Walker v. Bellnier et al

Filing 23

DECISION AND ORDER accepting and adopting # 18 Magistrate Judge Hummel's Report and Recommendation in its entirety; denying # 14 Defendants' motion to dismiss Plaintiff's Amended Complaint; and denying without prejudice # 22 Plaint iff's second motion to suspend DOCCS' Court-Order requirement for copies. Defendants are directed to file an answer to Plaintiff's Amended Complaint within 14 days of the date of this Decision and Order pursuant to Fed.R.Civ.P. Rule 12(a)(4)(A), and this case is referred back to Magistrate Judge Hummel for the setting of pretrial scheduling deadlines. Signed by Chief Judge Glenn T. Suddaby on 3/22/19. (lmw) (Copy served upon Plaintiff via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TYRONE WALKER,
Plaintiff,
9:17-CV-1008
(GTS/CFH)

v.
JOSEPH BELLNIER, Deputy Comm’r; DONALD
UHLER, Superintendent, Upstate Corr. Fac.; PAUL
P. WOODRUFF, Deputy Superintendent of Sec.,
Upstate Corr. Fac.; JOANNE FITCHETTE, Deputy
Superintendent of Programs, Upstate Corr. Fac.; and
MELISSA A. COOK, Offender Rehab. Coordinator,
Upstate Corr. Fac.,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

TYRONE WALKER, 94-A-5258
Plaintiff, Pro Se
Upstate Correctional Facility
P.O. Box 2001
Malone, New York 12953
HON. LETITIA A. JAMES
New York State Attorney General
Counsel for Defendants
The Capitol
Albany, New York 12224

MATTHEW P. REED, ESQ.
Assistant Attorney General

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 Tyronne
Walker (“Plaintiff”) against the five above-captioned employees of the New York State
Department of Corrections and Community Supervision or “DOCCS” (“Defendants”), are (1)
Defendants’ motion to dismiss Plaintiff’s Amended Complaint for failure to state a claim, (2)

United States Magistrate Judge Christian F. Hummel’s Report-Recommendation recommending
that Defendants’ motion be denied, (3) Plaintiff’s Objections to the Report-Recommendation,
and (4) Plaintiff’s second motion to suspend DOCCS’ Court-Order requirement for copies. (Dkt.
Nos. 14, 18, 21, 22.) For the reasons set forth below, Magistrate Hummel’s ReportRecommendation is accepted and adopted, Defendant’s motion to dismiss is denied, and
Plaintiff’s second motion to suspend DOCCS’ Court-Order requirement for copies is denied
without prejudice.
I.

RELEVANT BACKGROUND
Generally, Plaintiff’s Amended Complaint claims that Defendants violated his due

process rights under the Fourteenth Amendment by failing to regularly, impartially and
meaningfully conduct periodic reviews of his administrative segregation (“ad-seg”) status. (Dkt.
No. 8.)
Generally, in his Report-Recommendation, Magistrate Judge Hummel recommended that
the Court deny Defendants’ motion to dismiss Plaintiff’s Amended Complaint, because (1)
Defendants’ procedural-due-process argument is without merit, and (2) Defendants’ lack-ofpersonal-involvement argument with regard to Defendants Uhler, Woodruff, Fitchette and Cook
is also without merit. (Dkt. No. 18, at 13-22.)
Generally, in his Objections, Plaintiff asserts five arguments: (1) he was denied timely
ad-seg reviews; (2) his ad-seg reviews were rote, perfunctory and fraudulent; (3) Defendants are
not entitled to qualified immunity; (4) Defendants’ motion to dismiss should have been
converted to one for summary judgment, because Plaintiff requested such a conversion in his
opposition to Defendants’ motion; and (5) Plaintiff’s motion to amend and supplement his
Amended Complaint should have been granted by Magistrate Judge Hummel. (Dkt. No. 21.)
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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
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

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.”).
3

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 (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

