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Anderson v. Banks

August 6, 2008

THOMAS ANDERSON, PLAINTIFF,
v.
S. BANKS, CORRECTION OFFICER, AND M. GILMORE, CORRECTION OFFICER, DEFENDANTS.



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

MEMORANDUM-DECISION AND ORDER

I. Introduction

Thomas Anderson, an inmate at Elmira Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants, two employees of the Department of Correctional Services ("DOCS"), violated:

(1) his Eighth Amendment rights when they used excessive force during his transport to the Auburn Correctional Facility Special Housing Unit ("SHU");

(2) his Fifth and Fourteenth Amendment due process rights when they filed a false misbehavior report against him and confined him in SHU for sixteen days without a hearing; and (3) his Fourteenth Amendment equal protection rights when they wrongfully accused him of stealing tobacco from the prison commissary based on their erroneous belief that he was a member of a gang. (See generally Compl.; Dkt. No. 1.)

On September 24, 2007, the defendants filed a motion for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, arguing that: (1) the Fifth Amendment is inapplicable to Anderson's claims; (2) the Eleventh Amendment bars Anderson's claims against the defendants in their official capacities; (3) Anderson has not alleged facts plausibly suggesting that he possessed a liberty interest sufficient to state a Fourteenth Amendment due process claim; (4) Anderson has not alleged facts plausibly suggesting that defendants were personally involved in the alleged due process violations; and (5) Anderson has failed to allege facts plausibly suggesting the existence of purposeful discrimination necessary to state an equal protection violation. (See Dkt. No. 13.) Anderson did not oppose the defendants' motion.

The defendants' motion was referred to Magistrate Judge David R. Homer for report and recommendation. On May 19, 2008, Judge Homer issued a Report-Recommendation and Order ("R&R") recommending dismissal of Anderson's Complaint with respect to all of his claims except for the Eighth Amendment claim of excessive force. (See Dkt. No. 17.)*fn1

Pending are Anderson's timely objections ("Objections") to the R&R. (Dkt. No. 19.) For the reasons that follow, the R&R is adopted, and all of the claims in Anderson's Complaint are dismissed, with the exception of his Eighth Amendment excessive force claim.

II. Standard of Review

Before entering final judgment, this court routinely reviews all report-recommendations in cases it has referred to a Magistrate Judge. If a party has objected to specific elements of the Magistrate Judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. New York State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a Magistrate Judge for clear error. See id.

III. Discussion

A. The Fifth Amendment Due Process Claim

Judge Homer recommended dismissal of Anderson's Fifth Amendment due process claim on the grounds that the Fifth Amendment:

(1) pertains only to criminal charges, not the prison disciplinary charges in question; and (2) prohibits only the federal government from violating a person's due process rights, not state officials such as the defendants herein. (See R&R at 5-6, citing Pub. Utils. Comm'n v. Pollak, 343 U.S. 451, 461 (1952).) Anderson's Objections contain no argument concerning Judge Homer's recommended disposition of his Fifth Amendment claim. Upon review of the R&R for clear error, the court finds none. ...


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