Barnes v. County of Monroe et al

Filing 240

-CLERK TO FOLLOW UP-DECISION AND ORDER granting 175 MOTION to Compel filed by Jessie J. Barnes; finding as moot 189 MOTION for Extension of Time to File Response/Reply filed by Jessie J. Barnes; and denying 192 MOTION fo r Recusal filed by Jessie J. Barnes. REPORT AND RECOMMENDATIONS re 178 MOTION for Miscellaneous Relief filed by Jessie J. Barnes, Objections due fourteen days from receipt.A copy of this Order has been mailed to pro se plaintiff. Signed by Hon. Jonathan W. Feldman on 9/6/2016. (WGC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JESSIE J. BARNES,
Plaintiff,

DECISION & ORDER and
REPORT & RECOMMENDATION

v.

10-CV-6164
RONALD HARLING, et al.,
Defendants.

Preliminary Statement

Plaintiff

Jessie

Barnes

("plaintiff")

is

an

currently confined at Upstate Correctional Facility.
the instant pro se action pursuant to 42 U.S.C.
that
while
2009.

defendants
he was

violated

his

detained at

state

the Monroe

See Complaint (Docket # 1).

and

§

inmate

He brings

1983, alleging

constitutional

County Jail

rights

in 2008

and

Currently pending before the

Court are four motions filed by plaintiff seeking various forms
of

relief.

See Plaintiff's Motion to

Plaintiff's

Motion

Plaintiff's

Letter

Response/Reply

for

Miscellaneous

Motion

(Docket

#

for
189);

Compel
Relief

Extension
and

of

(Docket # 175);
(Docket
Time

Plaintiff's

#
to

Motion

178);
File
for

Recusal (Docket # 192) .

Procedural Background

Plaintiff filed his original complaint on March 22,

2010,

alleging various causes of action against approximately eighty-

eight

defendants.

2015,

United States District Judge

the

case

down

seventy-two

Complaint

to

page

twelve
Order

distinct

in

response

(Docket # 148)

dismiss.

(Docket

# 1) .

On

February 10,

Elizabeth Wolford whittled
claims
to

in

a

comprehensive

defendants'

motion

Following Judge Wolford's Order,

to
the

undersigned set forth a Scheduling Order so that the remaining
claims could proceed to discovery.

parties have actively engaged in discovery,
dissatisfied
points

in

with

the

both

defendants

process.

As

plaintiff has been

and

the

result,

a

Though the

(Docket # 167) .

he

Court

various

filed

has

at

several

motions, four of which will be addressed below.

Discussion
Plaintiff's Motion to Compel (Docket # 175): In

motion,
[him]
7'

plaintiff

seeks

to view DVDs of

to

compel

[the]

"prison officials

to

first
allow

incidents which occurred on August

and on May 2,

2008

his

2009

Motion to Compel

"

(Docket # 175) at 1.

He alleges that he received the DVDs but

was

them

unable

Defendants

to

view

have

no

absent

objection

Response to Motion to Compel
plaintiff's motion to
Inmate

Records

Office

compel
at

to

this

Court's

plaintiff's

order.

Id.

request.

See

(Docket # 177) at 2.
(Docket #
Upstate

1 75)

Accordingly,

is granted.

Correctional

Facility

The
is

instructed to provide accommodations for plaintiff to view the
2

video

footage

in his

personal

property

in a

private

or

semi-

private setting.

(Docket # 178):

Plaintiff's Motion for Miscellaneous Relief
On October 8,

2015, plaintiff filed a motion under Rule 7 of the

Federal Rules of Civil Procedure to "correct" the Order of Judge
Wolford

to

defendants

"reflect
Atkins,

actual

March

Scally,

11,

2009

Guest,

Amatore,

Plaintiff's Motion for Miscellaneous Relief
Plaintiff

also

complaint.
arguing

Id.

that

an

requests

lack

object

sufficient

Motion for Miscellaneous Relief
Based

on

plaintiff's

to

Procedure

to

plaintiff's
See

or

this

59 (e)

provides

a

party with

"motion to alter or amend a

requests,

Response

motion

amend

Judge

Wolford' s

.

days
Fed.

"

to
R.

Ci v.

(Docket

#

as

a

preliminary

Order

file

Judge Wolford entered her Order on February 10,
Thus,

best

(Docket # 14 8) .

twenty-eight

judgment

is

59 (e) .

148)

to

of the Federal Rules of

granting defendants' motion to dismiss in part.
Rule

his

1

(Docket# 180) at 2.

requests,

reconsider

McGowan."

"correct'

to

support.

construed as a motion under Rule 59 (e)
Civil

and

against

(Docket # 178) at 1.

opportunity

Defendants

they

retaliation

matter,

instant motion to correct Judge Walford's Order,

a
P.

2015.

plaintiff's

which he filed

on October 8, 2015, is untimely.
More

substantively,

manifest injustice"

there

is

law

or

for the Court to amend under Rule 59 (e) ,

as

3

no

"clear

error

of

required
Transp.
Rule

in

the

Second

Authority,

59 (e)

does

381

not

Circuit.
F.3d 99,

prescribe

See
105

Munafo

v.

