Crawford v. Hughes et al

Filing 124

DECISION AND ORDER granting 105 Motion for Summary Judgment. Plaintiffs claims against Sergeant Cheney, Officer Roberts, Deputy Superintendent Hughes, and Nurse Sault are dismissed, and the Clerk of the Court is instructed to remove the listed in dividuals as defendants in this case. Plaintiffs objections to Judge Feldmans non-dispositive orders (Docket Nos. 107, 122, 123) are denied. Plaintiffs excessive use of force claim against Officer Wegner remains pending and appears to be trial ready . This matter shall be transferred to the Hon. Frank P. Geraci, Chief United States District Judge, for all further proceedings. (Copy of this Decision and Order sent by first class mail to Plaintiff.). Signed by Hon. Michael A. Telesca on 6/22/2018. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
THOMAS CRAWFORD,
Plaintiff,
-v-

6:13-CV-06638 (MAT)
DECISION AND ORDER

OFFICER CHRISTOPHER WEGNER,
SERGEANT CHENEY, NURSE K. SAULT,
INMATE ASSISTANT J. ROBERTS, and
DEP. SUPT. SECURITY HUGHES,
Defendants.

I.

Introduction
The instant action arises out of pro se plaintiff Thomas

Crawford’s (“Plaintiff”) imprisonment at the Attica Correctional
Facility (“Attica”). Currently pending before the Court is a motion
for partial summary judgment filed by Defendants Sergeant Cheney,
Nurse

K.

(“Officer

Sault

(“Nurse

Roberts”),

and

Sault”),
Dep.

Inmate

Supt.

Assistant

Security

J.

Hughes

Roberts
(“Deputy

Superintendent Hughes”) (collectively “Moving Defendants”). Docket
No. 105.

In addition, Plaintiff has filed objections to two non-

dispositive orders entered by Magistrate Judge Jonathan W. Feldman.
See Docket Nos. 107, 122, 123.

For the reasons discussed below,

Moving Defendants’ motion for partial summary judgment is granted
and Plaintiffs’ objections to Judge Feldman’s orders are overruled.

II.

Background
The following facts are taken from the respective statements

of fact, affidavits, and exhibits submitted by plaintiff and
defendant, as well as the docket in this matter.

As required on a

motion for summary judgment, the Court has considered all evidence
and testimony in the light most favorable to Plaintiff, and has
drawn all inferences in his favor.
On

September

6,

2013,

Plaintiff

was

housed

at

Attica.

Plaintiff testified at his deposition that on that date, Defendant
Officer Christopher Wegner (“Officer Wegner”) was compiling a list
of inmates who wanted to attend “chow” and religious services.
According to Plaintiff, he indicated to Officer Wegner that he
wanted to attend lunch and Jumu’ah prayer service.1

However, when

the time came to leave the cell block for lunch, Plaintiff’s cell
was not unlocked. According to Plaintiff, Officer Wegner said that
Plaintiff was not the list.
At

approximately

1:00

p.m.,

Officer

Wegner

unlocked

Plaintiff’s cell so he could attend religious services.

Plaintiff

testified that he then confronted Officer Wegner and asked him why
he hadn’t let Plaintiff out for lunch.

Officer Wegner told

Plaintiff that he had made a mistake, and Plaintiff replied that
Officer Wegner had gone past his cell too quickly while making the
list.

1

Plaintiff then attended his prayer service.

Jumu’ah is a Muslim prayer service held on Fridays.

2

Upon

his

return

from

prayer

services,

Plaintiff

again

encountered Officer Wegner. According to Plaintiff, Officer Wegner
frisked him and confiscated rolling papers, oil, and a religious
book that Plaintiff had on him.

Plaintiff testified that Officer

Wegner then made a partial fist with his right hand and struck
Plaintiff in the face, causing Plaintiff’s eyeglasses to fly off.
Plaintiff

further

testified

that

Officer

Wegner

Plaintiff had “talked to him like he was a bitch.”

stated

that

Docket No. 105-

3 at 36.
After striking Plaintiff, Officer Wegner told him to go lock
into his cell.

