Ruggiero v. Fischer et al

Filing 149

DECISION AND ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation 139 . Plaintiff's 133 motion to amend the Complaint is denied, and defendants' motion for summary judgment 102 is granted. The Clerk of Court shall take all steps necessary to close the case. A copy of the Decision and Order has been mailed to Anthony Ruggiero, 99-A-4419, SOUTHPORT CORRECTIONAL FACILITY, Box 2000, Pine City, NY 14871-2000. SO ORDERED. Signed by Hon. Richard J. Arcara on 4/1/2019. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANTHONY RUGGIERO,
Plaintiff,
DECISION AND ORDER
15-CV-962-A

v.
BRIAN FISHER, et al.,
Defendants.

This pro se civil rights action primarily challenges policies at a disciplinary
facility of the New York State Department of Corrections and Community Supervision
that require certain categories of inmates to remained handcuffed with a waist chain
during allotted exercise time. The action was referred to Magistrate Judge Jeremiah
J. McCarthy pursuant to 28 U.S.C. § 636(b)(1) for the conduct of pretrial proceedings.
On September 27, 2018, Magistrate Judge McCarthy filed a Report and
Recommendation (Dkt. No. 139) recommending that defendants’ motion for summary
judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 102) be granted, and that plaintiff
Ruggiero’s motion to supplement the Complaint pursuant to Fed. R. Civ. P. 15 (Dkt.
No. 133) be denied.
On October 11, 2018, plaintiff Ruggiero filed objections to the Report and
Recommendation. Dkt. No. 142. Defendants filed a response to plaintiff’s objections
(Dkt. No. 144) on November 1, 2018. The plaintiff filed a reply (Dkt. No. 147) on
November 15, 2018, and the Court deemed the matter submitted.
Pursuant to 28 U.S.C. §636(b)(1), the Court makes a de novo determination of

those portions of the Report and Recommendation to which specific objections have
been made. Upon de novo review, and after considering the parties’ arguments in light
of the pro se status of plaintiff Ruggiero, the Court hereby adopts Magistrate Judge
McCarthy’s findings and conclusions. The Court specifically notes that, contrary to the
plaintiff’s objections, the Court’s grant of summary judgment on the feasibility of
exercise while restrained is not contrary to the decision in Ruggiero v. Prack, 168
F.Supp.3d 495, 518-521 (W.D.N.Y. 2016), because the factual record in that case was
found insufficient to decide his similar claim on undisputed facts material to the
feasibility of exercise on a motion for summary judgment. Compare 168 F.Supp.3d at
518-521 with Dkt. No. 139, pp. 3-11. For these reasons, it is
ORDERED, pursuant to 28 U.S.C. § 636(b)(1), and for all the reasons set forth
in Magistrate Judge McCarthy’s Report and Recommendation, plaintiff Ruggiero’s
motion to amend the Complaint (Dkt. No. 133) is denied, and the defendants’ motion
for summary judgment (Dkt. No. 102) is granted. The Clerk of Court enter Judgment
for the defendants and 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: April 1, 2019

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