Swinton v. Livingston County et al

Filing 287

DECISION AND ORDER adopting Magistrate Judge Leslie G. Foschio's Report and Recommendation 268 . Defendants' motions for summary judgment 252 and 259 are granted. The Clerk of Court shall take all steps necessary close the case. SO ORDERED. Signed by Hon. Richard J. Arcara on 5/18/2021. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ROBERT L. SWINTON, JR.,

Plaintiff,
DECISION AND ORDER
15-CV- 53-A

v.
CORRECTIONAL MEDICAL CARE, INC.,
DR. MAXIMILLIAN CHUNG, and
DR. CHARLES THOMAS,
Defendants.

This civil rights case was referred to Magistrate Judge Leslie G. Foschio,
pursuant to 28 U.S.C. § 636(b)(1). On December 22, 2020, Magistrate Judge Foschio
filed a Report and Recommendation (Dkt. No. 268), recommending that the motions
pursuant to Fed. R. Civ. P. 56 for summary judgment filed by Defendants
Correctional Medical Care, Inc., Dr. Maximillian Chung, and Dr. Charles Thomas,
(Dkt. Nos. 252 and 259) be granted.
On January 6, 2021, pro se Plaintiff Robert L. Swinton, Jr. filed objections to the
Report and Recommendation. Dkt. No. 269. Defendants Correctional Medical Care,
Inc. and Dr. Charles Thomas filed a response on January 25, 2021 (Dkt. No. 273), and
they filed supplemental briefing in support of their response on March 1, 2021 (Dkt. No.
278). Defendant Maximillian Chung file his response to plaintiff’s objections on January
28, 2021 (Dkt. No. 277). Plaintiff’s replies were filed on May 3, 2021. Dkt. No. 286.
The matter was deemed submitted.

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Pursuant to 28 U.S.C. §636(b)(1), the Court must make a de novo
determination of those portions of the Report and Recommendation to which
objections have been raised. Upon de novo review, and after due consideration of the
submissions from the parties and the record before the Court, the Court adopts the
Magistrate Judge’s recommended findings and conclusions, with one exception. While
the Court adopts the recommendation to award summary judgment to defendants
Correctional Medical Care, Inc., and Dr. Charles Thomason on the merits, the Court
declines to adopt the portion of the recommendation based upon the affirmative defense
of failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a) that
these Defendants did not allege in their Answers. The Court finds inadequate reasons
for the Court to deem the Answers amended to raise this defense for the first time by
the motion for summary judgment. See e.g., Bonilla v. Janovick, No. 01-CV-3988 SJF
ETB, 2005 WL 61505, at *1–2 (E.D.N.Y. Jan. 7, 2005). It is nevertheless therefore
ORDERED pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in the
Report and Recommendation (Dkt. No. 268), that Defendants’ motions for summary
judgment pursuant to Fed. R. Civ. P. 56 (Dkt. Nos. 252 and 259) are granted and
judgment entered in favor of Defendants Correctional Medical Care, Inc., Dr. Maximillian
Chung, and Dr. Charles Thomas. The Clerk of Court shall take all steps necessary to
close the case.
IT IS SO ORDERED.
___s/Richard J. Arcara________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: May 18, 2021
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