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Cusamano v. Sobek

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


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. of his Report-Recommendation. (Dkt. No. 46, at 44-45.)

False-Misbehavior-Report Claims

9. Plaintiff's false-misbehavior-report claim against Defendant Sobek is sua sponte dismissed under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b), for failure to allege facts plausibly suggesting that, even assuming the misbehavior report filed against Plaintiff was indeed false, the filing of that report somehow rose to the level of a constitutional violation. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Parts III.D. and III.F. of his Report-Recommendation. (Dkt. No. 47, at 46-49, 56-58.) The Court notes that granting Plaintiff leave to amend this claim would not be appropriate because the problem with this claim is substantive such that better pleading would not cure it.*fn27

Plaintiff's Objections argue that (1) record evidence exists that Defendant Sobek issued the misbehavior report with "a retaliatory motive," and (2) the Court is essentially estopped from dismissing this claim under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b), because it reviewed and accepted his Complaint on August 25, 2006, when it considered whether to grant Plaintiff's in forma pauperis application. (Dkt. No. 49, at 23.)

Plaintiff's first argument lacks merit. A review of record evidence (which is attached to, or incorporated by reference into, a complaint) is not permitted during a Fed. R. Civ. P. 12(b)(6) analysis. A plaintiff may or may not, during discovery, adduce evidence in support of a claim, but that claim is not properly before the court if the defendant was not, through a liberal construction of the plaintiff's complaint, given fair notice of that claim and the grounds on which it rests (so as to fairly permit the defendant to shape a comprehensive defense to that claim, and to enable the court to render a proper decision on the merits of that claim). In any event, the record evidence to which Plaintiff cites does not establish that he was engaging in any speech or activity protected by the First Amendment when Defendant Sobek took adverse action against him by issuing him the (allegedly) false misbehavior report. (Dkt. No. 49, at 23.)*fn28 Nor does the record evidence to which Plaintiff cites establish that Defendant Sobek took the adverse action against him because of any protected activity. (Id.)

Plaintiff's second argument also lacks merit. The Court's Order of August 25, 2006 (granting Plaintiff's motion to proceed in forma pauperis), did not contain any sort of ruling that Plaintiff's Complaint was thereafter immune from attack under 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6). (See Dkt. No. 6.) Rather, the Order was issued after only an initial "screening" of Plaintiff's Complaint for purposes of 28 U.S.C. § 1915A.*fn29 In any event, even if the Order had contained such a ruling, the Court possesses the inherent authority to sua sponte reconsider its own orders before they become final (absent some rule or statute to the contrary).*fn30

10. Plaintiff's false-misbehavior-report claim against Defendant McAdam is dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing that, even assuming the misbehavior report filed against Plaintiff was indeed false (despite the fact that it was never reversed on appeal), the filing of that report somehow rose to the level of a constitutional violation. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.D. of his Report-Recommendation. (Dkt. No. 47, at 46-49.) Plaintiff's Objections, which merely address whether or not Defendant McAdam's misbehavior report was false, have no merit. (Dkt. No. 49, at 20-23.)*fn31 As explained by Magistrate Judge Lowe, a false misbehavior report requires something more (such as retaliation for having exercised a constitutional right) to constitute a violation of the United States Constitution. (Dkt. No. 47, at 47-48.) In any event, again, the manner in which Plaintiff presented citations to this evidence to Magistrate Judge Lowe was to bury them in a 40-page, 139-Paragraph, single-spaced, handwritten document that violated Local Rule 7.1, and thus was, and is, properly disregarded by the Court.

Retaliation Claims

11. Plaintiff's retaliation claim against Defendant Emrich, based on his issuance of a false misbehavior report, is dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing a casual connection between the protected speech in which Plaintiff was engaged (the filing of a grievance) and the adverse action (the issuance of the misbehavior report). The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.E. of his Report-Recommendation. (Dkt. No. 47, at 52-56.)

