Taft v. Fricke, et al
Filing
82
DECISION AND ORDER that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 76 ) is ACCEPTED and ADOPTED in its entirety. Defendant Fricke's motion for summary judgment (Dkt. No. 47 ) is GRANTED. Plaintiff's claims against De fendant Fricke are DISMISSED with prejudice. Plaintiff's claims against the John/Jane Doe Defendants are sua sponte DISMISSED without prejudice for failure to identify and serve pursuant to Fed. R. Civ. P. 4(m) and/or Fed. R. Civ. P. 41(b). Signed by Chief Judge Glenn T. Suddaby on 9/30/2019. (Copy served upon plaintiff via regular mail). (sal)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
SHAWN TAFT,
Plaintiff,
9:17-CV-0346
(GTS/CFH)
v.
RUSSELL A. FRICKE, Med. Unit Dir., Rensselaer Cty.
Jail, a/k/a Russell A. Frecke; and JOHN/JANE DOES,
Unknown Med. Staff at Rensselaer Cty. Jail,
Defendants.
_____________________________________________
APPEARANCES:
OF COUNSEL:
SHAWN TAFT, No. 21892-052
Plaintiff, Pro Se
Coleman Low Federal Correctional Institution
P.O. Box 1031
Coleman, Florida 33521
THUILLEZ, FORD, GOLD, BUTLER & MONROE, LLP
Counsel for Defendant Fricke
20 Corporate Woods Boulevard, 3rd Floor
Albany, New York 12211
DAISY F. PAGLIA, 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 Shawn Taft
(“Plaintiff”) against Russell A. Fricke, a medical unit director at Rensselaer County Jail
(“Defendant Fricke”) and an unspecified number of medical staff members at the Jail (“the
John/Jane Doe Defendants”) pursuant to 42 U.S.C. § 1983, is United States Magistrate Judge
Christian F. Hummel’s Report-Recommendation recommending that Defendant Fricke’s motion
for summary judgment be granted and that Plaintiff’s Complaint be dismissed in its entirety.
(Dkt. No. 76.) The parties have not filed objections, and the deadline by which to do so has
expired. (See generally Docket Sheet.) For the reasons set forth below, the ReportRecommendation is accepted and adopted in its entirety, and Plaintiff’s Complaint is dismissed
in its entirety.
I.
RELEVANT BACKGROUND
A.
Magistrate Judge Hummel’s Report-Recommendation
Generally, in his Report-Recommendation, Magistrate Judge Hummel made the
following three findings of fact and conclusions of law: (1) that Plaintiff’s submission entitled
“Motion for Summary Judgment” (Dkt. No. 62) be construed not as a cross-motion for summary
judgment but simply as an opposition to Defendant’s motion for summary judgment because (a)
Plaintiff has not met the requirements of a cross-motion for summary judgment (particularly, the
requirement that a summary judgment movant file a statement of undisputed material facts), and
(b) any such motion for summary judgment was filed two months after the dispositive-motion
filing deadline; (2) that the Court should dismiss Plaintiff’s sole claim against Defendant Fricke
(for deliberate indifference to Plaintiff’s serious medical needs under the Fourteenth
Amendment) because he has failed to adduced admissible record evidence from which a rational
fact-finder could conclude (a) that he was actually deprived of adequate medical care (for his
diabetes, high blood pressure, vision problems, bowel obstruction, and “probable morbidity” and
“organ failure”) or that any such inadequacy was sufficiently serious (in that it caused him, or
will likely cause him, harm), and (b) that Defendant Fricke acted, or failed to act, with a
sufficiently culpable state of mind (i.e., that Defendant Fricke knew, or should have known, that
the condition or conditions posed an excessive health risk to health or safety, which is something
2
more than negligence); and (3) that Plaintiff’s claims against the John/Jane Doe Defendants be
sua sponte dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m) based on Plaintiff’s
failure to identify and serve those Defendants within the more than two years that this case has
been pending, despite having been afforded multiple extensions of the discovery deadline and the
deadline by which to determine those John/Jane Doe Defendants’ identities. (Dkt. No. 76, at 1532 & nn. 2, 3.)
B.
Plaintiff’s Lack of an Objection to the Report-Recommendation
Plaintiff has not filed a timely Objection to the Report-Recommendation despite the fact
that he was granted two extensions of the deadline by which to do so. The first such extension
was for 30 days, despite the fact that he had received a copy of the Report-Recommendation at
some point before he had been transferred from his prior facility (FCI Allenwood Medium),
indicating that he could have started work on his Objections before he left his prior facility.
(Dkt. No. 77, at 1-2 [referencing the Report-Recommendation and thus indicating that Plaintiff
had learned of it by Aug. 4, 2019, when he was still at FCI Allenwood Medium, from which his
letter had been sent].) The second such extension was for 13 days (i.e., until September 25,
2019, 13 days from the expiration of the prior deadline of September 12, 2013). (Text Orders
filed 08/22/2019 and 09/18/2019.)
II.
STANDARD OF REVIEW
When a specific objection is made to a portion of a magistrate judge's report-
recommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C)). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
3
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c)).1
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, 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
Similarly, a district court will ordinarily refuse to consider argument that could have been, but
was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y.,
04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a
district judge will not consider new arguments raised in objections to a magistrate judge's report
and recommendation that could have been raised before the magistrate but were not.”) (internal
quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311, 312-13
1
See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which he
objected and why, and unsupported by legal authority, was not sufficient to preserve the Title VII
claim.”).
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.”).
