Brisman v. Graham et al

Filing 63

DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 61 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Plaintiff's excessive force claim against defendants Quinn, Yung, Osborne, Johnston, and Lepinskie is DISMISSED. Signed by Senior Judge Lawrence E. Kahn on 5/10/18. {order served via regular mail on plaintiff}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JASON BRISMAN,
Plaintiff,
-against-

9:15-CV-0712 (LEK/DEP)

QUINN, Lieutenant, Auburn
Correctional Facility, et al.,
Defendants.

DECISION AND ORDER
I.

INTRODUCTION
This matter comes before the Court following a Report-Recommendation filed on

April 25, 2018, by the Honorable David E. Peebles, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3. Dkt. No. 61 (“Report-Recommendation”). Plaintiff Jason Brisman
timely filed objections. Dkt. No. 62 (“Objections”).
II.

LEGAL STANDARD
Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the
proposed findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). 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-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857,
2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301,
306–07, 306 n.2 (N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of

N.Y. at Orange, 748 F.3d 471 (2d Cir. 2014); see also Machicote v. Ercole, No. 06-CV-13320,
2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a
Report and Recommendation must be specific and clearly aimed at particular findings in the
magistrate’s proposal, such that no party be allowed a second bite at the apple by simply
relitigating a prior argument.”). “A [district] judge . . . may accept, reject, or modify, in whole or
in part, the findings or recommendations made by the magistrate judge.” § 636(b). Otherwise, a
court “shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Id.
III.

DISCUSSION
Plaintiff first objects to Judge Peebles’s factual finding that Plaintiff did not file an

administrative appeal regarding his grievance. Objs. at 1 (citing Rep.-Rec. at 11–12). Plaintiff
does not explain how Judge Peebles erred in analyzing the facts presented to him at the hearing,
though he specifically objects to Judge Peebles’s finding that Plaintiff’s testimony was less
credible than the testimony given by employees of the New York State Department of
Corrections and Community Supervision. Id. The Court “may not reject the magistrate judge’s
credibility findings” unless it “has the opportunity to observe and evaluate witness credibility in
the first instance,” United States v. Preston, 635 F. Supp. 2d 267, 269 (W.D.N.Y. 2009) (citing
Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999)), and Plaintiff provides no reason to
justify the Court conducting an independent credibility assessment. Morever, in reviewing the
record, the Court found no reason to question Judge Peebles’s credibility determinations.
Plaintiff also objects to Judge Peebles’s legal analysis. Objs. at 1–2. First, he argues that
Judge Peebles improperly ignored the prison mailbox rule, which affects the timeliness of any
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mailings sent by a prisoner. Id. at 1. Because Judge Peebles found that Plaintiff did not even file
an appeal, Rep.-Rec. at 12, the prison mailbox rule is irrelevant. Second, Plaintiff argues that
Judge Peebles misapplied the standard, articulated by the Supreme Court in Ross v. Blake,
136 S. Ct. 1850, 1856 (2016), for determining whether administrative remedies were “available”
to the prisoner. Objs. at 1–2. But Plaintiff admits that he filed a grievance while confined in the
Special Housing Unit at Southport Correctional Facility. Dkt. No. 60 (“Plaintiff’s Proposed
Findings”) at 2. He does not explain why he could file a grievance related to mail interference but
he could not file an appeal of his grievance regarding the incident on May 4, 2015. Accordingly,
Judge Peebles correctly determined that administrative remedies were available to Plaintiff.
The Court has reviewed the rest of the Report-Recommendation for clear error and has
found none.
IV.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 61) is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s excessive force claim against defendants Quinn, Yung,
Osborne, Johnston, and Lepinskie is DISMISSED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.

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IT IS SO ORDERED.

DATED:

May 10, 2018
Albany, New York

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