UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
March 20, 2009
ELLIS DOUGLAS, PLAINTIFF,
JOSEPH T. SMITH, SUPERINTENDENT, SHAWANGUNK CORRECTIONAL FACILITY; J. RAE, SERGEANT; M. KETZER, CORR. OFFICER; R. CROSS, CORR. OFFICER; G. KARASMANOS, CORR. OFFICER; M. SUTTON, CORR. OFFICER; MCGUIRE, CORR. OFFICER; AND R.N. SKIES, NURSE, DEFENDANTS.
The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
MEMORANDUM-DECISION and ORDER
On August 8, 2005, Ellis Douglas ("Plaintiff") filed this pro se prisoner civil rights action pursuant to 42 U.S.C. § 1983, against nine employees of the New York State Department of Correctional Services ("Defendants"), alleging that they violated his constitutional rights under the First, Fourth, Eighth and Fourteenth Amendments. (Dkt. No. 1.) On February 14, 2008, Senior U.S. District Judge Lawrence E. Kahn granted in part, and denied in part, Defendants' first motion for summary judgment. In so doing, he dismissed certain of Plaintiff's claims, including all claims against three of the nine Defendants--namely, Correctional Officer R. Davies, Superintendent Joseph T. Smith and Nurse Skies. (Dkt. No. 54, at 2, adopting Dkt. No. 53, at 21-23, 29-31.)*fn1 Remaining in the action after Judge Kahn's Decision and Order were only Plaintiff's Eighth Amendment excessive force claim against six Defendants, including J. Rae.
Currently before the Court are (1) Defendant Rae's second motion for summary judgment (Dkt No. 68), and (2) United States Magistrate Judge David R. Homer's Report-Recommendation that Defendant Rae's motion be granted (Dkt. No. 81). Plaintiff has filed, through counsel, timely Objections to the Report-Recommendation. (Dkt. Nos. 82-85.) For the reasons set forth below, the Report-Recommendation is adopted and accepted in its entirety, Defendant Rae's second motion for summary judgment is granted, and Plaintiff's claims against Defendant Rae are dismissed.
I. STANDARD OF REVIEW
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).*fn2
When only general objections are made 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).*fn3 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.); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Edition. 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).
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[s] the absence of any genuine issue of material fact." Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). This burden has appropriately been characterized as "modest."*fn4 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 largely 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
III. RELEVANT BACKGROUND
On July 3, 2008, Defendant Rae filed his second motion for summary judgment. (Dkt. No. 68.) In his motion papers, Defendant Rae gave Plaintiff sufficient notice of the consequences of failing to properly oppose his motion. (Dkt. No. 68, Part 1.) Moreover, in Defendant Rae's first motion for summary judgment, he gave Plaintiff a similar notice, and attached the Northern District's form "Notification of the Consequences of Failing to Respond to a Summary Judgment Motion." (Dkt. No. 41, Part 1.) Plaintiff's response to Defendant Rae's second motion for summary judgment was due on July 29, 2008. (See Docket Entry for 7/3/08.)
On July 10, 2008, Attorney Gregory J. Teresi (who had been appointed Plaintiff's trial counsel on March 12, 2008), sent Plaintiff a letter, advising him that he was Plaintiff's counsel only for purposes of trial. (Dkt. No. 69; see also Dkt. No. 56, at 1 & n.1.) In the letter, Attorney Teresi specifically advised Plaintiff, "[I]t is still your responsibility to respond to [Defendant Rae's second motion for summary judgment] if you so choose unless Judge Kahn issues an Order . . . [expanding the scope of] my assistance [to you]." (Dkt. No. 69.) Later that month, on July 28, 2008, Attorney Teresi sent Judge Kahn a letter regarding a pre-trial motion, at the end of which he requested, on Plaintiff's behalf, an extension of the deadline by which Plaintiff had to respond to Defendant Rae's second motion for summary judgment. (Dkt. No. 72.)
It does not appear that the request for an extension was ever decided. (See generally Docket Sheet.) Rather, it appears from the Court's internal notes that, on September 15, 2008, Attorney Teresi was contacted by Magistrate Judge Homer's Chambers regarding the possibility of his filing a response, on behalf of Plaintiff, to Defendant Rae's second motion for partial summary judgment. During that conversation, it appears that Attorney Teresi advised Judge Homer's Chambers of the following: (1) a telephone conference between Attorney Teresi and Plaintiff was scheduled for September 29, 2008, during which Plaintiff was expected to confirm his intent to withdraw the claim against Defendant Rae, which was at issue in Defendant Rae's second motion for summary judgment; and (2) after that telephone conference on September 29, 2008, Attorney Teresi would contact Judge Homer's Chambers to advise Judge Homer whether Plaintiff has confirmed his intent to withdraw the claim (in which case Defendant Rae's motion would be moot), or whether the claim would go forward (in which case, Attorney Teresi would file a response to the motion). The Court's notes also reflect that, in the event the claim would go forward, a response date would be set by the Court.
