The opinion of the court was delivered by: Hon. Hugh B. Scott
Defendants jointly filed a motion for summary judgment (Docket No. 20) and this Court issued a Report & Recommendation (Docket No. 33, Feb. 9, 2006, "R&R") recommending granting that motion in part and denying it in part. Plaintiff executed Objections to this R&R on February 21, 2006, and those Objections were filed on March 1, 2006 (Docket No. 34). On March 6, 2006, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 35).
As a result, plaintiff's objections were deemed to be motion for reconsideration of the decision recommended in the R&R, see Fed. R. Civ. P. 52(b), 59(e), 60(b) (Docket No. 36). The Court issued a briefing schedule wherein responses were to be filed on or before April 7, 2006, and any reply was due on or before April 28, 2006, and the motion then will be deemed submitted on April 28, 2006, without oral argument.
Familiarity with this Court's Report & Recommendations (Docket No. 33) is presumed. Briefly, plaintiff alleges in this civil right action that defendants sexually and physically assaulted him, applied excessive force against him in violation of his Eighth Amendment rights and defendant sergeant George Poff failed to intervene to protect plaintiff. Plaintiff also alleges that defendant nurse Roger Hagmier violated plaintiff's Eighth Amendment rights by acting with deliberate indifference toward plaintiff and violated plaintiff's right to patient/nurse confidentiality in revealing plaintiff's condition to corrections officers. All of this stemmed from a pat frisk administered by defendant corrections officer Steve Kaczmarek with defendant officer James Diebel on March 28, 2004.
On February 9, 2006, the Court issued the R&R, which recommended granting in part defendants' joint motion for summary judgment, dismissing plaintiff's claims against defendant Poff and plaintiff's entire deliberate indifference claim, but denying that motion in part, denying dismissal of plaintiff's excessive force claim and unlawful release of plaintiff's confidential medical information (Docket No. 33). Defendants were denied qualified immunity at this time (id. at 12, 13). Regardless of the outcome of this motion to reconsider, some claims will remain for trial, namely plaintiff's excessive force claim against defendants Steve Kaczmarek and James Diebel, and his unlawful disclosure of confidential medical information claim against defendant Roger Hagmier but only for his disclosure to defendant Poff (id. at 8, 10).
On March 1, 2006, plaintiff filed timely Objections to the R&R (Docket No. 34), executed by plaintiff on February 21, 2006. He objects to the R&R regarding the allegations of sexual assault and the destruction of a requested videotape and the failure to sanction defendants for not producing or preserving it (id.). Plaintiff objects to this Court's conclusion that a single incident of a sexual assault is not sufficient to state a claim for sexual harassment under the Eighth Amendment (id. at 2, objecting to Docket No. 33, R&R at 6, 8). Defendants filed a response in opposition to this objection*fn1 (Docket No. 38), but plaintiff did not submit a reply. Thus, the only issue raised in this motion is whether plaintiff's sexual assault claim should be revived and the impact of the destruction of a videotape should have on this case.
Meanwhile, on March 6, 2006, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 35).
I. Reconsideration Standards
Ordinarily, objections to a Magistrate Judge's Report & Recommendations would be considered by a District Judge. See Fed. R. Civ. P. 72(b); W.D.N.Y. Loc. Civ. R. 72.3(a)(3); 28 U.S.C. § 636(b)(1). With the parties consenting to proceed before the Magistrate Judge who rendered the Report & Recommendations at issue here, cf. W.D.N.Y. Loc. Civ. R. 72.3(a)(1) (if parties consent there is no review of interlocutory orders to the District Court), the Court deemed the objections to that R&R by the pro se plaintiff to be a motion for reconsideration under Fed. R. Civ. P. 52(b), 59(e), or 60(b) (see Docket No. 36). The Federal Rules do not expressly provide for reconsideration, see Sierra Club v. Tri-State Generation & Transmission Ass'n, 173 F.R.D. 275 (D. Colo. 1997), but the rules previously cited provide bases for the Court to re-examine its decision.
Under Rule 52(b), on a party's motion (filed no later than ten days after entry of judgment), the Court "may amend its findings--or make additional findings--and may amend the judgment accordingly." Alternatively, under Rule 59(e), a motion to alter or amend a judgment "shall be filed no later than 10 days after entry of the judgment." Here, there has been no entry of judgment, since plaintiff is challenging a R&R rather than a Decision & Order and subsequent Judgment entered pursuant to it. Had there been an entry of judgment at the same time as entry of the R&R, plaintiff's Objections would have been timely, since both deadlines under the rules and those for objections required ten days after entry or receipt (see Docket No. 33, R&R at 14), see also Fed. R. Civ. P. 6(a) (if time period is less than 11 days, exclude intermediate weekend days and holidays). Rule 59(e) includes motions for reconsideration, treating them as motions to alter or amend the judgment, 11 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2810.1, at 122 (Civil 2d ed. 1995).
Rule 60(b) also provides a mechanism for the Court to correct mistakes in its proceedings. "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud . . ., misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment." A Rule 60 motion generally has to be made within a "reasonable time," id. R. 60(b), with reasons (1), (2), or (3), having a one-year period from entry of the order or proceeding in which a motion could be filed, id. Again, there is no final judgment entered, but this Rule is the closest basis for the Court to reconsider the R&R and, given consent jurisdiction now applicable here, entry of so much of the R&R that survives this reconsideration as a Decision & Order. The power of the Court to modify ...