Rodriguez v. Heit et al
Filing
94
DECISION AND ORDER accepting and adopting # 90 Magistrate Judge Baxter's Report and Recommendation in its entirety. Defendant's # 74 Motion for Summary Judgment is granted, and Plaintiff's # 83 Cross-Motion for Summary Judgment is denied. Plaintiff's complaint is dismissed in its entirety. The Court certifies that an appeal from this Decision and Order would not be taken in good faith. Signed by Chief Judge Glenn T. Suddaby on 5/22/18. (lmw) (Copy served upon pro se plaintiff via regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
ANGEL RODRIGUEZ,
Plaintiff,
9:16-CV-0706
(GTS/ATB)
v.
LAURA HEIT, Registered Nurse; and
CLINTON COUNTY JAIL,
Defendants.
__________________________________________
APPEARANCES:
OF COUNSEL:
ANGEL RODRIGUEZ, 24314052
Plaintiff, Pro Se
Metropolitan Detention Center – Brooklyn
Inmate Mail/Parcels
P.O. Box 329002
Brooklyn, New York 11232
LEMIRE, JOHNSON & HIGGINS, LLC
Counsel for Defendants
P.O. Box 2485
2534 Route 9
Malta, New York 12020
GREGG T. JOHNSON, ESQ.
APRIL J. LAWS, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se prisoner civil rights action filed by Angel
Rodriguez (“Plaintiff”) against Clinton County Jail and one of its employees (“Defendants”), are
(1) Defendants’ motion for summary judgment seeking dismissal of the Complaint due to
Plaintiff’s failure to exhaust his available administrative remedies before filing suit pursuant to
the Prison Litigation Reform Act (“PLRA”), and (2) United States Magistrate Judge Andrew T.
Baxter’s Report-Recommendation recommending that Defendants’ motion for summary
judgment be granted, that Plaintiff’s Complaint be dismissed, and that (to the extent that
Plaintiff’s response to Defendants’ motion for summary judgment can be construed a crossmotion for summary judgment) Plaintiff’s cross-motion for summary judgment be denied. (Dkt.
Nos. 74, 83, 90.) None of the parties have filed Objections to the Report-Recommendation and
the deadline in which to do so has expired. (See generally Docket Sheet.)
After carefully reviewing the relevant papers herein, including Magistrate Judge Baxter’s
thorough Report-Recommendation, the Court can find no clear error1 in the ReportRecommendation: Magistrate Judge Baxter employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts. (Dkt. No. 90.) As a result, the ReportRecommendation is accepted and adopted in its entirety for the reasons set forth therein. (Id.)
To those reasons, the Court adds only four points.
First, while a cursory review of the docket sheet suggests that Plaintiff’s notice of change
of address (from Rensselaer County Jail to Metropolitan Detention Center) was not received and
processed until April 5, 2018 (six days after the issuance of Magistrate Judge Baxter’s ReportRecommendation on March 30, 2018), a closer examination of the electronic service receipt for
the Report-Recommendation reveals that the Report-Recommendation was indeed mailed to
Plaintiff at his new address (at Metropolitan Detention Center on March 30, 2018), because his
change of address had been noted March 29, 2018. (Dkt. Nos. 85, 86, 90, 91.)
1
When no objection is made to a report-recommendation, the Court subjects that
report-recommendation to only a clear-error review. Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition. When performing such a clear-error review, “the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the recommendation.”
Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)
(Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which
no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
2
Second, while Plaintiff submitted a document bearing a postage date stamp of April 2,
2018 (and thus deemed “filed” on that date pursuant to the Prison Mailbox Rule), the document
was not an Objection to the Report-Recommendation but an attempt to supplement his
opposition to Defendants’ motion for summary judgment with “Exhibit D.” (Dkt. No. 83.) The
Court rejects that attempt. The deadline for Plaintiff’s opposition to Defendants’ motion expired
on March 28, 2018, and Plaintiff has not provided good cause for an extension of that deadline
(especially a retroactive one). (Compare Dkt. No. 77 [extending deadline for opposition by
more than six weeks] with Dkt. No. 93 [attempting to supplement opposition].) Nor will the
Court consider the exhibit in reviewing the Report-Recommendation: a district court will
ordinarily refuse to consider evidentiary material that could have been, but was not, presented to
the magistrate judge in the first instance.2 Finally, the exhibit (which contains World Health
Organization guidelines on HIV infection and AIDS in prisons) would not alter the Court’s
Decision and Order, even if the Court were to consider it. Setting aside the fact that Plaintiff’s
claim arises under the Eighth Amendment (not international guidelines), Defendants’ motion
was based on a failure to exhaust administrative remedies, which has nothing to do with World
Health Organization guidelines.
