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Fulton v. Senkowski

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, ...


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