Thousand v. Corrigan et al

Filing 42

MEMORANDUM-DECISION AND ORDER: ORDERS that Magistrate Judge Baxter's December 5, 2016 Report-Recommendation (Dkt. No. 40 ) is ADOPTED in its entirety for reasons set forth therein. ORDERS that Defendants' Motion for Partial Summary Ju dgment (Dkt. No. 30 ) is GRANTED. ORDERS that Defendants Carpenter, O'Brien, Scarlotta, Liberty, and Prack are DISMISSED from this action. Signed by U.S. District Judge Mae A. D'Agostino on 3/23/17. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ROBERT THOUSAND,
Plaintiff,
vs.

9:15-CV-01025
(MAD/ATB)

S. CORRIGAN, et. al.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ROBERT THOUSAND
11-B-0026
Clinton Correctional Facility
P.O. Box 2001
Dannemora, New York 12929
Plaintiff, pro se
HON. ERIC T. SCHNEIDERMAN
New York Attorney General
The Capitol
Albany, New York 12224
Attorney for Defendants

MARIA E. LISI-MURRAY, AAG

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On August 24, 2015, Robert Thousand ("Plaintiff") commenced the present civil rights
action pursuant to 42 U.S.C. § 1983 ("Section 1983") arising out of his confinement in the
custody of the New York State Department of Corrections and Community Supervision
("DOCCS"). See Dkt. No. 1.
In his complaint, Plaintiff alleged that Defendants Corrigan, Jones, and Segovis assaulted
him on January 27, 2014 while he was confined by DOCCS at Great Meadow Correctional

Facility ("Great Meadow"). See id. at ¶¶ 43-48. Plaintiff alleged that Defendants Carpenter,
O'Brien, and Scarlotta knew or should have known about the assault and failed to intervene. See
id. at ¶¶ 31-39. Plaintiff also alleged that Defendants Liberty and Prack violated Plaintiff's due
process rights during the administrative process that arose out of the incident. See id. at ¶¶ 62-85.
As a result, Plaintiff seeks substantial monetary relief. See id. at 22-23.
On August 15, 2016, Defendants filed a motion for partial summary judgment seeking
dismissal of Plaintiff's failure to intervene and due process claims. See Dkt. No. 30. On
December 5, 2016, Magistrate Judge Baxter issued a Report-Recommendation recommending
that the Court grant Defendants' motion. See Dkt. No. 40. On December 16, 2016, Plaintiff filed
his objections to Magistrate Judge Baxter's Report-Recommendation. See Dkt. No. 41.
Currently before the Court is Magistrate Judge Baxter's Report-Recommendation and
Plaintiff's objections thereto.
II. BACKGROUND
The relevant facts in this case were outlined in this Court's October 5, 2015 Decision and
Order. See Dkt. No. 5 at 4-8. Additionally, Magistrate Judge Baxter outlined the facts in his
Report-Recommendation on December 5, 2016. See Dkt. No. 40 at 2-8. Since neither party
objects to Magistrate Judge Baxter's factual recitation, and because it is consistent with the record
before the Court, it is adopted for purposes of this Memorandum-Decision and Order.
III. DISCUSSION
A.

Standard
"[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 (1972)) (other citations
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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, 289 F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)).
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)(C). 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 recommendation made by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C).
"'[S]ummary judgment is appropriate where there exists no genuine issue of material fact
and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law.'"
Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (quoting D'Amico v. City of New York,
132 F.3d 145, 149 (2d Cir. 1998)) (other 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.'" Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36-37 (2d Cir. 1994)
(quotation and other citations omitted). Moreover, it is well-settled that a party opposing a
motion for summary judgment may not simply rely on the assertions in its pleading. 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
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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
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").
B.

