Henderson v. Annucci et al

Filing 48

DECISION AND ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report, Recommendation and Order 39 . For the reasons set forth in the Report, Recommendation and Order, defendants' motion to dismiss 22 is granted in part and denied in part, plaintiff's motion to amend 31 is granted in part and denied in part, and plaintiff's motion for appointment of counsel 32 is denied. The case is recommitted to Magistrate Judge McCarthy for further proceedings. SO ORDERED. Signed by Hon. Richard J. Arcara on 5/27/16. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

THOMAS ADAM HENDERSON,
Plaintiff,
DECISION AND ORDER
14-CV-445A

v.
ANTHONY ANNUCCI, et al.,

Defendants.

The above-referenced case was referred to Magistrate Judge Jeremiah J.
McCarthy pursuant to 28 U.S.C. § 636(b)(1)(B). On March 14, 2016, Magistrate Judge
McCarthy filed a Report, Recommendation, and Order (Dkt. No. 39), recommending
that defendants’ motion to dismiss (Dkt. No. 22) be granted as to (1) plaintiff’s claim
against defendant Dunford related to the September 10, 2013 incident; and (2)
plaintiff’s supervisory claims against defendants Annucci, Fonda, Bradt and Hughes.
Magistrate Judge McCarthy also recommended that the defendants’ motion to dismiss
be denied as to plaintiff’s claims against defendants Nabb and Hoinski.
Magistrate Judge McCarthy further ordered that plaintiff’s motion to amend the
Complaint (Dkt. No. 31) be granted to the extent that plaintiff may assert that he has
exhausted administrative remedies regarding the October 22, 2013 incident involving
defendant Hoinski, but plaintiff may not assert any previously dismissed claims.
Magistrate Judge McCarthy ordered that the plaintiff’s motion to amend is otherwise
denied. Finally, Magistrate Judge McCarthy ordered that plaintiff’s motion for
appointment of counsel (Dkt. No. 32) be denied.

On March 30, 2016, plaintiff filed objections to the Report and
Recommendation. Dkt. No. 40. Defendants filed a response on April 20, 2016 (Dkt.
No. 42). The plaintiff also filed a reply brief “request[ing] leave of the Court to correct
the record before the Court.” Dkt. No. 44 (capitalization modified).
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. The plaintiff’s primary objection is to Magistrate Judge
McCarthy’s conclusion that DOCCS’s revision to Directive 4040 does not apply
retroactively. See Dkt. No. 39 at 13. As Magistrate Judge McCarthy observed, “[a]s a
general rule, a new statutory provision does not apply retroactively to conduct that
occurred prior the provision’s enactment.” Id. “A similar rule applies to [state]
administrative regulations,” such as Directive 4040. Rudin Mgmt., Inc. v. Comm’r,
Dep’t of Consumer Affairs of City of New York, 213 A.D. 2d 185, 185 (First Dep’t
1995). There is an exception to this rule for remedial, rights-creating regulations (see
id. at 186), but the exception does not apply in this case. Revised DOCCS Directive
4040 does not create new rights; rather, it merely modifies the procedures a prisoner
must follow to attempt to vindicate already-existing constitutional rights. Thus, it is
clear that revised DOCCS Directive does not apply retroactively. The Court
accordingly adopts Magistrate Judge McCarthy’s Report and Recommendation in its
entirety. Further, to the extent that the plaintiff objects to Magistrate Judge McCarthy’s
non-dispositive orders, pursuant to 28 U.S.C. § 636(b)(1)(A), the Court affirms
Magistrate Judge McCarthy’s orders.
Accordingly, for the reasons set forth in Magistrate Judge McCarthy’s Report,

Recommendation, and Order (Dkt. No. 39), defendants’ motion to dismiss (Dkt. No.
22) is granted in part and denied in part, plaintiff’s motion to amend (Dkt. No. 31) is
granted in part and denied in part, and plaintiff’s motion for appointment of counsel
(Dkt. No. 32) is denied.
The case is referred back to Magistrate Judge McCarthy for further proceedings.

IT IS SO ORDERED.

____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: May 27, 2016