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Myers v. Johns

December 4, 2008

MARCUS MYERS, PLAINTIFF,
v.
KAREN JOHNS, ACADEMIC PRINCIPAL, GREAT MEADOW C.F.; MS. HARDER, ACADEMIC TEACHER, GREAT MEADOW C.F., DEFENDANTS.



The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Plaintiff Marcus Myers, a New York State prison inmate, filed this pro se civil rights action, pursuant to 42 U.S.C. § 1983, against two educators employed by the New York State Department of Corrections ("DOCS"). Generally, in his Complaint, Plaintiff alleges that between approximately October of 2002 and October of 2003, at Great Meadow Correctional Facility ("Great Meadow C.F."), Defendants intentionally and wrongfully prevented him from taking the General Equivalency Diploma ("GED") examination in such a way as to (1) deprive him of his right to due process, in violation of the Fourteenth Amendment, (2) discriminate against him on the basis of his race, also in violation of the Fourteenth Amendment, and (3) retaliate against him for having filed grievances against them, in violation of the First Amendment. (See generally Dkt. No. 1, "Facts," ¶¶ 1-15 [Plf.'s Compl.].) Currently before the Court is Defendants' motion for summary judgment, a Report-Recommendation that the motion be granted, and Plaintiff's Objections to that Report-Recommendation. (Dkt. Nos. 27, 33, 37.) For the reasons set forth below, the Report-Recommendation is adopted in its entirety, Defendants' motion for summary judgment is granted, and Plaintiff's Complaint is dismissed.

I. BACKGROUND

On September 14, 2007, Defendants moved for summary judgment, requesting the dismissal of Plaintiff's Complaint. (Dkt. No. 27.) The motion was referred to Chief United States Magistrate Judge Gustave J. DiBianco for a Report-Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c). On November 19, 2007, Plaintiff opposed Defendants' motion. (Dkt. No. 32.) On September 18, 2008, Magistrate Judge DiBianco issued a Report-Recommendation that the Court grant Defendants' motion. (Dkt. No. 33.)

Generally, Magistrate Judge DiBanico's Report-Recommendation was based on the following three grounds: (1) Plaintiff has adduced no record evidence establishing that he enjoyed a protected liberty or property interest in participating in a GED educational program in prison (for purposes of a due process claim); (2) he has adduced no record evidence establishing that he was intentionally treated differently from others similarly situated, or that any such differential treatment would fail to survive the appropriate level of scrutiny; and (3) he has adduced no record evidence establishing that there was any causal connection between any protected speech in which he was engaged and any adverse action taken against him by Defendants (for purposes of a retaliation claim). (Id. at 11-20.)

On November 4, 2008, Plaintiff filed Objections to Magistrate Judge DiBianco's Report-Recommendation. (Dkt. No. 37.) Liberally construed, Plaintiff's Objections contain three arguments. First, Plaintiff argues that it was an abuse of discretion for Magistrate Judge DiBianco to deny his motion for the appointment of counsel. (Id. at 1-2.) Second, Plaintiff argues that Magistrate Judge DiBianco based his Report-Recommendation on an erroneous finding that Plaintiff had failed to exhaust his available administrative remedies before filing suit. (Id. at 2-3.) Third, Plaintiff argues that Magistrate Judge DiBianco erred by failing to recognize three questions of fact created by various pieces of evidence (or omissions of evidence).

In particular, with regard to his due process claim, Plaintiff argues that Magistrate Judge DiBianco failed to recognize the question of fact created by the following pieces of evidence (or omissions of evidence): (1) Plaintiff's assertion that he was not permitted to withdraw from the prison's GED program; (2) Defendants' failure to advance Plaintiff to the next level of the prison's GED program; (3) Defendant Johns' inappropriate interrogation of him regarding the grievance Plaintiff filed against Defendant Harder; (4) Defendants' inability to identify by name the individual who had informed Defendant Johns that Plaintiff had cheated on the examination, coupled with the delay it took Defendants to inform Plaintiff of the cheating allegation; and (5) Defendants' failure to issue Plaintiff a misbehavior report charging him with cheating, their failure to remove him from the prison's GED program based on the allegation that he had cheated, and their failure to conduct an investigation of the alleged cheating incident. (Id. at 4- 12.)

With regard to his equal protection claim, Plaintiff argues that Magistrate Judge DiBianco failed to recognize the question of fact created by the following pieces of evidence (or omissions of evidence): (1) Plaintiff's sworn assertion that Defendant Harder stated to Plaintiff, "[I]t [is] impossible for you people to score so high without cheating," while gesturing directly at Plaintiff (who is an African-American prisoner); (2) Plaintiff's assertion that he was not permitted to withdraw from the prison's GED program; and (3) Defendants' failure to advance Plaintiff to the next level of the prison's GED program. (Id.)

With regard to his retaliation claim, Plaintiff argues that Magistrate Judge DiBianco erred by failing to recognize that (1) Defendants took numerous forms of adverse action against Plaintiff between October of 2002 and October of 2003 at Great Meadow C.F., and (2) the protected activity in which Plaintiff engaged was not limited to his filing grievances on September 30, 2003, and October 16, 2003, but extended to his being African American, as well as his being a prisoner. (Id.)

Finally, it is worth noting that the Court does not liberally construe Plaintiff's Objections as containing any specific objection to Magistrate Judge DiBianco's recommendation regarding Plaintiff's claim under 42 U.S.C. § 1981. (Id.)

II. STANDARD OF REVIEW

When specific objections to a magistrate judge's Report-Recommendation are made, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1

When only general objections are made (or the party merely reiterates his or her original allegations or arguments), the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn2 Similarly, when a party makes no objection to a portion of a Report-Recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After ...


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