Plaintiff's Objections, which purport to cite record evidence establishing the retaliatory motive of Defendant Emrich, are without merit. (Dkt. No. 49, at 21-23.) 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 document that violated Local Rule 7.1, and thus was, and is, properly disregarded by the Court. In any event, the evidence to which Plaintiff cites does not, in fact, establish a casual connection between the protected speech in which Plaintiff was engaged and the adverse action that he experienced (assuming, for the sake of brevity, that the issuance of the misbehavior report constituted such "adverse action"). Rather, the record rather clearly establishes that the misbehavior report was issued because caulk was missing from Plaintiff's cell.

12. Plaintiff's retaliation claim against Defendant Sobek (based on his issuance of a misbehavior report) is sua sponte dismissed under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b), for failure to allege facts plausibly suggesting that either (1) Plaintiff was engaging in activity protected by the First Amendment when (as a "library clerk") he helped other inmates with their legal work in his housing unit at Gouverneur C.F., or (2) that it was that legal assistance and not Plaintiff's own misbehavior that caused him to receive the referenced misbehavior report. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.F. of his Report-Recommendation. (Dkt. No. 47, at 56-58.) The Court notes that granting Plaintiff leave to amend this claim would not be appropriate because the problem with this claim is substantive such that better pleading would not cure it. Plaintiff's Objections, which purport to cite record evidence establishing the retaliatory motive of Defendant Sobek, are without merit, for the same reasons as discussed above in the preceding paragraph of this Memorandum-Decision and Order. (Dkt. No. 49, at-23.)

Procedural Due Process Claims

13. Plaintiff's two procedural due process claims against Defendant Don are dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing that either (1) he enjoyed (during his disciplinary hearings on January 11, 2005, and January 26, 2005) a liberty interest protected by the Fourteenth Amendment, or (2) even assuming he enjoyed such a liberty interest, he was (at those hearings) denied any of the process to which he was due under the Fourteenth Amendment. In the alternative, this claim is dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6).*fn32 The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Parts III.G.1. and III.G.3. of his Report-Recommendation. (Dkt. No. 47, at 58-61, 71-73.)

Plaintiff's Objections, which argue that he (in his Rule 7.1 Response) cited record evidence of Defendant Don's bias, are without merit. (Dkt. No. 49, at 23-24.) 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 document that violated Local Rule 7.1, and thus was, and is, properly disregarded by the Court. In any event, the evidence to which Plaintiff cites does not, in fact, establish that Defendant Don deprived Plaintiff of any of the process to which he was due under the Fourteenth Amendment. Nor does that evidence establish (more importantly) that Plaintiff even enjoyed a protected liberty interest in his hearing, given the brevity of the disciplinary sentence that resulted from the hearing.

14. Plaintiff's procedural due process claim against Defendant Williams is also dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing that either (1) he enjoyed (during his disciplinary hearing) a liberty interest protected by the Fourteenth Amendment, or (2) even assuming he enjoyed such a liberty interest, he was denied any of the process to which he was due under the Fourteenth Amendment. In the alternative, this claim is dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Part III.G.2. of his Report-Recommendation. (Dkt. No. 47, at 62-71.) Plaintiff's Objections are without merit. (Dkt. No. 49, at 24-26.) In addition to relying on record citations that were buried in a document that violated Local Rule 7.1, Plaintiff's Objections fail to refute the fact that he did not enjoy a protected liberty interest in the hearing, given the disciplinary sentence (if any) imposed as a result of the hearing.

Claims Under New York Constitution

15. Plaintiff's claims against Defendants Williams and Don under Article 1, Section 6 of the New York State Constitution are dismissed under Fed. R. Civ. P. 12(b)(1) and 12(h)(3) because the Court declines to exercise supplemental jurisdiction over that pendent state law claim. The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.G.4. of his Report-Recommendation. (Dkt. No. 47, at 73-74.) The Court notes that Plaintiff failed to object to this recommendation. (See generally Dkt. No. 49.) The Court adds, however, that this recommendation of dismissal would survive even a de novo review.

Inadequate-Prison-Conditions Claim

16. Plaintiff's inadequate-prison-conditions claim against Defendant Sheridan is dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing that the conditions of his confinement resulted in deprivation that was sufficiently serious under the Eighth Amendment.*fn33 In the alternative, this claim is dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Part III.H. of his Report-Recommendation. (Dkt. No. 47, at 74-78.) Plaintiff's Objections, which address only one of the several reasons Magistrate Judge Lowe recommended dismissal of this claim, are without merit. (Dkt. No. 49, at 26-27.)

