Ford v. Deacon et al

Filing 75

ORDER: ORDERS that Magistrate Judge Dancks' 73 Report-Recommendation is ADOPTED in its entirety for the reasons stated therein. ORDERS that Defendants' 64 motion for summary judgment is GRANTED in its entirety. ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 9/20/18. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
COREY FORD,
Plaintiff,
vs.

9:16-CV-01001
(MAD/TWD)

RICHARD DEACON, et al.,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

BERNARD IDLISAN
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541
Plaintiff pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorneys for Defendant

KYLE W. STURGESS, ESQ.
Assistant Attorney General

Mae A. D'Agostino, U.S. District Judge:
ORDER
On August 12, 2016, Plaintiff commenced this pro se civil rights action claiming that
Defendant Richard Deacon along with other Correction Officers of the Department of Corrections
and Community Supervision ("DOCCS") violated Plaintiff's First, Eighth and Fourteenth
Amendment rights. See Dkt. No. 1. On October 7, 2016, the Court granted Plaintiff's motion to
proceed in forma pauperis and dismissed a number of claims in the Complaint. See Dkt. No. 9.
Plaintiff claims are (1) First Amendment retaliation against Defendants employed at Shawangunk
Correctional Facility, (2) First Amendment retaliation against Defendants employed at Great
Meadow Correctional Facility, (3) Eighth Amendment claims for conditions of confinement at

Great Meadow Correctional Facility, and (4) Fourteenth Amendment due process claims against
Defendants Miller and Eastman.
On January 19, 2018, Defendants filed a motion for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. See Dkt. No. 64. On February 12, 2018, Plaintiff
filed papers in opposition to Defendants' motion. See Dkt. No. 69. In an Order and ReportRecommendation, Magistrate Judge Dancks recommended that this Court grant the motion for
summary judgment in its entirety. Plaintiff has objected to the Order and ReportRecommendation.
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). 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 recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point" (citation omitted)). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to timely object will result in the waiver of
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further judicial review and cites pertinent statutory and civil rules authority. See Frank v.
Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d
15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
"[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, 92 S. Ct. 594, 30 L. Ed. 2d
652 (1972)) (other citations 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 v. Campbell, 289 F. Supp. 2d 289, 295
(N.D.N.Y. 2007) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Plaintiff objects to Magistrate Judge Dancks' finding that Plaintiff failed to comply with
Local Rule 7.1 in his response to Defendants' statement of material facts. However, since
Magistrate Judge Dancks ventured to conduct, and indeed conducted, an "assiduous review of the
entire summary judgment record despite Plaintiff's failure to comply with the local rule," the
Court finds this objection without merit.
The Court finds that Plaintiff offers no novel arguments regarding his claim for access to
the courts. Magistrate Judge Dancks correctly determined that Plaintiff's conjecture and
speculation regarding who was responsible for the loss of his legal papers is insufficient to avoid
summary judgment. Magistrate Judge Dancks was thoroughly apprised of Plaintiff's arguments
and considered them accordingly, concluding that "Plaintiff has failed to submit evidence
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sufficient to raise a question of fact on the issue of whether McClenning took any action
whatsoever with regard to Plaintiff's active legal papers, let alone that he did so deliberately and
maliciously." The Court therefore finds no clear error.
Plaintiff only reiterates the conclusory allegations set forth in his Complaint and the
arguments made to Magistrate Judge Dancks on the issue of First Amendment retaliation. The
Court finds that Magistrate Judge Dancks correctly determined that Plaintiff has not shown a
basis for a retaliation claim due to the absence of a protected activity, lack of personal
involvement, and lack of retaliatory behavior on the part of the various Defendants. See Jackson
v. Dzurenda, No. 3:11-CV-1668, 2012 WL 5448330, *2 (D. Conn. Nov. 7, 2012); Ortiz v Russo,
No 13 CIV. 5317, 2015 WL 1427247, *11 (S.D.N.Y. Mar. 27, 2015); Diaz v. Fischer, No. 08CV-1208, 2010 WL 1132772, *9 (N.D.N.Y. Feb. 23, 2010). The Court finds no clear error.
Plaintiff objects to Magistrate Judge Dancks' findings on his Eighth Amendment claims
using only the same arguments made to her on consideration of the motion regarding the
conditions of confinement. Magistrate Judge Dancks correctly concluded that Plaintiff did not
show any material issue of fact with respect to either the objective or subjective prong of the
claim. See Jabbar v. Fischer, 683 F.3d 54, 57 (2d Cir. 2012). Plaintiff also relies only on the
same arguments made to Magistrate Judge Dancks with respect to his Fourteenth Amendment due
process claim. Magistrate Judge Dancks considered Plaintiff's allegations regarding notice and
discovery, and correctly concluded that he was afforded his due process right to the opportunity
to be heard in a meaningful manner. See Taylor v. Rodriguez, 238 F.3d 188, 192-93 (2d Cir.
2001). Reviewing this finding for clear error, the Court agrees with the findings contained in the
Order and Report-Recommendation and finds no clear error.

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Having reviewed Magistrate Judge Dancks' Order and Report-Recommendation and the
applicable law, the Court finds that Magistrate Judge Dancks correctly recommended that the
Court should dismiss this action pursuant to Rule 56 of the Federal Rules of Civil Procedure.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' Report-Recommendation is ADOPTED in its
entirety for the reasons stated therein; and the Court further
ORDERS that Defendants' motion for summary judgment is GRANTED in its entirety;
and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve the parties with a copy of this Order in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 20, 2018
Albany, New York

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