Toliver v. Department of Corrections et al
ORDER ADOPTING REPORT AND RECOMMENDATION: for 86 Motion for Summary Judgment filed by The City of New York, 95 Report and Recommendations, For the foregoing reasons the Report [dkt. no. 95] is hereby ADOPTED. Defendants motion for summary judgment [dkt no. 86] is hereby GRANTED.The Clerk of the Court shall mark this action closed and all pending motions denied as moot. (Signed by Judge Loretta A. Preska on 3/18/2014) (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
10 Civ. 6298 (LAP)(JCF)
ORDER ADOPTING REPORT
Case 1:09-md-02013-PAC :
Document 57 AND RECOMMENDATION of 45
Filed 09/30/10 Page 1
THE CITY OF NEW YORK
DOC #: _________________
DATE FILED: 3/18/2014
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LORETTA A. PRESKA, Chief United States District Judge:
In re FANNIE MAE 2008 SECURITIES
08 Civ. 7831 (PAC)
09 MD 2013 (PAC)
Pro se Plaintiff Michel Toliver (“Plaintiff”) brings
OPINION & ORDER
this action pursuant to 42 U.S.C. § 1983 claiming that
defendant, The City of New York, (“Defendant”) violated his
constitutional rights by not issuing vouchers for inmate’s
HONORABLE PAUL A. CROTTY, United States District Judge:
personal belongings when they are taken from inmates’ custody
and stored during the inmate’sBACKGROUND
time in punitive segregation.
The early years of this decade saw a boom in home financing which was of his
Plaintiff alleges that this practice resulted in the loss fueled, among
other things, by and compelled lax credit wear clothing issued by the
personal items low interest rates and him to conditions. New lending instruments, such as
subprime mortgages appearances. Defendant now moves for summary
jail to his court (high credit risk loans) and Alt-A mortgages (low-documentation loans)
kept the boom going. 86] pursuant role too; they took on P. 56 on the
judgment [dkt. no. Borrowers played a to Fed. R. Civ.unmanageable risks on the
assumption that the Plaintiff’s constitutional rights, specifically
grounds that (1) market would continue to rise and that refinancing options would always be
his available in the future. process rights, were not violated and (2)
procedural due Lending discipline was lacking in the system. Mortgage originators did
not hold cannot prove municipal liability.
rising risk on Judge
Plaintiff these high-risk mortgage loans. Rather than carry theMagistratetheir books, the
originators sold a Report and Recommendation (the “Report”) on
Francis issued their loans into the secondary mortgage market, often as securitized packages
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
and home prices began to fall. In light of the changing housing market, banks modified their
November 13, 2013 [dkt. no. 95].
For the reasons set forth
below, Judge Francis’ Report is ADOPTED, and Defendant’s motion
for summary judgment is GRANTED.
The following facts are taken from Defendant’s
Statement of Undisputed Material Facts Pursuant to Local Civil
Rule 56.1 (“Defendant’s 56.1 Stmt.”) and all accompanying
declarations and exhibits.
Plaintiff has submitted additional
facts in Plaintiff’s Opposition to Defendants’ Summary Judgment
Motion (the “Opposition”) but has not submitted a statement
pursuant to Local Civil Rule 56.1.
It should be noted that
Plaintiff’s Opposition contains many conclusory allegations.
support for these claims Plaintiff cites to his original
complaint, a Report and Notice of Infraction dated May 20, 2010,
the docket sheet, an inmate lookup report on himself, and a
document featuring an appearance calendar for Plaintiff with the
remark “Defendant on trial-Produce in civilian clothes.”
This Court will accept as true only the statements in
Plaintiff’s Opposition that are supported by the factual record
and will disregard the conclusory allegations.
On or about May 5, 2010, Plaintiff was placed into
punitive segregation at the George R. Vierno Center (“GRVC”), a
New York City Department of Correction (“DOC”) jail on Rikers
(Def. 56.1 Stmt. ¶ 1; dkt. no. 67 at 2-3).
was compelled to turn over his personal property, including his
(Def. 56.1 Stmt. ¶ 1; dkt. no. 67 at 3).
his clothing Plaintiff was given an orange shirt and orange
pants with “DOC” written on the pant legs and across the back of
the shirt to wear, and his clothing was placed in “lockers
directly on the unit.”
(Def. 56.1 Stmt. ¶ 1; dkt. no. 67 at 3,
On or about May 12, 2010, Plaintiff learned that the
clothing he had turned over had been misplaced.
Declaration of Charles Carey in Support of Defendant’s Motion
for Summary Judgment (“Carey Decl.), Ex. A at 56:2-4, Ex. B at
On July 2, 2013, Plaintiff filed a separate notice of claim
with the City Comptroller’s office alleging that a diamond
earring he had been permitted to keep had been taken from him.