Exhaustion of Administrative Remedies
The Prison Litigation Reform Act ("PLRA") states that "[n]o action shall be brought with

respect to prison conditions under section 1979 of the Revised Statutes of the United States (42
U.S.C. § 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C.
§ 1997e(a). This exhaustion requirement applies to all suits brought by inmates regarding aspects
of prison life. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust all available
administrative remedies even if they are seeking only money damages that are not available in
prison administrative proceedings. Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004), abrogated
on other grounds by Ross v. Blake, 136 S. Ct. 1850 (2016). The failure to exhaust is an
affirmative defense that must be raised by the defendants and, as such, it is the defendants' burden
to establish that the plaintiff failed to meet the exhaustion requirements. See Jones v. Bock, 549
U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004); Key v. Toussaint,
660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted).
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The Supreme Court has held that in order to properly exhaust an inmate's administrative
remedies, the inmate must complete the administrative review process in accordance with the
applicable state rules. See Jones, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81
(2006)). In Woodford, the Court held that "proper" exhaustion means that the inmate must
complete the administrative review process in accordance with the applicable procedural rules,
including deadlines, as a prerequisite to bringing suit in federal court. See Woodford, 548 U.S. at
90-103.
New York State has a three-step administrative review process. First, a grievance is
submitted to the Inmate Grievance Resolution Committee ("IGRC") which reviews and
investigates the formal complaint before issuing a written determination. See 7 N.Y.C.R.R. §
701.5(b). Second, an adverse decision by the IGRC may be appealed to the Superintendent of the
Facility. See id. at § 701.5(c). Third, an adverse decision by the Superintendent may be appealed
to Central Office Review Committee ("CORC"), which makes the final determination within the
administrative review process. See id. at § 701.5(d). If all three of these levels of review are
exhausted, then the prisoner may seek relief in federal court pursuant to section 1983. See
Bridgeforth v. DSP Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing Porter, 534 U.S.
at 524); Singh v. Goord, 520 F. Supp. 2d 487, 495-96 (S.D.N.Y. 2007) (quoting Hemphill v. New
York, 380 F.3d 680, 686 (2d Cir. 2004)). When a plaintiff presents a claim arising "directly out of
a disciplinary or administrative segregation hearing . . . (e.g., a claim of denial of procedural due
process), he exhausts his administrative remedies by presenting his objections in the
administrative appeals process, not by filing a separate grievance instead of or in addition to his
ordinary appeal." Sweet v. Wende Corr. Facility, 514 F. Supp. 2d 411, 413 (W.D.N.Y. 2007)
(internal quotation and citations omitted); see also Davis v. Barrett, 576 F.3d 129, 131-32 (2d Cir.
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2009).
To the extent a civil rights claim must be exhausted by the grievance process, completion
of the three-tiered process, through and including a final decision by CORC, must be completed
before an action asserting that claim may be initially filed. See, e.g., Casey v. Brockley, No. 9:13CV-1271, 2015 WL 8008728, *5 (N.D.N.Y. Nov. 9, 2015) ("Receiving a decision from CORC
after commencing litigation does not satisfy PLRA's requirement that administrative remedies be
exhausted before filing suit, and any claim not exhausted prior to commencement of the suit must
be dismissed without prejudice") (citing Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001),
overruled on other grounds, Porter v. Nussle, 534 U.S. 516 (2002)); Rodriguez v. Rosner, No. 12CV-958, 2012 WL 7160117, *8 (N.D.N.Y. Dec. 5, 2012). "[A] post-exhaustion amendment of
the complaint cannot cure an exhaustion defect existing at the time the action was commenced."
Guillory v. Haywood, No. 9:13-CV-1564, 2015 WL 268933, *11 (N.D.N.Y. Jan. 21, 2015) (citing
Neal, 267 F.3d at 122) (other citation omitted).
Although administrative remedies generally must be exhausted, a prisoner need not
exhaust remedies if they are not "available." Ross v. Blake, ___ U.S. ___ 136 S. Ct. 1850, 1855
(2016). "First, an administrative remedy may be unavailable when 'it operates as a simple dead
end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates.'"
Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016) (quoting Ross, 136 S. Ct. at 1859).
"Second, 'an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use.'" Id. (quoting Ross, 136 S. Ct. at 1859). "In other words, 'some mechanism
exists to provide relief, but no ordinary prisoner can discern or navigate it.'" Id. at 123-24
(quoting Ross, 136 S. Ct. at 1859). "Third, an administrative remedy may be unavailable 'when
prison administrators thwart inmates from taking advantage of a grievance process through
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machination, misrepresentation, or intimidation.'" Id. at 124 (quoting Ross, 136 S. Ct. at 1860).1
In his Report-Recommendation, Magistrate Judge Baxter noted that, on February 11,
2014, Plaintiff filed a grievance against Defendant Corrigan alleging that he assaulted Plaintiff on
January 21, 2014, and then falsified a misbehavior report to cover up his wrongdoing. See Dkt.
No. 40 at 12. Although Plaintiff exhausted this grievance, Plaintiff concedes that the grievance
"makes no mention of any other correction officer being present or taking part in the assault."
Dkt. No. 38 at ¶ 132. Plaintiff also conceded that his grievance made no mention of any
bystander who witnessed the assault, and did not mention any failure to protect or intervene by
any correction official. See id. at ¶¶ 133-34. In light of these and other admissions, Magistrate
Judge Baxter found that Plaintiff's grievance was insufficient to alert "'the prison officials that he
was alleging some wrongdoing beyond that alleged against the individual or individuals
specifically named in the grievance.'" Dkt. No. 40 at 13 (quoting Peele v. Donah, No. 9:15-cv317, 2016 WL 4400473, *5 (N.D.N.Y. June 14, 2016)). Magistrate Judge Baxter rejected
Plaintiff's argument that a "reasonable investigation" of the matter would have led "any competent
investigator" to recognize that Plaintiff was also alleging that Defendants Carpenter, O'Brien, and
Scarlotta failed to intervene and prevent the assault on Plaintiff. See Dkt. No. 40 at 13-14.

