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Fulton v. Senkowski

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 26, 2006

ALVIN FULTON, JR., PLAINTIFF,
v.
DANIEL A. SENKOWSKI, DEFENDANT.

The opinion of the court was delivered by: Scullin, Chief Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are (1) Plaintiff's objections to Magistrate Judge Lowe's October 25, 2005 Report-Recommendation in which he recommended that this Court grant Defendant's motion to dismiss Plaintiff's second amended complaint*fn1 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure*fn2 and (2) Plaintiff's appeal from Magistrate Judge Lowe's October 5, 2005 Order denying his motion for a judgment declaring that New York State may not indemnify Defendant.

II. BACKGROUND*fn3

Liberally construed, Plaintiff's second amended complaint alleges that, between May 11, 2002, and June 12, 2003, Defendant, who was at that time Superintendent of Clinton Correctional Facility, violated Plaintiff's Eighth Amendment rights while he was incarcerated at that facility by knowingly or recklessly exposing him 24-hours per day to the secondhand cigarette smoke of prison staff and other inmates. See Dkt. No. 63 at 1-2. Specifically, Plaintiff asserts that Defendant acted knowingly or recklessly because (1) he "was fully aware of plaintiff's alergic[] [sic] and asthmatic conditions at the time of the secondhand cigarette smoke exposure" and (2) "Plaintiff . . . filed a grievance complaint addressing these issues and seeking appropriate medical analysis[] and prognosis," which grievance (No. CL-48002-03) Defendant denied. See id. at 2-3. Moreover, Plaintiff contends that Defendant's response to his complaint was deficient because he "refused to institute preventive measures to protect plaintiff from known dangers of secondhand smoke" and he "refused to enssure [sic] appropriate medical attention and treatment . . . ." See id. at 3-4.*fn4

After Plaintiff filed his second amended complaint on February 17, 2005, see Dkt. No. 63, Defendant sent a letter to the Court requesting an extension of time in which to answer or otherwise respond to that pleading, see Dkt. No. 64. By Order dated March 4, 2005, the Court granted Defendant's request and extended Defendant's time to answer or otherwise respond to April 15, 2005. See Dkt. No. 65.*fn5 One month later, on April 4, 2005, Plaintiff filed an "Application for Clerk to Enter Default Judgment," which Magistrate Judge Lowe rejected because the Court had given Defendant an extension of time to file an answer or other response to Plaintiff's second amended complaint. See Dkt. No. 66.*fn6

The next day, April 5, 2005, Defendant filed a motion to dismiss Plaintiff's second amended complaint. See Dkt. No. 67. By Order dated April 12, 2005, Judge Hood reassigned this case to Chief Judge Scullin. See Dkt. No. 68.*fn7 On April 25, 2005, Plaintiff filed an Affidavit in Opposition to Magistrate Judge Lowe's April 18, 2005 Order rejecting Plaintiff's application for default judgment. See Dkt. No. 71. By Order dated May 12, 2005, Magistrate Judge Lowe sua sponte extended Plaintiff's time to file papers in opposition to Defendant's motion to dismiss until June 2, 2005. See Dkt. No. 72. Subsequently, by Order dated June 24, 2005, Magistrate Judge Lowe further extended Plaintiff's time to file papers in opposition to Defendant's motion until July 25, 2005. See Dkt. No. 74. By Order dated July 19, 2005, Magistrate Judge Lowe once again extended Plaintiff's time to respond to Defendant's motion until August 8, 2005, and, in addition, denied Plaintiff's July 8, 2005 motion for appointment of counsel. See Dkt. No. 77.

By Order dated July 11, 2005, this Court denied Plaintiff's objection to Magistrate Judge Lowe's April 18, 2005 Order in which he rejected Plaintiff's application for entry of default judgment because Defendant had filed a motion to dismiss on April 5, 2005, and therefore was not in default. See Dkt. No. 76.

On September 19, 2005, Plaintiff filed objections to Judge Hood's March 4, 2005 Order extending the time for Defendant to respond to Plaintiff's second amended complaint and to Judge Hood's April 13, 2005 Order reassigning this case to Chief Judge Scullin. See Dkt. No. 78.*fn8 On that same date, Plaintiff filed a motion for a judgment declaring that the State of New York may not indemnify or defend Defendant Senkowski, see Dkt. No. 80, which Magistrate Judge Lowe denied by Order dated October 5, 2005, see Dkt. No. 81.

