Guillory v. Haywood et al

Filing 50

ORDER: ORDERS that 48 Report and Recommendation is adopted in its entirety. ORDERS that 37 Motion to Dismiss is granted in part and denied in part. Signed by U.S. District Judge Mae A. D'Agostino on 1/21/15. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
PATRICK GUILLORY,
Plaintiff,
vs.

9:13-cv-01564
(MAD/TWD)

NANCY HAYWOOD; MAUREEN BOLL;
TIMOTHY MAHER; MICHAEL GRAZIANO;
J. DOBBS; POTTER; SGT. DONOVAN; and
GOPPERT, Captain,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

PATRICK GUILLORY
09-B-0714
Clinton Correctional Facility
P.O. Box 2002
Dannemora, New York 12929
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany Office
The Capitol
Albany, New York 12224
Attorneys for Defendants

LAURA A. SPRAGUE, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision, commenced this action pro se under 42 U.S.C. § 1983. See Dkt. No. 24.
Upon initial review, Plaintiff's complaint was liberally construed to assert the following causes of
action: (1) denial of access to the courts in violation of the First Amendment and in retaliation for
his litigation and complaints; (2) interference with Plaintiff's outgoing legal mail in violation of

the First Amendment and in retaliation for his litigation and complaints; (3) search of his cell and
confiscation of his property in retaliation for his litigation and complaints; and (4) denial of equal
protection in violation of the Fourteenth Amendment. See Dkt. No. 11 at 6. The Court dismissed
Plaintiff's claims for money damages brought against Defendants in their official capacities and
also dismissed Plaintiff's equal protection claim as conclusory. See id. Thereafter, Plaintiff was
granted leave to amend his complaint to substitute Defendants Donovan and Goppert for
Defendants John Doe Number 1 and John Doe Number 2. See Dkt. No. 23.
On April 30, 2014, Defendants filed a motion to dismiss. See Dkt. No. 37. In a December
11, 2014 Order and Report-Recommendation, Magistrate Judge Dancks recommended that the
Court grant in part and deny in part Defendants' motion. See Dkt. No. 48. Specifically,
Magistrate Judge Dancks recommended that the Court dismiss the following claims: (1) First
Amendment denial of access to courts, interference with legal mail, improper opening of legal
mail, and retaliation claims against Defendants Maher, Dobbs, and Goppert for failure to exhaust;
(2) First Amendment denial of access to courts claim against Defendants Potter and Graziano for
failure to state a claim; (3) First Amendment retaliation claim against Defendant Potter arising out
of the destruction of the microwave oven in Plaintiff's housing unit; (4) First Amendment claim
for retaliation against Defendant Graziano for failure to state a claim; (5) supervisory liability
claim against Defendant Graziano for failure to state a claim; (6) supervisory liability claims
against Defendant Haywood for failure to state a claim; (7) supervisory liability claims against
Defendant Boll for generally failing to remedy wrongs, creating and allowing to continue customs
and policies under which under which constitutional practices occur, and failure to supervise and
monitor subordinates for failure to state a claim; (8) supervisory liability claim against Defendant
Boll in connection with Plaintiff's denial of access to court claims against Defendants Potter and
2

Graziano relating to the May 6, 2013, law library incident for failure to state a claim; (9)
supervisory liability claim against Defendant Boll with regard to Plaintiff's denial of access to
court, interference with legal mail, and improper opening of legal mail claims against Defendants
Maher, Dobbs, and Goppert in connection with the amended complaint withheld from mailing to
the court, for failure to state a claim; and (10) retaliation claims against Defendants Haywood and
Boll for failure to state a claim. See Dkt. No. 48 at 42-43. Further, the report recommended that
the Court deny Defendants' motion as to the following claims: (1) Plaintiff's retaliation claim
against Defendant Potter arising out of the May 6, 2013, law library incident; (2) Plaintiff's
retaliation claim against Defendant Donovan with regard to taking Plaintiff's legal papers and
kosher food; and (3) Plaintiff's supervisory liability claim against Defendant Boll with regard to
Plaintiff's retaliation claim against Defendant Potter regarding the May 6, 2013, law library
incident. See id. Finally, Magistrate Judge Dancks recommended that the Court grant Plaintiff
leave to amend with regard to all of the claims dismissed without prejudice for failure to exhaust
his administrative remedies. See id. Neither party objected to the Order and ReportRecommendation.1
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same

On January 9, 2015, the Court received a submission entitled "Plaintiff's Letter Motion to
Correct the Record and Response to Magistrate Judge Dancks' December 11, 2014 Report and
Recommendation." Dkt. No. 49. In the submission, Plaintiff states that he is "not filing any
objections to [the Order and Report-Recommendation]," but then states that he finds it necessary
to "clarify a few facts in the interest of justice." Id. at 2-3. The Court has reviewed this document
and has taken into consideration the clarifications that Plaintiff has provided.
1

3

arguments [that he presented] to the magistrate judge," the court reviews those recommendations
for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16,
2011) (citations and footnote omitted). After 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).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure). See Dkt. No. 42.
When considering a Rule 12(b)(6) motion, the court accepts the material facts alleged in
the complaint as true, drawing all inferences in favor of the non-moving party. See, e.g., Miller v.
Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003) (citing Patel v. Contemporary
Classics of Beverley Hills, 259 F.3d 123, 126 (2d Cir. 2001)). The court is not bound, however,
to accept as true legal conclusions with the appearance of factual statements. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
4

The moving party has the heavy burden of showing that the plaintiff is not "entitled to offer
evidence in support [his] claims." Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.
1995) (citations omitted). Thus, the court should only dismiss a 12(b)(6) motion where the
plaintiff provides no "plausible" basis to support his claims. See Twombly, 550 U.S. at 556-57.
"A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 556).
When a party proceeds pro se, the court must liberally construe his pleadings, holding
them to a standard less stringent than formal pleadings drafted by lawyers. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007). If a pro se plaintiff's complaint alleges civil rights violations, the
court must construe his pleadings with "particular generosity." Davis v. Goord, 320 F.3d 346,
350 (2d Cir. 2003) (quoting Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir. 2002)). Further,
when a pro se plaintiff faces a motion to dismiss, the court may consider "materials outside the
complaint to the extent they are consistent with the allegations in the complaint." Donhauser v.
Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004).
Having reviewed the thorough and well-reasoned Order and Report-Recommendation and
the parties submissions, the Court finds that Magistrate Judge Dancks correctly determined that
the Court should grant in part and deny in part Defendants' motion to dismiss the amended
complaint. Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Order and Report-Recommendation is
ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that Defendants' motion to dismiss (Dkt. No. 37) is GRANTED in part and
DENIED in part as set forth herein; and the Court further
5

ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.
Dated: January 21, 2015
Albany, New York

6