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Lewis v. Berg

April 20, 2006

JESSICA M. LEWIS, A/K/A MARK L. BROOKS, PLAINTIFF,
v.
STAN BERG, ASSISTANT DEPUTY; SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY; DANIEL SENKOWSKI, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff pro se Mark Brooks a/k/a Jessica Lewis brings this action pursuant to 42 U.S.C. § 1983. Lewis alleges that the defendants violated her Eighth and Fourteenth Amendment rights.*fn1 Pending are Lewis' objections to Chief Magistrate Judge Gustave DiBianco's Report-Recommendation. After careful consideration of the arguments, the relevant parts of the record, and the applicable law, the court adopts the Report-Recommendation in its entirety.*fn2

II. Procedural History

In her September 12, 2000 complaint, Lewis alleged that the defendants denied her proper medical treatment for her transsexualism and/or Gender Identity Disorder (GID). Dkt. No. 1. On January 4, 2002, the defendants moved for summary judgment. Dkt. No. 40. On September 19, Chief Judge DiBianco issued a report recommending that the motion be granted, and the complaint dismissed in its entirety. Dkt. No. 53. Lewis objected. Dkt. Nos. 56, 58. On July 15, 2003, District Court Judge Lawrence E. Kahn issued an order dismissing Lewis' Fourteenth Amendment claim entirely, and her Eighth Amendment claim as to all defendants except Berg and Senkowski. Dkt. No. 61. On July 25, Berg and Senkowski filed a motion to vacate, see Dkt. Nos. 63, 65, which Judge Kahn granted on October 30. Dkt. No. 69. On December 23, Berg and Senkowski filed a motion for summary judgment. Dkt. No. 73. On March 10, 2005, Chief Judge DiBianco issued a report recommending that defendants' motion for summary judgment be granted. Dkt. No. 102.

On March 31, this court issued an order adopting Chief Judge DiBianco's Report-Recommendation, and entered judgment against Lewis. Dkt. No. 103. On May 2, Lewis filed a motion for reconsideration, see Dkt. No. 106, and this court granted her motion, and vacated the judgment.*fn3 On July 20, Lewis filed objections to Chief Judge DiBianco's Report-Recommendation. Dkt. No. 110.

III. Discussion*fn4

A. Standard of Review

By statute and rule, district courts are authorized to refer prisoner civil rights cases to magistrate judges for proposed findings and recommendations. See 28 U.S.C. § 636(b)(1)(A) & (B); L.R. 40.1, 72.3(c), 72.4(a); General Order #12, §D(1)(G).

When a report and recommendation is filed, parties must comply with specified procedures if they seek statutorily mandated district court review. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); L.R. 72.1(c). The local rules require that parties must file written objections that specify the findings and recommendations to which they object, and the basis for their objections. Cf. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); L.R. 72.1(c).

If a party fails to object in a timely manner, it procedurally defaults and is not entitled to judicial review. Almonte v. NYS Div. of Parole, No. 04-CV-484, 2006 WL 149049, at *3 (N.D.N.Y. Jan. 18, 2006)(citing inter alia Thomas v. Arn, 474 U.S. 140, 149 & n.7, 150, 152 (1985)). Although the doctrine of procedural default developed as a Circuit appellate rule, it applies in the district courts as long as parties, including those appearing pro se, receive clear notice of the consequences of their failure to properly object. Almonte, 2006 WL 149049, at *3 (citations omitted); see also Thomas v. Arn, 474 U.S. at 149 & n.7 (statute does not preclude procedural default analysis at the district court level). The notice requirement is satisfied if the report at least states that the failure to object will preclude appellate review. Almonte, 2006 WL 149049, at *3 (citation omitted).*fn5

Although failure to object or timely object constitutes procedural default, lack of specificity also gives rise to default. Almonte, 2006 WL 149049, at *4. The local rule requires that objections address specific findings and conclusions. Id. Therefore, a party that limits its specific objections to a part of a report's findings or recommendations procedurally defaults as to the remainder. Id. Frivolous or conclusory objections fail to satisfy the specificity requirement. Id. Furthermore, resubmission of the same papers and arguments as submitted to the magistrate judge fails to comply with the specificity requirement and also results in default. Id.

The district court must review de novo those portions of a magistrate judge's findings and recommendations that have been properly preserved by compliance with the specificity requirement. See 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); L.R. 72.1(c).*fn6 De novo review requires that the court give fresh consideration to those issues preserved by specific objections. It will examine the entire record, and make an independent assessment of the magistrate judge's factual and legal conclusions. Almonte, 2006 WL 149049, at *5 (internal quotation and citation omitted). After review, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge ... [and] may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C);*fn7 FED. R. CIV. P. 72(b).

The more complex question arises when a party procedurally defaults, the court is not statutorily mandated to conduct de novo review, but it concludes that some review is in order nonetheless. Under these circumstances, it is within the court's discretion ...


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