Dimperio v. Onondaga County et al
Filing
56
DECISION and ORDER: ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 53 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that Defendant Onondaga County's motion for summary judgment (Dkt. No. 35 ) is GRANTED, and Plaintiff's claim against Defendant Onondaga County is DISMISSED with prejudice. ORDERED that Plaintiff's remaining claims in this action -i.e., his claim against Defendants Jack Vitvitsky, Jane Doe Nurse "h," and Jane Doe Nurse "I"-are DISMISSED without prejudice pursuant to Fed. R. Civ. P. 4(m). ORDERED that the Clerk of the Court shall enter Judgment for Defendants and close this action. Signed by Chief Judge Glenn T. Suddaby on 9/23/15.{order served via regular mail on plaintiff} (nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
CARL. A. DIMPERIO, JR.,
Plaintiff,
9:13-CV-1202
(GTS/DEP)
v.
ONONDAGA CTY., Mun. Corp.; JACK VIVITZKY,
RPA-C, Physician Assistant; Onondaga Cty. Justice Ctr.;
JANE DOE NURSE “H,” Onondaga Cty. Justice Ctr.;
and JANE DOE NURSE “I,” Onondaga Cty. Justice Ctr.,
Defendants.
________________________________________________
APPEARANCES:
OF COUNSEL:
CARL A. DIMPERIO, JR.
Plaintiff, Pro Se
7087 Buckley Road
Liverpool, New York 13088
SMITH, SOVIK, KENDRICK & SUGNET, P.C.
Counsel for Defendant Onondaga County
250 South Clinton Street, Suite 600
Syracuse, New York 13202
DANIEL R. RYAN, ESQ.
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Carl A.
Dimperio, Jr. (“Plaintiff”) against the County of Onondaga and three employees of its Justice
Center (“Defendants”), are U.S. Magistrate Judge David E. Peebles’ Report-Recommendation
recommending that Defendant County’s motion for summary judgment be granted and that
Plaintiff’s remaining claims be dismissed without prejudice for failure to serve. (Dkt. No. 53.)
For the reasons set forth below, the Report-Recommendation is accepted and adopted.
I.
RELEVANT BACKGROUND
Because this Decision and Order is intended primarily for the review of the parties, the
Court will not summarize the claims and factual allegations asserted in Plaintiff’s Complaint, or
the relevant procedural history of this action, which facts are accurately recited in Magistrate
Judge Peebles’ Report-Recommendation. (Dkt. No. 53.)
Generally, in his Report-Recommendation, Magistrate Judge Peebles rendered the
following findings of fact and conclusions of law: (1) Plaintiff has failed to adduce admissible
record evidence from which a rational factfinder could render a judgment for Plaintiff on a
Monell claim against Defendant Onondaga County; and (2) Plaintiff’s claims against the three
employees of the Onondaga County Justice Center–Defendants Jack Vitvitsky, Jane Doe Nurse
“h,” and Jane Doe Nurse “i”–should be dismissed without prejudice due to Plaintiff’s failure to
timely serve those individuals under Fed. R. Civ. P. 4(m). (Dkt. No. 53, Part III.) Familiarity
with the particular findings and conclusions in Magistrate Judge Peebles’ ReportRecommendation is assumed in this Decision and Order, which (again) is intended primarily for
the review by the parties.
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 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
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
2
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 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).
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.”) (emphasis added).
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) (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.”).
3
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).
4
After conducing 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
Liberally construed, Plaintiff’s Objection asserts three arguments: (1) Plaintiff’s lack of
appointed counsel deprived him of discovery necessary to cause service on Defendant Jane Doe
Nurse “h” and Jane Doe Nurse “i” (specifically, evidence regarding whether Jane Doe Nurse “h”
and Jane Doe Nurse “i” were employed by Correctional Medical Care, Inc., Staff Care, Inc., or
some other contractor); (2) Plaintiff failed to point out to Magistrate Judge Peebles (due to a
misbelief that “the Court will all its wisdom would have noticed it”) that in no reports did the
Commission of Corrections consider whether the individual Defendants, who were employed by
Correctional Medical Care, Inc. and “another subcontractor that was hired by CMC,” violated
any policies of Correctional Medical Care, Inc., demonstrating the Commission of Corrections’
negligence in this matter; and (3) the fact that a deputy was present when Plaintiff complained to
Nurse Sonya Santana that he needs his heart medication or could have another heart attack and
die (as was the deputies’ practice), but that Defendant County responded in discovery that its
deputies do not provide medical care, constitutes admissible evidence from which a rational
factfinder could conclude that Defendant County had a policy of employing medical staff who
deliberately ignored verbal requests for medications for serious medical conditions. (Dkt. No.
54.)
The argument contained in Plaintiff’s first objection could have been, but was not,
presented to Magistrate Judge Peebles during the four months before he issued his ReportRecommendation, when Plaintiff knew or should have known that the dismissal of his claims
5
against Defendant Jane Doe Nurse “h” and Jane Doe Nurse “i” for failure to serve would occur.
(See, e.g., Dkt. Nos. 46, 48, 53.) As a result, Plaintiff’s first objection does not subject any
portion of Part III.C. of the Report-Recommendation to a de novo review. See, supra, Part II of
this Decision and Order.
Similarly, the argument contained in Plaintiff’s second objection could have been, but
admittedly was not, presented to Magistrate Judge Peebles shortly after Plaintiff submitted his
opposition to Defendant County’s motion for summary judgment. It bears noting that Plaintiff
filed two responses to Defendant County’s motion–a response on January 20, 2015 (Dkt. No.
38), and a supplemental response on January 29, 2015 (Dkt. No. 41)–further supporting the
conclusion that he could have presented the argument in question to Magistrate Judge Peebles.
As a result, Plaintiff’s second objection does not subject any portion of Part III.B. of the ReportRecommendation to a de novo review.
Finally, the argument contained in Plaintiff’s third objection could have been, but was
not, presented to Magistrate Judge Peebles. (See generally Dkt. No. 38, Attach. 1 [Plf.’s Opp’n
Memo. of Law].) As a result, Plaintiff’s third objection does not subject any portion of Part
III.B. of the Report-Recommendation to a de novo review.
For these reasons, the entirety of the Report-Recommendation is subject merely to a
clear-error review. After carefully reviewing the relevant filings in this action, the Court can find
no clear error in Magistrate Judge Peebles’ thorough Report-Recommendation: Magistrate Judge
Peebles employed the proper legal standards, accurately recited the facts, and reasonably applied
the law to those facts. As a result, the Court accepts and adopts the Report-Recommendation for
the reasons stated therein. (Dkt. No. 53.) The Court would add only that, even if it were to
subject the above-referenced portions of the Report-Recommendation to a de novo review, it
would find that those portions survive that review.
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ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 53) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant Onondaga County’s motion for summary judgment (Dkt. No.
35) is GRANTED, and Plaintiff’s claim against Defendant Onondaga County is DISMISSED
with prejudice; and it is further
ORDERED that Plaintiff’s remaining claims in this action–i.e., his claim against
Defendants Jack Vitvitsky, Jane Doe Nurse “h,” and Jane Doe Nurse “I”–are DISMISSED
without prejudice pursuant to Fed. R. Civ. P. 4(m); and it is further
ORDERED that the Clerk of the Court shall enter Judgment for Defendants and close
this action.
Dated: September 23, 2015
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief, U.S. District Judge
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