Flemming v. Rock et al
DECISION AND ORDER: The 17 Report-Recommendation and Order is adopted in part and rejected in part. ORDERED, that Defendants' 9 Motion for summary judgment is GRANTED. ORDERED, that the complaint is DISMISSED. The Clerk is directed to file a judgment accordingly and close the file. Signed by Judge David N. Hurd on 2/16/16. (served on plaintiff by regular and certified mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-vDAVID ROCK, et al.,
Plaintiff Pro Se
P.O. Box 146
New York, NY 10039
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Attorney for Defendants
Albany, NY 12224
HELENA LYNCH, ESQ.
Ass't Attorney General
DAVID N. HURD
United States District Judge
DECISION and ORDER
Pro se plaintiff Woodrow Flemming brought this civil rights action pursuant to 42
U.S.C. § 1983. On January 5, 2016, the Honorable Thérèse Wiley Dancks, United States
Magistrate Judge, advised by Report-Recommendation that defendants' motion to dismiss be
granted in part and denied in part. She recom mended the motion be granted as to plaintiff's
Eight Amendment excessive force claim against defendants Fifeld, Laramary, King, Bishop
and Zerniak, and plaintiff's Eight Amendment claim for failure to provide adequate medical
care against defendant Waterson. She recommended the motion be denied as to plaintiff's
Eighth Amendment excessive force claim against defendants Nason, Cook, and Russell.
Defendants timely filed objections to the Report-Recommendation. See ECF No. 18.
Plaintiff alleges that on January 14, 2013, he was assaulted by defendants Nason,
Cook, and Russell in violation of the Eighth Amendment. He alleges that, while being
transported from the holding cell to his cell, he was "assaulted, beat[en], hit and drag[ged]
and force[d] to hop." ECF No. 16, ¶¶ 6, 16. As a result, plaintiff alleges he was seriously
injured on his back, leg, hand, wrists, arms, hip, thumb and knees. ECF No. 1, at 9. Plaintiff
further contends that defendants knew he required support while walking, and that he his
heart, back, knees, legs, hips and head ailed him, and that he also suffered from asthma and
COPD. ECF No. 16, ¶ 6.
After reviewing a magistrate judge's recommendations, the district court may accept,
reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court reviews de
novo those portions of the magistrate judge's recommendations to which a party objects.
See Pizzaro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). "If no objections are made,
or if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument
made to the magistrate judge, a district court need review that aspect of a report-
Only those facts directly pertinent to the objections will be recounted here. For a full statement
of plaintiff's allegations, reference is made to the Report-Recommendation.
recommendation only for clear error." Layou v. Crews, No. 9:11–CV–0114, 2013 W L
5494062, at *1 (N.D.N.Y. Sept. 30, 2013) (Kahn, J.) (citing Chylinski v. Bank of Am., N.A.,
434 F. App'x 47, 48 (2d Cir. 2011) (summary order)). Finally, even if the parties file no
objections, the court must ensure that the face of the record contains no clear error. See
Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).
In her Report-Recommendation and Order, Magistrate Judge Dancks recommended,
among other things, that defendants' motion to dismiss be denied as to plaintiff's Eight
Amendment excessive force claim against defendants Nason, Russell and Cook. ECF No.
17, at 14-15. Judge Dancks found that, notwithstanding the complaint's lack of specificity,
the complaint must be liberally construed in light of plaintiff's pro se status and that the facts
alleged "arguably could indicate that the correction officers may have acted wantonly." ECF
No. 17, at 11.
It is unnecessary to repeat here the well-settled standard for granting a motion to
dismiss a claim. See e.g., Parker v. DeBuono, 2000 U.S. App. LEXIS 31542, at *2 (2d Cir.
2000) (stating that "under § 1983, a complaint must contain specific allegations of fact which
indication a deprivation of constitutional rights; allegations which are nothing more than
broad, simple, and conclusory statements are insufficient to state a claim under § 1983")
(internal quotations and citations omitted).
Pursuant to Fed. R. Civ. P. 8, all pleadings must be construed as to do substantial
justice. However, the pleadings of pro se litigants are generally construed with even more
liberality than is required under Fed. R. Civ. P. 8. Cusamano v. Sobek, 604 F. Supp. 2d 416,
445 (N.D.N.Y 2008) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976) ("[A] pro se complaint
. . . must be held to less stringent standards than formal pleadings drafted by lawyers .")
(internal quotation marks and citation omitted)). "The rationale for extending this special
liberality to the pleadings of pro se litigants is that, generally, pro se litigants are unfamiliar
with legal terminology and the litigation process." Cusamano, 604 F. Supp. 2d at 445.
