Casey et al v. Pallito et al

Filing 46

OPINION AND ORDER ADOPTING 17 REPORT AND RECOMMENDATION dismissing without prejudice 6 , 10 Plaintiffs' Motions for Summary Judgment, and 5 Motion to Resolve Undisputed Facts. Signed by Chief Judge Christina Reiss on 2/25/2013. (pac)

U.S. OI.S Trl T G
DISTRICT

UNITED STATES DISTRICT COURT
FOR THE
2013 FEB 25 PM
DISTRICT OF VERMONT
CLERK
BY

SHANE EDWARD CASEY and
MARTIN DEMETRIO MORALES,
Plaintiffs,
v.
ANDREW PALLITO, et aI.,
Defendants.

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Case No. 5: 12-cv-284

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OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

(Docs. 5,6, 10, 17,32 & 34)
This matter came before the court for a review of the Magistrate Judge's January
30,2013 Report and Recommendation C'R & R") in the above-captioned matter (Doc.
17), in response to Plaintiffs' Motion to Resolve Undisputed Facts (Doc. 5), Motion for
Summary Judgment by Plaintiff Casey (Doc. 6), and Motion for Summary Judgment by
Plaintiff Morales (Doc. 10). Plaintiffs object to the R & R although they do not claim
actual errors in the Magistrate Judge's conclusions. See Docs. 32 & 34. Instead, they
reiterate the allegations of misconduct that form the basis of their Complaint and explain
the manner in which documents in this case have been filed. They also request time to
correspond with one another and an "an opportunity to correct, modifY, or resubmit any
documents currently filed at the proper time and in the proper format[.]" (Doc. 32 at 3.)
As Plaintiffs point out, the Vermont Department of Corrections has only recently granted
them permission to have contact regarding legal matters. Plaintiffs request that, "[i]fthe
court should decide to only grant leave to amend the complaint[,]" they be offered an
alternative to filing a redline complaint, citing obstacles to their ability to comply with
the Local Rules. Id. Defendants have not responded to Plaintiffs' objections.

A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401,405 (2d Cir.
1999). The district judge may accept, reject, or modifY, in whole or in part, the findings
or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); accord

Cullen, 194 F.3d at 405. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985). When no timely objection is tiled, "the [c]ourt need only satisfY itself that
there is no clear error on the face of the record in order to accept the recommendation."
Fed. R. Civ. P. 72 advisory committee's note (citing Campbell v.

u.s. Dist. Court, 501

F.2d 196,206 (9th Cir), cert denied, 419 U.S. 879 (1974).
In his six page R & R, the Magistrate Judge recommended that Plaintiffs' motions
for summary judgment and related motions be denied because discovery had not yet
taken place and thus the undisputed facts that may give rise to summary judgment had
not yet been established. See Miller v. WolpofJ & Abramson, L.L.P., 321 F.3d 292, 303
(2d Cir. 2003) ("[S]ummary judgment should only be granted 'if after discovery, the
nonmoving party has failed to make a sufficient showing on an essential element of its
case with respect to which it has the burden ofproof."') (quoting Hellstrom v.

u.s. Dep't

o/Veterans Affairs, 201 F.3d 94,97 (2d Cir. 2000)); Sutera v. Schering Corp., 73 F.3d
13, 18 (2d Cir. 1995) (reversing summary judgment granted "before any discovery had
taken place"). Accordingly, sua sponte, the Magistrate Judge determined that Plaintiffs'
motions were tiled prematurely and that dismissal without prejudice to retile the motions
was warranted.
Although a pre-discovery motion for summary judgment is not prohibited, courts
generally refrain from deciding these case-dispositive motions if a party asserts that he or
she had been deprived of an opportunity to discover the underlying facts or respond to
them. Here, the motion for summary judgment and related motions were tiled with
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Plaintiffs' Complaint so no discovery has taken place. The court agrees that, in this
particular case, where Plaintiffs concede that they have faced obstacles in filing motions
that reflect their joint input and which are signed by both of them, dismissal of those
motions without prejudice on the grounds that they were filed prematurely is appropriate.
In their Objection to the R & R, Plaintiffs have requested an opportunity to correct
or resubmit any filing improperly filed. This request is hereby GRANTED. In addition,
Plaintiffs have asked if they may file an amended complaint without a redlined copy. See
Local Rule lS(a)(l) (requiring "aredlined version of the proposed amendment clearly
designating additions and deletions[.]"). This request is also hereby GRANTED,
provided that any amended complaint filed by Plaintiffs consists of numbered paragraphs
containing short and plain factual allegations, a short and plain statement of each legal
claim Plaintiffs assert, and a clear and concise statement of the relief requested. The
Magistrate Judge did not recommend dismissal of Plaintiffs' Complaint, and this court
agrees that dismissal is not required. Accordingly, an amended complaint is not required
to proceed.
The court does not adopt the Magistrate Judge's remaining recommendations
regarding court procedures and filing requirements as those recommendations speak for
themselves and need not be addressed in order to respond to Plaintiffs' Objections.
The court agrees with the Magistrate Judge's conclusion and hereby ADOPTS IN
PART the R & R as the Opinion and Order of this court, and DISMISSES without
prejudice Plaintiffs' Motions for Summary Judgment and Motion to Resolve Undisputed
Facts.
SO ORDERED.
Dated at Rutland, in the District of Vermont, this

~ay of February, 20l3.

c~

United States District Court

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