fashion, Defendant Oropallo not only failed to perform his
professional duties but interfered with his medical treatment; (7) Magistrate Judge Hummel
improperly overlooked all of the shortcomings of Defendants’ motion, improperly considered the
video evidence belatedly provided by Defendants, and improperly failed to sanction Defendants
for spoliation of evidence; and (8) Defendants’ colleagues have improperly confiscated
Plaintiff’s records, and the Court has improperly let that confiscation occur. (See generally Dkt.
No. 189.)
II.

STANDARD OF REVIEW
When a specific objection is made to a portion of a magistrate judge's report-

recommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
3

must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).1
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
material that could have been, but was not, presented to the magistrate judge in the first
instance.2 Similarly, a district court will ordinarily refuse to consider argument that could have
been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ.
of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge's report and recommendation that could have been raised before the magistrate but were
not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311,
312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not

1

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although
Mario filed objections to the magistrate's report and recommendation, the statement with respect to his
Title VII claim was not specific enough to preserve this claim for review. The only reference made to the
Title VII claim was one sentence on the last page of his objections, where he stated that it was error to
deny his motion on the Title VII claim ‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in
Support of Motion for Partial Summary Judgment.’ This bare statement, devoid of any reference to
specific findings or recommendations to which he objected and why, and unsupported by legal authority,
was not sufficient to preserve the Title VII claim.”).
2

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further testimony
when it offers no justification for not offering the testimony at the hearing before the magistrate.”)
[internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters,
894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not abuse its discretion in denying
plaintiff's request to present additional testimony where plaintiff “offered no justification for not offering
the testimony at the hearing before the magistrate”); cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980)
(“We conclude that to construe § 636(b)(1) to require the district court to conduct a second hearing
whenever either party objected to the magistrate's credibility findings would largely frustrate the plain
objective of Congress to alleviate the increasing congestion of litigation in the district courts.”); Fed. R.
Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a
secondary evidentiary hearing is required.”).

4

consider new arguments raised in objections to a magistrate judge's report and recommendation
that could have been raised before the magistrate but were not.”) (internal quotation marks
omitted).
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.4

3

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers or
arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or Local Civil Rule
72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F. Supp. 380, 382
(W.D.N.Y. 1992) (explaining that court need not consider objections that merely constitute a "rehashing"
of the same arguments and positions taken in original papers submitted to the magistrate judge); accord,
Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL 3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010)
(McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue, 07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y.
July 27, 2010) (Mordue, C.J.); Almonte v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4
(N.D.N.Y. Jan. 18, 2006) (Sharpe, J.).
4

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31,
1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no
specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation
marks and citations omitted).

5

After conducting 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)(C).
III.

ANALYSIS
After carefully reviewing the relevant papers herein, including Magistrate Judge

Hummel’s thorough Report-Recommendation, the Court can find no error in those parts of the
Report-Recommendation to which Plaintiff specifically objected, and no clear error in the
remaining parts of the Report-Recommendation: Magistrate Judge Hummel employed the proper
standards, accurately recited the facts, and reasonably applied the law to those facts. As a result,
the Report-Recommendation is accepted and adopted in its entirety for the reasons stated therein.
To those reasons, the Court adds the following three points.
First, Plaintiff’s objections to the Report-Recommendation (described above in Part I.B.
of this Decision and Order) consist largely if not exclusively of reiterations of arguments
previously asserted in his opposition memorandum of law. (Compare Dkt. No. 189 at 2-8 [Plf.’s
Obj.] with Dkt. No. 164 [Plf.’s Opp’n Memo. of Law at Point III with regard to Plf.’s Eighth
Amendment claim] and Dkt. Nos. 170, 178 [Plf.’s Suppl. Opp’n Memo of Law with regard to
professional violations].) As a result, most if not all of the “challenged” portions of the
Report-Recommendation are entitled to only a clear-error review, which they easily survives.
The remainder of the challenged portions of the Report-Recommendation survive a de novo
review for the reasons stated by Defendants and Magistrate Judge Hummel.
Second, the Court notes that Plaintiff's argument that corrections officers failed to
properly preserve video evidence appears to have been rejected by the Court in its Decision and
Order of January 24, 2014. (Dkt. No. 42 at Part III.C.10.a.) Moreover, an alternative reason for

6

rejecting Plaintiff’s discovery argument (see note 13 of Dkt. No. 186) is that he has not satisfied
the requirements of a request made pursuant to Fed. R. Civ. P. 56(d). Cornell v. Kapral, 09-CV0387, 2011 WL 94063, at *4 & n.2 (N.D.N.Y. Jan. 11, 2011) (Suddaby, J.), aff’d, 483 F. App’x
590, 591-92 (2d Cir. 2012).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 186) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 139) is
GRANTED in part and DENIED in part such that all of the claims asserted in Plaintiff’s
Complaint (Dkt. No. 1) are DISMISSED except for Plaintiff’s Eighth Amendment excessive
force claim asserted against Defendant Drake, which SURVIVES Defendants’ motion; and it is
further
ORDERED that Pro Bono Counsel be appointed for Plaintiff for purposes of trial only
(and not for any appeal) and that, upon assignment of Pro Bono Counsel, a final pretrial
conference with counsel be scheduled, at which counsel for both parties shall appear with
settlement authority.
Dated: March 29, 2016
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

7