Ruggiero v. Canfield et al

Filing 60

DECISION AND ORDER adopting Magistrate Judge Leslie G. Foschio's Report and Recommendation 53 . For the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, the Plaintiff's claims against the following Defendant s are dismissed: Defendants Koenigsmann, Griffin, LaValley, Whalen, Dinello, Lee, Strenio, Clarke, Johnson, Chapman, Pierson, and Tillinghast. Claims against Defendants Clarke and Strenio are dismissed for lack of supplemental jurisdiction pursuant t o 28 U.S.C. § 1367(a). Claims against Defendants Clarke and Strenio are dismissed without prejudice. See 28 U.S.C. § 1367(d). Claims against Defendants Koenigsmann, Griffin, LaValley, Whalen, Dinello, Lee, Johnson, Chapman, Pierson, and Til linghast are dismissed for the reasons explained in Judge Foschio's Report and Recommendation. For the reasons stated in Judge Foschio's Report and Recommendation, the Plaintiff's claims against Defendants Koenigsmann, Griffin, LaValle y, Whalen, Dinello, and Lee are dismissed with prejudice. The Plaintiff's claims against Defendants Tillinghast, Pierson, and Chapman are dismissed without prejudice. The Plaintiff may file, within 30 days of the entry of this Decision and Order , an amended complaint re-alleging his Eighth Amended deliberate indifference claims against Defendants Tillinghast, Pierson and Chapman. A copy of the Decision and Order, and this entry, have been mailed to Anthony Ruggiero, 99-A-4419, ELMIRA CORRECTIONAL FACILITY, PO Box 500, 1879 Davis St., Elmira, NY 14901-0500. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/3/2017. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY RUGGIERO,
Plaintiff,
DECISION AND ORDER
14-CV-307-A(F)

v.

WESLEY K. CANFIELD, M.D., Medical Director,
Southport Correctional Facility, BENJAMN A. OAKES,
Physician Assistant, Southport Correctional Facility,
JEREMY CLEMENT, Registered Nurse, Southport
Correctional Facility, THOMAS GRIFFIN, Superintendent,
Southport Correctional Facility, DANIEL J. CHAPMAN,
Correction Sergeant, SHAWN D. PIERSON, Correction
Officer, LOUIS E. TILLINGHAST, Correction Officer,
THOMAS LaVALLEY, Superintendent, Clinton Correctional
Facility, KANG MAENG LEE, M.D., Clinton Correctional
Facility, VONDA JOHNSON, CARL J. KOENIGSMANN,
Deputy Commissioner/Chief Medical Officer, NYSDOCCS,
DAVID DINELLO, TIMOTHY WHALEN, E. CLARKE, M.D.
General Surgeon, and DR. JONATHAN S. STRENIO,

Defendants.

This action was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28
U.S.C. § 636(b)(1). On March 23, 2017, Judge Foschio filed a Report and
Recommendation (Dkt. No. 53) recommending that the motions to dismiss for lack of
jurisdiction that were filed by Defendant Clarke (Dkt. No. 13) and Defendant Strenio
(Dkt. No. 43) be granted, and that the motion to dismiss for failure to state a claim
filed by Defendants Canfield, Oakes, Clement, Griffin, Chapman, Pierson, Tillinghast,
LaValley, Lee, Johnson, Koenigsmann, Dinello, and Whalen (Dkt. No. 19) be

granted in part and denied in part.
On April 3, 2017, the Plaintiff filed objections to the Report and
Recommendation (Dkt. No. 54). Defendants filed a response on April 19, 2017 (Dkt.
Nos. 57 and 58). The matter was deemed submitted.
The Plaintiff lodges a “general objection” to Judge Foschio’s recommendation
that Defendants Koenigsmann, Griffin, LaValley, Whalen, Dinello, Lee, and Strenio
be dismissed. Dkt. No. 54 at 1. This objection does not comply with Local Rule of
Civil Procedure 72(b), which requires that objections “specifically identify the portions
of the proposed findings and recommendations to which objection is made and the
basis for each objection,” and which further requires that objections “be supported by
legal authority.” The Court therefore reviews for clear error Judge Foschio’s
recommendations to dismiss Defendants Koenigsmann, Griffin, LaValley, Whalen,
Dinello, Lee, and Strenio, as well as the other Defendants Judge Foschio
recommended dismissing, i.e., Defendants Johnson, Chapman, Pierson, and
Tillinghast. See Mineweaser v. City of North Townawanda, 2016 WL 3279574, at *2
(W.D.N.Y. June 15, 2016) (“Failure to object to a magistrate judge’s report and
recommendation (or, as in this case, failure to comply with Local Rule 72) means that
the Court reviews [the magistrate judge’s] Report and Recommendation for clear
error.”) After review of the entire record, the Court finds no clear error in Judge
Foschio’s recommendation to dismiss Defendants Koenigsmann, Griffin, LaValley,
Whalen, Dinello, Lee, Strenio, Johnson, Chapman, Pierson, and Tillinghast.
Pursuant to 28 U.S.C. §636(b)(1), this Court must make a de novo
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determination of those portions of the Report and Recommendation to which
objections have been made. The Plaintiff makes a specific objection to Judge
Foschio’s recommendation to dismiss Defendant Clarke. Upon de novo review, the
Court adopts Magistrate Judge Foschio’s conclusions as to Defendant Clarke.
Specifically, the Court agrees with Judge Foschio that the Plaintiff’s claims against
Defendant Clarke (as well as those against Defendant Strenio) do not “derive from a
common nucleus of operative fact” and, thus, that the Court does not have
supplemental jurisdiction over claims against Defendants Clarke and Strenio.
Achtman v. Kirby, McInerney & Squire, 464 F.3d 328, 335 (2d Cir. 2006).
Thus, for the reasons set forth in Judge Foschio’s Report and
Recommendation, the Plaintiff’s claims against the following Defendants are
dismissed: Defendants Koenigsmann, Griffin, LaValley, Whalen, Dinello, Lee,
Strenio, Clarke, Johnson, Chapman, Pierson, and Tillinghast. Claims against
Defendants Clarke and Strenio are dismissed for lack of supplemental jurisdiction
pursuant to 28 U.S.C. § 1367(a). Claims against Defendants Clarke and Strenio are
dismissed without prejudice. See 28 U.S.C. § 1367(d). Claims against Defendants
Koenigsmann, Griffin, LaValley, Whalen, Dinello, Lee, Johnson, Chapman, Pierson,
and Tillinghast are dismissed for the reasons explained in Judge Foschio’s Report
and Recommendation. For the reasons stated in Judge Foschio’s Report and
Recommendation, the Plaintiff’s claims against Defendants Koenigsmann, Griffin,
LaValley, Whalen, Dinello, and Lee are dismissed with prejudice. The Plaintiff’s
claims against Defendants Tillinghast, Pierson, and Chapman are dismissed without
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prejudice. The Plaintiff may file, within 30 days of the entry of this Decision and
Order, an amended complaint re-alleging his Eighth Amended deliberate indifference
claims against Defendants Tillinghast, Pierson and Chapman
IT IS SO ORDERED.

____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: November 3, 2017

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