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Thomas v. Picio

March 26, 2008

ELIZABETH THOMAS, PLAINTIFF,
v.
OFFICER PICIO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION AND ORDER

Plaintiff Elizabeth Thomas ("Plaintiff") brings this pro se action against twenty-two defendants pursuant to 42 U.S.C. § 1983.*fn1 Plaintiff asserts multiple violations of her constitutional and statutory rights. In addition, Plaintiff asserts multiple claims of retaliation for filing various grievances and court actions against prison officials. On December 6, 2006, Defendants moved for summary judgment. (D.E. 74.) On February 8, 2007, Plaintiff cross-moved for summary judgment. (D.E. 86.)

On February 15, 2008, Magistrate Judge Ronald L. Ellis issued a Report and Recommendation ("Report"), familiarity with which is assumed, recommending that Defendants' motion be granted in its entirety, and Plaintiff's cross-motion be denied in its entirety. (D.E. 91.) Specifically, the Report recommended that the Court dismiss Plaintiff's claims of (1) violation of the right of access to courts; (2) failure to protect; (3) violation of the right to the free exercise of religion; (4) deliberate indifference to a serious medical condition; (5) violation of the right to due process; and (6) violation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973. The Report further recommended that the Court dismiss Plaintiff's retaliation claims.

The Report informed the parties that, pursuant to Federal Rule of Civil Procedure 72, they had ten days from service of the Report to file any objections. The Report explicitly cautioned that failure to file timely objections would preclude appellate review.

No objections have been filed, and the time to object has expired. See IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993). The Second Circuit "ha[s] adopted the rule that failure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision," Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (citations omitted); "[t]he Supreme Court upheld this practice, at least when the parties receive clear notice of the consequences of their failure to object." Id.

(citing Thomas v. Arn, 474 U.S. 140, 155 (1985)).

The Court has reviewed the Report and finds it to be well-reasoned and free of any "clear error on the face of the record." Fed. R. Civ. P. 72(b) advisory committee's note; see also Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). Accordingly, the Court adopts the Report's analysis and recommendations.*fn2

However, the Report did not address all of the claims asserted in the Amended Complaint. Construing the Amended Complaint liberally, as the Court must,*fn3 Plaintiff asserts (1) three additional due process claims; (2) two additional access to courts claims; (3) one additional free exercise claim; and (4) a right to privacy claim. Defendants moved for summary judgment on the three additional due process claims, and on one of the additional access to courts claims. Plaintiff cross-moved for summary judgment on the other additional access to courts claim, the additional free exercise claim, and the right to privacy claim.

After de novo review, the Court grants summary judgment to Defendants on these seven additional claims.

I. Summary Judgment Standard

Summary judgment is properly granted where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). The substantive law governing a case will determine which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.; Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003).

The burden of demonstrating the absence of any genuine issue of material fact rests with the moving party. See Koch v. Town of Brattleboro, 287 F.3d 162, 165 (2d Cir. 2002)(citing Celotex Corp., 477 U.S. at 323). Once a motion for summary judgment is made and supported, "the non-moving party must set forth specific facts showing that there is a genuine issue for trial." Id. (internal quotation marks and citation omitted); Fed. R. Civ. P. 56(e)(2). At this stage, all inferences must be drawn in favor of the non-moving party. See Liberty Lobby, 477 U.S. at 255.

"[I]n the case of cross-motions for summary judgment, a moving party's failure to establish that the facts are undisputed does not entitle the non-moving party to summary judgment." Lowenschuss v. Kane, 520 F.2d 255, 261 (2d Cir. 1975). However, the Court may award "summary judgment to a non-moving party where it appear[s] from the papers, affidavits and other proofs submitted by the parties that there [a]re no disputed issues of material fact and that judgment for the non-moving party [is] appropriate as a matter of law." Id.; see also First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 115 (2d Cir. 1999) ("as long as some party has made a motion for summary judgment, a court may grant summary judgment to a non-moving party"); Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991).

As noted above, the Court construes Plaintiff's submissions liberally and "interpret[s] them to raise the strongest arguments that they suggest." Pabon, 459 F.3d at 248. However, the "application of this different standard does not relieve

[P]laintiff of [her] duty to meet the requirements necessary to defeat[,]" or succeed on, a motion for summary judgment. Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) ...


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