Goodwin v. Napoli et al
DECISION AND ORDER adopting in its entirety Report and Recommendations re 34 Report and Recommendations.; granting 24 Defendants' Motion for Summary Judgment; denying Plaintiff's objections to the Report and Recommendations. (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Plaintiff.) Signed by Hon. Michael A. Telesca on 5/1/2017. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
MR. DAVID NAPOLI, Supt.,
MR. S. POST, Sgt.,
MR. P. JAYNE, C.O.,
ADMINI - MS. FELKER,
NURSE DIANE WEED,
C.O. J BERBARR, and
Proceeding pro se, Joshua Goodwin (“plaintiff”), a New York
State prisoner, brings this action pursuant to 42 U.S.C. § 1983,
alleging claims of deliberate indifference to medical needs in
assigned to District Judge Lawrence J. Vilardo,1 who referred it to
Magistrate Judge Leslie G. Foschio for consideration of the factual
and legal issues presented, and to prepare and file a Report and
Recommendation (“R&R”) containing a recommended disposition of the
issues raised in defendants’ motion for summary judgment pursuant
to Fed. R. Civ. P. 56. Judge Foschio issued an R&R on September 8,
2016, in which he recommended that defendants’ motion be granted in
its entirety. See doc. 34. On September 22, 2016, plaintiff filed
objections to the R&R. See doc. 35. For the reasons discussed
By order dated --, Judge Vilardo transferred the instant matter to this
below, the Court adopts the R&R and grants defendants’ motion for
summary judgment in its entirety.
The Report and Recommendation2
Defendants’ motion for summary judgment argues that plaintiff
has failed to state a cognizable claim of deliberate indifference
under the Eighth Amendment, and that at best, defendants’ actions
amount merely to negligence and do not rise to the level of an
Eighth Amendment violation. See doc. 24-2. The R&R found that the
record is devoid of any material issue of fact with regard to
Accordingly, the R&R recommended that defendants’ motion be granted
and the case dismissed. Plaintiff’s objections to the R&R (doc. 35)
generally reiterate his claims in the complaint.
III. Standard of Review
Pursuant to Rule 56 of the Federal Rules of Civil Procedure,
“[t]he court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Once the movant has met this burden, the burden shifts to the
reasonable jury to find in his favor.” Lizardo v. Denny's, Inc., 270
F.3d 94, 101 (2d Cir. 2001); see also Celotex Corp. v. Catrett, 477
This Court refers to Judge Foschio’s R&R, see doc. 34 at 3-8, for a
thorough summary of the factual background of this matter.
inferences, and view the factual assertions in materials such as
affidavits, exhibits, and depositions in the light most favorable
to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986); Celotex, 477 U.S. at 322. However, a nonmovant
benefits from such factual inferences “only if there is a ‘genuine’
dispute as to those facts.” Scott v. Harris , 550 U.S. 372, 380
(2007), quoting Fed. R. Civ. P. 56(c).
proceeding pro se, the Court must “read the pleadings . . .
liberally and interpret them to raise the strongest arguments that
they suggest.” Corcoran, 202 F.3d at 536. However, “proceeding pro
se does not otherwise relieve [the plaintiff] from the usual
requirements of summary judgment.” Fitzpatrick v. N.Y. Cornell
Hosp., 2003 WL 102853, *5 (S.D.N.Y. Jan. 9, 2003).
In reviewing a report and recommendation, the district court
“may accept, reject, or modify, in whole or in part, the findings
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). Where “the objecting 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.” Zaretsky v. Maxi–Aids, Inc., 2012 WL 2345181, *1
(E.D.N.Y. June 18, 2012) (internal quotation marks omitted). Even
where a plaintiff proceeds pro se, objections to an R&R will be
reviewed for clear error where they “merely reiterate [his]
original arguments and state a general disagreement with the
outcome of the R&R.” Freeman v. Dep’t of Env. Prot., 2013 Wl
801684, *2 (E.D.N.Y. Mar. 5, 2013); see Almonte v. N.Y.S. Div. of
Parole, 2006 WL 149049, *4-5 (N.D.N.Y. Jan. 18, 2006) (explaining
that resubmitting the same arguments previously made “fails to
plaintiff’s objections are quite general, the Court reviews the R&R
for clear error.
Having reviewed the R&R for clear error, the Court finds none.
Plaintiff’s claims center on his need for a knee brace due to
arthritis of the knees and back. As the R&R found, the evidence
establishes plaintiff’s concession that, as of the date of the
first incident claimed, he was required to possess a permit for a
medical assistive device, yet he let this permit lapse after a
transfer from Five Points Correctional Facility to Southport. As
Judge Foschio noted, requiring a prisoner to possess a permit for
a medical assistive device does not in itself amount to deliberate
indifference in violation of the Eighth Amendment. See doc. 34 at
Aug. 31, 2009)). Moreover, the facts established at the summary
judgment stage demonstrate that none of the defendants acted with
the requisite deliberate indifference necessary to establish such
a claim. Id. at 15-16.
Further, as Judge Foschio found, regarding the second incident
claimed in the complaint, “there is no evidence in the record from
which a reasonable jury could conclude that [p]laintiff protested
ascending the stairs . . ., advised [d]efendants of [his] permit,
or that [d]efendants insisted [p]laintiff ascend the stairs despite
such protest.” Id. at 18. The Court also agrees with the R&R’s
finding that, to the extent this complaint alleges a due process
claim, no reasonable view of the evidence supports the existence of
such claim. Accordingly, the Court adopts the R&R in its entirety,
grants defendants’ motion for summary judgment in its entirety, and
dismisses the complaint with prejudice.
For the reasons stated above as well as those set forth in the
R&R, the Court hereby adopts the R&R (doc. 34) in its entirety.
Defendants’ motion for summary judgment (doc. 24) is granted in its
overruled. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
May 1, 2017
Rochester, New York.
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