Plaintiff testified that he asked to have his

religious book returned to him and that Officer Wegner refused to
return the book and called Plaintiff a “nigger.”

Id. at 38.

Plaintiff then told Officer Wegner to “give [him] a one on one” and
to “come to [his] cell and call [him] a nigger.”

Id.

Plaintiff

returned to his cell, where he testified he was waiting to fight
Officer Wegner. Officer Wegner followed Plaintiff to his cell, and
according to Plaintiff, they “wrestled around” and Officer Wegner
hit him in the eye eight or nine times.

Plaintiff testified that

Officer Wegner then tried to pull Plaintiff from his cell by one
leg, but was unsuccessful in doing so.
Other

corrections

officers,

including

Sergeant

Cheney,

responded to the altercation between Plaintiff and Officer Wegner.
Plaintiff testified that the fight was over by the time Sergeant

3

Cheney

arrived.

Sergeant

Cheney

videotaped

Plaintiff

being

escorted to the facility medical unit, where Plaintiff received
medical treatment.
Plaintiff was seen by Nurse Sault in the facility medical
unit. Nurse Sault filled out an inmate injury report and a use-offorce report.

Nurse Sault indicated in the inmate injury report

that Plaintiff’s left eye was swollen and red and that the nail on
his left pinky

finger

had

been

broken.

Nurse

Sault

provided

Plaintiff with ice for his eye injury and cleansed and bandaged his
finger injury. Nurse Sault submitted a sworn declaration to this
Court dated February 28, 2015, in which she stated that she did not
believe that Plaintiff’s injuries were serious or required any
additional treatment. Docket No. 31-3 at ¶ 5. Plaintiff testified
that his finger injury healed within a week and that he had no
limitations on the use of his hand.

With respect to his left eye,

Plaintiff testified that it took two months for this injury to
fully heal and that he still suffers from a “floater,” which he
describes as spider web-like lines in his field of vision.
As a result of the altercation between Plaintiff and Officer
Wegner, Plaintiff was issued a misbehavior report. The misbehavior
report states that Plaintiff confronted Officer Wegner, refused
several direct orders to lock into his cell, and struck Officer
Wegner in the left side of his face with a closed fist.

The

misbehavior report goes on to state that Plaintiff grabbed Officer

4

Wegner in a “bear hug type hold” and bit him on the face.

Docket

No. 111 at 24. According to the misbehavior report, Plaintiff then
assumed a fighting stance, at which point Officer Wegner struck him
in the face with a closed fist, causing him to drop to the floor
and become compliant.
A disciplinary hearing regarding the altercation was held by
Deputy Superintendent Hughes. Officer Roberts was assigned to
assist

Plaintiff

with

the

disciplinary

hearing.

Plaintiff

testified at his deposition that Officer Roberts failed to provide
adequate assistance because he did not obtain the videotape of
Plaintiff’s escort from his cell to the facility medical unit.
Plaintiff further testified that Deputy Superintendent Hughes also
refused to provide Plaintiff with the videotape and that he refused
to let him call Sergeant Cheney, Officer Roberts, and Nurse Sault
as witnesses.

Plaintiff was found guilty of all the charges

against him and sentenced to 24 months in the special housing unit
(“SHU”) and 12 months loss of good time.

After an administrative

appeal, the sentence was reduced to 12 months in the SHU.
III. Discussion
A.

Moving Defendants’ Motion for Partial Summary Judgement
1.

Pursuant

Legal Standard
to

Rule

56(a)

of

the

Federal

Rules

of

Civil

Procedure, the Court will grant summary judgment if the moving
party demonstrates that there is no genuine dispute as to any
5

material fact and the movant is entitled to judgment as a matter of
law. When considering a motion for summary judgment, all genuinely
disputed facts must be resolved in favor of the party against whom
summary judgment is sought. See Tolan v. Cotton, 134 S.Ct. 1861,
1863 (2014).