In Ross, the Court rejected the Second Circuit's "extra-textual" exception to the PLRA's
exhaustion requirement which allowed the taking into account of "special circumstances" to
justify a prisoner's failure to comply with administrative procedural requirements. See Ross, 136
S. Ct. at 1856-57. Rather, it held that the only limit to the PLRA's exhaustion requirement "is the
one baked into its text: An inmate need exhaust only such administrative remedies as are
'available.'" Id. at 1862; see also Williams, 829 F.3d at 123 (recognizing that the framework set
forth in Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004) and Hemphill v. New York, 380
F.3d 680 (2d Cir. 2004), setting forth a "special circumstances" exception to the PLRA's
exhaustion requirement has been abrogated in part by Ross). As such, the Supreme Court
specifically found that an inmate's mistaken belief that he has exhausted his administrative
remedies, even where that belief seems reasonable, does not make the administrative remedy
unavailable. See id. at 1858.
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Having reviewed the Report-Recommendation and the parties' submissions, the Court
finds that Magistrate Judge Baxter correctly determined that Plaintiff failed to exhaust his
administrative remedies as to his failure to intervene claim against Defendants Carpenter,
O'Brien, and Scarlotta. In his objection, Plaintiff first claims that, although he only named
Defendant Corrigan in his grievance, he "made a statement that made it quite clear that [he], at
least on one prior occasion, attempted to submit another grievance regarding the same incident."
Dkt. No. 41 at 1. Even assuming that Plaintiff did attempt to file an earlier grievance which was
not received by the facility, he still timely filed a grievance regarding the alleged January 27,
2014 assault by Defendant Corrigan, which was exhausted. At no point during the exhaustion
process did Plaintiff provide any reason for prison officials to believe that he was attempting to
assert a claim against Defendants Carpenter, O'Brien, and Scarlotta for failure to intervene. In
fact, his grievance specifically indicates that he was assaulted by Defendant Corrigan on C-5
company, where his cell was located. See Dkt. No. 30-23 at 9. All evidence in the record,
however, indicates that Defendants Carpenter and Scarlotta were in an entirely different section
of the facility at the time of the alleged assault. E.g., Dkt. No. 30-23 at 30-23 at 26-27. In fact,
during his deposition, Plaintiff admitted that Defendant Scarlotta was "downstairs" when he was
being assaulted by Defendants Corrigan and Jones. See Dkt. No. 30-13 at 41. Although
Defendant O'Brien was in a position where he could potentially observe the use of force from the
console area, Plaintiff admitted that he was not in a position to get to and stop the alleged assault
from occurring. See id. at 43.
Moreover, in his grievance, Plaintiff does indicate that this grievance "won't be as detailed
as the last one, so if more details are needed, someone needs to come see me." Dkt. No. 30-23 at
9. Although an official did "come see" Plaintiff to interview him about the grievance, Plaintiff
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failed to provide any details that would alert Great Meadow officials of the failure to intervene.
See Dkt. No. 30-23 at 15.
Throughout his objections, Plaintiff repeats the arguments raised in opposition to the
motion for summary judgment, primarily that any reasonable investigation would have revealed
these Defendants failed to intervene to protect Plaintiff. These conclusory allegations are entirely
belied by the record before the Court. Nothing in Plaintiff's grievance would have placed prison
officials on notice that he was alleging some wrongdoing by Defendants Carpenter, O'Brien, and
Scarlotta. See Peele v. Donah, No. 9:15-cv-317, 2016 WL 4400473, *5 (N.D.N.Y. June 14,
2016) (citation omitted). Plaintiff also argues that he sufficiently alerted prison officials of his
failure to intervene claim through alternative means, such as through the disciplinary hearing and
Inspector General's investigation. The Court, however, agrees with Magistrate Judge Baxter that
his position is without merit. Nothing in the record indicates that Plaintiff ever alleged any
wrongdoing by Defendants Carpenter, O'Brien, or Scarlotta in these other forums. See Collins v.
Caron, No. 9:10-cv-1527, 2014 WL 296859, *4 (N.D.N.Y. Jan. 27, 2014). Rather, Plaintiff
consistently focused his complaints and allegations on the alleged assault by Defendants
Corrigan, Jones, and Segovis. See Dkt. No. 39-10 at 25-26; Dkt. No. 39-12 at 5-6, 12, 16.
Based on the foregoing, the Court finds that Magistrate Judge Baxter correctly determined
that Plaintiff failed to exhaust his failure to intervene claim as to Defendants Carpenter, O'Brien,
or Scarlotta. As such, Defendants' motion for summary judgment as to this claim is granted.2

