Johnson v. Adams et al

Filing 42

MEMORANDUM-DECISION AND ORDER: ORDERED that Johnson's motion for remand (Dkt. No. 33 ) is DENIED. ORDERED that Magistrate Judge David E. Peebles' Report and Recommendation (Dkt. No. 39 ) is ADOPTED in its entirety. ORDERED that defen dants' motion for summary judgment (Dkt. No. 19 ) is GRANTED IN PART and DENIED IN PART as indicated herein. ORDERED that Johnson's remaining claims are for: (1) deliberate indifference under the Eighth Amendment against Adams and Johnsto n for the period of February 2011 through August 2012; and (2) supervisory liability against Rock. ORDERED that Adams, Johnston, and Rock may all move for summary judgment by April 15, 2016. Signed by Senior Judge Gary L. Sharpe on 3/23/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JONATHAN JOHNSON,
Plaintiff,

9:14-cv-811
(GLS/DEP)

v.
RICHARD ADAMS et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Johnathan Johnson
Pro Se
89-A-1042
Upstate Correctional Facility
P.O. Box 2001
Malone, NY 12953
FOR THE DEFENDANTS:
Hon. Eric T. Schneiderman
New York State Attorney General
Main Place Tower
350 Main Street
Suite 300A
Buffalo, NY 14202

DAVID J. SLEIGHT
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction

Plaintiff pro se Jonathan Johnson commenced this action against
defendants alleging civil rights violations pursuant to 42 U.S.C. § 1983.
(See generally Compl., Dkt. No. 4.) Following discovery, defendants, save
defendant David Rock, moved for summary judgment. (Dkt. No. 19.)
When the motion was fully briefed, Magistrate Judge David E. Peebles
raised an issue regarding the status of Rock. (Dkt. No. 31.) After some
briefing, Judge Peebles ordered “defendants . . . to show cause why . . .
Rock [wa]s not in default.” (Dkt. No. 35.) In a Report and
Recommendation (R&R) dated February 24, 2016, Judge Peebles
recommended that the summary judgment motion be granted in part and
denied in part. (Dkt. No. 39 at 31.) He also found that, by answering,
Rock had appeared in the action,1 and recommended that Rock should be
given an opportunity to move for summary judgment, and that the
remaining defendants — Richard Adams and Patrick Johnston — be
afforded an opportunity to seek summary judgment a second time. (Id. at

1

The issue involving Rock is bizarre. As acknowledged by Judge Peebles, the answer
was apparently filed on behalf of all defendants, (Dkt. No. 39 at 29), and the summary
judgment motion included an argument on Rock’s behalf even though the motion was not
noticed on behalf of Rock, (Dkt. No. 24 at 6-7). Despite these indicia that the New York
Attorney General was representing Rock, counsel claimed “Rock has not requested that the
. . . Attorney General represent him in this action.” (Dkt. No. 32 at 1.) Counsel also argued
against entry of default judgment against Rock. (Dkt. No. 36.)

2

31-32.) Pending are Johnson’s objections to the R&R, (Dkt. No. 40), and
motion for remand, (Dkt. No. 33). For the reasons that follow, the R&R is
adopted and the motion for remand is denied.
II. Background
During the period of time relevant to the pending objections, Johnson
was incarcerated at Upstate Correctional Facility. (Compl. at 1.) Despite
the fact that medical staff at Upstate treated Johnson for certain medical
problems, namely, a sinus condition, dry skin, and chronic obstructive
pulmonary disease for a time, (Dkt. No. 22, Attach. 5 at 18-19), Johnson
contends that defendant Richard Adams, a physician, and defendant
Patrick Johnston, a physician’s assistant, directed medical staff at Upstate
to cease treatment of Johnson’s conditions in April and June 2010, (Compl.
at 2, 4). In a declaration, defendant Nancy Smith, a nurse administrator at
Upstate, explains that Johnson refused to comply with rules during
medication rounds or otherwise refused to cooperate and abide by prison
rules, which resulted in the denial of medication to Johnson on several
occasions. (Dkt. No. 21 ¶¶ 1, 5-14, 16-21.) Johnson was familiar with at
least some of the rules and procedures identified by Smith. (Dkt. No. 22,
Attach. 5 at 45-46.) Johnson filed grievances regarding the denial of
3