If, after considering the evidence in the light most

favorable to the nonmoving party, the court finds that no rational
jury could find in favor of that party, a grant of summary judgment
is appropriate.

See Scott v. Harris, 550 U.S. 372, 380 (2007),

citing Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475
U.S. 574, 586-587 (1986).

A party opposing a motion for summary

judgment “‘must do more than simply show that there is some
metaphysical doubt as to the material facts. . . .

[T]he nonmoving

party must come forward with specific facts showing that there is
a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156,
160 (2d Cir. 2002) (quoting Matsushita Elec., 475 U.S. at 586-87).
Here, Moving Defendants seek summary judgment in their favor
as to Plaintiff’s claims against Sergeant Cheney, Nurse Sault,
Officer Roberts, and Deputy Superintendent Hughes.

Officer Wegner

has not sought summary judgment on Plaintiff’s claim against him.
For

the

reasons

set

forth

below,

the

Court

grants

Moving

Defendants’ motion.
2.

Claim Against Sergeant Cheney

Moving Defendants argue, and the Court agrees, that Plaintiff
has failed to identify any evidence to support the claim that
6

Sergeant Cheney violated his constitutional rights.

Accordingly,

Sergeant Cheney is entitled to judgment in his favor.
The

only

factual

allegations

against

Sergeant

Cheney

in

Plaintiff’s complaint are that he responded to the fight between
Plaintiff and Officer Wegner and that he videotaped Plaintiff being
escorted to the facility medical unit. Plaintiff testified multiple
times at his deposition that the fight had ended by the time
Sergeant Cheney arrived on the scene.

Plaintiff further testified

that nothing wrongful or illegal happened during the escort to the
medical unit videotaped by Sergeant Cheney.
To maintain a civil rights action against an individual
defendant under 28 U.S.C. § 1983 (“Section 1983”), “a plaintiff
must establish a given defendant’s personal involvement in the
claimed violation.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d
206, 229 (2d Cir. 2004).

Here, there is no admissible evidence to

support the conclusion that Sergeant Cheney violated Plaintiff’s
constitutional rights.

Sergeant Cheney cannot be held liable for

failing to intervene in a fight that Plaintiff concedes he did not
witness, or for videotaping an escort that Plaintiff concedes was
lawful.
At his deposition, Plaintiff claimed that Sergeant Cheney was
liable for the alleged violation of his constitutional rights
because he knew that Officer Wegner had fabricated the misbehavior
report.

In his opposition to Moving Defendants’ motion, Plaintiff

7

expands on this allegation, and attempts to claim that Officer
Wegner, Sergeant Cheney, Nurse Sault, Officer Roberts, and Deputy
Superintendent Hughes were involved in some manner of conspiracy to
violate his rights.

However, Plaintiff has failed to identify any

evidence to support this claim beyond his own speculation. “To
prove a § 1983 conspiracy, a plaintiff must show: (1) an agreement
between two or more state actors or between a state actor and a
private

entity;

(2)

to

act

in

concert

to

inflict

an

unconstitutional injury; and (3) an overt act done in furtherance
of that goal causing damages.” Warr v. Liberatore, 270 F. Supp. 3d
637,

650

(W.D.N.Y.

2017)

(internal

quotation

omitted).

“[T]o

survive a motion for summary judgment, the non-moving party’s
evidence of a § 1983 conspiracy-must, at least, reasonably lead to
the inference that [the defendants] positively or tacitly came to
a mutual understanding to try to accomplish a common and unlawful
plan.” Id. (internal quotation omitted).
In this case, the record contains no evidence whatsoever of an
agreement between Defendants to violate Plaintiff’s rights.

The

sole factual basis for Plaintiff’s conspiracy claim appears to be
that Sergeant Cheney and Nurse Sault were somehow aware that
Officer Wegner was lying about the altercation.

