Armand v. Bartlett et al
ORDER ADOPTING 77 REPORT AND RECOMMENDATION that defendants' 52 motion for summary judgment/to dismiss is denied without prejudice with respect to plaintiff's first claim (excessive force) and granted with respect to plaintiff's second claim (retaliation) except to the extent that the second claim is premised on the allegedly false misbehavior report. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 1/27/2017. (Chambers mailed copy of Order to pro se plaintiff). (CMD)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ARMAND JAMES n/k/a
TYNESHA K. ARMAND,
C.O. MOSKO et al.,
This case, brought under 42 U.S.C. § 1983, was referred to United States
Magistrate Judge Michael J. Roemer pursuant to 28 U.S.C. § 636(b)(1). On July 22,
2016, Judge Roemer issued a Report and Recommendation, in which he recommended
that the defendants’ “combined motion for summary judgment/motion to dismiss the
complaint [Docket Item 52] be granted in part and denied in part.” Docket Item 77 at 14.
On August 5, 2016, the defendants submitted objections. Docket Item 78. The plaintiff
did not respond to those objections or submit any of her own, and the time to do so has
To the extent that the defendants object to Judge Roemer’s recommendation that
this Court deny their motion in part, this Court must perform a de novo review of the
“magistrate judge’s disposition” and “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1).
In their motion—which the defendants filed in lieu of answering the plaintiff’s
Amended Complaint (Docket Item 47)—the defendants argued that summary judgment
should be granted on the plaintiff’s first claim (excessive force) because she failed to
exhaust her administrative remedies. See Docket Items 52 to 55. Judge Roemer found
that argument to be premature, noting that the defendants “primarily relie[d] on evidence
outside the four corners of the Amended Complaint” and that the plaintiff had not yet
“had the opportunity to request documents or other evidence to support her contention
that” grievance procedures were not available to her. See Docket Item 77 at 8. Judge
Roemer therefore recommended that “the branch of the motion seeking summary
judgment on Armand’s first claim should be denied without prejudice.” Id. at 14.
Upon de novo review, and paying particular attention to the plaintiff’s sworn
statements in Docket Items 47, 66, and 67, the Court adopts that recommendation and
Judge Roemer’s reasoning in support of it.
In their objections, the defendants repeatedly frame the plaintiff’s claims
concerning exhaustion as “legally insufficient to defeat summary judgment.” See, e.g.,
Docket Item 78 at 9, 11, 12. They argue that the burden “shift[ed] to Plaintiff to
demonstrate that” any failure to exhaust “can be excused.” Id. at 7. But in support of
that proposition, the defendants cite Gibson v. Fischer, 2014 U.S. Dist. LEXIS 173795
(N.D.N.Y. Oct. 23, 2014), a report and recommendation (which the defendants’ papers
fail to label as such) concerning a motion for summary judgment filed after discovery
had been conducted. Similarly, when arguing that the plaintiff is not entitled an order
deferring or denying summary judgment because material facts are unavailable to the
non-movant, see Docket Item 78 at 15, the defendants cite a case in which the Second
Circuit affirmed the denial of a “motion for an extension of the discovery deadline . . . by
a recalcitrant plaintiff, on the eve of expiration of [the] deadline, without a statement of
good cause.” Shaheen v. Naughton, 222 F. App’x 11, 13 (2d Cir. 2007). The case at
bar, by contrast, involves a pre-discovery motion for summary judgment against a pro
se plaintiff, and the cases cited by the defendants therefore are easily distinguishable.
As the Second Circuit has made clear, “summary judgment should only be
granted if ‘after discovery, the nonmoving party has failed to make a sufficient
showing.’” Miller v. Wolpoff & Abramson, LLP, 321 F.3d 292, 303 (2d Cir. 2003)
(quoting Hellstrom v. U.S. Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000))
(emphasis in original). “The nonmoving party must have had the opportunity to discover
information that is essential to [its] opposition to the motion for summary judgment.”
Hellstrom, 201 F.3d at 97 (internal quotation marks and citation omitted). “Only in the
rarest of cases may summary judgment be granted against a plaintiff who has not been
afforded the opportunity to conduct discovery.” Id. Here, although certain of the
plaintiff’s statements on exhaustion may be contradictory or conclusory, it is not yet
“apparent that [the] plaintiff has failed to exhaust [her] administrative remedies.” Docket
Item 78 at 18. And that is especially so when those statements are considered as a
whole and when the plaintiff is given the deference due to someone proceeding pro se.
This Court therefore agrees with Judge Roemer that this is not one of the “rarest of
cases” in which pre-discovery summary judgment is appropriate.
With respect to the plaintiff’s second claim (retaliation), Judge Roemer
recommended that it be dismissed for failure to state a claim except to the extent that it
is premised on a false misbehavior report allegedly filed by C.O. McGrain. Docket Item
77 at 14. The defendants objected, arguing that the preserved portion of the plaintiff’s
second claim had not been alleged in the complaint. See Docket Item 78 at 23. Upon
de novo review, the Court adopts Judge Roemer’s recommendation with respect to this
claim as well. The pro se plaintiff’s complaint discusses a grievance that she filed
based on the alleged retaliation, Docket Item 47 at 8, and, in fact, the documents
related to that grievance clearly state that it was based on an allegedly false
misbehavior report, see, e.g., Docket Item 67-2 at 26.
With respect to the unobjected-to portions of the recommendation, the Supreme
Court has explained that “[i]t does not appear that Congress intended to require” district
courts to review them “under a de novo or any other standard.” Thomas v. Arn, 474
U.S. 140, 150 (1985). This Court nevertheless has carefully reviewed those portions of
the recommendation and adopts them as well.
For the reasons set forth above and in Judge Roemer’s Report and
Recommendation dated July 22, 2016 (Docket Item 77), the defendants’ motion for
summary judgment/to dismiss (Docket Item 52) is denied without prejudice with respect
to the plaintiff’s first claim (excessive force) and granted with respect to the plaintiff’s
second claim (retaliation) except to the extent that the second claim is premised on the
allegedly false misbehavior report.
IT IS SO ORDERED.
January 27, 2017
Buffalo, New York
s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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