2
See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not
abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff
“offered no justification for not offering the testimony at the hearing before the magistrate”); cf.
U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to
require the district court to conduct a second hearing whenever either party objected to the
magistrate's credibility findings would largely frustrate the plain objective of Congress to
alleviate the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b),
Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a
secondary evidentiary hearing is required.”).
3
Third, in his opposition, Plaintiff fails to submit a Rule 7.1 Response to Defendants’
properly supported Rule 7.1 Statement. (Compare Dkt. No. 74, Attach. 10 [Defs.’ Rule 7.1
Statement] with Dkt. No. 83 [Plf.’s Response].) Before submitting his opposition, Plaintiff had
repeatedly been specifically advised of the requirement that he file a Rule 7.1 Response, and the
consequences of not doing so. (See, e.g., Dkt. No. 74, at 4; Dkt. No. 75, at 2.) As a result, the
facts asserted in Defendants’ Rule 7.1 Statement may be, and are, deemed admitted by Plaintiff.
N.D.N.Y. L.R. 7.1(a)(3).
Fourth, in the Report-Recommendation, Magistrate Judge Baxter notes a contradiction
between Plaintiff’s deposition testimony of May 24, 2017, and Plaintiff’s affidavit testimony of
March 6, 2018. (Dkt. No. 90, at 17, n.11.) To the extent that Magistrate Judge Baxter rejected
that affidavit testimony, he was correct in doing so. Setting aside the fact that an errata sheet to a
deposition transcript (and not a subsequent affidavit) is generally the proper means by which to
correct deposition testimony,3 the point of law exists that a court may resolve an issue of
credibility on a motion for summary judgment in the narrow circumstances present here (i.e., a
piece of testimony is unsubstantiated by any other direct evidence and contradicts the witness’s
other testimony).4
3
See, e.g., Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d
566, 572 (2d Cir. 1991) (“The rule is well-settled in this circuit that a party may not, in order to
defeat a summary judgment motion, create a material issue of fact by submitting an affidavit
disputing his own prior sworn testimony.”); Hayes v. New York City Dept. of Corr., 84 F.3d 614,
619 (2d Cir. 1996) (“[A]n affidavit . . . that, by omission or addition, contradicts the affiant's
previous deposition testimony' is insufficient to create a genuine issue of fact.”); Mack v. United
States, 814 F.2d 120, 124 (2d Cir. 1987) (“It is well settled in this circuit that a party's affidavit
which contradicts his own prior deposition testimony should be disregarded on a motion for
summary judgment.”) (collecting cases).
4
See Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir.2005) (“[I]n the
rare circumstances where the plaintiff relies almost exclusively on his own testimony, much of
4
For all of these reasons, Defendants’ motion for summary judgment is granted, Plaintiff’s
Complaint is dismissed in its entirety, and Plaintiff’s cross-motion for summary judgment is
denied.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 90) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s motion for summary judgment (Dkt. No. 74) is
GRANTED; and it is further
ORDERED that Plaintiff’s cross-motion for summary judgment (Dkt. No. 83) is
DENIED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety.
The Court certifies that an appeal from this Decision and Order would not be taken in
good faith.
Dated: May 22, 2018
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
which is contradictory and incomplete, it will be impossible for a district court to determine
whether . . . there are any ‘genuine’ issues of material fact, without making some assessment of
the plaintiff's account. . . . In the circumstances presented in the instant case-where (1) the
District Court found nothing in the record to support plaintiff's allegations other than plaintiff's
own contradictory and incomplete testimony, and (2) the District Court, even after drawing all
inferences in the light most favorable to the plaintiff, determined that no reasonable person could
believe Jeffreys' testimony, . . . we hold that the District Court did not err by awarding summary
judgment. Because no reasonable person would undertake the suspension of disbelief necessary
to give credit to the allegations made in the complaint, . . . conclude that summary judgment was
appropriate.”) [internal quotation marks and citations omitted].
5
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