However, as

Plaintiff concedes, neither Sergeant Cheney nor Nurse Sault was
present during the altercation, and they therefore had no personal
knowledge about what did or did not happen. Mere “unsubstantiated

8

speculation” such as Plaintiff offers in this case is “insufficient
to show that a genuine factual issue exists” with respect to a
Section 1983 conspiracy claim. Ostensen v. Suffolk Cty., 236 F.
App’x

651,

653

(2d

Cir.

2007)

(internal

quotation

omitted).

Accordingly, Plaintiff’s assertion of a conspiracy, without any
factual support, does not save his claims against Sergeant Cheney
(or any of the other Moving Defendants).
3.

Claim Against Officer Roberts

Plaintiff has asserted a due process claim against Officer
Roberts for his allegedly inadequate assistance with respect to
Plaintiff’s disciplinary hearing.

The Court agrees with Moving

Defendants that this claim also lacks any support in the record.
A prisoner has “a right to assistance in preparing for a
prison disciplinary hearing.”
2d 478, 483 (W.D.N.Y. 2011).

Crenshaw v. Sciandra, 766 F. Supp.
However, the scope of this right is

“significantly limited” and “falls far short of the right to
counsel

that

defendants.”

the

Sixth

Amendment

guarantees

Id. (internal quotation omitted).

to

criminal

An assistant is

required only to perform investigatory tasks that the inmate
himself is unable to perform, and “is not obliged to go beyond the
specific instructions of the inmate because if he did so he would
then be acting as counsel in a prison disciplinary proceeding,
assistance to which a prisoner is not entitled.” Silva v. Casey,
992 F.2d 20, 22 (2d Cir. 1993). The Second Circuit has described an

9

inmate’s right to assistance as “qualified” and explained that any
violations thereof must be reviewed for harmless error. Pilgrim v.
Luther, 571 F.3d 201, 206 (2d Cir. 2009).
In this case, Plaintiff’s specific complaint against Officer
Roberts is that when he obtained the documents Plaintiff had
requested,

he

provided

them

to

the

hearing

officer

(Deputy

Superintendent Hughes) rather than providing them directly to
Plaintiff.

However, Plaintiff acknowledged on the record at his

disciplinary hearing that Deputy Superintendent Hughes provided
Plaintiff with the documents six days prior to the disciplinary
hearing.

Plaintiff’s rights were not violated because he received

the documents he requested from the hearing officer rather than
directly from Officer Roberts.

See Silva, 992 F.2d at 22 (finding

no violation of the right to assistance where assistant’s failure
to report results of investigation did not hinder inmate’s ability
to provide a defense). Moreover, even had Officer Roberts provided
inadequate assistance, such an error would have plainly been
harmless, inasmuch as Plaintiff received the documents at issue in
advance of the hearing and with adequate time to prepare his
defense.

Plaintiff acknowledged on the record at the disciplinary

hearing that he had in fact received the documents he wanted.

See

Docket No. 31-4 at 69.
Plaintiff also claims that Officer Roberts failed to obtain a
copy of the videotape made by Sergeant Cheney of Plaintiff being

10

escorted to the medical unit.
any prejudice

that

flowed

However, Plaintiff not identified

from

the

supposed

absence

of

this

evidence. Plaintiff acknowledged under oath at his deposition that
the videotape did not begin until after the fight was already over.
To the extent that Plaintiff maintains the videotape would have
showed that he was in his cell when Sergeant Cheney arrived, the
hearing transcript shows that Officer Wegner acknowledged on the
record that the incident took place in the doorway of Plaintiff’s
cell and that Plaintiff was in the cell at the end of the fight.
See Docket 31-4 at 63-64.

Because Plaintiff’s location at the end

of the fight was undisputed, Plaintiff did not need the videotape
to demonstrate it. Plaintiff has not identified any other relevant
information that could have been shown by the videotape, which
recorded only the undisputedly uneventful escort to the facility’s
medical unit. Any error by Officer Roberts in allegedly failing to
obtain this videotape was therefore harmless. Accordingly, Officer
Roberts is entitled to summary judgment as to Plaintiff’s claim
against him.
4.

