Brown v. Dubois et al
Filing
82
DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 79 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED without prejudice. ORDERED, that the Clerk of the Court is directed to close this case. Signed by Senior Judge Lawrence E. Kahn on 5/2/18. {order served via regular mail on plaintiff}(nas, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MELVIN BROWN,
Plaintiff,
-against-
9:15-CV-1515 (LEK/CFH)
S. DUBOIS, et al.,
Defendants.
DECISION AND ORDER
I.
INTRODUCTION
This matter comes before the Court following a Report-Recommendation filed on
April 10, 2018, by the Honorable Christian F. Hummel, U.S. Magistrate Judge, pursuant to
28 U.S.C. § 636(b) and Local Rule 72.3. Dkt. No. 79 (“Report-Recommendation”).
Plaintiff Melvin Brown timely filed objections. Dkt. No. 80 (“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
The majority of Plaintiff’s objections restate his version of the events that were the
subject of the evidentiary hearing described in Judge Hummel’s Report-Recommendation. Objs.
at 1–8. However, one objection argues that Judge Hummel improperly ignored a contradiction in
the testimony of one of Defendants’ witnesses, Sherri Debyah. Id. at 3. Specifically, he argues
that Debyah, who is the Inmate Grievance Program (“IGP”) Supervisor at Upstate Correctional
Facility, provided inconsistent testimony in a declaration dated February 2, 2017, Dkt. No. 45–1
(“Debyah Declaration”) at 1–2, as compared to statements made during the evidentiary hearing
on October 30, 2017, Dkt. No. 73 (“Hearing Transcript”) at 36–38.
Upon review of her testimony, the Court finds no such contradiction. Debyah testified in
her Declaration that Upstate Correctional Facility did not maintain any grievance filed by
Plaintiff in 2014. Debyah Decl. at 1–2. At the hearing, Debyah again testified that Upstate did not
maintain any grievance filed by Plaintiff in 2014, but she also stated that she had found
correspondence between Plaintiff and Scott Woodward, the IGP Supervisor at Upstate at that
time. Hr’g Tr. at 36–37. In relevant part, Woodward’s letter stated that Plaintiff had attempted to
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file a grievance, but Woodward rejected the grievance because its subject matter—an assault
allegedly occurring on July 3, 2014—must be aggrieved within forty-five days of its occurrence,
and such deadline had passed. Id. at 37–38. Plaintiff presented no evidence at the hearing to
contradict the findings of this letter, nor did he file a grievance regarding Woodward’s decision
to reject his original grievance as untimely. Rep.-Rec. at 7–8. Accordingly, Judge Hummel did
not commit clear error in crediting Debyah’s testimony.
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. 79) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED without prejudice;
and it is further
ORDERED, that the Clerk of the Court is directed to close this case; 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.
IT IS SO ORDERED.
DATED:
May 02, 2018
Albany, New York
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