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
4

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
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
For the sake of argument, the Court will assume that Plaintiff’s Objections contain

challenges to the Report-Recommendation sufficient to trigger a de novo review. See, supra,
Part II of this Decision and Order. This is highly questionable for two reasons: (1) two of
Plaintiff’s challenges were repetitions of arguments made in his opposition to Defendants’
motion (compare Dkt. No. 16, Arguments “1” and “2,” with Dkt. No. 21, Points “1” and “2”);
and (2) Plaintiff’s Objections ultimately request that the Court do what Magistrate Judge
Hummel recommends in his Report-Recommendation (i.e., deny Defendants’ motion).
In any event, even reviewing the Report-Recommendation de novo, the Court can find no
error: 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. To those reasons, the Court adds only
two brief points.
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
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).
5

First, while Plaintiff is correct that he indeed previously requested (in his opposition to
Defendants’ motion) that the Court convert Defendants’ motion to dismiss to one for summary
judgment, he is mistaken that such a fact entitles him to any relief not already provided for by
the Report-Recommendation and this Decision and Order. This is because a court retains
discretion to deny such a request, especially where (as here) no discovery has yet occurred, and
the court is not persuaded that the exhibits presented by the non-movant constitute an adequate
record upon which to grant summary judgment.5
Second, because Plaintiff’s final argument consists of a challenge to Magistrate Judge
Hummel’s Order denying his motion to amend, that challenge is not governed by the deadline
for an Objection to a Report-Recommendation (and the Court’s extension of that deadline) but
the fourteen-day deadline for appeals from non-dispositive orders of magistrate judges.
N.D.N.Y. L.R. 72.1(b). Here, Plaintiff’s challenge is untimely. In the alternative, the Court
finds that Magistrate Judge Hummel’s Order is not clearly erroneous. Among other things,
Plaintiff still has not provided a copy of his proposed amended and supplemental pleading.
Finally, as for Plaintiff’s second motion to suspend DOCCS’ Court-Order requirement
for copies, that motion is denied without prejudice for two of the reasons that his first such
motion was denied: (1) the relief that Plaintiff requests from the referenced requirement is

5

The Court notes that (as Plaintiff acknowledges) he never cross-moved for
summary judgement. (Dkt. No. 21, at 21 [attaching page “17” of Plf.’s Objections].) As a result,
even if the Court had converted Defendants’ motion to dismiss to one for summary judgment, in
order to grant judgment for Plaintiff, it would have had to (1) give Defendants notice of both
conversion and the possibility of judgment being entered against them, (2) assess whether
adequate discovery had occurred and, if not, then assure that adequate discovery occurred, (3)
either sift through the record at its own peril or direct the parties to submit Rule 7.1 Statements
and Response, and (4) find the absence of proof of a genuine dispute of material fact in
Plaintiff’s favor. The Court finds no reason to believe that either it or Magistrate Judge Hummel
would have done any of these things.
6

unrelated to claims pending in this action (none of which regard the denial of his First
Amendment right of access to the courts), see Allen v. Brown, 96-CV-1599, 1998 WL 214418, at
*4 (N.D.N.Y. Apr. 28, 1998) (Pooler, J.); and (2) any appeal to the Second Circuit would appear
premature in that the Order appealed from is not final and has not been certified pursuant to Fed.
R. Civ. P. 54(b), see Leonhard v. U.S., 633 F.2d 599, 610 (2d Cir. 1980). The Court would add
only that Plaintiff’s ability to litigate this action does not appear to be hampered: the papers that
he submitted as part of his “Objections” were, by and large, unnecessary in that his “Objections”
do not actually challenge the Report-Recommendation.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-Recommendation (Dkt. No. 18) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion to dismiss Plaintiff’s Amended Complaint (Dkt.
No. 14) is DENIED; and it is further
ORDERED that Plaintiff’s second motion to suspend DOCCS’ Court-Order requirement
for copies (Dkt. No. 22) is DENIED without prejudice; and it is further
ORDERED that Defendants file an answer to the Plaintiff's Amended Complaint (Dkt.
No. 8) within 14 days of the date of this Decision and Order pursuant to Fed.R.Civ.P. Rule
12(a)(4)(A), and this case is referred back to Magistrate Judge Hummel for the setting of pretrial
scheduling deadlines.
Dated: March 22, 2019
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
Chief United States District Judge

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