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Cusamano v. Sobek

January 26, 2009

ANTHONY CUSAMANO, PLAINTIFF,
v.
MR. SOBEK, CORRECTIONAL OFFICER, ET AL., DEFENDANTS.



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

MEMORANDUM-DECISION and ORDER

Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983, against thirteen (13) employees of the New York State Department of Corrections ("DOCS"), alleging that they violated his rights under the First, Eighth and Fourteenth Amendments of the United States Constitution as well as his rights under Article 1, Section 6 of the New York Constitution. (Dkt. No. 1 [Plf.'s Compl.].) Currently pending before the Court are (1) Defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56, (2) Plaintiff's cross-motion for summary judgment, (3) Plaintiff's cross-motion for an Order to stay decision on Defendants' motion, and to compel discovery, and (4) Plaintiff's cross-motion for leave to amend his Complaint. (Dkt. Nos. 39, 42.)

On September 19, 2008, United States Magistrate Judge George H. Lowe filed a Report-Recommendation recommending that Defendants' motion for summary judgment be granted in part and denied in part, and that Plaintiff's three cross-motions be denied. (Dkt. No. 47.) On October 3, 2008, Plaintiff filed Objections to that Report-Recommendation. (Dkt. No. 49.) For the reasons set forth below, Magistrate Judge Lowe's Report-Recommendation is accepted as modified by the withdrawal of certain of Plaintiff's claims and his introduction of new evidence on appeal.

I. 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, 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). 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 conducting 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).

II. LEGAL STANDARD ON 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 the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323 (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.*fn2 (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.)*fn3 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.*fn4 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*fn5 --even where the nonmoving party was proceeding pro se in a civil rights case.*fn6

III. ANALYSIS OF DEFENDANTS' MOTION

In his lengthy Objections to Magistrate Judge Lowe's Report-Recommendation, Plaintiff offers specific objections to the majority of Magistrate Judge Lowe's recommendations. (Compare Dkt. No. 47 with Dkt. No. 49.) The only recommendations to which Plaintiff does not object are as follows: (1) the recommendation that Plaintiff's excessive-force claim against Defendant McAdam not be dismissed at this time; (2) the recommendation that Plaintiff's failure-to-protect claim against Defendant Snyder not be dismissed at this time; (3) the recommendation that Plaintiff's claim under Article 1, Section 6 of the New York State Constitution be dismissed; and (4) the recommendation that Plaintiff's access-to-courts claims against Defendants Emrich and Don be dismissed. (Dkt. No. 47, at 23-24, 40, 95-99.) As a result, the Court reviews these last four recommendations for clear error, and it reviews the remaining recommendations de novo. After applying the relevant standard of review, and conducting a careful review of all of the papers in this action (including Magistrate Judge Lowe's Report-Recommendation and Plaintiff's Objections),*fn7 the Court adopts Magistrate Judge Lowe's Report-Recommendation as modified by Plaintiff's withdrawal of certain of his claims and his introduction of new evidence in his objections. More specifically, the Court issues the following 21 rulings.

Excessive Force Claims

1. Plaintiff's Excessive-force Claim against Defendant Cushman is not Dismissed Although Plaintiff admits that he did not hear or see Defendant Cushman as he was actually being frisked or subjected to the use of force,*fn8 the Court finds that there is a genuine issue of material fact as to whether or not Defendant Cushman was present during and/or participated in the (alleged) assault.*fn9 This is largely because, in his Objections, Plaintiff adequately brings to the Court's attention the portion of his deposition transcript in which he testified that, after the use of force was complete, he turned around and saw that "all of the officers" were present in the room. (Dkt. No. 49, at 13.)

