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Zaire v. Doe

July 13, 2006


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



Plaintiff brings this action pursuant to 42 U.S.C. § 1983 alleging violations of his First Amendment rights. Specifically, Plaintiff alleges that Defendant Welch violated his First Amendment rights when he changed and/or falsified*fn1 Plaintiff's Department of Correctional Services' ("DOCS") records with respect to a therapeutic program in retaliation for Plaintiff's pursuit of a previous federal civil rights action.*fn2 See Complaint at ¶ 19; Report-Recommendation and Order at 2.

Currently before the Court are Defendant Welch's objections to Magistrate Judge Treece's Report-Recommendation and Order. Defendant Welch objects to Magistrate Judge Treece's recommendation that this Court deny his motion for summary judgment on Plaintiff's First Amendment retaliation claim because Magistrate Judge Treece neglected to address the second element of Plaintiff's claim, i.e., whether Defendant's actions were adverse. See Defendant Welch's Objections at 1-2.


Plaintiff previously filed Zaire v. Muller, 9:98-CV-1838, in this District. That case proceeded to trial, and the jury returned a verdict in Plaintiff's favor on June 21, 2002. Plaintiff then moved, in part, for and was granted declaratory and injunctive relief.*fn3 He then filed a motion to hold the defendants in that case in contempt for not complying with the district court's order; the court denied that motion. From May 10, 2001, until October 4, 2002, Plaintiff was incarcerated at Clinton Correctional Facility ("Clinton"). During his incarceration at Clinton, Plaintiff's Correction Counselor was Defendant Thomas Welch.

On July 8, 2002, Defendant met with Plaintiff regarding a Sexual Offenders Program consent form, a document signifying agreement to participate in that program. Defendant's signature is on the document, but Plaintiff's is not. Defendant also noted in Plaintiff's Quarterly Review for the period from May 4, 2002, through August 26, 2002, that Plaintiff refused to accept the Sexual Offenders Program on July 8, 2002, and August 27, 2002. Plaintiff's signature is not on the quarterly review.


A. Standard of Review

1. Review of Report-Recommendation and Order

"When a district court evaluates the report and recommendation of a magistrate judge, the court may 'accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.'" Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (quoting 28 U.S.C. § 636(b)(1)). A party "'may object to the findings or recommendations of the magistrate judge'" within ten days of being served with the report and recommendation. Id. (citations omitted). When neither party files objections, "'a district court need only satisfy itself that there is no clear error on the face of the record'" to accept the report and recommendation. Id. (quoting Nelson v. Smith, (S.D.N.Y. 1985) 618 F. Supp. 1186, 1189). However, "'[w]hen an objection is raised, the court is required to conduct a de novo review of the contested sections.'" Id. at 170 (quoting Pizarro v. Bartlett (S.D.N.Y. 1991) 776 F. Supp. 815, 817).

2. Summary Judgment

A court may grant summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure when "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Dibble v. Fenimore, slip copy, No. 1:97-CV-1256, 2006 WL 1373061, *3 (N.D.N.Y. May 15, 2006) (quotation and other citation omitted). The court must resolve all ambiguities and draw all rational inferences of fact in favor of the nonmoving party. See id. (citation omitted). "A dispute regarding a material fact is genuine 'if evidence is such that a reasonable jury could return a verdict for the non-moving party.'" Young v. Corbin, 889 F. Supp. 582, 584 (N.D.N.Y. 1995) (quotation omitted). "Once the movant . . . has established a prima facie case demonstrating the absence of a genuine issue of material fact, the non-moving party must come forward with enough evidence to lead a rational trier of fact to find for the non-moving party." Id. (citation omitted). Finally, "sworn statements are more than mere conclusory ...

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