Zulu v. Seymour et al

Filing 68

MEMORANDUM-DECISION AND ORDER: ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No. 61 ) is ADOPTED in its entirety. ORDERS that Defendants' motion for summary judgment (Dkt. No. 44 ) is GRANTED. ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 3/27/17. (served on plaintiff by regular mail)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ARKIL LIONKING ZULU,
Plaintiff,
vs.

9:14-CV-870
(MAD/DJS)

WENDY M. SEYMOUR, Correction Officer, Upstate
Correctional Facility, and JOHN D. GRANT,
Correction Officer, Upstate Correctional Facility,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ARKIL LIONKING ZULU
96-A-4462
Clinton Correctional Facility
P.O. Box 2000
Dannemora, New York 12929
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendants

RYAN W. HICKEY, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff, an inmate in the custody of the New York State Department of Corrections and
Community Supervision ("DOCCS"), commenced this action pursuant to 42 U.S.C. § 1983,
asserting claims arising from when he was incarcerated at Upstate Correctional Facility ("Upstate
C.F."). See Dkt. No. 11. In his amended complaint, Plaintiff asserts an Eighth Amendment claim
against Defendants Seymour and Grant for allegedly tampering with his food. See id.

On May 11, 2016, Defendants moved for summary judgment. See Dkt. No. 44. In their
motion, Defendants argue that Plaintiff cannot establish their personal involvement in the alleged
constitutional violation, there are no disputed issues of material fact precluding summary
judgment, and they are entitled to qualified immunity. See id. In a Report-Recommendation and
Order dated March 3, 2017, Magistrate Judge Stewart recommended that the Court grant
Defendants' motion. See Dkt. No. 61. Specifically, Magistrate Judge Stewart found that Plaintiff
failed to put forth evidence demonstrating Defendants' personal involvement in the alleged Eighth
Amendment violation and recommended granting Defendants' motion on that basis. See id. at 69.1
Currently before the Court is Magistrate Judge Stewart's March 3, 2017 ReportRecommendation and Order.
II. BACKGROUND
Since neither party objected to Magistrate Judge Stewart's recitation of the relevant
background facts, and because it is consistent with the record, the Court adopts the factual
background set forth in Magistrate Judge Stewart's Report-Recommendation and Order. See Dkt.
No. 61 at 2-4.
III. DISCUSSION
A.

Standard
A court may grant a motion for summary judgment only if it determines that there is no

genuine issue of material fact to be tried and that the facts as to which there is no such issue
warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43

To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
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F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the
court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at
36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c) (e)).
In assessing the record to determine whether any such issues of material fact exist, the
court is required to resolve all ambiguities and draw all reasonable inferences in favor of the
nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S. Ct. 2502, 2513-14, 91 L. Ed. 2d 202 (1986)) (other citations omitted). Where
the non-movant either does not respond to the motion or fails to dispute the movant's statement of
material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather the
court must be satisfied that the citations to evidence in the record support the movant's assertions.
See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in
the record the assertions in the motion for summary judgment "would derogate the truth-finding
functions of the judicial process by substituting convenience for facts").
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to
"make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights
merely because they lack a legal education. Govan v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). "However, this does
not mean that a pro se litigant is excused from following the procedural requirements of
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summary judgment. See id. at 295 (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484,
*1 (S.D.N.Y. May 16, 2001)). Specifically, "a pro se party's 'bald assertion,' completely
unsupported by evidence" is not sufficient to overcome a motion for summary judgment." Lee v.
Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d
Cir. 1991)).
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
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
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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).
B.

Personal Involvement
"It is well settled in [the Second Circuit] that personal involvement of defendants in

alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Colon
v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994)). Moreover, the doctrine of respondeat superior cannot be applied to section 1983 actions
to satisfy the prerequisite of personal involvement. See id. at 874. Therefore, a plaintiff must
establish that each government-official named as a defendant, through that official's own actions,
violated the constitution. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
In the present matter, Plaintiff alleges that there was a mouse in his September 27, 2012
meal. As Magistrate Judge Stewart discussed in his Report-Recommendation and Order, it is
undisputed that meals were prepared in the facility kitchen, portioned onto meal trays and covered
with a plastic lid. These meals were then transported by inmate porters to each housing block and
distributed by correction officers to inmates in their cells. During his deposition, Plaintiff
admitted that he never observed anyone, much less Defendant Grant or Defendant Seymour,
tamper with his meal. See Dkt. No. 44-4 at 48-49. Rather, Plaintiff merely assumes that
Defendants must have tampered with his meal because they had access to it. See id. at 48.
According to Plaintiff, this assumption is further supported by the fact that they "were smiling
when [he] told them about it," which he believes demonstrates "some type of guilt[.]" Id. at 49.
Plaintiff testified that a possible motivation for placing the mouse in his food was that they were
aware of the numerous grievances that Plaintiff had filed while housed at Upstate C.F. See id. at
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52-53. Despite this belief, Plaintiff admits that he never before had any issues with Defendant
Grant or Defendant Seymour. See id. at 52-54.
As Magistrate Judge Stewart correctly determined, Plaintiff's bald speculation that
Defendants placed the dead mouse in his food is insufficient. There is simply no basis upon
which a rational juror could conclude that Defendants either tampered with his food or that they
were aware that someone had tampered with his meal. See Thaxton v. Simmons, No. 9:10-cv1318, 2013 WL 4806457, *11-*12 (N.D.N.Y. Sept. 9, 2013) (granting the defendants' motion for
summary judgment as to the plaintiff's food tampering allegation where the only evidence against
the defendants was that they had the opportunity to tamper with the plaintiff's food and the one
defendant had a "'smirk on his face'" when the plaintiff reported the incident to him).
Moreover, the Court finds that Magistrate Judge Stewart correctly determined that the
alleged spoliation of evidence is insufficient to enable Plaintiff to survive summary judgment
because it has no bearing on the issue of Defendants' personal involvement. See Dkt. No. 61 at 89. The evidence at issue consists of photographs of the dead mouse taken by Defendant Seymour
after Plaintiff reported finding it in his food and videotape from the camera outside of his cell. It
is undisputed that Defendant Seymour took photographs of the dead mouse and Defendants have
not disputed that Plaintiff found a dead mouse in his food. As such, the photographs are
irrelevant for purposes of this motion. As to the videotape from the camera outside of his cell,
Plaintiff claims that it would show Defendant Seymour taking the photographs of the dead mouse
and Defendants Seymour and Grant "smiling and laughing." As discussed by Magistrate Judge
Stewart, the fact that Defendant Seymour took photographs of the dead mouse has no bearing on
the issue of personal involvement and the fact that Defendants were smiling when Plaintiff

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reported the dead mouse to them is insufficient to establish their personal involvement. See
Thaxton, 2013 WL 4806457, at *11-*12.
Based on the foregoing, the Court grants Defendants' motion for summary judgment.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions,
Magistrate Judge Stewart's Report-Recommendation and Order and the applicable law, and for
the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No.
61) is ADOPTED in its entirety; and the Court further
ORDERS that Defendants' motion for summary judgment (Dkt. No. 44) is GRANTED;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.

IT IS SO ORDERED.
Dated: March 27, 2017
Albany, New York

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