As an initial matter, the manner in which Plaintiff presented the citation to this evidence to Magistrate Judge Lowe was to bury it in a 40-page, 139-paragraph, single-spaced, handwritten document that attempted to serve as the following four things at the same time: (1) a partial Rule 7.1 Response (and counter-statement of facts);*fn10 (2) a Rule 7.1 Statement of Material Facts (in support of Plaintiff's cross-motion for summary judgment); (3) a declaration; and (4) a document containing legal arguments (including ad hominem attacks on defense counsel). (See Dkt. No. 42, Part 1.) Such a document is in blatant violation of numerous local rules that function to separate argument from factual assertions, and factual assertions from factual denials, and factual denials from record evidence (in order to enable the Court to fairly and efficiently decide the motion for summary judgment before it).*fn11 Plaintiff had adequate notice of Local Rule 7.1 before he violated it.*fn12 In addition, Plaintiff clearly understood the consequences of failing to properly oppose Defendants' motion because he applied for (and was granted) an extension of time by which to file his response to Defendants' motion for summary judgment. (Dkt. No. 40.)*fn13

Under the circumstances, Magistrate Judge Lowe did not abuse his discretion in refusing to excuse Plaintiff's rule violations given (1) the prior notice that Plaintiff had received about the consequences of failing to properly oppose Defendants' motion for summary judgment, (2) the extension of time that Plaintiff received to file his response to Defendants' motion for summary judgment, (3) Plaintiff's prior experience informally helping other inmates with their legal work since 2001, and formally helping other inmates with their legal work as a clerk in multiple prison law libraries,*fn14 (4) Plaintiff's prior experience as a pro se litigant in federal court (which he acquired while using one or more of four aliases),*fn15 (5) the volume of the record evidence that Magistrate Judge Lowe would have had to sift through, and the opportunity to reply that he would have had to afford Defendants, had he chosen to overlook Plaintiff's failure,*fn16 and (6) the delay that would have resulted to the proceedings of other pro se civil rights litigants with cases pending on the Court's docket.*fn17 As a result, Plaintiff's Rule 7.1 Response was, and is, properly disregarded by the Court.

However, the Court need not excuse the myriad deficiencies in Plaintiff's 7.1 Response in order to conclude that a genuine issue of material fact exists as to whether or not Defendant Cushman was present during and/or participated in the (alleged) assault. This is because, in his Objections, Plaintiff brings squarely before the Court a citation to the portion of his deposition transcript in which he testified that, after the use of force was complete, he turned around and saw that "all of the officers" were present in the room. (Dkt. No. 49, at 13.) While the Court is not inclined to consider evidentiary material that was not adequately presented to a magistrate judge in the first instance, the Court will not turn a blind eye to such evidentiary material. This is especially true when that material is consistent with other evidentiary material that the Court has come across in its review of this matter, such as the following: (1) the fact that Defendant Cushman escorted Plaintiff to the "frisk room";*fn18 (2) Plaintiff's statement, during his disciplinary hearing, that "Officer Cushman [was present in the room as Plaintiff was going into the room]";*fn19 (3) Plaintiff's sworn allegation that Defendant Cushman "'witnessed'" and "perpetrated" the (alleged) assault;*fn20 and (4) Plaintiff's testimony, in his deposition, that "[n]o, I cannot identify by name anyone else in [the] frisk room as [I] entered [except Defendant McAdam]. Now, mind you, one of the officers I identified as having been in the room and participating in this was Officer Cushman, but he escorted me. . . . [At the end of the alleged assault] all of the officers and Sergeant Snyder [were] still present."*fn21

Simply stated, the Court concludes that there is a genuine issue of material fact as to whether or not Defendant Cushman was present during and/or participated in the (alleged) assault, due to Plaintiff's citation (in his Objections to Magistrate Judge Lowe's Report-Recommendation) to what is effectively "new" record evidence, which the Court considers under the special circumstances of this case.*fn22

2. Plaintiff's excessive-force claim against Defendant McAdam is not dismissed, for the reasons stated by Magistrate Judge Lowe in Part III.A. of his Report-Recommendation. (Dkt. No. 47, at 34-38, 40.)

Failure-to-Protect Claims

3. Plaintiff's failure-to-protect claim against Defendant Cushman is deemed withdrawn under Fed. R. Civ. P. 41(a)(2), given Plaintiff's representation, in his Objections, that he never intended to assert that claim in his Complaint. (Dkt. No. 49, at 6, 13-14.) The Court will add only that it in no way faults Magistrate Judge Lowe for reading this claim into Plaintiff's Complaint, since this liberal construction was performed in an express attempt to extend Plaintiff special solicitude as a pro se civil rights litigant. (Dkt. No. 47, at 5-6, & n.8.)