(2d Cir.

2004)

("Although

for

granting a

specific grounds

motion to alter or amend an otherwise final

Metropolitan

judgment,

we agree

with our sister circuits that district courts may alter or amend
judgment

to

correct

clear error

(internal

injustice."

a

quotations

Plaintiff's

grievance

retaliation

claim

Amatore,
claim

with

against

continue

defendants

sufficiently alleged

a

activity

grievance

filing

a

causal

after he administered a
and

the

adverse

Guest,

report"

against plaintiff.

time line

of

issue,
events

as

at

71,

but

finding

report

Guest,

plaintiff

that

against

action

defendant

defendants

and McGowan filing a

best

See Order
the

described

plaintiff

retaliatory incidents

Scally,

his

Judge Wolford allowed that

Scally

in

Judge

asserts

Atkins,

"false misbehavior

(Docket # 148)

Court can tell,

Wolford refers to this as the March 2,
id.

Atkins,

involves

"degrading and humiliating" strip search

Scally,

Plaintiff's

Order

connection between his protected

retaliatory

Amatore,

omitted)) .

citations

Wolford' s

discovery,

to

law or prevent manifest

and

In her Order,

and McGowan.
to

Judge

of

stems

Wolford' s

at 50-51.
from the

Order:

2009 retaliation claim,
that

the

"intertwined

extended from March 2 to March 11,

See Plaintiff's Motion for Miscellaneous Relief
at 2.
4

Judge

11

2009.

(Docket # 1 78)

Despite the descriptive differences,
distinction

between

"intertwined"
being

incidents

stripped

2009;

and

versions

plaintiff

searched

on March

grievance report against
3,

two

these

there is no meaningful

refers
2,

of

to

include:

2009;

The

events.

plaintiff

plaintiff

filing

a

the officer who searched him on March

defendants

Atkins,

Scally,

Guest,

Amatore,

and

McGowan filing a "false misbehavior report" against plaintiff on
March 11,

2009

confinement

that

See

id.;

see

80,

92-

collectively as

the

thirty days

on March 12,

2009.

also Third Amended Complaint

(Docket # 95)

at ~~ 69-70,

93.

for

led to plaintiff being placed in solitary

Judge Wolford refers

"March

2,

2009

Guest,

Amatore,

Retaliation

against Defendant
Atkins,

and

to

and

these events

against

McGowan"

Hayes,

Krenzer

and

Horan,
with

Defendants
the

Jolly,

respect

"Due

Atkins,

Process

McGowan,
to

Scally,
claim

as

Guest,

Scally,

Plaintiff's

30-day

consecutive SHU assignment that began on March 2,

2009"

-

both

of which are claims that survived defendants' motion to dismiss.
Order
not

(Docket # 148)

be

Plaintiff will

at 50-51, 53-55, and 70-71.

"prejudiced during

discovery,"

as

he

claims,

based

on

Judge Walford's Order; he is allowed to pursue discovery related
to these

"intertwined"

incidents. 1

1

Accordingly,

I

see no clear

In fact, under plaintiff's conception, it is unclear whether
these claims would have survived defendants' motion to dismiss
at all.
In her Order, Judge Wolford describes the fact that the
protected activity and retaliation occurred over the course of
5

error of law or manifest injustice that warrants an amendment to
Judge

Wolford' s

Order and

it

is

my Report

and Recommendation

that his request be denied.
Finally,

to the extent that plaintiff is asking this Court

to allow him to "correct" his complaint, his request is denied.
According

to

Rule

Procedure,

a

party

pleadings

have

give

be

or

the

to

freely

a

the
its

"only

court's

when

file

of

amend

filed

leave

opportunities
should

may

been

written consent
freely

15(a) (2)

Federal
pleading

with

leave,"

justice

and

" [a] bsent

of

after

the

so

supplemental

granted

Rules

responsive

opposing
the

Civil

party's

"court

should
While

requires."

pleading
due

under

delay,

Rule

bad

15

faith,

dilatory tactics, undue prejudice to the party to be served with
the proposed pleading, or futility," Quaratino v. Tiffany & Co.,
71 F.3d 58,
complaint

66

(2d Cir. 1995), allowing Barnes to "correct" his

would be

improper

here.

To

start,

I

suspect

that

plaintiff's reference to correcting his complaint was a clerical
error

his

Wolford' s

Order.

amend

his

motion

is

focused

Moreover,

complaint,

I

find

entirely

on

amending

Judge

even if he did intend to move
that

motion

unsupported:

he

to
has

failed to sufficiently indicate how or why he hopes to amend his

one day as proof of a necessary causal connection, see Order
(Docket # 148) at 51, but plaintiff insists that the events were
spread out over the course of nine days.
6

pleadings and,

as the Court detailed above,

any concerns he has

with the timeline of events from early March 2009 are a

non-

issue.
Plaintiff's
Response/Reply

Letter

Motion

(Docket

#

189) :

for

Extension

In a

of

Time

to

File

letter dated December 28,

2015, plaintiff requests an extension of time to file his reply
to defendants'

response to his motion for miscellaneous relief.