Claim Against Deputy Superintendent Hughes

Plaintiff has asserted a due process claim against Deputy
Superintendent Hughes, who functioned as the hearing officer at
Plaintiff’s

disciplinary

hearing.

The

Court

finds

that

no

reasonable factfinder could hold in Plaintiff’s favor on this
claim.

11

“Prison disciplinary proceedings are not part of a criminal
prosecution”

and

as

such

“the

full

panoply

of

rights

due

a

defendant in such proceedings does not apply.” Wolff v. McDonnell,
418 U.S. 539, 556 (1974).

“Rather, to comport with procedural due

process, an inmate charged with a violation in a disciplinary
hearing

must

be

given:

(1)

advance

written

notice

of

the

disciplinary charges; (2) an opportunity, when consistent with
institutional safety and correctional goals, to call witnesses and
present documentary evidence in his defense; and (3) a written
statement by the factfinder of the evidence relied on and the
reasons for the disciplinary action.”

Williams v. Menifee, 331 F.

App’x 59, 60 (2d Cir. 2009) (internal quotation omitted).
In this case, Plaintiff maintains that Deputy Superintendent
Hughes violated his right to due process by failing to obtain a
copy of the videotape made by Sergeant Cheney and by not allowing
him to call Sergeant Cheney, Officer Roberts, and Nurse Sault as
witnesses. Plaintiff has failed to identify evidence sufficient to
establish a due process violation.
Turning first to the issue of the videotape, as discussed
above, there is no basis to conclude that the videotape would have
contained any evidence relevant to the charges against Plaintiff.
The videotape began after the fight between Plaintiff and Officer
Wegner had

already

concluded.

Moreover,

the

sole

fact

that

Plaintiff claims the videotape would have shown (that he was in his

12

cell when Sergeant Cheney arrived) is undisputed - Officer Wegner
testified that at the end of the fight, Plaintiff fell into his
cell. Deputy Superintendent Hughes had no constitutional obligation
to obtain evidence that was not relevant to the issues before him.
See Brooks v. Prack, 77 F. Supp. 3d 301, 318 (W.D.N.Y. 2014) (“a
hearing

officer

does

not

violate

due

process

by

excluding

irrelevant or unnecessary testimony or evidence”) (citing Kingsley
v. Bureau of Prisons, 937 F.2d 26, 30 (2d Cir. 1991)).
Turning to the issue of witnesses, “[t]he Supreme Court has
stated that disciplinary hearing officers must have the discretion
to deny witnesses, noting that valid bases for the denial of
witnesses would include irrelevance, lack of necessity, and other
hazards

particular

omitted).

to

each

case.”

Id.

(internal

quotation

In this case, Deputy Superintendent Hughes denied

Plaintiff’s request to call Sergeant Cheney on the basis that
Sergeant Cheney did not arrive until the fight was over and had
provided a written memo indicating he had no personal knowledge of
the incident. See Docket No. 31-4 at 66-67. Deputy Superintendent
Hughes’ conclusion that Sergeant Cheney’s testimony was unnecessary
was

reasonable,

and

Plaintiff’s request.

constitutes

a

valid

basis

for

denying

See Kalwasinski v. Morse, 201 F.3d 103, 109

(2d Cir. 1999) (finding a rational basis for hearing officer to
conclude

that

testimony

was

irrelevant

or

unnecessary

proposed witnesses were not present at incident).

13

where

With respect to Officer Roberts, it is not clear from the
hearing

transcript

that

Plaintiff

ever

informed

Deputy

Superintendent Hughes that he wished to call Officer Roberts as a
witness, as opposed to objecting to his assistance.

Moreover,

Deputy

that

Superintendent

Hughes

explained

to

Plaintiff

his

objection to Officer Roberts’ assistance had been noted, and
confirmed that Plaintiff had in fact ultimately received the
documentation he requested.

