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Chaney v. Koupash

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


December 30, 2008

TODD CHANEY AND ERIC DELEON, PLAINTIFFS,
v.
THOMAS KOUPASH, ET AL., DEFENDANTS.

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

MEMORANDUM-DECISION and ORDER

Todd Chaney and Eric Deleon ("Plaintiffs"), New York State prison inmates, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against eighty-three(83) correctional officials employed by the New York State Department of Corrections ("Defendants").*fn1

Generally, Plaintiffs allege that, between approximately January 26, 2001, and December 14, 2005, at the Attica, Auburn, Great Meadow and Southport Correctional Facilities, Defendants violated Plaintiffs' rights under the First, Fourth, Eighth and Fourteenth Amendments. (See generally Dkt. No. 116 [Plfs.' Third Am. and Suppl. Compl.].)*fn2 Currently before the Court are (1) Defendants' motion for summary judgment, (2) United States Magistrate Judge Homer's Report-Recommendation that Defendants' motion be granted, (3) Plaintiffs' objections to the Report-Recommendation, and (4) Plaintiffs' motion to file a Fourth Amended and Supplemental Complaint. (Dkt. Nos. 228, 239, 241 & 242.) For the reasons set forth below, the Report-Recommendation is adopted in its entirety; Defendants' motion for summary judgment is granted; Plaintiffs' Third Amended and Supplemental Complaint is dismissed; and Plaintiffs' motion to file a Fourth Amended and Supplemental Complaint is denied.

I. BACKGROUND

Familiarity with this action's procedural background, Plaintiffs' claims, and Defendants' undisputed factual assertions, as set forth in Magistrate Judge Homer's Report-Recommendation (Dkt. No. 239) is assumed, and shall not be repeated in this Memorandum-Decision and Order. Only the background, claims and facts necessary to the discussion shall be set forth herein.

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review on Objection to Report-Recommendation

When specific objections are made to a magistrate judge's report-recommendation, 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).*fn3

When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation 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).*fn4 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 conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Standard Governing Motion for Summary Judgment

Under Fed. R. Civ. P. 56, summary judgment is warranted if "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 moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In addition, "[the moving party] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the moving party has met this initial responsibility, the nonmoving party must come forward with "specific facts showing a genuine issue [of material fact] for trial." Fed. R. Civ. P. 56(e)(2).

A dispute of fact is "genuine" if "the [record] evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. As a result, "[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]; see also Fed. R. Civ. P. 56(e)(2). As the Supreme Court has famously explained, "[The nonmoving party] must do more than simply show that there is some metaphysical doubt as to the material facts" [citations omitted]. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

As for the materiality requirement, a dispute of fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "Factual disputes that are irrelevant or unnecessary will not be counted." Id. [citation omitted].

Implied in the above-stated burden-shifting standard is the fact that, where a nonmoving party fails to adequately respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute--even if that nonmoving party is proceeding pro se.*fn5 (This is because the Court extends special solicitude to the pro se litigant, in part by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.)*fn6 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules.*fn7 For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement*fn8 --even where the nonmoving party was proceeding pro se in a civil rights case.*fn9

C. Standard Governing Motion to Dismiss for Failure to State a Claim

To the extent that a defendant's motion for summary judgment under Fed. R. Civ. P. 56 is based on the pleading insufficiency of the plaintiff's claims (as is Defendants' motion for summary judgment in this action), such a motion is functionally the same as a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6).*fn10 Moreover, even where a defendant has not advanced such a failure-to-state-a-claim argument on a motion for summary judgment, a district court may, sua sponte, address whether a pro se prisoner has failed to state a claim upon which relief may be granted.*fn11 For the sake of brevity, the Court does not recite the legal standard governing dismissals for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Rather, for accurate and thorough recitation of that (recently clarified) legal standard, the Court refers the parties to Fletcher v. Goord, 07-CV-0707, 2008 WL 4426763, at *5-6 (N.D.N.Y. Sept. 25, 2008) (Sharpe, J., adopting, on de novo review, Report-Recommendation of Lowe, M.J.).