4. Plaintiff's failure-to-protect claim against Defendant Sobek is also deemed withdrawn under Fed. R. Civ. P. 41(a)(2), given Plaintiff's representation that he never intended to assert that claim in his Complaint. (Dkt. No. 49, at 6, 13-14.) Again, the Court will add only that it in no way faults Magistrate Judge Lowe for reading this claim into Plaintiff's Complaint out of special solicitude.

5. Plaintiff's failure-to-protect claim against Defendant Snyder is not dismissed, for the reasons stated by Magistrate Judge Lowe in Part III.A. of his Report-Recommendation. (Dkt. No. 47, at 34-38, 40-41, & n.103.)

6. Plaintiff's failure-to-protect claim against Defendant McAdam is also deemed withdrawn under Fed. R. Civ. P. 41(a)(2), given Plaintiff's representation that he never intended to assert that claim in his Complaint. (Dkt. No. 49, at 6, 13-14.) Again, the Court in no way faults Magistrate Judge Lowe for reading this claim into Plaintiff's Complaint out of special solicitude.

Conspiracy Claims

7. Plaintiff's Section 1983 conspiracy claims against Defendants Sobek, Snyder, Cushman, and McAdam are dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing either (1) a meeting of the minds between any of these Defendants to act in concert to inflict a constitutional injury on Plaintiff, or (2) the commission of any overt act in furtherance of that goal. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.B. of his Report-Recommendation. (Dkt. No. 47, at 42-43.)

Plaintiff's Objections, which cite four different statements that "plausibly hint at a conspiracy to assault," are without merit. (Dkt. No. 49, at 16-17.) As an initial matter, again, the manner in which Plaintiff presented citations to this evidence to Magistrate Judge Lowe was to bury them in a a 40-page, 139-paragraph, single-spaced, handwritten document that attempted to serve as the following four things at the same time: (1) a partial Rule 7.1 Response (and counter-statement of facts); (2) a Rule 7.1 Statement of Material Facts (in support of Plaintiff's cross-motion for summary judgment); (3) a declaration; and (4) a document containing legal arguments (including ad hominem attacks on defense counsel). (Dkt. No. 42, Part 1.) Such a document is in flagrant violation of numerous local rules. As a result, the document in question was, and is, properly disregarded by the Court. In any event, evidence of a series of expressions of a common dislike of a plaintiff by a handful of individuals is different from evidence of a conspiratorial agreement between those individual.*fn23

Also without merit is Plaintiff's argument that Defendant Sobek "initiated the conspiracy to assault via a phone conversation with Sgt. Snyder." (Dkt. No. 49, at 14-18.) This argument by Plaintiff ignores the following undisputed facts: (1) it was Defendant McAdam who initiated the telephone call; (2) even assuming Defendant Sobek received the call, no record evidence--only speculation--exists that, during the conversation that ensued, Defendant Sobek (a correctional officer), through Officer McAdam, instructed Defendant Snyder (a correctional sergeant and thus Sobek's superior officer) to assault Plaintiff;*fn24 and (3) even if Defendant Sobek did issue such an instruction, no record evidence exists that--after doing so--Defendant Sobek committed an overt act in furtherance of the conspiracy to assault Plaintiff. With regard to this last point, Plaintiff appears to argue that either (1) it was Defendant Sobek's meeting of minds with Defendant Snyder that itself constituted an overt act, or (2) Defendant Sobek's overt act somehow preceded the point in time when a meeting of the minds occurred. However, both arguments are without merit.*fn25

8. Plaintiff's Section 1985 conspiracy claims against Defendants Sobek, Snyder, Cushman, and McAdam are dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing either of the two requirements for the formation of a conspiracy, as stated above in Paragraph 7 of Part III of this Memorandum-Decision of Order, as well as for failure to adduce record evidence establishing that the underlying motivation for the conspiracy was racial or other class-based animus. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.B. of his Report-Recommendation. (Dkt. No. 47, at 41-43.) Plaintiff's Objections argue that (1) federal courts have improperly injected a class-based animus requirement into Section 1985, and (2) in any event, he satisfies that requirement because he was, during the time of the alleged assault, a felon. (Dkt. No. 49, at 18-19.) Both arguments are patently without merit.*fn26

In the alternative, the Court finds that Plaintiff's Section 1985 conspiracy claims are barred by the intra-corporate conspiracy doctrine, for the five reasons articulated by Magistrate Judge Lowe in Part III.B. ...


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