Having Officer Roberts (who was not a

witness to the fight at issue and had no personal knowledge
thereof) testify would have served no purpose.
Finally, with respect to Nurse Sault, there is no indication
that Plaintiff ever informed Deputy Superintendent Hughes that he
wished

to

call

Superintendent

her

as

Hughes

a

witness.

reviewed

To

with

the

Plaintiff

witnesses, which did not include Nurse Sault.
47-50.

contrary,
his

Deputy

list

of

See Docket 31-4 at

Moreover, at the end of the hearing, Deputy Superintendent

Hughes asked Plaintiff what other testimony he wanted to submit and
Plaintiff stated “that’s it, I’m finished” with no request for or
mention of Nurse Sault.

Id. at 69.

Deputy Superintendent Hughes

cannot be faulted for not calling a witness who was not identified
by Plaintiff.

See Dixon v. Goord, 224 F. Supp. 2d 739, 745

(S.D.N.Y. 2002) (finding no due process violation where hearing
officer

failed

to

call

witness

plaintiff).

14

insufficiently

identified

by

For the foregoing reasons, on the record before the Court, no
reasonable factfinder could conclude that Deputy Superintendent
Hughes violated Plaintiff’s right to due process. Accordingly, the
Court grants judgment in favor of Deputy Superintendent Hughes on
this claim.
4.

Claim Against Nurse Sault

Plaintiff claims that Nurse Sault was deliberately indifferent
to

his

medical

needs.

The

Court

finds

that

this

claim

is

unsupported by the evidence of record.
In order to establish a constitutional violation related to a
denial

of

medical

care,

“a

prisoner

must

prove

deliberate

indifference to [his] serious medical needs.” Chance v. Armstrong,
143 F.3d 698, 702 (2d Cir. 1998) (internal quotation omitted).
“This standard incorporates both objective and subjective elements.
The objective ‘medical need’ element measures the severity of the
alleged deprivation, while the subjective ‘deliberate indifference’
element ensures that the defendant prison official acted with a
sufficiently culpable state of mind.” Smith v. Carpenter, 316 F.3d
178, 183–84 (2d Cir. 2003).
Moving Defendants argue, and the Court agrees, that Plaintiff
cannot satisfy either the objective or subjective elements of his
claim in this case. Turning first to the object prong, Plaintiff’s
minor injuries (a swollen eye and a broken pinky nail) do not
constitute

serious

medical

needs,

15

inasmuch

as

they

were

not

“condition[s] of urgency” that could reasonably be expected to
“produce death, degeneration, or extreme pain.”

Hathaway v.

Coughlin, 99 F.3d 550, 553 (2d Cir. 1996) (internal quotation
omitted).

Courts in this Circuit have consistently held that

neither minor finger injuries nor minor eye injuries meet this
standard.

See, e.g., Dallio v. Hebert, 678 F. Supp. 2d 35, 60

(N.D.N.Y. 2009) (finding two black eyes and a headache, among other
injuries, insufficient to establish serious medical need); Barrett
v. Goldstein, No. 07CV2483 RJDLB, 2009 WL 1873647, at *3 (E.D.N.Y.
June 29, 2009) (finding that a broken finger does not constitute a
serious medical need and collecting cases to that effect).
Plaintiff also cannot show that Nurse Sault was deliberately
indifferent to his medical needs.

It is undisputed that Nurse

Sault treated Plaintiff, providing him with ice for his eye and
cleansing and bandaging his finger wound.

Plaintiff acknowledged

at his deposition that this care was adequate, but claimed that
Nurse Sault did not know the true extent of his injuries. However,
Nurse Sault indicated in her sworn declaration that, in her medical
judgment, Plaintiff’s injuries were minor and did not require
follow up care.

Plaintiff’s disagreement with Nurse Sault’s

assessment of the seriousness of his injuries and the appropriate
treatment is insufficient to demonstrate deliberate indifference.
See Veloz v. New York, 339 F. Supp. 2d 505, 525 (S.D.N.Y. 2004)

16

(explaining

that

the

Constitution

is

not

implicated

by

“a

disagreement over a treatment plan”).
Because Plaintiff cannot establish either the objective or
subjective elements for a claim of denial of medical treatment, no
rational factfinder could hold for him on this claim.