In the alternative, the Court finds that these Defendants are entitled to summary
judgment because they were not personally involved. As discussed above, the record makes clear
that Defendants Carpenter and Scarlotta were in an entirely different section of the facility at the
time of the alleged assault. E.g., Dkt. No. 30-23 at 26-27; Dkt. No. 30-13 at 41. Further, Plaintiff
admitted that Defendant O'Brien was behind a console and would not have been able to intervene
to prevent or stop the alleged assault. See Dkt. No. 30-13 at 43. As such, the undisputed facts
2

(continued...)
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C.

Collateral estoppel
Defendants Liberty and Prack contend that Plaintiff's due process and supervisory claims

against them are precluded by collateral estoppel. Plaintiff concedes that he litigated due process
claims related to his grievance rehearing in an Article 78 petition before the New York State
Appellate Division, Third Department, which was denied on May 12, 2016. See Thousand v.
Prack, 139 A.D.3d 1212 (3d Dep't 2016). In that proceeding, Plaintiff challenged the validity of
the Tier III rehearing conducted by Defendant Liberty between April 23, 2014 and May 1, 2014,
which was upheld on appeal by Defendant Prack. See Dkt. No. 30-15. Magistrate Judge Baxter
agreed and recommended granting Defendants' motion for summary judgment as to these claims.
See Dkt. No. 40 at 19-24.
"The doctrine of collateral estoppel prevents a plaintiff from relitigating in a subsequent
proceeding an issue of fact or law that was fully and fairly litigated in a prior proceeding." Purdy
v. Zeldes, 337 F.3d 253, 258 (2d Cir. 2003) (citing Marvel Characters, Inc. v. Simon, 310 F.3d
280, 288 (2d Cir. 2002)). Collateral estoppel applies when "(1) the issues in both proceedings are
identical, (2) the issue in the prior proceeding was 'actually litigated and actually decided,' (3)
there was 'a full and fair opportunity for litigation in the prior proceeding,' and (4) the issues
previously litigated were 'necessary to support a valid and final judgment on the merits.'" Ali v.
Mukasey, 529 F.3d 478, 489 (2d Cir. 2008) (quoting Gelb v. Royal Globe Ins. Co., 798 F.2d 38,
44 (2d Cir. 1986)). Importantly, "[t]hese four factors are required but not sufficient." Bear,
Stearns & Co., Inc. v. 1109580 Ontario, Inc., 409 F.3d 87, 91 (2d Cir. 2005). "In addition, a
court must satisfy itself that application of the doctrine is fair." Id. (citations omitted).