(Docket # 189).

Since then, plaintiff's Response/Reply has been

filed and the Court has taken it under advisement.

Accordingly,

plaintiff's letter motion is now moot.
Plaintiff's Motion for Recusal

dated January 11,

In a letter

(Docket# 192):

2016, plaintiff asks that the undersigned and
He makes a

Judge Wolford recuse themselves from this matter.
series

of

allegations,

conclusory

suggesting

the

that

undersigned is "bias and prejudice [sic]" and authoring "racist"
and "baseless" decisions.

(Docket # 192).

This letter is best construed as a motion under 28 U.S.C.
455(a),

which

proceeding

in

F.3d 139,

committed
recusal
2008

which

WL

to

is

a

judge

his

150
the

(2d Cir.
sound

sought."

138085

recuse

2014).

discretion
v.

Jan.

10,
7

" [A]
of

the

"in

any

reasonably

be

Sheriff's Dep' t,

motion to recuse
judge

McClatchie,
2008)

himself

might

Onondaga Cnty.

McCenzie

(W.D.N.Y.

to

impartiality

See also Cox v.

questioned."
760

requires

§

against

No.

(internal

is

whom

05-CV-618A,
quotations

omitted)

(citing

Hall

(N.D.N.Y. 1993)).
reasonably be

v.

Dworkin,

829

F.

Supp.

1403,

1408

"In cases where a judge's impartiality might

questioned,

the

issue

for

consideration

is

not

whether the judge is in fact subjectively impartial, but whether
the objective facts suggest impartiality."
Monroe,

85

F.

Supp.

3d

696,

717

Barnes v.

(W.D.N.Y.

County of
(internal

2015)

quotations and citations omitted)
Cursory

Here, plaintiff has provided no basis for recusal.
allegations

of

insufficient

racism

to

and

warrant

discrimination,

such

drastic

without

relief.

more,

See

are

Mills

v.

Poole, Nos. 1:06-CV-00842 and l:ll-CV-00440, 2014 WL 4829437, at
*6

(W.D.N.Y.

Sept.

impartiality on
conclusory

and

29,

the

2014)

part

based

("Petitioner's claims of bias and

of

the

entirely

on

are

undersigned
his

disagreement

with

both
the

Court's decisions. This is an insufficient basis for recusal.").
Accordingly, with respect to the undersigned, plaintiff's motion
for recusal is denied.

Conclusion

For
(Docket

the
#

175)

(Docket # 192)
of time

reasons
is

granted,

is denied,

(Docket # 189)

plaintiff's

stated,

plaintiff's

motion
motion

to
for

compel
recusal

and plaintiff's motion for extension

is moot.

8

Further,

it is my Report and

Recommendation that plaintiff's motion for miscellaneous relief
(Docket# 178) be denied.
SO ORDERED.

. FELDMAN

Judge

Dated: September 6, 2016
Rochester, New York

9

Pursuant to 28 U.S.C.

§

636(b) (1), it is hereby

ORDERED, that this Report and Recommendation be filed with the
Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed
with the Clerk of this Court within fourteen (14) days after receipt
of a copy of this Report and Recommendation in accordance with the
above statute and Rule 59(b) (2) of the Local Rules of Criminal
Procedure for the Western District of New York. 1
The district court will ordinarily refuse to consider on de nova
review arguments, case law and/ or evidentiary material which could
have been, but was not, presented to the magistrate judge in the first
instance.
See,
e.g.,
Paterson-Leitch Co.,
Inc. v.
Mass.
Mun.
Wholesale Elec. Co., 840 F.2d 985 (1st Cir. 1988).
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the
District Court's Order.
Thomas v. Arn, 474 U.S. 140 (1985); Wesolek
v. Canadair Ltd., 838 F.2d 55 (2d Cir. 1988).
The parties are reminded that, pursuant to Rule 59(b) (2) of the
Local Rules of Criminal Procedure for the Western District of New
York, "[w] ritten objections
shall specifically identify the
portions of the proposed findings and recommendations to which
objection is made and the basis for each objection, and shall be
supported by legal authority."
Failure to comply with the provisions
of Rule 59{b} (2) may result in the District Court's refusal to
consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report
and Recommendation to the attorneys for the Plaintiff and the
Defendant.

fs

SO ORDERED.

ed States Magistrate Judge
Dated:

September 6, 2016
Rochester, New York

1

Counsel is advised that a new period of excludable time pursuant to 18
U.S.C.
§
316l(h) (1) (D)
commences with the filing of this Report and
Recommendation.
Such period of excludable delay lasts only until objections
to this Report and Recommendation are filed or until the fourteen days
allowed for filing objections has elapsed.
United States v. Andress, 943

F.2d 622 (6th Cir. 1991), cert. denied,
v. Long, 900 F.2d 1270 (8th Cir. 1990).

10

502 U.S.

1103

(1992); United States