Green v. Kestel et al

Filing 87

DECISION AND ORDER adopting 77 Report and Recommendation and overruling 84 Objections. Signed by Hon. Elizabeth A. Wolford on 09/10/2018. (DPS)

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WESTERN DISTRICT OF NEW YORK

EEYV OiSTRF:
ANTWAN M. GREEN,
Plaintiff,

DECISION AND ORDER
6:I5-CV-06554 EAW

V.

CHIEF HARRIS, et al.,
Defendants.

BACKGROUND

Plaintiff Antwan M. Green ("Plaintiff) alleges various eonstitutional violations
arising out of his pretrial eonfinement at the Erie County Holding Center and Erie County

Correetional Faeility. Although initially proeeeding pro se. Plaintiff is now represented by
eounsel who filed a motion for leave to file a fourth amended eomplaint (Dkt. 63) removing

eertain defendants and elaims from the aetion, and adding an Equal Proteetion elaim for
inadequate medieal eare related to Plaintiffs eye, a Due Proeess/Equal Protection elaim
for inadequate medieal eare related to Plaintiffs anal bleeding, and a Due Process custom

and practice Monell elaim for inadequate medieal eare. Plaintiff also sought to add the
County of Erie ("the County") and Sheriff Timothy Howard ("Sheriff Howard") as named
defendants to the fifth and sixth causes of aetion, and the County to the third cause of
aetion.

On June 7, 2018, Magistrate Judge Jonathan W. Feldman, to whom the undersigned
referred this ease for supervision of pretrial non-dispositive matters pursuant to 28 U.S.C.
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§ 636(b)(1)(A) and (B), issued a Decision & Order and Report & Recommendation. (Dkt.
77). Judge Feldman granted Plaintiffs motion in part, and recommended that it be denied

in part.' Specifically, Judge Feldman found as follows: (1) the first cause of action
alleging a due process claim may proceed, but defendant Harris was dismissed from this
claim by stipulation ofthe parties; (2)the second cause ofaction alleging denial of medical

treatment may proceed; (3) the third cause of action alleging a failure to provide
constitutionally adequate medical care to a pretrial detainee may proceed only against
defendant Orville and "Jane Doe" but not against the County under a Monell theory of

liability^; (4) the fourth cause of action may proceed; (5) the fifth cause of action may
proceed against Orville and "Jane Doe" but not against Sheriff Howard under a Monell
theory of liability; and(6)the sixth cause ofaction may proceed against the County but not
against Sheriff Howard. (Dkt. 77 at 6-18).

On July 30,2018,the County filed Objections to Judge Feldman's Decision & Order

and Report & Recommendation. (Dkt. 84). Specifically, the County objected to Judge
Feldman's decision granting Plaintiffleave to assert a sixth cause ofaction alleging a claim

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To the extent that Judge Feldman granted Plaintiffs motion for leave to amend, his
decision was memorialized in the form of a Decision & Order and it is subject to review
under the deferential clear error or contrary to law standard, because that aspect of his
decision was non-dispositive in nature. However,to the extent that Judge Feldman denied
Plaintiffs motion for leave to amend on the grounds of futility, his decision was issued as
a Report & Recommendation and any objections would be subject to de nova review,
because that aspect of the decision was dispositive in nature. (Dkt. 77 at 18-19). See
generally Briggs v. County ofMonroe,215 F. Supp. 3d 213, 215(W.D.N.Y. 2016).

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A Monell theory of liability refers to potential liability ofa municipality pursuant to
a custom or practice in accordance with the decision in Monell v. Department ofSocial
Services, 436 U.S. 658(1978).
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pursuant to 42 U.S.C. § 1983 for a pattern and practice of deliberate indifference to serious
medical needs at the Erie County Holding Center and Erie County Correctional Facility

against the County under a Monell theory of liability. The County argues that any such
claim is barred by the law of the case doctrine, contending:

[T]o permit the amendment would,largely, render pointless, futile, and moot
the Court's preceding Orders progressively pruning the Plaintiffs preceding
complaints and, most particularly, violate those portions of Judge Wolford's
prior Decision and Order (Dkt. No. 23), filed August 17, 2016, as had
directed, concluded and ordered(1)"For the reasons set forth above, several
of Plaintiffs claims are dismissed and only the claims setforth above and
against the parties setforth above may goforward''(Dkt. No. 23, p. 11)and
(2)"Therefore, Plaintiffs Third Amended Complaint must include all ofthe
allegations against each of the defendants against whom the case is going
forward so that the Third Amended Complaint may stand alone as the sole
complaint in this action which Defendants must answer"(Dkt. No.23, pp.1112) and (3)"IT HEREBY IS ORDERED . . . FURTHER, that Plaintiff is
directed to file a Third Amended Complaint as directed above by September
30,2016"{italics supplied; bold in original).

(Dkt.84 at 4;see also id. at 7-19). The County also argues that Judge Feldman's conclusion

incorrectly omitted any reference to the County's argument about the alleged prejudice that
would inure to the County in the event that leave to amend was granted, and that Judge
Feldman misstated the County's statute of limitations argument. {Id. at 5-6).