medical treatment, (Dkt. No. 28, Attach. 3 at 16-25), which he claims led to
retaliation by defendants George Waterson, Heath Baker, and Smith,
(Compl. at 2-3). A fuller statement of the facts is recited in the R&R. (Dkt.
No. 39 at 3-8.)
This action was commenced in New York State court and
subsequently removed by defendants to this court pursuant to 28 U.S.C.
§§ 1441(a) and 1446. (Dkt. No. 1.) Johnson then moved to remand the
case back to state court on the basis that removal was improper in light of
the fact that New York courts have jurisdiction to hear his case and he has
been barred from filing in federal court because of the three strikes
provision of 28 U.S.C. § 1915(g), (Dkt. No. 2), which motion was denied,
(Dkt. No. 14). Defendants, with the exception of Rock, thereafter moved
for summary judgement, (Dkt. No. 19), and Judge Peebles raised the
question of Rock’s participation in this lawsuit, (Dkt. No. 31), which
prompted Johnson to again move for remand, (Dkt. No. 33). Judge
Peebles ultimately issued the pending R&R, (Dkt. No. 39), which is now
ripe for review.
III. Standard of Review
A.

Remand
4

“When a civil action is removed solely under section 1441(a), all
defendants who have been properly joined and served must join in or
consent to the removal of the action.” 28 U.S.C. § 1446(b)(2)(A). This
procedural rule is often referred to as “the rule of unanimity.” See
Pietrangelo v. Alvas Corp., 686 F.3d 62, 66 (2d Cir. 2012). Unlike a
jurisdictional defect for lack of subject matter jurisdiction, which mandates
remand upon discovery at any time before entry of final judgment, see 28
U.S.C. § 1447(c), a violation of a procedural rule, like the rule of unanimity,
is subject to waiver if not timely raised. See Borden v. Blue Cross & Blue
Shield of W. N.Y., 418 F. Supp. 2d 266, 270 (W.D.N.Y. 2006) “A motion to
remand the case on the basis of any defect other than lack of subject
matter jurisdiction must be made within [thirty] days after the filing of the
notice of removal under section 1446(a).” 28 U.S.C. § 1447(c).
B.

Objections to R&R
Before entering final judgment, this court routinely reviews all report

and recommendation orders in cases it has referred to a magistrate judge.
If a party has objected to specific elements of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y.S. Div. of Parole, No. Civ.
5

904CV484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those
cases where no party has filed an objection, or only a vague or general
objection has been filed, this court reviews the findings and
recommendations of the magistrate judge for clear error.2 See id.
IV. Discussion
A.

Remand
The court first addresses Johnson’s second motion for remand and

his first “objection” to the R&R, which is substantively identical to the
remand motion. (Compare Dkt. No. 33 at 4-5, with Dkt. No. 40 at 5-8.)
Johnson argues that, because “Rock has not appeared within this action
nor consented to the removal . . . therefore this court lack of subject-matter
jurisdiction over the other defendant’s motion to removed [sic].” (Dkt.
No.33 at 4; Dkt. No. 40 at 8.) While Johnson’s contention that a violation
of the rule of unanimity results in a jurisdictional defect is erroneous,3 he
makes a good point that, if Rock was served in the state court action and

2

“[A] report is clearly erroneous if the court determines that there is a mistake of fact or
law which is obvious and affects substantial rights.” Almonte, 2006 WL 149049, at *6.
3

Subject matter jurisdiction speaks to “[j]urisdiction over the nature of the case and the
type of relief sought.” Subject-Matter Jurisdiction, Black’s Law Dictionary (10th ed. 2014).
This action, alleging claims pursuant to 42 U.S.C. § 1983 and seeking monetary relief, (Compl.
at 4), are squarely within the subject matter jurisdiction of the court.