Finally, Magistrate Judge Lowe issued a Report-Recommendation on October 25, 2005, in which he recommended that this Court grant Defendant's motion to dismiss Plaintiff's second amended complaint with prejudice. See Dkt. No. 84. Plaintiff filed timely objections to this Report-Recommendation, see Dkt. No. 85; Defendant filed a letter brief in response to these objections, see Dkt. No. 86; and Plaintiff filed an affidavit in response to Defendant's letter brief, see Dkt. No. 87.

III. DISCUSSION

A. Magistrate Judge Lowe's October 25, 2005 Report-Recommendation*fn9 Addressing the merits of Defendant's motion, Magistrate Judge Lowe concluded that

[u]pon thorough review of Defendant's motion papers and Plaintiff's liberally construed Second Amended Complaint, I have determined that Defendant is entitled to dismissal of Plaintiff's Second Amended Complaint for the reasons stated in Defendant's memorandum of law --i.e., that Plaintiff's Second Amended Complaint, when considered in light of the affirmance of the denial of Grievance No. CL-48002-03 (to which the Second Amended Complaint expressly refers), fails to allege any (non-conclusory) facts even suggesting that Defendant knew that the smoke in question posed a serious risk to Plaintiff's health. (Dkt. No. 67, Part 5 at 2-3 [Def.'s Mem. of Law].)

See Dkt. No. 84 at 8 (footnote omitted).

Magistrate Judge Lowe explained that, although Plaintiff alleged that Defendant took the actions he did knowingly and recklessly because he "was fully aware of plaintiff's allergic[] and asthmatic conditions at the time of the second hand smoke exposure," that "Plaintiff . . . filed a grievance complaint addressing these issues and seeking appropriate medical analysis[] and prognosis," and that Defendant denied that grievance, see id. at 8-9 (citing Dkt. No. 63 at 2-3), there were problems with these reasons. Magistrate Judge Lowe concluded that Plaintiff's first reason was wholly conclusory, "since it assume[d] the existence of the fact that it is trying to prove (i.e., awareness by Defendant) . . . [and] a close reading of the Second Amended Complaint reveals that this first reason finds its only factual support in the second reason . . . ." See id. at 9. Unfortunately for Plaintiff, Magistrate Judge Lowe also found that there was a problem with the second reason because "[a]n examination of the affirmance of the denial of Grievance No. CL-48002-03 reveals that Clinton C.F. Deputy Superintendent Dale Artis, and not Defendant, issued that affirmance. . . . Thus, as Defendant points out, the affirmance of the denial of Grievance No. CL-48002-03 does not in any way suggest that Defendant knew about, much less made a decision about, Plaintiff's smoke-exposure allegations. . . ." See id. (citation and footnote omitted).

Finally, Magistrate Judge Lowe explained his reasoning in the following manner:

Plaintiff's failure to allege non-conclusory facts suggesting knowledge or recklessness on the part of Defendant is fatal to both of Plaintiff's Eighth Amendment claims: (1) deliberate indifference to a serious medical need; and (2) confinement under cruel-and-unusual prison conditions. This is because both claims, although slightly distinct, arise under the Eighth Amendment. Generally, "a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation must be, objectively, 'sufficiently serious' . . . . [Second,] a prison official must have a 'sufficiently culpable state of mind.'" Farmer v. Brennan, 511 U.S. 825, 834 (1994). Setting aside the issue of whether the deprivation in question (i.e., Plaintiff's right to be free of secondhand smoke) is "sufficiently serious," there remains the second issue -- whether Defendant possessed a "sufficiently culpable state of mind" (i.e., a deliberate indifference to Plaintiff's health). Here, Plaintiff does not allege non-conclusory facts suggesting that Defendant did possess such a state of mind . . . .

See id. at 9-10.*fn10

Plaintiff filed an "Affidavit in Opposition to Magistrate Report-Recommendation" on November 7, 2005. See Dkt. No. 85.*fn11

1. Plaintiff's procedural arguments

In his Affidavit, Plaintiff argues that "[a]s a matter of law, the October 25, 2005 Report-Recommendation is null and void pursuant to Rule 7.1 of [this District's Local Rules], which requires that any application to the Court MUST be in Motion-Form, which must state with parcularity [sic] the grounds thereof, and shall set forth the relief or Order sought . . . ." See Dkt. No. 85 at 1. Plaintiff further asserts that "Defendant failed to comply with Federal Rules, and Local Rule 7.1 which governs motion practice. Assistant Attorney General, Bridget E. Holohan submitted a 'mere' letter requesting an extension [sic] of time to answer or otherwise respond to plaintiff's amended complaint. see DKT. NO. 64[.]" See id.

Alternatively, Plaintiff argues that the Report-Recommendation is null and void because defendant remains in DEFAULT for failure to timely file and serve answer or respobnse [sic] to plaintiff's amended complaint as result of the illegal/unlawful "letter" request for an extension [sic] which failed to give plaintiff the required written notice. see DKT. NO. 66; Plaintiff filed and served application for default judgment/with proposed Order (50) days after service of complaint upon defendant.