III. ANALYSIS

A. Specific Objections

The only objections to Magistrate Judge Homer's Report-Recommendation that may be characterized as in any way specific are Plaintiffs' objections to Magistrate Judge Homer's recommendations regarding their conspiracy claim and their drug-testing claims. (Dkt. No. 241, at 3-4 [Plfs.' Obj.]; Dkt. No. 242, at 1-3 [Plfs.' Suppl. Obj.].) More specifically, Plaintiffs present the following two arguments: (1) Magistrate Judge Homer improperly concluded that a conspiracy did not exist in light of the fact that Defendants' use of Plaintiffs' own "exhibits" show that a conspiracy was "right in the court's face"; and (2) Magistrate Judge Homer improperly found that no evidence existed in support of Plaintiffs' drug-testing claims in light of the fact that Defendants failed to submit, with their motion, expert affidavits demonstrating that the urinalysis procedures used by the New York State Department of Corrections ("DOCS") "did not deviate from accepted laboratory practice and was not a contributing cause of plaintiffs['] injuries." (Id.) As a result, the Court reviews those two portions of the Report-Recommendation de novo.

After carefully reviewing all of the papers in this action, including Magistrate Judge Homer's Report-Recommendation and Plaintiffs' Objections thereto, the Court concludes that Magistrate Judge Homer's Report-Recommendation with regard to the above-described two claims is well-reasoned and not erroneous. (Dkt. No. 239, at 26-28, 33, 43-44 [Report-Recommendation].) Magistrate Judge Homer employed the proper legal standards, accurately recited the undisputed facts, and correctly applied the law to those facts. (Id.) The Court would add only two points.

First, Plaintiffs' argument that Defendants failed to meet their burden on their motion because they did not adduce expert affidavits demonstrating the acceptability of DOCS' urinalysis procedures illustrates a misunderstanding of the shifting burdens present on Defendants' motion, which are described above in Part II.B. of this Memorandum-Decision and Order.

Second, the Court construes both Defendants' motion and Magistrate Judge Homer's Report-Recommendation regarding Plaintiffs' conspiracy claim and drug-testing claims as hinging on the pleading insufficiency (not evidentiary insufficiency) of those claims. (Dkt. No. 228, Part 28, 30-31, 36-39 [Defs.' Memo. of Law]; Dkt. No. 239, at 26-28, 33, 43-44 [Report-Recommendation].) As a result, these claims should be, and are, dismissed without prejudice.

For all of these reasons, the Court adopts Magistrate Judge Homer's Report-Recommendation with regard to Plaintiffs' conspiracy claim, their Fourth Amendment drug-testing claim, and their Eighth Amended drug-testing claim.

B. General Objections

Plaintiffs never filed a specific objection with regard to the remainder of Magistrate Judge Homer's Report-Recommendation. (Dkt. No. 241, at 1-5 [Plfs.' Obj.]; Dkt. No. 242, at 1-4 [Plfs.' Suppl. Obj.].) Rather, they filed only the following six general objections: (1) "some of [the] defendants" (who are not identified) wrongfully seized certain of Plaintiffs' correspondence (which is not identified) at one or more points during the pendency of Defendants' motion, thus precluding Plaintiffs from filing a response to that motion; (2) Plaintiffs' failure to respond to Defendants' motion is excused in light of the special status they enjoy as pro se civil rights litigants; (3) Magistrate Judge Homer failed to view certain of the undisputed record evidence (which is unidentified) in the light most favorable to them; (4) Magistrate Judge Homer abused his discretion by failing to grant Plaintiffs' multiple motions to be appointed counsel; (5) all that Defendants have offered, in support of their motion, is "word play" and "legal tactics"; and (6) the legal standard governing dismissals for failure to state a claim requires that there be an appearance "beyond doubt" that a plaintiff can prove no set of facts in support of his claim. (Id.) As a result, the Court reviews the remainder of the Report-Recommendation for clear error or manifest injustice.

After carefully reviewing all of the papers in this action, including Magistrate Judge Homer's Report-Recommendation and Plaintiffs' Objections thereto, the Court concludes that Magistrate Judge Homer's Report-Recommendation with regard to Plaintiffs' remaining claims asserted in Plaintiffs' Third Amended and Supplemental Complaint is correct and not clearly erroneous. (Dkt. No. 239, at 16-46 [Report-Recommendation].) The Court would add six points.

