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Vigliotti v. Daly

December 30, 2008

JACK VIGLIOTTI, PLAINTIFFS,
v.
T. DALY, CORRECTIONAL OFFICER; AND M. WITHERS, CORRECTIONAL SERGEANT, DEFENDANTS.



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

DECISION and ORDER

Jack Vigliotti ("Plaintiff"), a New York State prison inmate, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against two correctional officials employed by the New York State Department of Corrections--Correctional Officer T. Daly and Correctional Sergeant M. Withers ("Defendants").

Construed with special leniency, Plaintiff's Complaint alleges that Defendants violated his rights under the First, Eighth and Fourteenth Amendments when, for less than three hours on August 15, 2002, as he was being transferred through Auburn Correctional Facility (from Upstate Correctional Facility to Five Points Correctional Facility), they deliberately placed him in a "transit" cell that possessed the following characteristics: (1) it was five feet by nine feet in size; (2) it was enclosed in plexiglass and covered with wet paint; (3) it was filled with "a very overwhelming smell of [fresh] paint"; (4) it was hot (with a temperature of 87.8 degrees Celsius), humid (with a relative humidity of 81%), devoid of adequate air-conditioning, and devoid of "holes drilled in it for adequate ventilation"; (5) it was devoid of a mattress, bedding, toilet paper and soap; and (6) had a toilet and floor that were filthy. (See generally Dkt. No. 1, Part 1 [Plf.'s Compl.]; Dkt. No. 36 [Plf.'s Response]; Dkt. No. 37 [Plf.'s Suppl. Affid.].) Plaintiff also alleges that Defendants placed him in the cell because of a misbehavior report issued against Plaintiff by Correctional Officer M. Quill on April 5, 2002. (Id.) Finally, Plaintiff alleges that Defendants did not have the authority to place him in the cell, because they did not first obtain a deprivation order pursuant to N.Y. Comp. Codes. R. & Regs. tit. 7, §§ 305.2, 305.6. (Id.)

Currently before the Court are (1) Defendants' motion for judgment on the pleadings, (2) United States Magistrate Judge David E. Peebles' Report-Recommendation that Defendants' motion be granted with leave to amend, and (3) Plaintiff's objections to the Report-Recommendation. (Dkt. Nos. 33, 43, 44.) For the reasons set forth below, Magistrate Judge Peebles' Report-Recommendation is accepted in its entirety; Defendants' motion for judgment on the pleadings is granted; and Plaintiff's Complaint is dismissed if, within thirty (30) days of the date of this Decision and Order, he fails to file an Amended Complaint that states a claim upon which relief might be granted.

I. BACKGROUND

Familiarity with this action's procedural history, Plaintiff's claims, and Defendants' legal arguments, as set forth in Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 43) is assumed, and shall not be repeated in this Decision and Order. Only the claims and legal arguments 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).*fn1

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).*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 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 Judgment on Pleadings

Magistrate Judge Peebles correctly recited the legal standard governing a motion for judgment on the pleadings, which is incorporated by reference herein. (Dkt. No. 43, at 6-9.)

III. ANALYSIS

After carefully reviewing all of the papers in this action, including Magistrate Judge Peebles' Report-Recommendation and Plaintiff's Objections thereto, the Court can find no error in Magistrate Judge Peebles' Report-Recommendation, clear or otherwise. (Dkt. No. 43.) Magistrate Judge Peebles employed the proper legal standards, accurately recited the factual allegations of Plaintiff's Complaint, and correctly applied the law to those factual ...


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