4
(W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider new
arguments raised in objections to a magistrate judge's report and recommendation that could have
been raised before the magistrate but were not.”) (internal quotation marks omitted).
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the 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
3
See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
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order to accept the recommendation.” Id.4
After conducting 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)(C).
III.
ANALYSIS
After carefully reviewing the relevant papers herein, including Magistrate Judge
Hummel’s thorough Report-Recommendation, the Court can find no clear error in the ReportRecommendation: Magistrate Judge Hummel employed the proper standards, accurately recited
the facts, and reasonably applied the law to those facts. As a result, the Report-Recommendation
is accepted and adopted in its entirety for the reasons set forth therein and Plaintiff’s Complaint
is dismissed in its entirety. To those reasons, the Court adds only two points.
First, although the Court bases its adoption of Magistrate Judge Hummel’s first
recommendation on his first reason (i.e., that Plaintiff failed to file a statement of undisputed
material facts), it does not do so on his second reason (i.e., that any such competing motion was
filed two months after the dispositive-motion filing deadline), because Local Rule 7.1 of the
Court’s Local Rules of Practice permits a party to file a cross-motion at the time it files its
opposition to the original motion. N.D.N.Y. L.R. 7.1(g). The Court notes that the Declaration
accompanying Plaintiff’s submission (Dkt. No. 62, at 6-7) does not constitute a Statement of
4
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 and citations omitted).
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Undisputed Material Facts.5
Second, in addition to being based on Fed. R. Civ. P. 4(m), the Court’s adoption of
Magistrate Judge Hummel’s third recommendation (i.e., that the Court sua sponte dismissal of
Plaintiff’s claims against the John/Doe Defendants without prejudice under Fed. R. Civ. P. 4[m])
is alternatively based on Fed. R. Civ. P. 41(b), after a careful weighing of the five factors set
forth in Hevner v. Village East Towers, Inc., No. 07-5608, 2008 WL 4280070, at *1-2 (2d Cir.
Sept. 18, 2008).6
5
See Cusamano v. Sobek, 604 F. Supp. 2d 416, 432 (N.D.N.Y. 2009) ("[Plaintiff's]
. . . 40-page, 139-paragraph, single-spaced, handwritten document that attempted to serve as the
following four things at the same time: (1) a partial Rule 7.1 Response (and counter-statement of
facts); (2) a Rule 7.1 Statement of Material Facts (in support of Plaintiff's cross-motion for
summary judgment); (3) a declaration; and (4) a document containing legal arguments (including
ad hominem attacks on defense counsel). . . . Such a document is in flagrant violation of
numerous local rules. As a result, the document in question was, and is, properly disregarded by
the Court."); Zimmerman v. Burge, 06-CV-0176, 2008 WL 850677, at *14 n.64 (N.D.N.Y. Mar.
28, 2008) ("I note that Plaintiff's attachment of a (self-serving) affirmation at the end of his Rule
7.1 Statement, pursuant to 28 U.S.C. § 1746, is not sufficient to transform the factual assertions
therein into factual assertions supported by record citations, as required by Local Rule 7.1. . . . As
an initial matter, Local Rule 7.1 implicitly makes a distinction between a Statement of Material
Facts and the record. . . . Moreover, such a verification cannot serve as admissible evidence in
the event of trial because it fails to demonstrate how the affiant is competent to testify to the facts
he or she alleges . . . . Finally, such a verification cannot transform several of Plaintiff's factual
assertions into evidence since they are devoid of necessary specifics.") (internal quotation marks
and citations omitted).
6
More specifically, the Court finds that the duration of Plaintiff's failure is nearly
eighteen months, having begun when the deadline for motions to amend expired on March 30,
2018. (Dkt. No. 15, at 5.) Generally, durations of such time are sufficient to weigh in favor of
dismissal. See N.D.N.Y. L.R. 41.2(a) (“[P]laintiff’s failure to take action for four (4) months
shall be presumptive evidence of lack of prosecution.”); Georgiadis v. First Boston Corp., 167
F.R.D. 24, 25 (S.D.N.Y. 1996) (delay of four months). Plaintiff clearly received adequate notice
that the failure in question could result in dismissal of his action. (See, e.g., Dkt. No. 9, at 4; Dkt.
No. 15, at 5.) The prejudice posed to Defendants by Plaintiff's failure is exacerbated by the age
of the case and number of events giving rise to Plaintiff's claims. Under the circumstances, a
further delay may well affect witnesses' memories, the ability to locate witnesses (who might
retire from, or be transferred from, the Jail), and the preservation of evidence. See Geordiadis,
7
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 76) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant Fricke’s motion for summary judgment (Dkt. No. 47) is
GRANTED; and it is further
ORDERED that Plaintiff’s claims against Defendant Fricke are DISMISSED with
prejudice; and it is further
ORDERED that Plaintiff’s claims against the John/Jane Doe Defendants are sua sponte
DISMISSED without prejudice for failure to identify and serve pursuant to Fed. R. Civ. P.
4(m) and/or Fed. R. Civ. P. 41(b).
Dated: September 30, 2019
Syracuse, New York
167 F.R.D. at 25 (“The passage of time always threatens difficulty as memories fade. Given the
age of this case, that problem probably is severe already. The additional delay that plaintiff has
caused here can only make matters worse.”). Under the circumstances, the need to alleviate
congestion on the Court’s docket outweighs Plaintiff’s right to receive a further chance to be
heard on this matter. Finally, the Court has carefully considered less drastic sanctions and has
found them to be inadequate under the circumstances.
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