Harassment Claim

17. Plaintiff's harassment claim against Defendants McAdams, Emrich and Sheridan is dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing that the conduct in question was sufficiently serious under the Eighth Amendment. In the alternative, this claim is dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Part III.I. of his Report-Recommendation. (Dkt. No. 47, at 79-85.) Plaintiff's Objections argue (for the first time) that the physical injury that accompanied the alleged verbal harassment occurred the day before the verbal harassment began. (Dkt. No. 49, at 27-28.) For the sake of brevity, the Court will not linger on the fact that, in his Complaint, Plaintiff alleged that the verbal harassment began on January 8, 2005, two days (not one day) after the occurrence of the alleged assault on January 6, 2005.*fn34 The larger, more obvious problem with this argument is that it depends on a suspension of the laws of time: verbal harassment in the future cannot cause a physical assault in the past. Plaintiff's argument has no merit.

Inadequate-Medical-Care Claim

18. Plaintiff's inadequate-medical-care claim against Defendant Kasulke is dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing that Defendant Kasulke acted with a sufficiently culpable mental state (for purposes of the Eighth Amendment) with regard to any serious medical need Plaintiff may have possessed.*fn35 The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Part III.J. of his Report-Recommendation. (Dkt. No. 47, at 88-91.) Plaintiff's Objections assert several arguments, including (1) an argument that, if the Court were to conduct a true de novo review of this Report-

Recommendation, the Court would have to look beyond the deficiencies in his Rule 7.1 Response, and (2) an argument that Defendant Kasulke's Declaration was not sworn. (Dkt. No. 49, at 28-31.) Plaintiff's arguments have no merit.

A de novo review of a magistrate judge's report-recommendation does not require a district judge to excuse a pro se non-movant's Rule 7.1 Response that admittedly (1) does not mirror the movant's Statement of Facts, (2) does not admit or deny each of the movant's factual assertions, and (3) does not support every denial with a specific citation to the record where the factual issue (allegedly) arises.*fn36 Moreover, Defendant Kasulke's Declaration contains a sufficient verification for purposes of 28 U.S.C. § 1746. (Dkt. No. 39, Part 42, at 1.) Finally, Plaintiff's arguments ignore Magistrate Judge Lowe's alternative finding that, even if Defendant Kasulke had received notice of Plaintiff's complaints, his subsequent actions would not establish that he possessed the sort of mental state (which is akin to criminal recklessness) required to be held liable under the Eighth Amendment.*fn37

Access-to-Courts Claims

19. Plaintiff's access-to-courts claim against Defendant Cornelius is dismissed under Fed. R. Civ. P. 56 for failure to adduce record evidence establishing that either (1) Defendant Cornelius acted intentionally or recklessly in losing Plaintiff's legal materials, or (2) any such intentional or reckless loss materially prejudiced any legal action Plaintiff sought to pursue. In the alternative, this claim is dismissed for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Part III.K. of his Report-Recommendation. (Dkt. No. 47, at 91-95.) Plaintiff's Objections argue that (1) evidence of Defendant Cornelius' culpable intent may be found from "[a] quick perusal of [Plaintiff's] factual claim set forth within [his] . . . Complaint," and (2) evidence that Plaintiff was materially prejudiced by the loss is found from the fact that the loss of the materials in question "necessarily prevent[ed] or inhibit[ed] [Plaintiff] from being able to litigate any further challenge(s) to it." (Dkt. No. 49, at 31.) Plaintiff's arguments lack merit.

For the sake of brevity, the Court will set aside the issue of whether Plaintiff (in his Rule 7.1 Response) properly submitted this evidence to Magistrate Judge Lowe. In any event, even a careful review of Plaintiff's Verified Complaint fails to evidence that Defendant Cornelius acted intentionally or recklessly in losing Plaintiff's legal materials. (Dkt. No. 1, ¶ 6, Attached Pages 16-17 [Plf.'s Compl.].) Indeed, to the contrary, Plaintiff's Verified Complaint asserts that, when Defendant Cornelius decided to place Plaintiff's state-issued clothing in a third "draft bag" rather than place Plaintiff's remaining legal materials in that bag, he said that "he would place the rest of [Plaintiff's] legal papers in another bag once he returned to the property room." (Id. at 17.) With regard to Plaintiff's "evidence" that he was materially prejudiced as a result of the loss of legal materials, Plaintiff's Objections contain no citation to any such evidence in the record.