6

he did not consent to removal, the rule of unanimity was violated. Whether
Johnson is correct or not, remand is not required.
It is beyond dispute that Johnson’s remand arguments are well
beyond the thirty day limit imposed for raising procedural defects in 28
U.S.C. § 1447(c). By failing to raise the issue in a timely manner, Johnson
has waived the argument that the rule of unanimity was not satisfied. See
Borden, 418 F. Supp. 2d at 270. For this reason, Johnson’s motion for
remand, (Dkt. No. 33), is denied and the arguments regarding remand
made as part of his objections, (Dkt. No. 40 at 5-8), are rejected.
B.

Objections to the R&R
Johnson makes an admirable attempt to specifically object the R&R.

(Dkt. No. 40 at 8-21.) He first contends that Judge Peebles’ reliance on
the fact that the grievances at issue in his retaliation claim did not identify
Waterson, Baker, and Smith is inappropriate and contrary to well
established law. (Id. at 9-13.) Johnson makes a host of arguments in
support of that objection. What Johnson fails to appreciate, however, is
that the R&R’s recommendation of dismissal of the retaliation claim was
premised on the more generic notion that there is an absence of proof that
defendants had any knowledge of the grievances at the time Johnson
7

alleges that they retaliated, which is fatal to the claim. See LeBron v.
Selsky, No. 9:05-CV-0172, 2010 WL 1235593, at *5 (N.D.N.Y. Mar. 31,
2010). For this reason, the first objection is without merit. Johnson’s other
objections — save for one, discussed below — are all repackaged versions
of arguments he previously raised in his opposition to the summary
judgment motion and warrant review for clear error.
Johnson’s remaining specific objection is that there is no authority for
permitting Adams and Johnston to file a second summary judgment
motion. (Dkt. No. 40 at 19.) Because his assertion is without merit, see
Sira v. Morton, 380 F.3d 57, 68 (2d Cir. 2004) (“[W]e note that district
courts enjoy considerable discretion in entertaining successive dispositive
motions.”), and Judge Peebles’ recommendation is a reasonable exercise
of discretion which may help avoid an unnecessary trial, the objection is
unavailing.
Upon review of the remainder of the R&R, the court finds no clear
error. The court notes, however, that Wright and Smith are entitled to
judgment on the supervisory liability claim not because there is no
underlying constitutional violation, (Dkt. No. 39 at 27-28) — indeed, the
Eighth Amendment claims as asserted against Adams and Johnston for
8

the time period February 2011 to August 2012 survive the summary
judgment motion — but, instead, because there is no evidence that
implicates a valid means of establishing supervisory liability. See Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).4 For all of these reasons, the
R&R is adopted in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Johnson’s motion for remand (Dkt. No. 33) is
DENIED; and it is further
ORDERED that Magistrate Judge David E. Peebles’ Report and
Recommendation (Dkt. No. 39) is ADOPTED in its entirety; and it is further
ORDERED that defendants’ motion for summary judgment (Dkt. No.
19) is GRANTED IN PART and DENIED IN PART as follows:
GRANTED with respect to Johnson’s Eighth Amendment
deliberate indifference claim against Adams and Johnston
through January 2011; and

4

While it appears that the same logic likely applies to the claim as against Rock and
the court could enter judgment in favor of Rock given that Johnson was on notice of the
argument, (Dkt. No. 24 at 6-7); see Bridgeway Corp. v. Citibank, 201 F.3d 134, 139 (2d Cir.
2000), the court is loathe to grant summary judgment in the absence of a formal motion by
Rock.

9

GRANTED with respect to Johnson’s supervisory liability claim
against Wright and Smith; and
GRANTED with respect to Johnson’s First Amendment
retaliation claim against Waterson, Baker, and Smith; and
DENIED in all other respects; and it is further
ORDERED that Johnson’s remaining claims are for: (1) deliberate
indifference under the Eighth Amendment against Adams and Johnston for
the period of February 2011 through August 2012; and (2) supervisory
liability against Rock; and it is further
ORDERED that Adams, Johnston, and Rock may all move for
summary judgment by April 15, 2016; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
March 23, 2016
Albany, New York

10