The docket sheet reflects no further communication from either Plaintiff or Attorney Teresi for the next three months (except a change-of-address notice filed by Plaintiff). (See Docket Sheet.) As a result, on January 26, 2009, Magistrate Judge Homer issued his Report-Recommendation on Defendant Rae's second motion for summary judgment. (Dkt. No. 81.)*fn10 In that Report-Recommendation, Judge Homer expressly and repeatedly found that Plaintiff had not opposed the motion. (Id. at 2 & n.3.)
On February 2, 2009, Attorney Teresi filed, on Plaintiff's behalf, Objections to the Report-Recommendation. (Dkt. No. 82.) Generally, in his Objections, Plaintiff argues that Defendant Rae's motion should be denied for three alternative reasons: (1) Defendant Rae's faulty Rule 7.1 Statement precludes him from meeting his threshold burden in support of that motion; (2) neither the "favorable termination" rule nor the doctrine of collateral estoppel preclude Plaintiff's claim against Defendant Rae; and (3) Plaintiff has adduced admissible record evidence that his Eighth Amendment excessive force claim against Defendant Rae arises from Defendant Rae's use of force after Plaintiff was placed in handcuffs, and Defendant has not adduced any admissible record evidence controverting that fact. (Id; see also Dkt. Nos. 83-85.) In addition, Plaintiff argues that, under the circumstances, the Court should consider Attorney Teresi's Rule 7.1 Response, Opposition Memorandum of Law, and Attorney Declaration and Exhibits. (Id.)
When Magistrate Judge Homer prepared his Report-Recommendation on Defendant Rae's second motion for summary judgment, he was considering an unopposed motion. As a result, assuming that Plaintiff had received adequate notice of the consequences of failing to properly oppose Defendant Rae's second motion for summary judgment,*fn11 all that Defendant Rae needed to do to succeed on his motion was "demonstrate entitlement" to the relief requested.*fn12
An inquiry into whether a movant has met its "burden to demonstrate entitlement" to the relief requested under Local Rule 7.1(b)(3) is a more limited endeavor than a review of a contested motion.*fn13 This is because, as a practical matter, the burden requires only that the movant present an argument that is "facially meritorious."*fn14 After conducting a de novo review of Magistrate Judge Homer's Report-Recommendation, the Court concludes that Judge Homer correctly found that Defendant Rae had met his lightened burden on his unopposed motion.
The Court rejects Plaintiff's argument that (purported) defects in Defendant Rae's Rule 7.1 Statement preclude him from meeting his threshold burden in support of his motion. As required by Local Rule 7.1(a)(3), Defendant Rae's Rule 7.1 Statement set forth, in eight (8) numbered paragraphs, each material fact about which Defendant Rae contended there exists no genuine issue, and supported each factual assertion with a specific citation to the record where the fact was established. (Dkt. No. 68, Part 9.) In his Objections, Plaintiff does not contest these facts. (Dkt. No. 83, ¶ 1 [Plf.'s Proposed Rule 7.1 Response, admitting the facts in question].) Rather, he contends that the facts were not "complete," as required by Local Rule 7.1(a)(3). (Dkt. No. 82, at 1; Dkt. No. 84, at 2-3.) Specifically, he argues that Defendant Rae "blatant[ly]" and "plainly ignored" the fact that the "barrage of kicks" that Defendant Rae allegedly inflicted on Plaintiff were inflicted--not before Plaintiff was handcuffed (as is assumed in Defendant Rae's Rule 7.1 Statement), but after Plaintiff was handcuffed. (Dkt. No. 83, ¶ 2; Dkt. No. 84, at 5.)
The Court finds that Defendant Rae's Rule 7.1 Statement was sufficiently "complete" in order for him to meet his modest threshold burden under Local Rule 7.1(a)(3). Defendant Rae addressed what he asserts to be Plaintiff's version of the incident, in Paragraph 3 of his Rule 7.1 Statement. Plaintiff may disagree with whether that account is accurate. However, that disagreement does not render the Rule 7.1 Statement "incomplete" for purposes of Local Rule 7.1(a)(3).