(See Def. 56.1 Stmt. ¶ 5; Carey Decl., Ex. C. at 1).
noted that the captain in charge of GRVC’s intake had given him
clothes that fit properly “once or twice” for court appearances.
(See Def. 56.1 Stmt. ¶ 7; Carey Decl., Ex. A at 56:24-57:13).
On several occasions in anticipation of his criminal trial,
Plaintiff was afforded sets of civilian clothes including a
shirt, sweater vest, jeans, and a “gray button-down collared
(See Def. 56.1 Stmt. ¶¶ 8-10; Carey Decl., Ex. E at
38:6-40:8, 73:1-74:16, Ex. F at 151:11, Ex. D at 1-2).
Plaintiff’s grievance dated August 4, 2010, alleges he was
denied “a decent set of clean clothes on several occasions.”
(Def. 56.1 Stmt. ¶ 6; Carey Decl., Ex. D at 1).
Plaintiff’s family brought him a suit for a court
appearance, which was also misplaced by members of GRVC’s staff.
(See Def. 56.1 Stmt. ¶ 11; Carey Decl., Ex. A at 39:4-12).
Plaintiff believed the loss of his personal effects was a
malicious act carried out by Captain Merced, a security captain
on his unit, in retaliation for Plaintiff’s speaking out about a
May 20, 2010 incident.
(See Def. 56.1 Stmt. ¶ 12-13; Carey
Decl., Ex. A 43:6-15, 41:1-22).
Plaintiff claims he attempted
to resolve the issue of his missing property informally but such
attempts were unsuccessful.
Decl., Ex. A).
(See Def. 56.1 Stmt. ¶ 13; Carey
As a result, Plaintiff filed a Notice of Claim
with the New York City Comptroller’s office on July 22, 2010.
(See Carey Decl., Ex. B).
In a September 15, 2010 letter to the
Comptroller’s office, Plaintiff indicated, with an itemized list
of the missing clothing, that his total monetary loss was
(See Def. 56.1 Stmt. ¶ 15; Carey Decl., Ex. F at 2).
Despite knowing that he could have filed suit in state
court regarding the missing property, Plaintiff insisted he had
a federal claim based on what he believed was the malicious
nature of his property loss.
(See Def. 56.1 Stmt. ¶ 16; Carey
Decl., Ex. A at 86:10-25).
On November 13, 2013, Judge Francis issued the Report
[dkt. no. 95] recommending that Defendant’s motion for summary
judgment be granted.
On December 17, 3014, this Court received
Plaintiff’s Opposition to Judge Francis’ Report and
Recommendation (the “Objections”).
Plaintiff’s objections amount to a regurgitation of
the original arguments in his Opposition to Defendant’s motion
for summary judgment.
For example, Plaintiff takes the
opportunity in his Objections to rehash his argument that
Defendant deprived him of his due process rights when Defendant
failed to issue him a voucher for his property which was
(See Pl. Obj. at 5-16).
Over the course of
several pages Plaintiff identifies various “errors” in the
background information presented in Judge Francis’s Report such
as the characterization of the clothing given to Plaintiff, the
existence of lockers in the DOC, and the number of times
Plaintiff was deprived of his goods.
(Pl. Obj. at 5-6).
information Plaintiff identifies as error was taken directly
from Plaintiff’s complaint, amended complaint, statement of
additional fact, and pretrial depositions.
disagrees with that information or wishes to re-characterize his
previous statements, the error is his own, and this Court finds
no clear error in the Report.
Plaintiff also reiterates his original arguments for
his municipal liability claim.
(Pl. Obj. at 16-19).
Plaintiff has simply repeated the arguments asserted in his
previous submissions and there was no clear error in Judge
Francis’ Report, this Court finds Plaintiff’s objections to be
Accordingly, having reviewed Judge Francis’ Report,
this Court finds his analysis to be correct and appropriate upon
de novo review, see Fed. R. Civ. P. 72(b).
Report is adopted in its entirety and Defendant’s motion for
summary judgment is granted.
This Court has reviewed
Plaintiff’s Objections to the Report.
As noted above,
Plaintiff’s objections constitute a rehashing of the same
arguments and positions taken in the original papers submitted
to Judge Francis.
Such arguments do not suffice on de novo
review and are reviewed only for clear error.
See Aponte v.
Cunningham, No. 08 Civ. 6748, 2011 WL 1432037, at *1 (S.D.N.Y.
Apr. 11, 2011) (citing Vega v. Artuz, No. 97 Civ. 3775, 2002 WL
31174466, at *1 (S.D.N.Y. Sept. 30, 2002) and Barratt v. Joie,
No. 96 Civ. 0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002).
For the foregoing reasons the Report [dkt. no. 95] is
Defendant’s motion for summary judgment [dkt
no. 86] is hereby GRANTED.
The Clerk of the Court shall mark this action closed
and all pending motions denied as moot.
Dated: March 18, 2014
LORETTA A. PRESKA
Chief U.S. District Judge
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