Bernier v. Carter et al

Filing 67

DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 65 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Defendants' motion for summary judgment (Dkt. No. 61 ) is DENIED as to Defendant Carter. ORDERED, that Defendants' motion for summary judgment (Dkt. No. 61 ) is GRANTED as to Defendant King. ORDERED, that the Clerk remove Defendant King as a defendant in this matter. Signed by Senior Judge Lawrence E. Kahn on October 19, 2021. {order served via regular mail on plaintiff}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MANFRED BERNIER,
Plaintiff,
-against-

9:17-CV-1376 (LEK/ATB)

THOMAS CARTER, et al.,
Defendants.
DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Manfred Bernier commenced this pro se action on December 21, 2017 pursuant

to Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388 (1971). Dkt No. 1 (“Complaint’).
Plaintiff claims Defendants violated his constitutional right to adequate medical care while he
was incarcerated at Ray Brook Federal Correctional Institution. Id. Plaintiff claims Defendant
Carter violated the Eighth Amendment by denying him medical care and Defendant King
violated the Eighth Amendment by failing to intervene. Id.
On June 1, 2021, Defendants filed a motion for summary judgment. Dkt. No. 61. Plaintiff
did not respond. See Docket.
Now before the Court is a Report-Recommendation regarding the motion for summary
judgment filed by the Honorable Andrew T. Baxter, recommending the Defendants’ motion for
summary judgment be granted in part and denied in part. Dkt. No. 65 (“ReportRecommendation”). For the reasons that follow, the Court approves and adopts the ReportRecommendation.
II.

BACKGROUND
A. Factual Allegations

Petitioner’s factual allegations are detailed in the Report-Recommendation, familiarity
with which is assumed. See R. & R. at 2–5.
B. The Report-Recommendation
Judge Baxter thoroughly reviewed Plaintiff’s claims that his Eighth Amendment Rights
were violated and found there was sufficient evidence on the record to preclude summary
judgment of the claim against Defendant Carter, but that summary judgment was appropriate as
to the claim against Defendant King. See id. at 12–19.
III.

STANDARD OF REVIEW
Within fourteen days after a party has been served with a copy of a magistrate judge’s

report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If objections are timely
filed, a court “shall make 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).
However, if no objections are made, or if an objection is general, conclusory, perfunctory, or a
mere reiteration of an argument made to the magistrate judge, a district court need review that
aspect of a report-recommendation only for clear error. Barnes v. Prack, No. 11-CV-857, 2013
WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07
(N.D.N.Y. 2008), abrogated on other grounds by Widomski v. State Univ. of N.Y. at Orange,
748 F.3d 471 (2d Cir. 2014); see also Machicote v. Ercole, No. 06-CV-13320, 2011 WL
3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s
proposal . . . .”). “A [district] judge . . . may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” § 636(b).
IV.

DISCUSSION
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Plaintiff did not file objections to the Report-Recommendation by October 7, 2021, when
they were due pursuant to 28 U.S.C. § 636(b)(1) and calculated according to Fed. R. Civ. P. 6(d)
and 6(a)(1)(C). See Docket. Consequently, the Court reviews the Report-Recommendation for
clear error and finds none. Therefore, the Court adopts the Report-Recommendation in its
entirety.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 65) is APPROVED and

ADOPTED in its entirety; and it is further
ORDERED, that Defendants’ motion for summary judgment (Dkt. No. 61) is DENIED
as to Defendant Carter; and it is further
ORDERED, that Defendants’ motion for summary judgment (Dkt. No. 61) is
GRANTED as to Defendant King; and it is further
ORDERED, that the Clerk remove Defendant King as a defendant in this matter; and it
is further
ORDERED, that the Clerk serve a copy of this Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

October 19, 2021
Albany, New York

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