Mallard v. State of New York et al

Filing 156

MEMORANDUM-DECISION AND ORDER: It is hereby ORDERED, that the Report and Recommendation, Dkt. No. 154 , is ADOPTED in its entirety; and it is further ORDERED, that Defendant's motion for summary judgment, Dkt. No. 132 , is GRANTED; and it is f urther ORDERED, that Plaintiff's Fourteenth Amendment due process claims against Defendants Barbosa and Martin are DISMISSED; and it is further ORDERED, that Defendants Barbosa and Martin are TERMINATED from the docket; and it is further ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by Senior Judge Lawrence E. Kahn on 3/11/2025. (Copy served via regular mail)(meb)

Case 9:21-cv-01080-LEK-TWD

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
LARRY MALLARD,
a.k.a. Shockemall Mallard,
Plaintiff,
-against-

9:21-cv-1080 (LEK/TWD)

STEVEN M. REDNER, et al.,
Defendants.
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
Plaintiff Larry Mallard brings this pro se action against inter alia Defendants Roberto

Barbosa and Shawn Martin pursuant to 42 U.S.C. § 1983, alleging that Defendants Barbosa and
Martin violated his Fourteenth Amendment due process rights. Dkt. No. 1 (“Complaint”). On
April 12, 2024, Defendants filed a motion for summary judgment. Dkt. No. 132. Currently
before the Court is a report and recommendation by the Honorable Thérèse Wiley Dancks,
United States Magistrate Judge. Dkt. No. 154 (“Report and Recommendation”). In the Report
and Recommendation, Judge Dancks recommended granting Defendant’s motion for summary
judgment, dismissing Plaintiff’s Fourteenth Amendment due process claims against Defendants
Barbosa and Martin, and dismissing Defendants Barbosa and Martin from this action. Id. at 21.
Plaintiff filed objections to the Report and Recommendation. Dkt. No. 155 (“Objections”).
For the reasons that follow, the Report and Recommendation is adopted in its entirety.
II.

BACKGROUND
The Court assumes familiarity with the factual background detailed in the Report and

Recommendation. See generally R. & R.

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In the Report and Recommendation, Judge Dancks discussed whether Plaintiff’s due
process rights were violated based on two disciplinary hearings. Id. at 9–21. Judge Dancks noted
that a due process violation requires that Plaintiff “(1) possessed an actual liberty interest, and (2)
was deprived of that interest without being afforded sufficient process.” Id. at 9–10 (citing, inter
alia, Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004)).
Regarding the liberty interest prong, Judge Dancks found “a dispute of fact as to whether
Plaintiff was subjected to atypical and significant hardship giving rise to a protected liberty
interest.” Id. at 12.
Regarding the deprivation prong, Judge Dancks found that, “[b]ecause Plaintiff’s SHU
confinement was credited to the penalty imposed at the Rehearing,” the first hearing became a
“nullity.” Id. at 15. Since Defendant Barbosa was only involved in the first hearing, Judge
Dancks concluded there was no genuine dispute of material fact with respect to Plaintiff’s claim
against him. Id. at 16. In analyzing the Rehearing, Judge Dancks found Plaintiff was denied
certain witnesses because their testimony was either “duplicative or irrelevant,” and Plaintiff was
able to question Defendant Martin’s witnesses during the Rehearing. Id. at 16. Judge Dancks also
found “Plaintiff has not articulated what ‘documentary evidence’ he was allegedly denied and
has failed to demonstrate he was prejudiced by any denial of documents.” Id. at 17. Thus, Judge
Dancks found that “no triable issues of fact exist as to whether Plaintiff had an opportunity to
call witnesses and present documentary evidence.” Id. at 17.
Accordingly, Judge Dancks recommended dismissal of Plaintiff’s Fourteenth
Amendment due process claims against Defendants Barbosa and Martin. Id. at 21.

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III.

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LEGAL STANDARD
“Rule 72 of the Federal Rules of Civil Procedure and Title 28 United States Code Section

636 govern the review of decisions rendered by Magistrate Judges.” A.V. by Versace, Inc. v.
Gianni Versace, S.p.A., 191 F. Supp. 2d 404, 405 (S.D.N.Y. 2002). Review of decisions rendered
by Magistrate Judges are also governed by the Local Rules. See N.D.N.Y. L.R. 72.1. As 28
U.S.C. § 636(b)(1) states:
Within fourteen days after being served with a copy [of the
Magistrate Judge’s report and recommendation], any party may
serve and file written objections to such proposed findings and
recommendations as provided by rules of [the] court. A judge of the
court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.
When written objections are filed and the district court conducts a de novo review, that “de novo
determination does not require the Court to conduct a new hearing; rather, it mandates that the
Court give fresh consideration to those issues to which specific objections have been made.” A.V.
by Versace, 191 F. Supp. 2d at 406.
“The district court may adopt those portions of a report and recommendation to which no
timely objections have been made, provided no clear error is apparent from the face of the
record.” DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009). “When a party
makes only conclusory or general objections, or simply reiterates the original arguments, the
Court will review the [report and recommendation] strictly for clear error.” N.Y.C. Dist. Council
of Carpenters Pension Fund v. Forde, 341 F. Supp. 3d 334, 336 (S.D.N.Y. 2018) (quoting
Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009)).

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“The objections of parties appearing pro se are ‘generally accorded leniency’ and should
be construed ‘to raise the strongest arguments that they suggest.’” DiPilato, 662 F. Supp. 2d at
340 (quoting Milano v. Astrue, No. 05-CV-6527, 2008 WL 4410131, at *24 (S.D.N.Y. Sept. 26,
2008)). “Nonetheless, even a pro se party’s objections to a [r]eport and [r]ecommendation must
be specific and clearly aimed at particular findings in the magistrate’s proposal, such that no
party be allowed a second bite at the apple by simply relitigating a prior argument.” Id. (quoting
Pinkney v. Progressive Home Health Servs., No. 06-CV-5023, 2008 WL 2811816, at *1
(S.D.N.Y. July 21, 2008)).
IV.

DISCUSSION
Plaintiff’s sole objection is that Judge Dancks should not have dismissed Defendants

Barbosa and Martin “without moving forward with Plaintiff’s request for discovery.” Obj. at 1.
Before the Report and Recommendation was issued, but after discovery had closed, Plaintiff
filed a letter requesting that he be able to “commence” and “move forward with” discovery. Dkt.
No. 150. Judge Dancks denied this request because the parties had already been given “multiple
extensions of deadlines” and “discovery is long closed.” Dkt. No. 151 (“Text Order”). Insofar as
Plaintiff is seeking the Court to reconsider the Text Order, that request is denied. Plaintiff has
provided no basis for which the Court should reopen discovery.
Since Plaintiff does not provide any specific objection to the “particular findings in the
magistrate’s proposal,” the Court reviews the Report and Recommendation for clear error.
DiPilato, 662 F. Supp. 2d at 340. Having found none, the Court approves and adopts the Report
and Recommendation in its entirety.
V.

CONCLUSION
Accordingly, it is hereby:

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ORDERED, that the Report and Recommendation, Dkt. No. 154, is ADOPTED in its
entirety; and it is further
ORDERED, that Defendant’s motion for summary judgment, Dkt. No. 132, is
GRANTED; and it is further
ORDERED, that Plaintiff’s Fourteenth Amendment due process claims against
Defendants Barbosa and Martin are DISMISSED; and it is further
ORDERED, that Defendants Barbosa and Martin are TERMINATED from the docket;
and it is further
ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

March 11, 2024
Albany, New York
LAWRENCE E. KAHN
United States District Judge

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