2

(...continued)

clearly demonstrate that the moving Defendants are entitled to summary judgment on these
alternative grounds.
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"Parties to a previous Article 78 proceeding generally have had a full and fair opportunity
to litigate the issues raised in that proceeding." Rahman v. Acevedo, No. 08-civ-4368 (DLC),
2011 WL 6028212, *5 (S.D.N.Y. Dec. 5, 2011) (citing DiSorbo v. Hoy, 343 F.3d 172, 183 (2d
Cir. 2003)). Collateral estoppel is intended to prevent "the relitigation of claims already decided
under constitutionally adequate circumstances." Giakoumelos v. Coughlin, 88 F.3d 56, 61 (2d
Cir. 1996) (other citation omitted).
In the present matter, Magistrate Judge Baxter found that, "for purposes of the collateral
estoppel analysis . . . [P]laintiff's due process claims in this action are identical to those he raised
in the Appellate Division; the issues were 'actually decided' in the Appellate Division; [P]laintiff
had a full and fair opportunity for litigation in the Appellate Division proceeding; and the issues
litigated in the Appellate Division were necessary to support a valid and final judgment on the
merits." Dkt. No. 40 at 24.
Plaintiff objects to this finding and directs the Court to his response in opposition to
Defendants' motion for summary judgment and indicates that he "has nothing more to add to the
argument." Dkt. No. 41 at 6.
As Magistrate Judge Baxter correctly identified, the following claims survived sua sponte
review after this Court's October 5, 2015 Decision and Order.
(1)

Defendant Liberty refused to allow [P]laintiff to present
witness testimony and refused to inquire why certain
witnesses, including inmate Thomas, refused to testify on
behalf of [P]laintiff;

(2)

Defendant Liberty refused to allow [P]laintiff to present
documentary evidence, specifically a transcript of his first
grievance hearing;

(3)

Defendant Liberty disregarded conflicting testimony from
correctional officer witnesses and her final determination
was influenced by bias against [P]laintiff;
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(4)

His re-hearing was untimely because it did not take place
within the seven day window proscribed by DOCCS
regulations;

(5)

Defendant Prack was aware of the constitutional defects in
the rehearing and failed to remedy them on administrative
appeal.

See Dkt. No. 5 at 16-17; see also Dkt. No. 40 at 20-21.
Plaintiff asserted the following causes of action in the Article 78 proceeding:
(1)

He was denied the opportunity to present witnesses,
including inmate James Thomas, due to intimidation by
correctional officers and defendant Liberty's failure to
inquire into the reasons for their refusal to testify.

(2)

Defendant Liberty improperly denied Plaintiff's request to
submit a transcript of his prior proceeding that had been
prepared by petitioner's attorney;

(3)

Defendant Liberty did not have substantial evidence to
support her determinations;

(4)

The re-hearing was untimely and in violation of DOCCS
regulations;

(5)

Defendant Liberty was biased and permitted correctional
officer witnesses an opportunity to coordinate their
testimony in order to correct inconsistencies.

See Dkt. No. 30-15 at 6-15; see also Dkt. No. 40 at 21.
Magistrate Judge Baxter correctly concluded that the Appellate Division affirmed the
disciplinary hearing, and in doing so, decided each of the due process claims that Plaintiff now
raises in federal court. See Thousand, 139 A.D.3d at 1212-13. The Appellate Division
specifically addressed and rejected each of the claims that Plaintiff has put forth in the present
matter. See id. Defendants have fully satisfied their burden and nothing in the record supports a
finding that Plaintiff was not afforded a full and fair opportunity to litigate these issues before the
Appellate Division. See Kulak v. City of New York, 88 F.3d 63, 72 (2d Cir. 1996).
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As Magistrate Judge Baxter correctly determined, Plaintiff's due process claims in this
action are identical to those he raised in the Appellate Division, the issues were actually decided,
Plaintiff had a full and fair opportunity for litigation in the Appellate Division, and the issues
litigated in the Appellate Division were necessary to support a valid and final judgment on the
merits. Accordingly, the Court finds that Defendants Prack and Liberty are entitled to summary
judgment as to Plaintiff's due process and supervisory claims.
IV. CONCLUSION
After carefully considering the entire record in this matter, the parties' submissions and the
applicable law, and for the reasons stated herein, the Court hereby
ORDERS that Magistrate Judge Baxter's December 5, 2016 Report-Recommendation
(Dkt. No. 40) is ADOPTED in its entirety for reasons set forth therein; and the Court further
ORDERS that Defendants' Motion for Partial Summary Judgment (Dkt. No. 30) is
GRANTED; and the Court further
ORDERS that Defendants Carpenter, O'Brien, Scarlotta, Liberty, and Prack are
DISMISSED from this action; 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 23, 2017
Albany, New York

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