Robinson v. Viscuso et al

Filing 50

ORDER adopting Report and Recommendation 45 granting in part 21 Motion for Summary Judgment. Action is recommitted to Magistrate Judge Schroeder for consideration by the parties whether to engage in settlement negotiations or to consent to trial before the Magistrate Judge. Issued by Hon. Richard J. Arcara on September 30, 2013. (WJG)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LATEE ROBINSON
Plaintiff,
v.

DECISION AND ORDER
10-CV–326

VISCUSO, Prison Guard, et al.,
Defendants.

This civil rights case was referred to Magistrate Judge H. Kenneth
Schroeder, Jr. for supervision of all pretrial proceedings. Plaintiff, proceeding pro
se, alleges various causes of action pursuant to 42 U.S.C. §1983 (“Section
1983") including excessive force, denial of adequate medical care, and denial of
nutritionally adequate food all in violation of the Eighth Amendment.1 Defendants
have filed a motion for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. (Dkt. No. 21)
On July 15, 2013, Magistrate Judge Schroeder issued a Report,
Recommendation and Order recommending that defendants’ motion for summary

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Plaintiff’s initial complaint asserted 18 separate causes of action against over
seventy New York State Department of Corrections and Community Supervision
(“DOCCS”) employees based upon incidents occurring at various jails from July 2006
through January 2010. On August 16, 2010, this Court issued a Decision and Order
severing 12 of plaintiff’s claims and transferring them to the Southern and Northern
Districts of New York and dismissing with prejudice three causes of action for failure to
state a claim upon which relief may be granted. Thus, only plainitff’s remaining viable
claims are discussed herein.

judgment be granted in part and denied in part. (Dkt. No. 45) Specifically,
Magistrate Judge Schroeder recommended the following: (1) that defendant’s
motion for summary judgment be granted with respect to plaintiff’s claim alleging
excessive force and denial of adequate medical treatment based upon the
incident at Five Points Correctional Facility on April 19, 2009; (2) that defendant’s
motion for summary judgment be granted with respect to plaintiff’s claim alleging
denial of adequate medical treatment based upon the incident at Five Points
Correctional Facility on April 20, 2009; (3) that defendant’s motion for summary
judgment be denied to the extent it seeks to dismiss the Eighth Amendment claim
against defendants Hill and Hibsch based upon their alleged use of excessive
force on April 20, 2009; (4) that defendants’ motion for summary judgment be
granted to the extent it seeks dismissal of the excessive force claims against
defendants Bascom, Matice, Gould and Brown based upon the incident on April
20, 2009, due to the lack of evidence indicating that they were personally
involved in the events related to this claim; and (5) that defendants’ motion for
summary judgment be granted to the extent it seeks dismissal of plaintiff’s claim
that he was denied nutritionally adequate food, based upon plaintiff’s failure to
exhaust administrative remedies.
Plaintiff filed objections to the Report, Recommendation and Order on July
29, 2013. (Dkt. No. 46) Defendants filed a response on September 20, 2013.

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(Dkt. No. 49) 2 The Court deemed the matter submitted without oral argument.
Pursuant to 28 U.S.C. §636(b)(1), this Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been made. Upon de novo review, and after reviewing the
submissions from the parties, the Court hereby adopts Magistrate Judge
Schroeder’s Report and Recommendation granting in part and denying in part
defendants’ motion for summary judgment.3
Accordingly, for the reasons set forth in Magistrate Judge Schroeder’s
Report, Recommendation and Order, summary judgment is granted in part and
denied in part. Defendants’ motion is denied to the extent it seeks dismissal of
Plaintiff’s excessive force claims against defendants Hill and Hibsch based upon
the April 20, 2009 incident. Defendants’ motion for summary judgment is
otherwise granted in all respects.
The matter is referred back to Magistrate Judge Schroeder for a
determination as to whether the parties are interested in engaging in settlement
negotiations or would consent to a trial before the Magistrate Judge.

2

Defendants do not object to the Magistrate Judge’s recommendation to deny
summary judgment as to plaintiff’s excessive force claim with respect to defendants Hill
and Hibsch based upon the April 20, 2009 incident.
3

To accept the report and recommendation of a magistrate, to which no objection
has been made, a district court need only satisfy itself that there is ”no clear error on the
face of the record.” Torres v. New York, 976 F. Supp. 249 (SDNY 1997). The Court
also fully adopts the Magistrate’s findings to which no objections have been made.
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SO ORDERED.

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HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE

DATED: September 30, 2013

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