(Dkt. No. 49, at 31.) As explained by Magistrate Judge Lowe, Defendants met their burden of showing the prejudice Plaintiff alleges is merely speculative in nature, and Plaintiff failed to meet his resulting burden of showing otherwise. (Dkt. No. 47, at 94.)

20. Plaintiff's access-to-courts claims against Defendants Emrich and Don are sua sponte dismissed under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b), for failure to state a claim upon which relief might be granted. Specifically, the Court agrees with Magistrate Judge Lowe that, even liberally construed, Plaintiff's Complaint has failed to allege facts plausibly suggesting that (1) either of those two Defendants filed a false misbehavior report against Plaintiff with the knowledge that the sentence of disciplinary confinement that Plaintiff would experience following his conviction on that misbehavior report would interfere with his right to access the courts under the First Amendment, and/or (2) the restriction to merely three legal materials per day, which Plaintiff experienced while in the Gouverneur C.F. S.H.U., prejudiced Plaintiff in any legal action attacking his criminal conviction or challenging the conditions of his confinement. (Dkt. No. 47, at 95-96, 99.) The Court notes that Plaintiff failed to object to this recommendation. (See generally Dkt. No. 49.) The Court adds, however, that this recommendation would survive even a de novo review. Finally, the Court notes that granting Plaintiff leave to amend this claim would not be appropriate because the problem with this claim is substantive such that a better pleading would not cure it.

Claims Against John Doe Defendants

21. Plaintiff's claims against the Defendants designated as John Doe #1, John Doe # 2, and John Doe # 3 are dismissed without prejudice for failure to timely name and serve those three Defendants under Fed. R. Civ. P. 41(b) and Fed. R. Civ. P. 4(m). The Court reaches this conclusion for the reasons stated by Magistrate Judge Lowe in Parts III.L. and IV.C. of his Report-Recommendation. (Dkt. No. 47, at 96-99, 106-111.) Plaintiff's Objections argue that (1) he could not have served the John Doe Defendants because he did not know who they were, and (2) he could not know who they were because he "was denied an extension of the original discovery deadline." (Dkt. No. 49, at 31-32.) Plaintiff's Objections are without merit.

As an initial matter, Plaintiff's argument is factually inaccurate. Plaintiff filed this action on May 22, 2006. (Dkt. No. 1.) On January 23, 2007, Magistrate Judge Lowe set the original deadline in the action as July 30, 2007. (Dkt. No. 21.) On April 24, 2007, Plaintiff requested an extension of the discovery deadline until September 10, 2007. (Dkt. No. 23, at 1.) On May 8, 2007, Magistrate Judge Lowe granted an extension of the discovery deadline until August 30, 2007. (Id.) On July 3, 2007, he extended the deadline until August 31, 2007. (Dkt. No. 30, at 3.) On November 23, 2007, Plaintiff requested that the Court reopen the discovery period--which had expired nearly three months before. (Dkt. No. 37, at 1-2.) On December 7, 2007, Magistrate Judge Lowe denied that request. (Id. at 1.) In any event, Plaintiff's argument fails to acknowledge that he had than seven months during which to learn the names and addresses of the three John Doe Defendants through discovery on the named Defendants (and he has had more than two-and-a-half-years during which to learn the names and address of the three John Doe Defendants through independent means). Magistrate Judge Lowe properly applied Fed. R. Civ. P. 41(b) and Fed. R. Civ. P. 4(m) to the facts of Plaintiff's case.*fn38

Alternative Grounds for Dismissal

Because the Court has found adequate grounds on which to adopt Magistrate Judge Lowe's Report-Recommendation, the Court need not, and does not, address the merits of Defendants' alternative argument that Plaintiff's claims of harassment, due process violations, and inadequate medical care should be dismissed because Defendants are protected by the doctrine of qualified immunity. (Dkt. No. 39, Part 45, at 21-23 [Defs. Memo. of Law].)