First, Plaintiffs' argument that they were not afforded an adequate opportunity to respond to Defendants' motion is wholly without merit. Defendants filed and served their motion for summary judgment on December 31, 2007. (Dkt. No. 228.) On January 3, 2008, Plaintiffs requested an extension of the response deadline. (Dkt. No. 229.) On January 9, 2008, the Court granted that request. (Id.)*fn12 On February 14, 2008, Plaintiffs requested a second extension of the response deadline. (Dkt. No. 232.) On February 28, 2008, the Court granted that request. (Id.) On March 3, 2008, Plaintiffs requested a third extension of the response deadline. (Dkt. No. 233.) On March 12, 2008, the Court granted that request, giving Plaintiffs until April 14, 2008 (four and a half months from the filing of Defendants' motion) to respond to Defendants' motion. (Id.)*fn13 On April 1, 2008, Plaintiffs requested a fourth extension of the response deadline, which was promptly (and properly) denied on April 8, 2008. (Dkt. No. 236.)*fn14 Clearly, Plaintiffs had an adequate opportunity--and ability--to file documents with the Court during the relevant time period.

Second, Plaintiffs' failure to respond to Defendants' motion is not excused in light of the special status they enjoy as pro se civil rights litigants. As explained above in Part II.B. of this Memorandum-Decision and Order, a district court has no duty to perform an independent review of the record to find proof of a factual dispute--even if that nonmoving party is proceeding pro se. For this reason, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a moving party's statement to have been admitted where the nonmoving party has failed to properly respond to that statement--even where the nonmoving party was proceeding pro se in a civil rights case. See, supra, notes 8 and 9 of this Memorandum-Decision and Order.

Third, Plaintiffs received adequate notice of the consequences of failing to properly oppose Defendants' motion. (Dkt. No. 228, Part 1, at 2 [Defs.' Notice of Motion, reflecting attaching of Local Rule 56.2 Notice].) See also N.D.N.Y. L.R. 7.1(a)(3) [containing notice of consequences]; United States District Court for the Northern District of New York Pro Se Handbook, at 16, 41, http://www.nynd.uscourts.gov/documents/ProSeHandbook2008.pdf [containing notice of consequences].*fn15 Clearly, Plaintiffs understood these consequences, since they requested four extensions of the response deadline. (Dkt. Nos. 229, 230, 232, 233, 236.) In addition, it is worth noting that Plaintiff Deleon is not without at least some experience litigating other pro se civil rights actions in federal court. See, e.g., Deleon v. NYC Dept. of Corr., 97-CV-7604 (S.D.N.Y.); Deleon v. Clarke, 07-CV-0840 (W.D.N.Y.).

Fourth, courts cannot utilize a bright-line test in determining whether counsel should be appointed on behalf of an indigent party. Hendricks v. Coughlin, 114 F.3d 390, 392-93 (2d Cir. 1997). Instead, a number of factors should be considered by the court in ruling upon such a motion. Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (listing factors). "None of these factors are controlling in any given situation . . . . [Rather,] each case must be decided on its own facts." Velasquez v. O'Keefe, 899 F. Supp. 972, 974 (N.D.N.Y. 1995) (McAvoy, C.J.). Here, the Court can find no error (clear or otherwise) with Magistrate Judge Homer's weighing of these factors and his three decisions denying Plaintiffs appointed counsel. (See Dkt. Nos. 133, 205, 234.)

Fifth, Plaintiffs are incorrect when they argue that the legal standard governing dismissals for failure to state a claim requires that there be an appearance "beyond doubt" that a plaintiff can prove no set of facts in support of his claim. That "beyond doubt" language, promulgated by the Supreme Court through dictum in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), was "retir[ed]" by the Supreme Court in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1968-69 (2007).*fn16 Rather than turning on the conceivability of an actionable claim, the Supreme Court explained, the pleading standard set forth in Fed. R. Civ. P. 8(a)(2) properly turns on the plausibility of an actionable claim. Twombly, 127 S.Ct. at 1965-74. More specifically, the Court reasoned that, by requiring that a pleading "show[] that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2) requires that the pleading give the defendant fair notice of (1) the nature of the claim and (2) the "grounds" on which the claim rests. Id. at 1965, n.3 [citation omitted; emphasis added]. While this does not mean that a pleading must "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. [citations omitted; emphasis added]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. at 1965 [citations omitted].