On August 12, 2018, Plaintiff filed a response to the County's Objections. (Dkt.
85). Then, by letter dated August 20,2018,the County objected to Plaintiffs reliance upon

two exhibits attached to his response (Dkt. 85-1; Dkt. 85-2) which were not considered in
the motion practice before Judge Feldman (Dkt. 86).

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DISCUSSION

Both parties agree that the applicable standard of review is the deferential clearly
erroneous or contrary to law standard of review. (Dkt. 84 at 7; Dkt. 85 at 1). The clearly

erroneous/contrary to law standard of review is "highly deferential" and "a district court
may reverse the order only ifon the entire evidence,the district court is left with the definite
and firm conviction that a mistake has been committed." Rodriguez v. Pie ofPort Jefferson
Corp.,48 F.Supp.Sd 424,425(E.D.N.Y.2014)(quotations and citations omitted);see also
Khaldei v. Kaspiev, 961 F.Supp.2d 572, 575 (S.D.N.Y. 2013)(explaining that an order "is
contrary to law if it fails to apply or misapplies relevant statutes, case law or rules of
procedure"(quotation omitted)); Flaherty v. Filardi, No. 03 Civ. 2167(LTS)(HBP), 2009
WL 749570, at *19(S.D.N.Y. Mar. 20, 2009)("The clearly erroneous standard is highly
deferential, and magistrate judges are afforded broad discretion in resolving non-

dispositive disputes...."(internal quotation marks and alterations omitted)).^

^

The Court notes that if Plaintiff had filed objections to Judge Feldman's denial of

leave to amend based upon grounds of futility, then a more exacting de novo standard of
review would be utilized to review those objections. However, Plaintiff did not file any
objections. See Mario v.P&CFood Mkts., Inc.,313 F.3d 758,766(2d Cir. 2002)
("Where
parties receive clear notice ofthe consequences, failure [to timely] object to a magistrate's
report and recommendation operates as a waiver of further judicial review of the
magistrate's decision."); see L.R. Civ. P. 72(b)("Written objections to proposed findings
of fact and recommendations for disposition submitted by a Magistrate Judge pursuant to
28 U.S.C. § 636(b)(1)(B) shall specifically identity 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."). Thus, in the absence of specific objections, the
district court reviews for clear error or manifest injustice. Singh v. N. Y. State Dep't of
Taxation & Fin., 865 F. Supp. 2d 344, 348(W.D.N.Y. 2011).
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The Court has reviewed Judge Feldman's Decision & Order and Report &

Recommendation, as well as the motion papers submitted before Judge Feldman and the

filings before the undersigneds'* and concludes based upon a careful review that Judge
Feldman's Decision & Order is neither clearly erroneous nor contrary to the law.
Therefore, the County's Objections are overruled. In addition, while Plaintiff did not file

objections to Judge Feldman's Report & Recommendation that certain proposed claims
and parties not be permitted to proceed on grounds of futility, this Court has nonetheless
conducted a careful review of Judge Feldman's conclusions and agrees with his Report &
Recommendation and therefore adopts it in its entirety. The Court will briefly comment
on certain aspects of the Objections raised by the County.

The law of the case doctrine is a "discretionary rule of practice" that while

expressing a practice of courts to generally refuse to reopen that which has been decided
in a case, does not operate as a bar to a court from reconsidering prior rulings. See Colvin
V. Keen,Docket No. 16-3650,_F.3d_,2018 WL 3865295,at *3(2d Cir. Aug. 15,2018).

Here,the County misstates this Court's prior ruling and misapplies the doctrine in an effort
to prevent Plaintiff from pursuing a claim against the County. Up until Plaintiffs motion
for leave to file a fourth amended complaint, he had never attempted to assert a deliberate
indifference to serious medical needs claim against the County based upon a Monell theory

of liability, and none of this Court's prior decisions (including the August 17, 2016

'*
The Court declines to strike the exhibits attached to Plaintiffs response to the
County's Objections as requested in the County's Letter dated August 20, 2018(Dkt. 86),
but the Court notes that it has not considered those filings in reaching its conclusion.
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Decision and Order relied upon by the County), rejected any such claim. (See Dkt. 4; Dkt.

13; Dkt. 23; Dkt. 32). Thus, Judge Feldman correctly concluded that the law of the case
doctrine did not preclude Plaintiffs new sixth cause of action against the County. (Dkt.
77 at 18).

The County also contends that it demonstrated undue delay by Plaintiff in seeking
to add the County as a defendant and undue prejudice, and that Judge Feldman failed to

discuss that aspect of the County's opposition. (Dkt. 84 at 19-29). The County focuses its

argument in this regard upon Plaintiffs reliance upon conclusions from a "findings letter"
issued in 2009. While the County's arguments in this regard may ultimately be relevant to

admissibility determinations at trial, they do not justify denial of leave to amend. Judge
Feldman accurately recited the standard for a motion for leave to amend (Dkt. 77 at 5), and
his conclusions granting Plaintiff leave are neither contrary to law nor clearly erroneous.
CONCLUSION

For the foregoing reasons, the County's Objections(Dkt. 84) are overruled, and the
Court adopts the Report & Recommendation (Dkt. 77) in its entirety.
SO ORDERED.

JETH fy/WOLI
States District Judge
Dated: September 10, 2018
Rochester, New York

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