Similarly, because the Court has found adequate grounds on which to adopt Magistrate Judge Lowe's Report-Recommendation, the Court need not address the merits of Magistrate Judge Lowe's recommendation that the majority of Plaintiff's claims should be dismissed (and his three cross-motions denied) on the alternative ground that he should be sanctioned for knowingly making material misrepresentations to the Court. (Dkt. No. 47, at 111-14.) As a result, the Court does not address that alternative recommendation except to make two observations.

First, the Court has carefully considered--and rejected--Plaintiff's explanation for (1) making a sworn misrepresentation, in Paragraph 5 of his Verified Complaint, regarding his prior federal and state court actions relating to his imprisonment, and (2) making a sworn misrepresentation, on pages 1 and 27 of his Verified Complaint, that his legal name was "Anthony Cusamano." (Dkt. No. 49, at 4, 35-37.)

Second, Plaintiff's submissions to this Court (at least as they relate to Defendants' motion for summary judgment) have been peppered with abusive language. For example, even a cursory review of Plaintiff's papers in opposition to Defendants' motion for summary judgment reveal dozens of ad hominem attacks on Assistant Attorney General James J. Seaman (an officer of this Court), including the use of the words "pestering," "petty," "puerile," "ego[tisical]," "vapid," "ethically challenged," "equivocal," "deceitful," and "brazenly lying." (Dkt. No. 42, Part 3, at 5-6, 8; Dkt. No. 42, Part 1, at 5-7, 9, 12, 32.) Plaintiff's Objections are similarly peppered with ad hominem attacks against the Honorable George H. Lowe, including the use of the words, "maudlin," "inane," "contrived," "phony," "Paleolithic," "hysterical," "blatant lie," "deceitful," "palpable bias," "corrupt," "court[]jester," and "buffoon[]." (Dkt. No. 49, at 5, 7, 16, 22, 26, 29, 31, 33-37.)

While the Court is certainly sympathetic with the stress and frustrations that accompany the litigation process, the Court reminds Plaintiff that such language in submissions to the Court is never tolerable--by either counsel or pro se litigants.*fn39 Although the Court does not see a need at this time to sanction Plaintiff for his abusive conduct, the Court cautions Plaintiff that he will be sanctioned without further warning for any such future abusiveness in submissions to the Court, including the striking of any submission containing such abusive language and/or the imposition of a monetary penalty against him.*fn40

IV. ANALYSIS OF PLAINTIFF'S CROSS-MOTIONS

The Court liberally construes Plaintiff's Objections as containing specific objections to (1) Magistrate Judge Lowe's recommendation that the Court deny his cross-motion for summary judgment, and (2) Magistrate Judge Lowe's Order denying his cross-motion to compel discovery.

(See Dkt. No. 49, at 2, 20, 31-34, 37 [Plf.'s Obj., arguing that Magistrate Judge Lowe should have entered summary judgment in Plaintiff's favor out of special solicitude to him, and that Magistrate Judge Lowe wrongfully denied Plaintiff's request to reopen discovery on November 23, 2007].) However, the Court does not liberally construe Plaintiff's Objections as containing a specific objection to Magistrate Judge Lowe's Order denying his cross-motion for leave to amend his Complaint. (See generally Dkt. No. 49.)

Reviewing de novo those parts of Magistrate Judge's Lowe's Report-Recommendation that addresses Plaintiff's cross-motion for summary judgment and his cross-motion to compel discovery, and reviewing for clear error the part of Magistrate Judge Lowe's Report-Recommendation that addresses Plaintiff's cross-motion for leave to amend his Complaint, the Court can find no error (clear or otherwise) in any of those parts of the Report-Recommendation.*fn41 The Court reaches these conclusions for the reasons stated by Magistrate Judge Lowe in Parts IV.A., IV.B. and IV.C. of his Report-Recommendation. (Dkt. No. 47, at 102-111.)

As a result, the Court adopts and affirms Magistrate Judge's Lowe's Report-Recommendation insofar as it addresses Plaintiff's three cross-motions.