Thus, there are instances in which "an overly litigious inmate, who is quite familiar with the
legal system and with pleading requirements, may not be afforded the special liberality or
solicitude that is normally afforded pro se litigants." Id. (internal quotation marks and
Plaintiff's litigation history came to bear in this action when he applied for in forma
pauperis ("IFP") status. See ECF No. 3. And his litigation history bears repeating here.
Specifically, since 2005, plaintiff has filed forty-three civil actions in this district, with thirty-two
being prisoner rights claims. See ECF No. 3, at 2, n. 1. 2 At the time of this decision, eight of
plaintiff's cases are still pending in this district. Id. And since 2010, plaintiff has filed an
additional two complaints in the Eastern District and another ten in the Southern District. 3
It is difficult to think of a more experienced and vexatious pro se plaintiff. In fact,
plaintiff's current complaint is nearly identical to the complaint he filed in Flemming v.
Santamore, No. 9:15-CV-29 (DNH/CFH).4 In that 2015 case, Magistrate Judge Christian F.
Hummel revoked plaintiff's IFP status for making material misrepresentations to the court.
U.S. Party/Case Index, PACER (last visited Feb. 3, 2016),
2d Cir. Case Search, PACER (last visited Feb. 3, 2016),
Both complaints consist of a partial copy of the Northern District's form civil rights complaint,
followed by several typed pages that set forth plaintiff's claims and factual allegations he relies on in
support of those claims in twenty causes of actions. Compare Compl. ECF No. 1 with Flemming v.
Santamore, No. 9:15-CV-29 ECF No. 1. The same can be said with respect to other pleadings plaintiff
has filed in this district. See e.g., Flemming v. Rendle, No. 9:14-CV-384 (GLS/ATB), ECF No. 7;
Flemming v. Zerniak, No. 9:14-CV-1458 (MAD/DEP), ECF No. 1.
Flemming v. Santamore, 2015 U.S. Dist. LEXIS 143261, at *14-15 (N.D.N.Y. Oct. 21, 2015). 5
And upon review, it is fair to say that this complaint is a copy of the Flemming v. Santamore
complaint, except plaintiff has changed the dates of the incident complained of, and some –
but not all – of the names of the defendants against whom his claims in this action are
asserted.6 See ECF No. 3, at 4, n. 5.
In light of the foregoing, it is indisputable that plaintiff has ample experience litigating
and has particular experience in this district. And to permit an experienced pro se litigant to
retain his special status – despite his litigation experience – would "tilt the scales of justice
unfairly in favor of the pro se litigant. . . ." Standley v. Dennison, 2007 U.S. Dist. LEXIS
102265, at *27 (N.D.N.Y Mar. 30, 2007). Thus, plaintiff should not be afforded the special
solicitude that is generally afforded to pro se litigants.
Bearing in mind that plaintiff does not receive the benefit of having the complaint
liberally construed, he has failed to state a plausible claim against defendants Nason, Cook
and Russell. As Magistrate Judge Dancks noted in her Report and Recommendation,
plaintiff's complaint lacks "specificity" and is "largely conclusory." ECF No. 17, at 11. Plaintiff
has failed to allege "enough facts" to "nudge [his] claims across the line from conceivable to
plausible." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007); see also Ashcrof t v.
It should be noted that this Court adopted Magistrate Judge Hummel's Report and
Recommendation in its entirety.
Plaintiff has a history of substituting various defendants in otherwise nearly identical complaints.
Here, Numerous individuals are mentioned in the body of the complaint, but are not named defendants.
For example, Santamore and Rendle are mentioned throughout the complaint. Santamore is a defendant
in Flemming v. Santamore; Rendle and Santamore are defendants in Flemming v. Rendle, No. 9:14-CV384 (GLS/ATB). Plaintiff also alleges that "Lacy, Clancy, Wentzel, Gokey, and Ellsworth Deprive plaintiff
of Due process of liberty interest," Compl. at 9-10, and that "Merkel, Hyde and Preve . . . and Santamore
did cause plaintiff to loss [sic] his lawsuits," id. at 16. Lacy, Clancy, Wentzel, Gokey and Ellsworth are not
named in this action, but they are defendants in Flemming v. Zerniak; Santamore, Hyde and Preve are not
named in this action, but are defendants in Flemming v. Rendle.
Iqbal, 556 U.S. 662, 677 (2009) (The pleading must be "more than an unadorned,
the-defendant-unlawfully-harmed me accusation.") (internal citations omitted).
Accordingly, the Report-Recommendation and Order will be adopted in part and
rejected in part.
Therefore, it is
1. Defendants' motion for summary judgment is GRANTED; and
2. The complaint is DISMISSED.
The Clerk is directed to file a judgement accordingly and close the file.
IT IS SO ORDERED.
Dated: February 16, 2016
Utica, New York.
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