Harris v.Gordon, et al
ORDER granting 42 Motion to Dismiss for Failure to State a Claim; adopting Report and Recommendations re 50 Report and Recommendations. The Court hereby ORDERS that Magistrate Judge Peebles' Report and Recommendation is ADOPTED in its enti rety; and the Court further ORDERS that Defendants' motion to dismiss (Dkt. No. 42) is GRANTED; and the Court further ORDERS that Plaintiff's amended complaint is DISMISSED with leave to amend; and the Court further ORDERS that any proposed second amended complaint must be filed within THIRTY (30) DAYS from the date of this Order; and the Court further ORDERS that if Plaintiff fails to filed a proposed second amended complaint within thirty (30) days from the date of this Order, the Cl erk of the Court shall enter judgment in Defendants' favor and close this case, without further order from this Court; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 09/15/2016. (bto)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DEP. BROWN, SUPERINTENDENT
LAVALLEY, and SERGEANT CROSS,
Great Meadow Correctional Facility
Comstock, New York 12821
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
Albany, New York 12224
Attorneys for Defendants
NICOLE E. HAIMSON, AAG
Mae A. D'Agostino, U.S. District Judge:
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision, commenced this action pursuant to 42 U.S.C. § 1983, alleging a
deprivation of his civil rights. In his amended complaint, Plaintiff alleges that Defendants failed
to protect him from known harm and, as a result, he was attacked by another inmate. See Dkt. No.
18. Plaintiff contends that, as a result of their conduct, Defendants violated his Eighth
Amendment rights. See id.
In their motion to dismiss, Defendants argue that the amended complaint is subjected to
dismiss because it fails to plausibly allege that any of them were personally involved in the
alleged conduct and because it fails to adequately plead an Eighth Amendment claim for failure to
protect. See Dkt. No. 42. Plaintiff has opposed the motion, see Dkt. No. 48, and Defendant have
replied in further support. See Dkt. No. 49.
In a May 17, 2016 Report and Recommendation, Magistrate Judge Peebles recommended
that the Court grant Defendants' motion and dismiss Plaintiff's amended complaint with leave to
amend. See Dkt. No. 50. Specifically, Magistrate Judge Peebles found that Plaintiff's amended
complaint "contains only conclusory allegations to the effect that each of the defendants was or
should have been aware of a risk of harm to plaintiff based upon his prior gang affiliation, but
nonetheless failed to protect him from an inmate assault." Id. at 15-16. As such, the Report and
Recommendation found that Plaintiff failed "to allege facts plausibly suggesting that he was
subjected to an unreasonable risk of harm, or that each of the defendants was aware of but
disregarded that risk[.]" Id. at 16.1
On May 20, 2016, Plaintiff filed objections to the Report and Recommendation. See Dkt.
No. 51. In his objections, Plaintiff argues that he has already opposed the motion to dismiss and
implies that Magistrate Judge Peebles failed to consider this opposition. See id. at 1. Attached to
his objections, Plaintiff has included his previous opposition to the motion to dismiss, as well as
other exhibits previously filed with the Court. See id. at 3-24.
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
For a complete statement of the underlying facts in this case, the Court refers the parties
to Magistrate Judge Peebles' Report and Recommendation. Dkt. No. 50.
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party declines to file objections or files "[g]eneral or conclusory objections or objections
which merely recite the same 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).
Having carefully reviewed Magistrate Judge Peebles' Report and Recommendation, the
parties' submissions, and the applicable law, the Court finds that Magistrate Judge Peebles
correctly determined that the Court should grant Defendants' motion and dismiss the amended
complaint with leave to amend. First, contrary to Plaintiff's contentions, Magistrate Judge Peebles
clearly considered Plaintiff's opposition to the motion to dismiss. See Dkt. No. 50 at 5 ("Plaintiff
has since submitted papers in opposition to defendants' motion"); id. at 12 ("In opposition to
defendants' motion, plaintiff urges the court to find that a grievance filed by him in February 2013,
identified by him as 'CL 63540-13,' should have made defendants aware of the fact that he was
exposed to danger while confined at Clinton. Dkt. No. 48 at 2-4. Plaintiff does not, however,
elaborate regarding the contents of the grievance, including to whom he addressed the grievance
and/or the specific allegations contained therein"); Dkt. No. 50 at 12 ("Plaintiff also cites a letter
he sent to defendant Brown as a basis for Brown's alleged awareness of the risk of harm faced by
plaintiff") (citing Dkt. No. 48 at 4; Dkt. No. 48-1 at 7-13). As such, contrary to Plaintiff's
allegations, Magistrate Judge Peebles fully considered Plaintiff's opposition to Defendants' motion
Further, the Court finds that Magistrate Judge Peebles correctly determined that Plaintiff's
amended complaint fails to state a plausible Eighth Amendment claim against any of the named
Defendants. In an entirely conclusory fashion, the amended complaint alleges that Defendants
were aware of a "serious safety and security" risk to Plaintiff "related to [his] former gang
membership" based on "information brought to [Defendants'] attention on numerous occasions by
the plaintiff and available in computerized records[.]" Dkt. No. 18 at 3-4. Plaintiff fails to
provide any facts from which it could be reasonably inferred that each Defendant was aware of
either Plaintiff's former gang affiliation or any danger present as a result of his alleged gang
history. Moreover, the Report and Recommendation also correctly concluded that Plaintiff failed
to provide facts plausibly suggesting that, because of his gang affiliation, Plaintiff's safety was
jeopardized by being placed in general population at Clinton Correctional Facility. As such, the
Court finds that Magistrate Judge Peebles correctly determined that the Court should grant
Defendants' motion to dismiss Plaintiff's amended complaint.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Peebles' Report and Recommendation is ADOPTED in
its entirety; and the Court further
ORDERS that Defendants' motion to dismiss (Dkt. No. 42) is GRANTED; and the Court
ORDERS that Plaintiff's amended complaint is DISMISSED with leave to amend; and
the Court further
ORDERS that any proposed second amended complaint must be filed within THIRTY
(30) DAYS from the date of this Order; and the Court further
ORDERS that if Plaintiff fails to filed a proposed second amended complaint within thirty
(30) days from the date of this Order, the Clerk of the Court shall enter judgment in Defendants'
favor and close this case, without further order from this Court; and the Court further
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: September 15, 2016
Albany, New York
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