Plaintiff filed and served Notice of MOtion [sic] for an Assessment Hearing to determine extent of damages as result of default. see DKT. NO. 69; And upon receipt of defendant's "untimely" response plaintiff filed and served notice of motion to strike. see DKT. NO. 70[.] Defendant remains in "DEFAULT" and therefore the Magistrate nor the District Court held jurisdiction over the matter at hand to enter the Report-Recommendation.

See id. at 1-2.

Moreover, Plaintiff claims that the Report-Recommendation is null and void because the District Judge neglected to give plaintiff NOTICE of desination/assidnment [sic] of Magistrate pursuant to 28 U.S.C. 636(b)(1) Subparagraph A. Plaintiff nor defendant ever received nor submitted a consent form to Magistrate assidnment [sic].

In accordance with paragraph (20 [sic] of Subsection (c) the Clerk of Court was required to notify the parties of Mistrate [sic] availability, thus permit [sic] parties to consent or withhold consent

See Dkt. No. 85 at 2.

Finally, in his Affidavit in opposition to Defendant's Letter Brief, Plaintiff asserts that, when Magistrate Judge Lowe issued his December 16, 2004 Order rejecting Plaintiff's November 19, 2004 letter request, Judge Hood was presiding over this case and therefore Magistrate Judge Lowe did not have authority to enter that Order and, "pursuant to 28 U.S.C. 636 (b) (1) Subparagraph A, Plaintiff hereby requests a copy of Judge Hood's direction or designation ORDER authorizing Lowe to enter the December 16, 2004 rejection." See Dkt. No. 87 at 2.*fn12

Plaintiff's assertions that Magistrate Judge Lowe's October 25, 2005 Report-Recommendation is null and void or that he did not have the authority to issue his December 16, 2004 Order are without merit. First, his reliance upon § 636(b)(1) is misplaced.

In pertinent part, section 636(b)(1) provides that

[n]otwithstanding any provision of law to the contrary --(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, . . . to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.

(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of applications of posttrial relief made by individuals convicted of criminal offenses and of prisoner petitions challenging conditions of confinement.

(C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.

Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1).

In addition, this District's Local Rule 40.1 provides that "[i]mmediately upon the filing of a civil action or proceeding, the Clerk shall assign to such action or proceeding a district judge and magistrate judge pursuant to the Court's Assignment Plan. See General Order #12." L.R. 40.1. Finally, Local Rule 72.3(c) provides that "[p]roceedings commenced by an unrepresented prisoner shall, unless the Court orders otherwise, be referred to a Magistrate Judge for the purpose of reviewing applications, petitions and motions in accordance with these Rules and 28 U.S.C. § 636." L.R. 72.3(c).

When these local rules are read in conjunction with § 636(b)(1), it is clear that no further Order is required to authorize a magistrate judge in this District to address pretrial matters, whether those matters are nondispositive and therefore governed by § 636(b)(1)(A) or dispositive and therefore governed by § 636(b)(1)(B). If the matters are nondispositive, the assigned magistrate judge may issue an order from which a party may appeal to the district court. If the matter is dispositive -- for example a motion to dismiss or for summary judgment -- the magistrate judge has the authority to issue a Report-Recommendation, to which a party may object and which the district judge will review.

Finally, designation of a magistrate judge to dispose of such motions is not the same as the "consent" to which Plaintiff refers in his papers and which is governed by § 636(c). Section 636(c), unlike § 636(b), addresses the referral of an entire case to a magistrate judge. As Plaintiff correctly notes, referral under § 636(c) does require the consent of all the parties.*fn13

There is no such requirement, however, for the referral of various matters within a single case to a magistrate judge for disposition, either by way of an order appealable to the district court or by way of a report and recommendation to which the parties may object and which a district judge must review and enter a final disposition.

Thus, although Plaintiff's confusion is understandable, his arguments are inapplicable to the circumstances of this case. As noted, this District's local rules and § 636(b)(1) permit this Court to refer all pretrial matters to a magistrate judge in this District, whether those matters are dispositive or nondispositive. Therefore, to the extent that Plaintiff's objections are based upon his argument that Magistrate Judge Lowe lacked the authority to issue the Orders and Report-Recommendations with which Plaintiff now takes issue, the Court rejects these arguments.