ACCORDINGLY, it is ORDERED that Magistrate Judge Lowe's Report-Recommendation (Dkt. No. 47) is ADOPTED as modified by Plaintiff's withdrawal of certain claims and his introduction of new evidence in his objections; and it is further

ORDERED that Defendants' Motion for Summary Judgment (Dkt. No. 39) is GRANTED in part, and DENIED in part, in the following respects:

1. Plaintiff's excessive-force claim against Defendant Cushman is not dismissed;

2. Plaintiff's excessive-force claim against Defendant McAdam is not dismissed;

3. Plaintiff's failure-to-protect claim against Defendant Cushman is voluntarily dismissed without prejudice under Fed. R. Civ. P. 41(a)(2);

4. Plaintiff's failure-to-protect claim against Defendant Sobek is voluntarily dismissed without prejudice under Fed. R. Civ. P. 41(a)(2);

5. Plaintiff's failure-to-protect claim against Defendant Snyder is not dismissed;

6. Plaintiff's failure-to-protect claim against Defendant McAdam is voluntarily dismissed without prejudice under Fed. R. Civ. P. 41(a)(2);

7. Plaintiff's Section 1983 conspiracy claims against Defendants Sobek, Snyder, Cushman, and McAdam are dismissedwith prejudice under Fed. R. Civ. P. 56;

8. Plaintiff's Section 1985 conspiracy claims against Defendants Sobek, Snyder, Cushman, and McAdam are dismissed with prejudice under Fed. R. Civ. P. 56.

9. Plaintiff's false-misbehavior-report claim against Defendant Sobek is sua sponte dismissed without prejudice under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b);

10. Plaintiff's false-misbehavior-report claim against Defendant McAdam is dismissedwith prejudice under Fed. R. Civ. P. 56;

11. Plaintiff's retaliation claim against Defendant Emrich is dismissedwith prejudice under Fed. R. Civ. P. 56;

12. Plaintiff's retaliation claim against Defendant Sobek is sua sponte dismissed without prejudice under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b);

13. Plaintiff's two procedural due process claims against Defendant Don are dismissedwith prejudice under Fed. R. Civ. P. 56;

14. Plaintiff's procedural due process claim against Defendant Williams is dismissedwith prejudice under Fed. R. Civ. P. 56;

15. Plaintiff's claims against Defendants Williams and Don under Article 1, Section 6 of the New York State Constitution are dismissedwithout prejudice under Fed. R. Civ. P. 12(b)(1) and 12(h)(3);

16. Plaintiff's inadequate-prison-conditions claim against Defendant Sheridan is dismissedwith prejudice under Fed. R. Civ. P. 56;

17. Plaintiff's harassment claim against Defendants McAdams, Emrich and Sheridan is dismissedwith prejudice under Fed. R. Civ. P. 56;

18 Plaintiff's inadequate-medical-care claim against Defendant Kasulke is dismissed with prejudice under Fed. R. Civ. P. 56;

19. Plaintiff's access-to-courts claim against Defendant Cornelius is dismissed under with prejudice Fed. R. Civ. P. 56;

20. Plaintiff's access-to-courts claims against Defendants Emrich and Don are sua sponte dismissed without prejudice under Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b); and

21. Plaintiff's claims against the Defendants designated as John Doe #1, John Doe #2, and John Doe # 3 are dismissed without prejudice under Fed. R. Civ. P. 41(b) and Fed. R. Civ. P. 4(m); and it is further

ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED except for (1) his claims against Defendants Cushman and McAdam alleging excessive force, and (2) his claim against Defendant Snyder alleging failure to protect, which shall be SET DOWN FOR TRIAL; and it is further

ORDERED that Plaintiff's Cross-Motion for Summary Judgment (Dkt. No. 42) is DENIED; and it is further

ORDERED that Magistrate Judge Lowe's Order denying Plaintiff's Cross-Motion to Compel Discovery and his Cross-Motion to File an Amended Complaint (Dkt. No. 42) are AFFIRMED; and it is further

ORDERED that the Clerk of the Court shall serve a copy of this Order upon all parties.


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