Martin v. Oey et al

Filing 31

DECISION AND ORDER: The Court accepts and adopts Magistrate Judge Dancks' Order and Report-Recommendation (Dkt. No. 28 ) in its entirety. Accordingly, Defendants' motion to dismiss (Dkt. No. 17 ) is GRANTED, and Plaintiff's amended complaint is DISMISSED with leave to file a second amended complaint within thirty (30) days from the date of this Decision and Order. Plaintiff is advised that an amended complaint supersedes in all respects the prior pleading. Therefore, if Pl aintiff files a second amended complaint, he must properly allege in the second amended complaint all factual bases for all claims asserted therein. The failure to file a second amended complaint within this time frame will be deemed as an abandonmen t of all claims in the amended complaint, and a "with prejudice" dismissal will be entered on the Court's docket on the amended complaint without further order by the Court. Plaintiff's motion for an extension of time to file ob jections to Magistrate Judge Dancks' July 19, 2017 Order and Report-Recommendation (Dkt. No. 29 ) is DENIED as moot. Signed by Senior Judge Thomas J. McAvoy on 9/20/17. (Notice of Compliance Deadline 10/20/2017, Case Review Deadline 11/20/2017) (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

NICHOLAS MARTIN,
Plaintiff,
v.

9:16-cv-00717
(TJM/TWD)

R. OEY, et al.,
Defendants.

THOMAS J. MCAVOY,
Senior United States District Judge

DECISION & ORDER
I.

INTRODUCTION
This pro se action brought pursuant to 42 U.S.C. § 1983 was referred by this Court

to the Hon. Thérèse Wiley Dancks, United States Magistrate Judge, for a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c) .
In her Order and Report-Recommendation (Dkt. No. 28), Magistrate Judge Dancks
recommends that Defendants’ motion to dismiss the amended complaint (Dkt. No.17) be
granted, and that Plaintiff’s amended complaint be dismissed with leave to amend. See
Order & Rep.-Rec. Dkt. No. 28. Plaintiff filed objections to Magistrate Judge Dancks’
recommendations. See Dkt. No. 30.
II.

STANDARD OF REVIEW
When objections to a magistrate judge’s report and recommendation are lodged,

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.” See 28

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U.S.C. § 636(b)(1); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997) (The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate’s findings.).
III.

DISCUSSION
Having considered Plaintiff’s objections and having completed a de novo review of

the issues raised by the objections, the objections are overruled for the reasons discussed
below.
a. Objection # 1
As Magistrate Judge Dancks pointed out, “courts have specifically held that the
procedures set forth in 7 N.Y.C.R.R. § 254.6 regarding assessment of an inmate’s mental
state is not part of the fundamental due process guarantees outlined in [Wolff v.
McDonnell, 418 U.S. 539 (1974)].” Ord. & Rep.-Rec., p. 15. (citing Davis v. Fischer, No.
09-CV-6084 CJS, 2012 WL 177400, at *7 (W.D.N.Y. Jan. 20, 2012) (finding that hearing
officer’s failure to conduct a mental health evaluation as required by 7 N.Y.C.R.R. § 254.6
“does not establish a federal due process violation”); Gibson v. Travis, No. 14 CV 8764
(VB), 2016 WL 796865, at *5 (S.D.N.Y. Feb. 25, 2016) (same)). Because Plaintiff
presented no evidence that he requested a mental health clinician as a witness at his
hearing, see id. p. 15, and because the failure of the hearing officer to independently
conduct a mental health review “does not establish a federal due process violation,”
Davis, 2012 WL 177400, at *7, Magistrate Judge Dancks correctly concluded that Plaintiff
failed to present a plausible basis for a due process claim. Ord. & Rep.-Rec., p. 16.
Plaintiff’s current argument that the calling of a mental health witness by the hearing

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officer should have been “automatic” in his case does not change the conclusion that the
failure of the hearing officer to conduct a mental health evaluation does not establish a
due process violation. Thus, Plaintiff’s first objection is overruled.
b. Objection # 2
Because Plaintiff presented no plausible claims, Magistrate Judge Dancks correctly
concluded that “Plaintiff cannot maintain an action for supervisory liability against
Venettozzi and Annucci.” Ord. & Rep.-Rec., p. 16. Plaintiff’s objection on this ground is
overruled.
c. Objection # 3
Plaintiff’s third objection is also without merit. This asserts that Magistrate Judge
Dancks erred because she did not address Plaintif f’s argument, made in his sur-reply, that
the “defendants are collaterally estopped from challenging plaintiff’s wrong confinement
and deprivation of due process claims.” Obj., p. 5. Magistrate Judge Dancks did address
Defendants’ collateral estoppel argument, concluding that “because Plaintiff’s Fourteenth
Amendment due process claims ‘were not actually litigated and actually decided’ in
Plaintiff’s Article 78 proceeding,” this ground for dismissal should be rejected. Ord. &
Rep.-Rec., p. 19. In making this recommendation, Magistrate Judge Dancks noted that
“Plaintiff argues that he should not be barred from litigating his Fourteenth Amendment
due process claim because he ‘did not actually litigate the constitutional issues now before
this Court’ in the Article 78 proceeding.” Id. p. 18 (quoting from Dkt. No. 19 at 17).
Because Plaintiff concedes that he did not did not actually litigate the constitutional issues
now before the Court in his Article 78 proceeding, collateral estoppel does not bar

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Defendants from challenging his constitutional claims in this court. See Ord. & Rep.-Rec.,
p. 19 (“Under New York law, collateral estoppel or issue preclusion bars relitigation of an
issue when (1) the issues in both proceedings are identical, (2) the issue in the prior
proceeding was ‘actually litigated and actually decided,’ (3) the party against whom
preclusion is sought had a full and fair opportunity for litigation in the prior proceeding; and
(4) the previously litigated issues were necessary to support a valid and final judgment on
the merits.”)(quoting from and citing Ali v. Mukasey, 529 F.3d 478, 489
(2d Cir. 2008)). Thus, Plaintiff’s third objection raises no meritorious reason to reject
Magistrate Judge Dancks’ recommendation. Consequently, this third objection is
overruled.
IV.

CONCLUSION
For the reasons discussed above, the Court accepts and adopts Magistrate Judge

Dancks’ Order and Report-Recommendation (Dkt. No. 28) in its entirety. Accordingly,
Defendants’ motion to dismiss (Dkt. No.17) is GRANTED, and Plaintiff’s amended
complaint is DISMISSED with leave to file a second amended complaint within thirty (30)
days from the date of this Decision and Order.
Plaintiff is advised that an amended complaint supersedes in all respects the
prior pleading. Therefore, if Plaintiff files a second amended complaint, he must properly
allege in the second amended complaint all factual bases for all claims asserted
therein. The failure to file a second amended complaint within this time frame will be
deemed as an abandonment of all claims in the amended complaint, and a “with
prejudice” dismissal will be entered on the Court’s docket on the am ended complaint

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without further order by the Court.
Plaintiff’s motion for an extension of time to file objections to Magistrate Judge
Dancks’ July 19, 2017 Order and Report-Recommendation (Dkt. No. 29) is DENIED as
moot.
IT IS SO ORDERED.
Dated: September 20, 2017

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