Furthermore, it should be emphasized that, when Defendant Rae implied in Paragraph 3 of his Rule 7.1 Statement that the "barrage of kicks" were inflicted before Plaintiff was handcuffed, Defendant Rae was merely quoting from Paragraph 17 of Plaintiff's own Complaint. (Dkt. No. 68, Part 9, ¶ 3.) Paragraph 17 of Plaintiff's Complaint, which is verified, contains Plaintiff's sworn assertions regarding when the "barrage of kicks" were inflicted. (Dkt. No. 1, ¶ 17.) Moreover, Paragraph 18 of Plaintiff's Complaint starts with the words, "Officer Cross then jumped on Douglas['] back as Ketzer tightly cuffed Douglas['] wrist." (Id. at ¶ 18.) As a result, Plaintiff's own Complaint swears that the "barrage of kicks" were inflicted before the handcuffing of Plaintiff. This sworn assertion is implicitly echoed in Paragraph 28 of Plaintiff's Complaint, which refers to the handcuffing after referring to the kicking. (Id. at ¶ 28.) Simply stated, under the circumstances, Defendant Rae did not have a duty to cite Plaintiff's deposition transcript in order to render his Rule 7.1 Statement "complete" for purposes of Local Rule 7.1(a)(3).*fn15
Turning to Plaintiff's arguments regarding the "favorable termination" rule and the doctrine of collateral estoppel, the success of both of these arguments depends on the Court's willingness to (1) accept as timely Plaintiff's Rule 7.1 Response, and (2) permit the expansion of the record before the Court to include Plaintiff's deposition transcript. (Dkt. No. 84, at 3-5.) Plainly stated, those two things are the vehicles by which Plaintiff attempts to bring before the Court evidence that Plaintiff continued to be kicked by Defendant Rae after he was handcuffed. (Id.)
As an initial matter, the Court declines--at this late stage of its decision of Defendant Rae's motion--to accept as timely Plaintiff's Rule 7.1 Response, and permit the expansion of the record before the Court to include Plaintiff's deposition transcript.*fn16 Plaintiff should have presented these materials to Magistrate Judge Homer for his review and consideration. Plaintiff does not argue that his deposition transcript was not previously available to him during the time period in which he had to respond to Defendant Rae's motion, nor does he proffer any justification (reasonable or otherwise) for his failure to present it (along with his Rule 7.1 Response) to Judge Homer. (Dkt. Nos. 82-85.)*fn17 To permit Plaintiff to introduce these materials now, without sufficient justification, would undermine the purpose (and work) of magistrate judges, encourage neglectful behavior by non-movants, and deprive Defendant Rae of an opportunity to reply to the evidence.*fn18
In any event, even assuming that the Court were to inclined to consider Plaintiff's deposition testimony at this late stage of deciding Defendant Rae's motion (which, again, it is not inclined to do), the Court would find that deposition testimony insufficient to create a genuine issue of material fact. In his motion papers, Defendant Rae met his modest threshold burden of showing that Plaintiff's conviction precludes his excessive force claim against Defendant Rae (because of the "favorable termination" rule and/or the doctrine of collateral estoppel). As a result, the burden shifted to Plaintiff to adduce admissible record evidence from which a rational fact-finder could conclude that his criminal conviction for attempted assault in the second degree on June 30, 2004, did not preclude his excessive force claim (because that conviction did not resolve, to his detriment, his claim that Defendant Rae kicked him after he was handcuffed). Even with the benefit of his deposition transcript, Plaintiff would fail to meet this burden. (See generally Dkt. Nos. 82-85.)
The plea allocution between the Court and Plaintiff states that, "by pleading guilty to the reduced charge of attempted assault in the second degree, you are admitting that . . . on or about the 30th day of June, 2004, with intent to prevent a [peace] officer from performing a lawful duty, you attempted to cause physical injury to that peace officer, that being Sergeant John Rae of the Shawangunk Correctional Facility." (Dkt. No. 68, Part 6, at 5-7 [attaching pages "4" to "6" of Plaintiff's plea allocution].) In the portion of the deposition transcript adduced by Plaintiff during his Objection, there is no testimony that Plaintiff's conviction did not partially arise out of, or resolve the lawfulness of, Defendant Rae's alleged kicking Plaintiff after he was handcuffed, and while he was on the ground continuing to resist arrest.*fn19
For all of these reasons, the Court rejects Plaintiff's arguments.
ACCORDINGLY, it is ORDERED that Magistrate Judge Homer's Report-Recommendation (Dkt. No. 81) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant Rae's second motion for summary judgment (Dkt. No. 68) is GRANTED, and that judgment be entered in favor of Defendant Rae as to all claims against him; and it is further
ORDERED that the Clerk of the Court shall amend the docket sheet to indicate that Plaintiff's claims against Superintendent Smith and Nurse Skies were terminated on February 14, 2008.