It should be noted that, along with the other Circuits, the Second Circuit has repeatedly recognized that the clarified plausibility standard (articulated by the Supreme Court in Twombly) governs all claims, not merely antitrust claims brought under 15 U.S.C. § 1 (as were the claims in Twombly).*fn17 It should also be noted that the Supreme Court in no way retracted or curtailed the plausibility standard when (two weeks after issuing Twombly), it issued a decision stating that "[s]pecific facts are not necessary" in order to successfully state a claim under Fed. R. Civ. P. 8(a)(2). Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) [citation omitted]. That statement was merely an abbreviation of the often-repeated point of law--first offered in Conley and repeated in Twombly--that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Twombly, 127 S.Ct. 1965, n.3 (citing Conley v. Gibson, 355 U.S. 41, 47 [1957]). That statement did not mean that a pleading may achieve the requirement of giving a defendant "fair notice" of the nature of the claim and the "grounds" on which the claim rests without alleging any fact whatsoever.*fn18 While specific or detailed facts need not be alleged, there must still be enough fact alleged to raise a right to relief above the speculative level to a plausible level, so that the defendant may know what the claims are and the grounds on which they rest (in order to shape a defense). In any event, regardless of whether the Court were to employ the clarified plausibility pleading standard or the abandoned conceivability pleading standard, the Court would agree with Magistrate Judge Homer that the claims at issue fail to state a claim upon which relief might be granted.

Sixth, and finally, the Court construes both Defendants' motion and Magistrate Judge Homer's Report-Recommendation as asserting that there is a pleading insufficiency (not evidentiary insufficiency) in the following five claims: (1) denial of the right to provide legal assistance; (2) wrongful cell searches, (3) intentional destruction of property, (4) denial of equal protection of the laws, and (5) discrimination. (Dkt. No. 228, Part 28, at 6, 14, 21, 32-33, 36-39 [Defs.' Memo. of Law]; Dkt. No. 239, at 28-29, 38-43 [Report-Recommendation].) As a result, those claims should be, and are, dismissed without prejudice.

For all of these reasons, the Court adopts Magistrate Judge Homer's Report-Recommendation with regard to the remaining claims asserted in Plaintiffs' Third Amended and Supplemental Complaint.*fn19

C. Cross-Motion for Leave to Amend

It is true that, when addressing a pro se complaint, generally a district court "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."*fn20 However, an opportunity to amend is not required where the plaintiff has already amended his complaint.*fn21 Here, Plaintiffs have already been granted three opportunities to file an amended (and/or supplemental) complaint. (See Dkt. Nos. 1, 7, 17, 116.) In addition, it is worth noting that the deadline for filing amended pleadings expired on August 8, 2006, when the Court granted Plaintiffs' motion to file a Third Amended and Supplemental Complaint and did not extend the non-dispositive motion filing deadline. (Dkt. Nos. 93, 109-10, 113, 193, 195.) To permit Plaintiffs to change the landscape of their claims at this late point in the action--after discovery has long-since closed, Defendants have incurred the expense of filing a lengthy motion for summary judgment, and Magistrate Judge Homer has spent the time to issue a Report-Recommendation on that motion--would be manifestly unfair to Defendants, as well as wasteful of judicial resources. Finally, the Court has not been informed as to what amendments Plaintiffs are even proposing since their motion for leave to file a Fourth Amended and Supplemental Complaint is not supported by a copy of the proposed amended pleading and a document (such as an affidavit) specifically identifying the proposed amendments, as required by Local Rule 7.1(a)(3). (See Dkt. No. 241.)

For all of these reasons, Plaintiffs' motion for leave to file a Fourth Amended and Supplemental Complaint (Dkt. No. 241) is denied.

ACCORDINGLY, it is

ORDERED that the Report-Recommendation (Dkt. No. 239) is hereby ADOPTED in its entirety; Defendants' Motion for Summary Judgment (Dkt. No. 228) is GRANTED; and Plaintiffs' Third Amended and Supplemental Complaint (Dkt. No. 116) is DISMISSED with prejudice except for the following claims, which are dismissed without prejudice:

(1) Plaintiffs' claims against Defendants Granger, Eustis, Seneca and John Does 1-3; and

(2) Plaintiffs' claim of denial of the right to provide legal assistance under the First Amendment;

(3) Plaintiffs' claim of wrongful cell searches under the Fourth Amendment;

(4) Plaintiffs' claim of intentional destruction of property under the Fourteenth Amendment;

(5) Plaintiffs' claims of improper drug testing under the Fourth and Eighth Amendments;

(6) Plaintiffs' claim denial of equal protection of the laws under the Fourteenth Amendment;

(7) Plaintiffs' claims of discrimination under 42 U.S.C. § 1981; and

(8) Plaintiffs' claims of conspiracy under 42 U.S.C. §§ 1985, 1986; and it is further ORDERED that Plaintiffs' cross-motion for leave to file a Fourth Amended and Supplemental Complaint (Dkt. No. 241) is DENIED.


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