Robinson v. The U.S. Marshal's Service et al

Filing 99

DECISION AND ORDER affirming and adopting the RR&O, Docket Item 89 . The defendants' motion for summary judgment, Docket Item 64 , is GRANTED; the plaintiff's cross-motion for summary judgment, Docket Item 83 , is DENIED; the plaintiff& #039;s motion for the appointment of counsel, Docket Item 98 , is DENIED as moot; the complaint, Docket Item 1 , is DISMISSED; and the Clerk of the Court shall close the file. Signed by Hon. Lawrence J. Vilardo on 9/17/2021. (MLA)-CLERK TO FOLLOW UP- and mail a copy of this decision to the pro se plaintiff

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RAMEL ROBINSON,
Plaintiff,
17-CV-6319-LJV-HKS
DECISION & ORDER

v.
THE U.S. MARSHAL’S SERVICE, et al.,
Defendants.

On May 22, 2017, the pro se plaintiff, Ramel Robinson, commenced this action
under Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Docket Item 1. Robinson
alleges that the defendants1 violated his constitutional rights when they placed him in a
holding cell with, and failed to protect him from, Johnny Blackshell, an inmate against
whom Robinson had previously testified. Id. On August 30, 2018, this Court referred
the matter to United States Magistrate Judge H. Kenneth Schroeder, Jr., for all
proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 25.
On November 8, 2019, the defendants moved for summary judgment, Docket
Item 64; on April 23, 2020, Robinson responded and cross-moved for summary
judgment, Docket Item 83; and on May 19, 2020, the defendants replied, Docket Item
84. On February 4, 2021, Judge Schroeder issued a Report, Recommendation, and

“The U.S. Marshal’s Service” was dismissed from this action, Docket Item 4 at
3, so the only remaining defendants are “U.S. Marshal [Aaron] Ward,” Thomas Greiner,
and James R. Smith.
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Order (“RR&O”) finding that the defendants’ motion for summary judgment should be
granted. Docket Item 89.
After Robinson moved for an extension of time in which to object to the RR&O,
on March 29, 2021, he filed a letter stating that he no longer needed the extension and
instead was “asking that the courts [sic] grant summary judgment in [his] favor or set a
trial date.” Docket Items 92, 93. On April 28, 2021, the defendants responded. Docket
Item 95. Robinson then moved for, and was given, an extension of time in which to
reply, Docket Items 96, 97, but he never filed a reply. Instead, on June 28, 2021,
Robinson moved for the appointment of counsel. Docket Item 98.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). But an objection must
“specifically identify the portions of the proposed findings and recommendations to
which objection is made and the basis for each objection” and must “be supported by
legal authority.” W.D.N.Y. Local R. Civ. P. 72(b). “When a party makes only conclusory
or general objections, or simply reiterates the original arguments, the Court will review
the [RR&O] strictly for clear error.” Molefe v. KLM Royal Dutch Airlines, 602 F. Supp.
2d 485, 487 (S.D.N.Y. 2009) (citations omitted); see also Chinn v. Elmwood Franklin
School, 2019 WL 6266193, at *1 (W.D.N.Y. Nov. 29, 2018). “Similarly, objections that
are merely perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original [papers] will not suffice to

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invoke de novo review.” Molefe, 602 F. Supp. 2d at 487 (alteration in original) (citation
omitted).
Robinson’s letters clearly are not objections. But even if this Court were to
construe Robinson’s letters as objecting to the RR&O, his objections would not warrant
de novo review. Robinson does not offer any reason to dispute the RR&O, provide a
single record citation disputing any factual findings, or cite a single case contesting any
legal findings. See Docket Items 92, 93. As the First Circuit has observed, “[i]t is not
enough merely to mention a possible argument in the most skeletal way, leaving the
court to do [the] work, create the ossature for the argument, and put flesh on its bones.”
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). For that reason alone, the
Court would adopt the RR&O.
Nevertheless, and in light of Robinson’s pro se status, this Court has carefully
and thoroughly reviewed the RR&O; the record in this case; the letters and response;
and the materials submitted to Judge Schroeder. Based on that de novo review, the
Court accepts substantively, and adopts, Judge Schroeder’s recommendation to grant
the defendants’ motion for summary judgment.
The undisputed facts show that defendants James Smith and Thomas Greiner
had no reason to believe that Blackshell posed a risk to Robinson when they placed
Robinson and Blackshell in a cell together. See Docket Item 71 at ¶¶ 12-14, 23-26. For
that reason, Robinson cannot show that Smith or Greiner acted with deliberate
indifference, and Robinson therefore cannot succeed on the merits of his claims against
Smith or Greiner. See Darnell v. Pineiro, 849 F.3d 17, 35 (2d Cir. 2017) (explaining that
to prove deliberate indifference a “pretrial detainee must prove that the defendant-

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official acted intentionally . . . or recklessly failed to act with reasonable care to mitigate
[a] risk that the . . . defendant-official knew, or should have known, [to exist]”). Likewise,
because Robinson has admitted that defendant Aaron Ward was not personally
involved in placing Robinson and Blackshell in the same cell, Robinson cannot succeed
on the merits of his claim against Ward. See Thomas v. Ashcroft, 470 F.3d 491, 496
(2d Cir. 2006) (“Because the doctrine of respondeat superior does not apply in Bivens
actions, a plaintiff must allege that the individual defendant was personally involved in
the constitutional violation.”).
Therefore, for the reasons stated above and in the RR&O, the defendants’
motion for summary judgment, Docket Item 64, is GRANTED; Robinson’s cross-motion
for summary judgment, Docket Item 83, is DENIED; Robinson’s motion for the
appointment of counsel, Docket Item 98, is DENIED as moot; the complaint, Docket
Item 1, is DISMISSED; and the Clerk of the Court shall close the file.
This Court hereby certifies under 28 U.S.C. § 1915(a)(3) that any appeal from
this order would not be taken in good faith and therefore denies leave to appeal as a
poor person. Coppedge v. United States, 369 U.S. 438 (1962). Robinson must file any
notice of appeal with the Clerk’s Office, United States District Court, Western District of
New York, within 30 days of the date of judgment in this action. Requests to proceed
on appeal as a poor person must be filed with the United States Court of Appeals for the
Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of
Appellate Procedure.

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SO ORDERED.
Dated: September 17, 2021
Buffalo, New York

/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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