Atkinson v. Warren County Correctional Facility et al

Filing 55

ORDER: ORDERS that 53 Magistrate Judge Dancks' Order and Report-Recommendation is ADOPTED in its entirety. ORDERS that Defendants' motion for summary judgment (Dkt. No. 41 ) 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 9/19/16. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SHAHEAN ATKINSON,
Plaintiff,
vs.

9:15-CV-65
(MAD/TWD)

HUNTINGTON, Correction Officer, and
RAINVILLE, Sgt.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

SHAHEAN ATKINSON
13-A-3032
Wyoming Correctional Facility
P.O. Box 501
Attica, New York 14011
Plaintiff pro se
LEMIRE, JOHNSON & HIGGINS, LLC
P.O. Box 2485
2534 Route 9
Malta, New York 12020
Attorneys for Defendants

GREG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
BRADLEY J. STEVENS, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff commenced this action in January of 2015, asserting that his civil rights were
violated while he was confined at Warren County Correctional Facility ("Warren C.F."), during
the period from April 9, 2013 through June 26, 2013. See Dkt. No. 1. The complaint alleges
claims of excessive force, denial of proper and adequate medical care, and retaliation in violation
of his constitutional rights. See Dkt. No. 1. Upon initial review, the Court dismissed all of
Plaintiff's claims, except for his excessive force claims against Defendants Huntington and
Rainville. See Dkt. No. 8.

On December 14, 2015, Defendants moved for summary judgment on the remaining
claims. See Dkt. No. 41. In their motion, Defendants argue that Plaintiff's claims must be
dismissed on multiple grounds, including the following: (1) failure to exhaust his administrative
remedies; (2) the absence of any evidence from which a reasonable factfinder could conclude that
Plaintiff sustained anything other than de minimis injuries as a result of the alleged incidents in
May 2013 involving Defendant Huntington; (3) the record evidence fails to give rise to a genuine
dispute of material fact regarding whether Defendant Rainville violated Plaintiff's Fourteenth
Amendment rights; and (4) Defendants are entitled to qualified immunity. See Dkt. No. 41-19 at
12-25. Plaintiff opposed Defendants' motion and Defendants filed a reply in further support. See
Dkt. Nos. 50 & 51.
In a August 19, 2016 Order and Report-Recommendation, Magistrate Judge Dancks
recommended that the Court grant Defendants' motion in its entirety. See Dkt. No. 53. First,
Magistrate Judge Dancks found that Plaintiff failed to exhaust his administrative remedies and
that none of the exceptions to the exhaustion requirement apply to the present matter. See id. at
13-16. Second, Magistrate Judge Dancks recommended that the Court find that, even if Plaintiff
had exhausted his administrative remedies, Defendants are still entitled to summary judgment.
See id. at 16-22. Magistrate Judge Dancks noted that Plaintiff has provided contradictory and
inconsistent testimony, which is further contradicted by the record. See id. Moreover, Magistrate
Judge Dancks found that, even if summary judgment was not warranted under Jeffreys v. City of
New York, 426 F.3d 549, 554 (2d Cir. 2005), it is nevertheless appropriate because, by Plaintiff's
own account, he did not suffer any injuries as a result of the alleged incident. See Dkt. No. 53 at
21-22. Finally, Magistrate Judge Dancks noted that, in his opposition, Plaintiff asks the Court for
permission to amend the complaint to include claims against "Inspector Marlo Barbozza and
2

Glens Falls . . . Police Officer Gerald Willette, as well as the Warren County Correctional
Facility[.]" Id. at 22-23; see also Dkt. No. 50 at 8. In denying this request, Magistrate Judge
Dancks noted that "Plaintiff's original Complaint named Barboza and Willette as Defendants."
Dkt. No. 53 at 23. Further, the Order and Report-Recommendation noted that, in its initial
review, the Court dismissed these claims and advised Plaintiff that he could file an amended
complaint if he wished to pursue these claims. See id. (citing Dkt. No. 8 at 13, n.7). Despite
being provided this opportunity, Plaintiff did not move to amend his complaint and Magistrate
Judge Dancks found that permitting such an amendment at this late stage would be unduly
prejudicial to Defendants. See id. Neither party objected to Magistrate Judge Dancks' Order and
Report-Recommendation.
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
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. 2505, 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
3

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
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
4

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 Dancks' Order and Report-Recommendation,
the parties' submissions, and the applicable law, the Court finds that Magistrate Judge Dancks
correctly determined that the Court should grant Defendants' motion for summary judgment and
dismiss this action. First, Magistrate Judge Dancks correctly determined that the undisputed facts
establish that Plaintiff failed to exhaust his administrative remedies and no special circumstances
exist to excuse this failure. Plaintiff acknowledged that he received a copy of the Warren County
C.F. Inmate Rules and Regulations upon entering the facility and further testified that "an older
5

guy" explained the grievance procedure. See Dkt. No. 41-2; Dkt. No. 52 at 53. Further, Plaintiff
repeatedly filed grievances regarding other alleged incidents while at Warren County C.F. See,
e.g., Dkt. No. 41-6 at 12. Further, the record is devoid of any evidence suggesting that
Defendants "thwarted" Plaintiff "from taking advantage of a grievance process through
machination, misrepresentation, or intimidation." Ross v. Blake, 136 S. Ct. 1850, 1860 (2016).
Moreover, the Court finds that Magistrate Judge Dancks correctly determined that, even if
Plaintiff exhausted his administrative remedies, Defendants are still entitled to summary judgment
because Plaintiff's inconsistent and contradictory testimony is belied by the evidence in the record
and no reasonable jury could credit Plaintiff's testimony. See Jeffreys, 426 F.3d at 554. Plaintiff
relies exclusively on his own contradictory and conclusory testimony and it is overwhelmingly
contradicted by the evidence produced by Defendants. Plaintiff's version of events in his
testimony and complaint are contradicted by Defendants, declarations by non-party witnesses,
and, indeed, by his own grievances and opposition papers. See, e.g., Dkt. No. 41-16 at 2-3; Dkt.
No. 41-17 at 2; Dkt. No. 41-18 at 2-4; Dkt. No. 41-13 at 10-11; Dkt. No. 41-8; Dkt. No. 41-6 at 34, 12-13. Finally, the Court finds that, even if the Jeffreys exception did not apply, summary
judgment is still warranted because the undisputed facts establish that Plaintiff suffered only a de
minimis injury as a result of the alleged conduct. See Dkt. No. 52 at 75-77; Dkt. No. 50-1; Dkt.
No. 52 at 78, 122-123. These alleged injuries are insufficient to support Plaintiff's alleged
excessive force claim. See Brown v. City of New York, No. 14-cv-2700, 2015 WL 427942, *5
(E.D.N.Y. Feb. 2, 2015) (citation omitted).
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Order and Report-Recommendation is
ADOPTED in its entirety; and the Court further
6

ORDERS that Defendants' motion for summary judgment (Dkt. No. 41) 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 Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 19, 2016
Albany, New York

7