2. Plaintiff's substantive arguments

In his affidavit in response to Defendant's response to his objections, Plaintiff, for the first time, addresses the merits of his claims. In this regard, Plaintiff asserts that Magistrate Judge Lowe's recommendation "is clearly unfounded, arbitrary and capricous [sic], and a blatant obstruction of justice, see Dkt. No. 87 at 1, because Plaintiff has established the elements of his Eighth Amendment claims; i.e., that he has shown "objectively, that 'he was exposed to unreasonably high levels of Secondhand Smoke' (This is clearly shown by Plaintiff's H-Pilori possitive [sic] condition, which resulted directly from such unreasonable exposure as verified by Plaintiff's medical record. . . ." See id. (citation omitted). Moreover, Plaintiff claims that he has shown, "subjectively, that defendant Senkowski 'was deliberately indifferent to Plaintiff's medical needs or safety', which can be determined unequivocally by Senkowski's 'authorized' responses to Plaintiff's (Grievance Complaints) regarding the Secondhand Smoke exposure. see Grievance Resolution Reports No.s [sic] CL-48002-03, and CL-46570-02 hereto." See id. Finally, Plaintiff asserts that rather than enforce the non indoor Smoking Policy defendant Senkowski in fact encouraged and supported (Indoor Smoking) by instituting a Policy which allows inmates to stock-pile cigarettes tobacco, and matches in their cells at all times. "A review of the Clinton Correctional Facility's Disciplinary Write-Up history during the time-frame alleged in present complaint will no doubt reveal blatant neglect on behalf of defendant Daniel A. Senkowski to enforce the non indoor smoking Policy"; Less than (7) seven Disciplinary Writ-Ups [sic] resulted in the (13) month period of exposure alleged in complaint. (Inmates names listed in Write-Ups should be deleted before disclosure)

See id. at 2.

Although Plaintiff never filed a response to Defendant's motion to dismiss, despite Magistrate Judge Lowe providing him with numerous opportunities to do so, the Court has considered Plaintiff's objections to Magistrate Judge Lowe's findings and recommendations and concludes that Plaintiff's arguments are without merit. There is nothing in Plaintiff's papers to counter the documentary evidence that establishes that Defendant was not the person who either denied the grievance complaint or affirmed the denial of that complaint. Therefore, Plaintiff has failed to adduce any facts from which this Court could conclude that Defendant had any notice of Plaintiff's complaint or his allegedly ill health. Nor do these submissions change the fact that Plaintiff's complaint is devoid of any facts, beyond conclusory ones, that would implicate Defendant in the alleged violation of his Eighth Amendment rights. Accordingly, the Court rejects Plaintiff's substantive arguments and adopts Magistrate Judge Lowe's October 25, 2005 Report-Recommendation in its entirety.

C. Plaintiff's Appeal from Magistrate Judge Lowe's October 5, 2005 Order*fn14

In September 2005, Plaintiff filed a Notice of Motion asking the Court to issue "an Order disqualifying 'former Superintendent' Daniel A. Senkowski of indemnification from forthcoming judgments, and from any entitlements of counsel fees . . . ." See Dkt. No. 80. Without waiting for Defendant to file a response to this motion, Magistrate Judge Lowe issued an Order, dated October 5, 2005, in which he denied Plaintiff's motion without prejudice and with leave to renew his motion if the Court rendered a judgment against Defendant. See Dkt. No. 81. Magistrate Judge Lowe provided three distinct reasons for his decision: (1) the motion was without merit, (2) the motion did not comply with either the Federal Rules of Civil Procedure or this Court's Local Rules, and (3) the motion was premature because the Court had not rendered a judgment against Defendant Senkowski. See id. at 1-2.

Although the Court could affirm this Order on any of the grounds upon which Magistrate Judge Lowe relied, the Court need not choose among these alternatives because, in light of the Court's adoption of Magistrate Judge Lowe's recommendation to grant Defendant's motion to dismiss Plaintiff's second amended complaint with prejudice, this motion is moot.

IV. CONCLUSION

Accordingly, after carefully reviewing Magistrate Judge Lowe's October 25, 2005 Report-Recommendation and his October 5, 2005 Order, the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Magistrate Judge Lowe's October 25, 2005 Report-Recommendation is ADOPTED IN ITS ENTIRETY; and the Court further

ORDERS that Plaintiff's second amended complaint is DISMISSED WITH PREJUDICE; and the Court further

ORDERS that Plaintiff's appeal from Magistrate Judge Lowe's October 5, 2005 Order is DENIED AS MOOT; and the Court further

ORDERS that Plaintiff's appeals from Judge Hood's March 4, 2005 Order extending Defendant's time to respond to Plaintiff's second amended complaint and Judge Hood's April 13, 2005 Order reassigning this case to Chief Judge Scullin are DENIED AS MOOT.

IT IS SO ORDERED.


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