Nurse Sault

is therefore entitled to judgment in her favor.
B.

Plaintiffs’ Objections to Judge Feldman’s Orders

Plaintiff has filed objections to two non-dispositive orders
entered by Judge Feldman.

First, Plaintiff objects to Judge

Feldman’s August 31, 2017 Decision and Order (the “August 31
Decision”)

(Docket

No.

101)

denying

as

miscellaneous relief filed by Plaintiff.
Second,

Plaintiff

objects

to

Judge

moot two

motions

for

See Docket No. 107.

Feldman’s

March

20,

2018

Decision and Order (the “March 20 Decision”) (Docket No. 119)
denying three discovery motions filed by Plaintiff and denying in
part and granting in part a fourth such motion.
Pursuant to 28 U.S.C. § 636(b)(1)(A), Judge Feldman was
designated to hear and determine all non-dispositive pretrial
matters in this case. His decisions are subject to reconsideration
by this Court only if there are “clearly erroneous or contrary to
law.” Id. “Discovery disputes are quintessential examples of such
non-dispositive pretrial issues.”

Progress Bulk Carriers v. Am.

S.S. Owners Mut. Prot. & Indem. Ass'n, Inc., 2 F. Supp. 3d 499, 502
(S.D.N.Y. 2014).

17

Here, Plaintiff has not met the standard for reconsideration
with respect to either of Judge Feldman’s orders. Turning first to
the August 31 Decision, Judge Feldman denied Plaintiff’s motions
for miscellaneous relief as moot because Plaintiff agreed, on the
record at a status conference, that those motions were moot and
could be withdrawn. Plaintiff’s objections (Docket No. 107) do not
contest the facts underlying that August 31 Decision and do not
demonstrate that Judge Feldman’s conclusions were clearly erroneous
or contrary to law.
Turning to the March 20 Decision, as a threshold matter,
Plaintiff’s objections (Docket Nos. 122 and 123) are untimely,
having been filed on May 14, 2018 and May 23, 2018, respectively.
Federal Rule of Civil Procedure 72(a) unambiguously provides that
a party’s objection to a magistrate judge’s non-dispositive order
must be filed “within 14 days of being served with a copy.”
Plaintiff was mailed a copy of the March 20 Decision on March 20,
2018 (see Docket No. 119) but did not file any objections until
nearly

two

objections

months
is

later.

sufficient

The
standing

untimeliness
alone

to

of

Plaintiff’s

justify

denial.

Moreover, Plaintiff’s objections, which consist of nothing more
than reiterations of the arguments considered by Judge Feldman, do
not demonstrate that the March 20 Decision is clearly erroneous or
contrary to law.

18

For the foregoing reasons, Plaintiff has not established that
reconsideration of the August 31 Decision or the March 20 Decision
is warranted. His objections to Judge Feldman’s determinations are
accordingly denied.
IV. Conclusion
For the reasons set forth above, the Court grants the Moving
Defendants’

motion

for

summary

judgment

(Docket

No.

105).

Plaintiff’s claims against Sergeant Cheney, Officer Roberts, Deputy
Superintendent Hughes, and Nurse Sault are dismissed, and the Clerk
of the Court is instructed to remove the listed individuals as
defendants in this case. Plaintiff’s objections to Judge Feldman’s
non-dispositive orders (Docket Nos. 107, 122, 123) are denied.
Plaintiff’s excessive use of force claim against Officer
Wegner remains pending and appears to be trial ready.

This matter

shall be transferred to the Hon. Frank P. Geraci, Chief United
States District Judge, for all further proceedings.
ALL OF THE ABOVE IS SO ORDERED.
s/Michael A. Telesca
_____________________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

June 22, 2018
Rochester, New York

19